Victim Compensation in India: All you need to Know

Victim Compensation in India | Overview

• Introduction
• The Code of Criminal Procedure, 1973
• Section 357: Order to Pay Compensation
• Section 357A: Victim Compensation Scheme
• Central Victim Compensation Scheme
• Section 358: Compensation to persons groundlessly arrested
• Section 359: Order to pay costs in non-cognizable cases.
• The Protection of Women from Domestic Violence Act, 2005
• Prevention of Caste-Based Victimization and Protection for Victims: The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
• The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
• Conclusion

Victim compensation was a unique concept formulated by the Indian Judiciary in order to secure justice. The modern concept of justice has shown immense concern by providing relief mechanisms to compensate victims. Hence, provisions and legislations catering to victim compensation have been evolving ever since the formulation of the Indian Constitution.

The genesis of rights of the victims started fostering during the last few decades following the UN Declaration of Basic Principles of Crime and Abuse of Power, 1985. Since then, the acknowledgement that the victim comes under the centre of the criminal justice system arose, and consistent efforts were made in order to improve their conditions.[1]

One primary aspect to reassure and assist the victim would be compensating for the damage caused, this was considered as an essential proponent of ‘Right to life’ under Article 21 of the Indian Constitution.[2] Later, Section 357A of the Code of Criminal Procedure, 1973 made it mandatory for the state to provide compensation for the victims and their dependents who have been injured as a consequence of the damage caused. Victim Compensation Schemes were formulated by almost all states of the country, to provide for appropriate compensation [3]

I. Introduction

The discovery of restitution in Indian law can be traced back to the era of British Colonisation. Section 545, sub-clause (1) (b) of Code of Criminal Procedure of 1898, imparts that court may give directions to pay any individual, compensation for losses incurred or injury caused due to the offence, where substantial compensation is rightful, in the opinion of the court, considered recoverable by such individual in the civil courts.[4]

In the 41st Report of the Law Commission of India submitted in the year 1969, the importance of compensability was initially distinguished by the word ‘substantial‘ which alienated the cases of recovery of nominal charges. The Government of India formulated the Code of Criminal Procedure Bill, 1970 on the recommendations made in the report of the Law Commission, Section 545 was revised and was re-introduced in the manner of Section 357, which is currently working and brought forth significant changes in the framework. [5]

There are provisions encompassed under various legislations in relation to the compensation for victims, enforceable either by trial courts or claim tribunal which are specifically set up, an example of which is the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985. A few more examples would be Consumer Protection Act, 1986, Indian Railways Act and Motor Vehicles Act, 1988, Protection of Women from Domestic Violence Act, 2005, Sexual Harassment (Prevention, Protection and Redressal) Act, 2013, Fatal Accidents Act, 1855, Probation of Offenders Act, 1958 etc. [6]

II. The Code of Criminal Procedure, 1973

Section 357: Order to Pay Compensation

The extent and application of Section 357 extend to any order in relation to compensation which is passed by the trial court, a court of the session or any appellant or High court while applying their revisional jurisdiction. The Apex court is also empowered under this section to order compensation. The implementation of this Section is restricted in the application under four specific instances.

These compensations can be claimed by the complainant to satisfy and meet the expenses that were incurred during prosecution. A person who has suffered damage or injury by the offence can also recover the amount in these competent courts. These courts are empowered to provide such compensations to the individual who is entitled to recover damages under the Fatal Accidents Act, where there has been a conviction in relation to causing death or abatement.

Section 357 also extends to cases where there has been injury done to a property. In such cases, courts can order compensation to the authentic purchaser of the property, which has been the subject of theft, criminal breach of trust, cheating, misappropriation or acquiring or retaining or disposing of the stolen property and which is ordered to be restored to the genuine owner. Section 357, Subsection (3) empowers the court to order payment of compensation, even in cases where the punishment mentioned does not comprise of payment of any fine. [7]

Section 357A: Victim Compensation Scheme

In the 154^th amendment, it was observed by the Law Commission that the earlier recommendations have not been considered or given effect by the government. In order to achieve the practical application of the previous provision of Section 357, an additional provision of Section 357A was added. Earlier in the absence of 357A, there was no duty towards the victim and compensation could be availed only after the accused was convicted.

