A Study Of Victim Compensation In India By - Bhupender Singh Antil & Deepak Bedi

A Study Of Victim Compensation In India

Authored By - Bhupender Singh Antil 

& Deepak Bedi

INTRODUCTION

Now is the time for the criminal justice system to provide adequate compensation so that they can assist the victim in mending and healing injury caused by the crime. These are the persons who have suffered emotionally, physically, and financially as a result of such a crime. Thus, it is critical for the criminal justice system to focus on the victims' conditions rather than on the criminals. Further, they have to be more concerned with the victims' deteriorating conditions. They assist the state in punishing offenders; they have also become the focal point of the criminal justice system.

With the turn of the century, rehabilitating the victim and/or their family has been an established part of the law under Article 21. "Constitutional remedy," i.e., by claiming a writ jurisdiction, previously restricted the victim's remedy in terms of compensation. As a result, a mechanism for paying victims independently of the outcome of criminal prosecution was required. For this reason, the Criminal Procedure Code of 1973 was amended by adding Section 357 A.[1]

Justice must be restorative for the victim and restorative for the offender. Because of this, it is only fair that the victim receive some form of reparation, whether it be monetary or otherwise. Compensation under Article 21 has traditionally taken the form of a public law remedy.[2] Where the State or other authorities failed to protect a person's life, dignity, or freedom, the Hon'ble Supreme Court has ordered monetary compensation and rehabilitative settlements to be paid to the victims.[3]

GLOBAL TRENDS IN VICTIM COMPENSATION

POSITION IN UK

In the 1950s, Margery Fry, a prominent English penal reformer, considered victims' lack of access to appropriate remedies. This marked the beginning of official victim compensation programmes in the United Kingdom. The British Parliament began yearly authorising funding for a non-statutory programme in 1964. The Criminal Inquiries Compensation Act of 1955 gave this legal standing. As a result, the Criminal Justice Act of 1982 mandated the courts either issue an order for compensation in all cases of death, injury, loss, or damage, or record their justifications for not doing so.[4]

POSITION IN USA

"Mental hurt" and "emotional injury" are included in the definition of injury in several American statutes. Most states also cover the cost of mental health counselling for those who have not been physically or sexually harmed. Yet, many states still don't include "non-physical" ailments since doing so would make it easier for people to make false claims and raise administrative expenses.[5]

Pain and suffering are not covered by the Victims of Crime Act of 1992. The State is not obliged to pay victims since it is not the tortfeasor, which is the rationale offered. But, in Tennessee, "taking into consideration the special circumstances involved in such crime," such compensation is only due to victims of rape and offences involving sexual deviancy.[6]

POSITION IN INDIA

Criminal Process Code Section 357 may be traced back to Article 545 of the original Criminal Procedure Code, which was enacted in 1898. Nevertheless, the scope and applicability of this Section shall apply to any compensation order made by the trial court, the Appellate Court, the High Court, or the Court of Session in the exercise of their revisional power. Under this clause, the Hon'ble Supreme Court can also issue restitution orders.

There are just four specific situations in which this Section applies. This money might be given to the complainant to help cover the costs of the prosecution. Any victim of the crime who has incurred financial damages may likewise seek restitution from the above-mentioned courts. When a person is found guilty of causing death or the abatement thereof, the court has the authority to pay damages to the victim under the Fatal Accidents Act. Theft, criminal misappropriation, criminal breach of trust, deceit, or receiving, keeping, or disposing of stolen goods are all under the purview of Section 357, as courts may award restitution to the rightful owner and recompense to the buyer who paid fair market value for the item. Paragraph (3) of Section 357 gives the court the authority to impose restitution even if a monetary fine is not part of the specified sentence.

In 2008, twenty years after the UN Declaration in 1985, India amended section 357A of the Criminal Procedure Code to mandate the provision of VCS. Since then, VCS systems have been developed. As we've seen, though, each of these plans comes with its own problems and gaps.

