Compensatory Justice- Efficacy of Victim Compensation Scheme

Compensatory Justice- Efficacy of Victim Compensation Scheme | Overview

• Introduction
• Victim in Criminal Justice System: A Forgotten Actor
• The Notion of Victim Compensatory rights
• Current Scenario of Indian Law
• Victim and The Constitution of India
• Victim and the Criminal Justice System
• Statutory Scheme for Compensation
• Critical Analysis of Section 357A
• Position Prior To The Amendment
• Position Post Amendment
• Conclusion
• Suggestions

This article is an attempt to understand the efficacy of Victim Compensation and the rights they are entitled to, by especially focusing on the present Criminal Justice system in India. The recognition of the issue in its legal context stands very important in the democratic country like India where the constitution incorporates provision towards ‘right to life’ of an individual under Article 21 along with the duty of the state towards securing the rights of the victims under Directive Principles of state policy.

“You could secure a role that makes a profound and direct impact on the lives of those affected by crime, every day” –Kate Wallace, CEO of Victim Support Scotland

Compensation as a criminal remedy has been implicated as a punitive measure throughout history. The framework of justice in India has always been inattentive towards the rights of the victims of a crime because the ambit of justice fixated by the Indian judiciary is largely concerned only with the conviction of the accused. However, with the increase in realization towards the importance of the study on the position of the victim in the criminal justice system, the role of the victim has been revived with the introduction of Victim Compensation Schemes.

Introduction

The traditional criminology was not much concerned about the Victim and the compensatory jurisprudence for a quite long time. The notion of the Victim’s rights evolved in India following the United Nation’s Declaration of Basic Principles of Crime and Abuse of Power, 1985 during the last few decades.

Since then, with the realization of the importance of the position of the victim in the criminal justice system, the role of the victim has been revived with the introduction of compensatory rights for victims of crime. Compensatory rights is the principal aspect of victim support and assistance and functions as a method of serving the rights of victim by paying an adequate amount of compensation for the wrongful injuries suffered by the person or his property. The Indian Judiciary has also time and again regarded compensatory rights for victims as their fundamental right under Article 21 of the Indian Constitution, being an integral part of ‘right to life’.

However, the constitutional safeguard under the umbrella of fundamental rights[1] and Directive Principles of State Policy[2] did not prove sufficient in ameliorating the conditions of the victim. Therefore, the subsequent introduction of the mechanism for statutory compensation to the victims of crime led to the incorporation of Section 357A in the Code of Criminal Procedure, 1973. The provision made it obligatory for the state to secure the rights of victims by providing adequate compensation against the loss incurred.

I. Victim in Criminal Justice System: A Forgotten Actor

The criminal justice system has always been inconsiderate towards the victim of crime throughout the world. In India also, the ambit of justice fixated by the judiciary is largely concerned only with the conviction of the accused and thus it is not wrong to say that victim has been the ‘forgotten actor’ in a crime. For a quite long time, the victims of a crime have been forsaken due to a lack of awareness about the important role that they play in a Criminal Justice system.

It is said that if the victims feel that they are getting unfair treatment or the system is little concerned with their rights or due to distortion of reality and unsatisfactory decisions, it results in Secondary Victimization by the justice system, which may lead to disinterest and future non-cooperation by the victim.[3]

Thus, it is to be noted that the present justice system would collapse if the ignorance towards their role continues to prevail. This necessitates the development of an empathetic justice system that will streamline the shortcomings of the existing legal framework to advance the role of victims and their rights in the present criminal justice system.