Section 357A was formulated in the year 2009, where the Central and the State Governments made Victim Compensation Schemes (VCS). The scheme was in order to provide compensation to the victim and his/her dependents for the losses and damage caused by the offender; the responsibility to generate and sustain the fund is upon the State Government. In cases, where the Victim Compensation Scheme can be availed is when there is inadequate compensation paid by the accused or discharged of the accusations or offender not traceable or identifiable, in addition to compensation payable under Section 357. [8]

III. Central Victim Compensation Scheme

The Ministry of Home Affairs introduced the Central Victim Compensation Scheme (with effect from August 2015) in addition to the existing Victim Compensation Scheme which further increased the quantum of compensation in cases of rape and sexual assaults. In addition to this, women of cross border suffering partial or permanent disability were also addressed.[9]

Uniform compensation was determined for all states, including Rs. 3 lakhs for acid attack and rape victims, Rs. 1 lakh for rehabilitation for victims of human trafficking etc. Cases where the victim was below 14 years of age, the compensation had to be increased by 50% over the amount specified. Various states have amended the scheme in analogy to the directions given by the centre except for Arunachal Pradesh, Assam, Chhattisgarh, Himachal Pradesh, Karnataka, Tamil Nadu, and Uttar Pradesh.[10]

Section 358: Compensation to persons groundlessly arrested

This section provides for compensation to any individual, who without any reason has become a victim of an arrest. In order to apply this section, there needs to exist a direct connection between the complainant and the arrest. The arrest must be caused by a certain piece of information in the absence of any sufficient grounds. It has been stated that in such a situation, the Magistrate may provide compensation to the extent of ₹1,000 to the individual who has been the victim for the same. [11]

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

This section deals with situations where there exists a complaint for a non-cognizable offence, made to a court and the accused is convicted. The section propounds that the Court of Session, an appellant court or High Court while applying their revisional jurisdiction can order for payment of costs. In addition to the penalty imposed, the court can also order the accused to pay in whole or in part, to the complainant, the cost incurred during the prosecution. The court along with this also possesses the power to sentence the accused to imprisonment for a time span not more than 30 days in cases where he fails to make the payment. [12]

IV. The Protection of Women from Domestic Violence Act, 2005

The Protection of Women from Domestic Violence Act, 2005 has been a massive success in relation to the revolution of women rights, towards victims who were suffering from domestic violence after 16 years of struggle. The definition of domestic violence includes physical, sexual, verbal and emotional abuse.

The aspect of trauma arising out of physical abuse in the absence of any medical reports was addressed and compensated for, in the recent case of Smt. Haimanti Mal v. The State of West Bengal (2019). The Calcutta High Court awarded a compensation of Rs. 1,00,000 for mental torture and emotional distress on the basis of Section 22 of the Protection of Women from Domestic Violence Act, 2005.

The unique feature of this Act is that the victim can get continued access to the facilities or resources which the victim is entitled to use or enjoy as a result of an existence of a domestic relationship, which would be inclusive of the access to the shared household [13].

The police officer or magistrate who acquires the complaint has an obligation to inform the victim about her right to obtain a protection order or order of monetary relief, custody order, residence order, compensation order or more than one such order. This Act deals with the protection of the rights of the women which is guaranteed under the constitution.

V. Prevention of Caste-Based Victimization and Protection for Victims: The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

This Act is formulated to eradicate the atrocities against the members of the Scheduled Castes and Scheduled Tribes. Under this Act, compensation of victim is mandatory, apart from several other reliefs which depend upon the condition and kind of atrocity caused. Monetary compensation varying from Rs. 25,000 to 2,00,000 is determined according to the severity of the offence. [14]

VI. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007

This unique law is targeted towards the protection of elders and the prevention of any kind of elder abuse and victimization, which is a growing concern in many countries including India. Under this Act, there is a duty instilled among the children or adult legal heirs for maintaining their parents, or senior citizens above the age of 60 years, who are incompetent to maintain themselves from their own earnings, in order to allow them to lead a normal life. In cases where the children or legal heirs disregard to maintain the senior citizen, it gives the power to the Tribunal to pass an order to ask the children or legal heirs to supply monthly allowance. [15]

Conclusion

The concept in India regarding compensation can be traced back to 1857, when an attempt was made to control pollution emitted by the Oriental gas company, by imposing penalty through fines on the company and providing a right to compensation for the contamination of the water.[16]

There have been various grey areas that exist (issues relating to the term ‘victim’, amount of compensation) which hinders and creates doubt and should be resolved by the judiciary because this might suppress the essence of compensatory jurisprudence. For example, if we see in the case of Mohd. Zakir v. Shabana, the Karnataka High Court, in this case, gave an order relying on an SC judgement (Hiralal P. Harsora v. Kusum Narottamdas Harsora [17]), stating that, after the deletion of the phrase ‘adult male’ mentioned in Section 2(q) in Domestic Violence Act, 2005.