With the implementation of section 357A, many VCS schemes emerged, with varying levels of compensation paid for comparable offences. CVCF Guidelines were released in 2015 and revised in 2016 to address this discrepancy. Distributions to States and UTs under their VCSs will come from the CVCF, which has been established.

It's not really fair to judge India's VCS against those of the United Kingdom and the United States right now. When it comes to this, India is just getting started. India, on the other hand, may learn from the best parts of the systems in the United Kingdom and the United States. If we look closely, we can observe that the finest parts of victim services are the programmes' accessibility, simplicity, and concern for the welfare of victims. There is convenient access to data about available victim care programmes. Victims' rights are widely discussed and everyone are urged to pitch in as these nations develop victim services. The countries' initiatives show their empathy for those who have been victimised by crime. The VCS was drafted by India's states and union territories without any concerted effort to raise public awareness of its existence. Compensation is important, but there are other factors to consider as well. Instead, a holistic strategy should be adopted to improve the efficiency of the VCS's execution and make the schemes more victim-friendly. The plans must not become a "paper tiger," or an ineffective and useless piece of paper. Instead, they should help the victims of crime who need relief.

Money damages are not enough to aid crime victims in India, thus the country must take action to improve their access to social services. Regarding victim assistance, India is well behind the United Kingdom and the United States. When we examine the current VCS in India, we discover that Odisha and Meghalaya have plans that address supplementary services. Victims of crime must have access to adequate support services in order for them to recover fully and once again become a productive member of society.

PROVISIONS UNDER VARIOUS LAWS IN INDIA

CODE OF CRIMINAL PROCEDURE, 1973

Section 357- Order to Pay Compensation

Every compensation order issued by a Trial Court, Court of Session, appellate court, or High Court exercising its revision power is subject to Section 357 and its provisions. Under the terms of this provision, the Supreme Court may also issue monetary judgements.

There are four conditions under which this Section cannot be put into effect. The complaint may seek such damages in order to meet any legal obligations and pay for the legal proceedings. At these appropriate Courts, victims of the crime may file claims for compensation for their losses. After a conviction for causing death or abatement, these courts have the authority to award reparations to the victim as required by the Fatal Accidents Act.

Moreover, property damage falls under Section 357's purview. The courts have the jurisdiction to compensate the legitimate buyer of property that has been the subject of a theft, criminal breach of trust, deceit, misappropriation, or the acquisition, retention, or disposition of stolen goods, and which has been ordered returned to the legitimate owner.

The court can nonetheless order restitution even if a fine isn't part of the penalty outlined in Section 357.

Section 357A- Victim Compensation Scheme

In its 154th amendment, the Law Commission expressed disappointment that the government had not taken into account or followed its earlier recommendations.

To put Section 357 into practise, a new provision, Section 357A, was enacted.

Before the passage of 357A, the victim owed no responsibility and may only seek compensation after the conviction of the offender.

In 2009, the federal government mandated that each state create a plan for providing financial assistance to victims of disasters. This plan must be in line with the Federal Government's overall Strategy for Victim Compensation.

The primary objective of the programme is to provide financial compensation to the victim or his dependents for losses or injuries sustained as a direct result of criminal activity and for the costs associated with the victim's recovery.

Treatment of Victims

The following sections of the Indian Criminal Code mandate that all public and private hospitals, whether administered by the Central Government, the State Government, local governments, or any other person, provide free first aid and medical care to victims of any offence:

Section 376- (Rape)

Section 376A- (intercourse by a man with his wife during separation)

Section 376 B- (intercourse by a public servant with a woman in his custody), 376 C (Intercourse by superintendent of jail or a remand home), 376 D (intercourse by any member of the staff of a hospital with any woman in that hospital) of the Indian Penal Code.