II. The Notion of Victim Compensatory rights

The modern-day emergence of the concept of Victim compensatory rights commenced in the 1950s by the social reformer Margery Fry. Fry was the first person who advocated the incorporation of compensation as a fundamental feature of the Criminal Justice system.[4]

Later in 2001, the purpose behind the concept was described as to give the victim some solace in the form of compensation for the injuries sustained, irrespective of the fact that the accused was held accountable for the loss of victim or not. The compensation was to be provided either by the accused and if he is not liable, the amount to be paid to the victim out of the public purse.[5]

The UN Declaration on Basic Principles of Justice for Victims and Abuse of Power was unanimously adopted by the General Assembly in 1985.[6] In India, the right of a victim to receive compensation was recognized under the old Code (Code of Criminal Procedure, 1898) as well but available only where a substantive sentence of the fine was imposed and limited to the amount of fine actually realized.

The declaration paved the way for acknowledgement of the substantial rights of victims of crime; the right to compensation being one of the principal aspects. India also recognized the Compensatory Rights of the Victim by incorporating the provision under the Code of Criminal Procedure, 1898. Following the principles enumerated in the 1985 UN declaration, a statutory scheme of compensation payable by the state was enacted.[7]

III. Current Scenario of Indian Law

The present criminal justice system is based on the assumption that the claims of a victim of crime are sufficiently satisfied by the conviction of the offender.[8] The Malimath Committee headed by Justice V.S Malimath submitted its report in 2003 on the Reforms of Criminal Justice System. The report suggested a holistic justice system for the victims by allowing, among other things, participation in criminal proceedings as also compensation for any loss or injury.[9]It was perceived that ‘justice to victims’ is one of the fundamental imperatives of criminal law in India.[10]

Besides the provisions of Code of Criminal procedures dealing with the compensatory rights of victims of crime, there are other statutory provisions in India under which compensation may be awarded to such victims for the loss sustained, namely:

1. Fatal Accidents Act, 1855
2. Motor Vehicles Act, 1988
3. Probation of Offenders Act, 1958; and
4. Constitutional remedies for human rights’ violations
5. Criminal Procedure Code, 1973

However, despite these statutory provisions due to the absence of a well enacted statutory scheme or comprehensive legislation that could deal with the substantial rights of the victims of a crime, there was a lack of enforcement of the rights of victims, until, the amendment brought in 2009 to the Cr.P.C. The newly added provisions under Section 357A now addresses the victim’s right to compensation, however, some inherent flaws still remain.

Victim and The Constitution of India

The Constitution of India enunciates no specific provision for the victims. However, the foundations of the principles of victimology can be traced to the Indian Constitution particularly in the fundamental rights and directive principles of state policy with an objective to ensure social and economic justice.

Article 51A is a fundamental duty of every citizen to have compassion for living creatures and to develop humanism.[11] This mandate expressly provided for in the Constitution, broadly forms the constitutional underpinnings for victimology.[12]These articles have been interpreted in an expansive manner to find support for victims of crimes.[13]

Compensatory jurisprudence then also emerged in the context of fundamental human rights and since then, the right to compensation has been interpreted as an integral part of the right to life and liberty under Art. 21. In the case of Rudel Shah v. State of Bihar the court while delivering the judgment has observed that Art 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of relief from illegal detention.[14] Such violation of the rights of the victims can be reasonably prevented by mandating the provision of the payment of compensation to the victims either out of the pockets of the offenders or public purse.

Further, there are a large number of judgments reported under Arts. 32 and 226 which deal with the compensatory rights. The right was created parallel to the constitutional interpretation of the human rights approach in order to make the human rights as well as constitutional rights meaningful together.

The Supreme Court in the case of Rabindra Nath Ghosal v. University of Calcutta and ors, has held:

“The Courts having the obligation to satisfy the social aspiration of the citizens have to apply the tool and grant compensation as damages in a public law proceeding. Consequently, when the Court moulds the relief in proceedings under Articles 32 and 226 of the Constitution seeking protection of fundamental rights and grant of compensation, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizens.”[15]

Victim and the Criminal Justice System

A comprehensive provision dealing with the compensation to the victims of crime has been provided under Section 357 of the Code of Criminal Procedure, 1973. The provision was inserted pursuant to the recommendations of the Law Commission of India in its 41^st report[16]. The section talks about the discretion of the court in passing judgment to award compensation to the victim in the interest of justice.

The power given to the courts for grant of compensation is not subsidiary to another sentence, but it is in addition thereto.[17] However, it is pertinent to note that the existing provision has been in existence for a considerable period of time yet subordinate criminal courts have not taken any significant note of the provision and have used their power liberally. The Law Commission in its report refers to this regrettable omission in the following words:

“We have a fairly comprehensive provision for payment of compensation to the injured party under section 545 of the Criminal Procedure Code. It is regrettable that our courts do not exercise their statutory powers under this section as freely and as liberally as could be desired. The section has, no doubt, its limitations. Its application depends, in the first instance, on whether the court considers a substantial fine as proper punishment for the offence. In the most serious cases, the court may think that a heavy fine in addition to imprisonment for a long term is not justifiable, especially when the public prosecutor ignores the plight of victim of the offence and does not press for compensation on his behalf.”[18]

Later, taking note of the insensitive attitude of subordinate courts, the Hon’ble Supreme Court in the case of Hari Kishan and State of Haryana v. Sukhbir Singh,[19] directed the attention of all courts to exercise their powers liberally as provided under Section 357 and to award adequate compensation to the victim of crime. The court while delivering the judgment highlighted the importance of s. 357(3) of the Cr. P.C as observed under:

“Section 357 of Cr. P.C. is an important provision but courts have seldom invoked it. Perhaps due to ignorance of the object of it, this Section of law empowers the court to award compensation while passing judgment of convicting. In addition to conviction, the court may order the accused to pay some amount by way of compensation to the victim, who has suffered by the action of the accused. This power to award compensation is not ancillary to other sentences but it is in addition thereto. It is a measure of responding appropriately to crime as well as reconcealing the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system.”[20]

Statutory Scheme for Compensation

In 2009, amidst increasing attention towards the victims of a crime, Section 357A was inserted as one of the remedial provisions under Code of Criminal Procedure, 1973, in order to give effect to the Victim Compensation Schemes ( hereinafter referred after as VCS).

The scheme channelized the payment of compensation to the victim under a comprehensive statutory provision. Pursuant to the amendment brought, the states notified the scheme, though after initial reluctance and prodding by the courts.[21]The state has been made obligatory to perform its duty of maintaining specific funds for the purpose of paying compensation under Directive Principles of State policy.

The state has to discharge its obligation of paying compensation to the victim despite the acquittal or conviction of the offender. The VCS is applicable on acquittal of an offender or where compensation paid by him is inadequate. The Apex court in Ankush Shivaji Gaikwad v. State of Maharashtra case[22]has observed that:

”The object and purpose of the provision is to enable the Court to direct the State to pay compensation to the victim where the compensation under S. 357 was not adequate or where the case ended in acquittal or discharge and the victim was required to be rehabilitated. Under this provision, even if the accused is not tried but the victim needs to be rehabilitated, the victim may request the State or District Legal Services Authority to award him/her compensation.”

Critical Analysis of Section 357A

Section 357A was inserted in the Code of Criminal Procedure by the Parliament to create a pool of funds for the victims at the national and state level. It is imperative to note the recently made observation of ex-chief Justice of India J S Khehar on the said provision in 2017 where he states that where the punishment provided for an offense already contemplates fine or sentence, the provision under section 357 of Cr.P.C says that the fine can be passed on to the victim of crime. And even if the circumstances are not so, the section provides that compensation to be paid out of state fund, so that it can reach out to the victims.

“When the punishment itself contemplates sentence or fine Section 357 of Cr.P.C provides that the fine can be passed on to the victim. Even if that is not so, section 357A of Cr.P.C have the fund- a state fund, which can be extended to the victims,”[23]

Further, the observation made in the case of Laxmi v. Union of India[24]also implies the significance of the section. The court while delivering the judgment has held that:

“Unless Section 357 is read to confer an obligation on Courts to apply their mind to the question of compensation, it would defeat the very object behind the introduction of the provision. As S. 357, Cr.P.C, confers a duty on the Court to apply its mind to the question of compensation in every criminal case, it necessarily follows that Court must disclose that it has applied its mind to this question in every criminal case. Such an enquiry can precede an order on sentence to enable the Court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/ her family.”