Section 376 C- (Intercourse by superintendent of jail or a remand home),

Section 376 D- (intercourse by any member of the staff of a hospital with any woman in that hospital) of the Indian Penal Code.

Section 358: Compensation to persons groundlessly arrested

Anybody wrongfully arrested is entitled to compensation under this provision. For this clause to apply, there must be a clear connection between the complaining witness and the subsequent arrest.

If there aren't any valid reasons to make an arrest, then something special must happen to initiate it. It has been stated that the Magistrate has the discretion to provide compensation to the victim in the sum of Rs 1,000 in such a situation.

Section 359: Order to pay costs in non-cognizable cases

If a court receives a complaint for a Non-cognizable offence and the accused is found guilty, the case will be dealt with in this section.

The provision says that the Court of Session, an Appellant Court, or the High Court can issue a costs order during the exercise of their revision competence.

The court can even have the defendant reimburse the plaintiff for any or all of the legal fees they expended to bring the case to trial.

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

The Protection of Women from Domestic Violence Act of 2005 was a monumental victory for victims of domestic abuse after 16 years of battle.

Domestic violence can take many forms, including physical, sexual, verbal, and emotional abuse. In the case of Smt. Haimanti Mal v. The State of West Bengal[7], Trauma from physical abuse was treated and paid for i notwithstanding the absence of medical records (2019).

The Calcutta High Court ruled that the victim should be compensated Rs. 1,00,000 for mental torture and emotional distress in accordance with Section 22 of the Protection of Women from Domestic Violence Act, 2005.

The uniqueness of this law lies in the fact that it permits the victim to keep using the resources to which he or she is entitled because of the presence of a domestic relationship, such as continuing to utilise the joint residence.

PREVENTION OF CASTE-BASED VICTIMIZATION AND PROTECTION FOR VICTIMS

One such law, passed in 1989, is called the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. This law's goal is to end discrimination and violence against members of the Scheduled Castes and Tribes.

The victims of some atrocities are entitled to restitution under this law, as well as a variety of other reliefs that vary with the nature of the crime. Restitution ranges from Rs. 25,000 to Rs. 2,00,000 depending on the gravity of the offence.

THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007

This novel law was created to address a growing problem in several countries, including India: the abuse and persecution of the elderly.

If a parent or elderly person over the age of 60 is unable to provide for themselves financially, their children or adult legal heirs have a legal responsibility to do so. The Tribunal has the ability to make an order compelling the senior's children or legal heirs to furnish a monthly stipend if they refuse to provide care.

PROBATION OF OFFENDERS ACT, 1958

Compensation for victims of crime is provided for under Section 5(1) of the Probation of Offender Act, 1958.

If the Court releases the offender under Section 3 or Section 4 of the Act, the Court may additionally order the accused to pay the victim suitable compensation for the loss or harm suffered by the victim and the cost of the proceedings, as determined by the Court.

MOTOR VEHICLE ACT, 1988

The offender is required to pay damages to the victim of a vascular accident, or their legal agent if the victim has passed away, under Section 5 of the Motor Vehicle Act of 1988. But, no one except the court can make decisions on this.

CENTRAL VICTIM COMPENSATION SCHEME

Central Victim Compensation Program was introduced by the Ministry of Home Affairs in August 2015, increasing the amount of compensation available for victims of rape and sexual assault by 100%.

Ladies on the other side of the border who are handicapped in some way were also mentioned.

It was decided that victims of acid assaults and rape would receive Rs. 3 lakh in compensation, while victims of human trafficking would receive Rs. 1 lakh.

If the victim was younger than 14, their compensation had to be increased by half the amount mentioned.

All states have modified the programme in line with the central government's orders, with the exception of Arunachal Pradesh, Assam, Chhattisgarh, Himachal Pradesh, Karnataka, Tamil Nadu, and Uttar Pradesh.