Position Prior To The Amendment

In pursuant to the recommendations of the Law Commission report in 1969, a compensatory provision was enacted by the legislatures for the victims of crime as provided under Section 357 of the Cr.P.C. The section states: “Court may award compensation to victims of crime at the time of passing of the judgment, if it considers it appropriate in a particular case, in the interest of justice”.[25]

However, it is pertinent here to note that under Sub-section (1) of the provision states that the compensation amount is obtainable only when the court imposes adequate fine and the amount of compensation is limited to the amount of fine. The provision lays down four grounds[26] where fine can be imposed. These are:

1. defraying pecuniary losses incurred by the person in prosecution, or
2. by a bonafide purchaser of stolen goods, or
3. caused by injury or death, or
4. for loss if the victim has suffered loss or injury caused by the offense

Further, the provision has its own limitations and thus its applicability becomes restricted in the cases where:

• The accused is convicted.
• When the accused is charged with sentence, the compensation is obtainable in the form of a fine or the magistrate may order for the recovery of the amount, however, the incapacity of the accused to pay the required compensation remains an unavoidable limitation. The magistrate while passing the order has to take into account the capacity to pay of the accused.[27]

These limitations suggest an ineffective application of Section 357 and often raises the question as to whether the victim compensation scheme is discharging its aim as expected by the Indian lawmakers.

Position Post Amendment

The old provisions of Cr.P.C, 1973, reveal a well-structured legislative scheme for compensating victims.[28] Although there was yet no definition of the term ‘victim’ provided under the act and hence to address this absence, subsection (a) was inserted to Section 2 of the amended Cr.P.C, 2009. The definition reads as:

“a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression ‘victim’ includes his or her guardian or legal heir”[29].

Additionally, United Nations Declaration of the Basic Principle of Justice for the Victims of Crime and Abuse of Power[30] also provides for the definition of a victim of a crime; reads as: “persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within the Member States, including those laws prescribing criminal abuse of power”.[31]Accordingly, adequate compensation is provided to the victims for the sustained wrongful injuries to the person or to the body as a consequence of serious crimes.

A careful glance to what all constitutes under the definition of the victim as mentioned above, it is evident that a very narrow interpretation of ‘loss or injury’ has been given. It is believed that a comprehensive interpretation of ‘loss or injury’ is a prior necessity in order to make the claims of the victims efficiently. Thus, the legislature is required to add the same as to what constitutes ‘loss or injury’ under the said provision. This will ensure the uniformity in the dispensation of the compensation amount.

Conclusion

To ensure efficacious and expeditious justice in India, the present criminal justice system is required to recognize and sought to protect the various rights of victims of a crime. The knowledge about the victim and their rights is very disconcerted in the existing legal framework. The victims often feel exploited and ignored by the courts or the justice system despite knowing the fact that the system would collapse, if the co-operation by victims on the occurrence of a crime, is not forthcoming.

This increases the offender’s chance to get away undetected and reduces the efficacy of crime control. Hence, it necessitates planning, required attention to victims, and advancement in the administration of the criminal justice system in order to achieve goals of criminal justice. Thus the conclusion is that a criminal justice system that ill-treats victims or which ignores their rights runs the risk of failure.

Suggestions

The existing criminal justice process should be improved and reoriented to enable the rights of the victim. Following are a few suggestions that need to be acted upon regarding the advancement of the victims and their rights as well the justice system:

• The existing remedy of compensatory provision for victims should be made administratively and legally practical for them and not merely limited for exceptional situations.
• Interim relief to victims of a serious crime must be provided, especially in cases of gang rape, acid attacks, etc., with the least emphasis on formalities and technical procedural aspects to be covered.
• To provide redress to the victims through inexpensive, expeditious, and accessible procedures, the administrative mechanisms must be strengthened, something that the present system does not provide.

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[1] The Constitution of India, 1950, art. 21.

[2] The Constitution of India, 1950, art. 36-51A.

[3] Haveripeth. Prakash D., Restorative Justice and Victims: Right to Compensation, (last accessed May 22 2020) available here.

[4] Davies, Iyla Therese (1991) “Compensation for Criminal Injuries in Australia: A Proposal for Change in Queensland,” Bond Law Review: Vol. 3: Iss. 1, Article 1, (last accessed May 22 2020), Available here.

[5] Freckelton, Criminal Injuries Compensation Law and Practice, Law Book Co, Sydney, (2001).

[6] Groenhuijsen, M. S. The Development of International Policy in relation to victims of crime. International Review of Victimology, (2014), 20(1), 31-48.

[7] G.S.Bajpai and Shriya Gauba, Thomson Reuters, Victim Justice: A paradigm shift in Criminal Justice System in India, (last assessed May 22 2020), available here.

[8] K.D. Gaur, Justice to Victims of Crime: A Human Rights Approach, in criminal justice: A Human rights perspective of the criminal justice process in India (2004), 350- 351.

[9] 1 Report of Committee on Reforms of Criminal Justice System, Ministry of Home Affairs, Government of India (2003)at 80-81, ¶ 6.8.

[10] N.R. Madhava Menon, Victim’s Rights and Criminal Justice Reforms, the Hindu, (last assessed May 22 2020) available here.

[11] The Constitution of India, 1950, art. 41, art. 51A.

[12] Law Commission of India, One hundred and fifty-fourth report on the code of criminal procedure, 1973 (1996), at 57.

[13] SP Sahni, M Palit, A Dhanda, Victims’ assistance in India-suggesting legislative reform: a comprehensive comparative policy review, Journal of Family Psychotherapy, (2017) 28 (3), 269-284.

[14]Rudul Shah v. State of Bihar (1983) 4 SCC 141.

[15] Rabindra Nath Ghosal v. University of Calcutta and Ors, AIR 2002 SC 3560.

[16] 41st Report, Law Commission of India on Indian Penal Code,1860 (1969).

[17] Gaur, K.D., Criminal Law and Criminology, Eastern Book Company, Lucknow, (2002) 851.

[18] 42nd report, Law Commission of India on Code of Criminal Procedure, 1898. para 3.17 (1971).

[19] Hari Kishan and State of Haryana v. Sukhbir Singh, AIR 1988 SC 2127 (G.L. Oza and K. Jagannatha Shetty, JJ.); also followed in Roy Fernandes v. State of Goa and Ors., AIR 2012 Cri LJ 1542; R. Mohan v. A.K. Vijay Kumar, 2012 Cri.LJ 3953.

[20] Ibid at 2137.

[21] Suresh v. State of Haryana, AIR 2015 SC 518.

[22] Ankush Shivaji Gaikwad v. State of Maharashtra AIR 2013 SC 2454.

[23] Justice Khehar on Section 357A of Code of Criminal Procedure, (last assessed May 22 2020), available here.

[24] Laxmi v. Union of India, (2014) SCC (4) 427.

[25] Code of Criminal Procedure, 1973, s. 357 (1).

[26] Jhalak Kakkar and Shruti Ojha, An analysis of the vanishing point of Indian victim compensation law, (last assessed May 22 2020), available here.

[27] N.R. Madhava Menon, Victim Compensation Law and Criminal Justice: A Plea for A Victim Orientation in Criminal Justice, in criminal justice: a human rights perspective of the criminal justice process in India, 362, 363-364 (2004).

[28] Code of Criminal Procedure, 1973, s. 357, 421 & 431.

[29] The Code of Criminal Procedure Amendment act, 2008, s. 2(a).

[30] Supra note at 29.

[31] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Paragraph 1, (last accessed May 22 2020) available HERE.

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