GENDER RELATED ASPECTS OF VICTIM COMPENSATION

Prof. Rashida Manjoo, the UN Special Rapporteur on Violence against Women, has brought a feminist lens to the question of state accountability in terms of victim compensation.[8] Special Rapporteur's Report on the Convention on the Elimination of All Forms of Discrimination Against Women states that the State is obligated to create criminal, civil, labour, and administrative consequences under domestic legislation to offer reparations to women who have been victims of abuse.[9] Transnational justice for gender-sensitive reparations should be the ultimate goal of the legislation. Realizing this requires states to make ongoing efforts to include women in legislative improvements via open dialogue and deliberation. Restitution must have a rehabilitative rather than punitive purpose. It has to do everything it can to get the victim back to where they were before.

There has to be a shift in the gender viewpoint when it comes to victim compensation, since studies have shown that discussions centred on women's experiences of violence are more constructive and cathartic than those centred on men's.

CONCLUSION AND RECOMMENDATIONS

The notion of victim compensation is very new and tentative in India. The courts no longer adhere to the antiquated practise of restricting victim support to the monetary punishment imposed on the prisoner, but there is still a long way to go until victims from all walks of life are given the assistance they need.

The evolution of victim-centric jurisprudence must go beyond legal necessity, giving participating instruments the leeway to respond to a victim's unique set of circumstances. The victim's rehabilitation must be a tangible result of the compensation awarded. Consequently, a complete Victim Compensation Plan should include legal aid, counselling, and social reintegration services for victims. A good victim compensation plan, in addition to delineating the roles of various parties, must allow for transparent budget expenditure and an accountability mechanism. It is imperative that the state's coffers be well-stocked in the event of an emergency and that the victim be given financial help for any necessary expenses. There has to be a system in place for collecting and tracking donations from people all around the world and from international organisations.

The State and the courts must enter into a happy union under Section 357 and Section 357A of the CrPC in order to help the victim. In addition, it has to change to account for situations in which states have either not notified effective schemes or have notified systems that are unsuccessful. The legislature should take into account the possibility that the Law Commission's perspective is restricted by academic expertise, and as a result include victims and other stakeholders in the lawmaking process. While the focus of this article is on scholarly research and case studies, much may be learned by collecting and analysing data on victim applications, complaints, and accounts.

India's criminal justice system needs a complete overhaul so that it may become more inquisitive about crime, sensitive to victims' needs and the social stigma associated with crime, and aware of recent advancements in human rights law throughout the world. It is our duty as upstanding members of society to continuously impress upon the mind of justice the sacred duty it has to aid in the recovery of a victim.

RECOMMENDATIONS

It goes without saying that multiple flaws in the existing general set of compensation laws have been disclosed by the combination of the comprehensive regulative worldview and the absence of legal certainty, making it essential to rethink the entire overall set of laws all at once.

The required modifications are as follows:

• The legislature should take into consideration the recommendation made by the Indian Law Commission in its 42nd report on the Indian Criminal Code, and it would be better if the commission's member, Judge R.L. Narsimha, was also taken into account.
• It is important that the legislation mandates the recording of the reasons for not awarding or affording compensation, just as it does for the capital punishment in the Criminal Procedure Code.
• The law also has to account for institutional frameworks that are common in Western nations. If this is the case, it is prudent to compensate the victim automatically.

[1] Code of Criminal Procedure Act, 1973.

[2] The Constitution of India, 1950.

[3] Nilabati Behera vs. State of Orissa, MANU/SC/0307/1993

[4] Delhi Domestic Working Women's Forum v Union of India and Ors. (1995) 1 SCC 14; Oxford Handbook of Criminology, p.1237-1238 (1994).

[5] Texas Criminal Procedure Code, 1994 (United States).

[6] Tennessee Code Annotated, 1994 (United States).

[7] C.R.R. No. 3907 of 2016.

[8] U.N.H.C.R, Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo, (2010) UN Doc A/HRC/14/22.

[9] CEDAW, art. 4 (d).