‘Aggrieved person’ would constitute both male or female, and both would be entitled to invoke the provision of the Act. However, later this order was withdrawn in 2018, as the rationale given in Harsora case was ‘wrongly interpreted’ by the court.[18]

Although there is a presence of such grey zones and loopholes in the system in availing compensation there has been recent additions in relation to victim compensation as well. In the year 2012, in the case of Nipun Saxena Vs. Union of India[19], the Supreme Court asked National Legal Service Authority (NALSA) to constitute a committee to give structure to the Model Rules for Victim Compensation in cases of sexual offences and acid attacks.

NALSA came up with the ‘Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crime’ which was approved by the Supreme Court in 2018. This was considered to be a significant progress in the already existing state compensation scheme, which was formulated specifically for the victims of sexual assault and acid attacks.[20]

The state should not only focus on the trail and the punishment of the accused, but the victim should also be considered as an integral part of the criminal administration. The concept of compensation brings about universal humanism and is considered to be a basic human right which is also recognised in modern criminology and there needs to be an active attempt towards encouraging laws in relation to catering the needs of the victim and their dependents.

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[1] International Journal of Criminal Justice Sciences, Vol 13 Issue 2, Dipa Dube, “Victim Compensation Schemes in India: An Analysis” (2018)

[2] The Supreme Court has in many cases address this right to compensation as an indispensable right; Rudal Shah v. State of Bihar (1983 AIR 1086), the courts acknowledged and acted upon the claim of the petitioner who was unlawfully detained and thereby awarded compensation of a sum total of Rs. 35000

[3] International Journal of Criminal Justice Sciences, Vol 13 Issue 2, Dipa Dube, “Victim Compensation Schemes in India: An Analysis” (2018)

[4] Manupatra, Vibha Mohan, Article on “Revisiting Victim Compensation in India.” http://docs.manupatra.in/newsline/articles/Upload/6F5E12E5-2A56-49A9-BF1B-CBE1DF4F8726.2-F__criminal.pdf

[5] Ibid.

[6] International Journal of Criminal Justice Sciences, Vol 13 Issue 2, Dipa Dube, “Victim Compensation Schemes in India: An Analysis” (2018)

[7] Manupatra, Vibha Mohan, Article on “Revisiting Victim Compensation in India.” http://docs.manupatra.in/newsline/articles/Upload/6F5E12E5-2A56-49A9-BF1B-CBE1DF4F8726.2-F__criminal.pdf

[8] International Journal of Criminal Justice Sciences, Vol 13 Issue 2, Dipa Dube, “Victim Compensation Schemes in India: An Analysis” (2018)

[9] Ministry of Home Affairs, Central Victim Compensation Fund set up with an initial corpus of Rs. 200 crores, https://pib.gov.in/newsite/mbErel.aspx?relid=128738

[10] International Journal of Criminal Justice Sciences, Vol 13 Issue 2, Dipa Dube, “Victim Compensation Schemes in India: An Analysis” (2018)

[11] Manupatra, Vibha Mohan, Article on “Revisiting Victim Compensation in India.” http://docs.manupatra.in/newsline/articles/Upload/6F5E12E5-2A56-49A9-BF1B-CBE1DF4F8726.2-F__criminal.pdf

[12] Ibid.

[13] Roma Rajesh Tiwari v. Rajesh Dinanath Tiwari (2017), here the Bombay High Court elaborated on the right of women to reside in her matrimonial home or shared household.

[14] The 144^th International Senior Seminar Visiting Experts’ Papers, Kumaravelu Chockalingam, “Measures for Crime Victims in the Indian Criminal Justice System”

[15] Ibid.

[16] International Journal of Law, Volume 2, Issue 4, Rekha Rai, “Right of victim for compensation in India: A historical background” (July 2016)

[17] (2016) 10 SCC 165

[18] SCC Online Blog, “Order permitting any person, male or female, to invoke the Domestic Violence Act, 2005-Withdrawn” by Devika. https://www.scconline.com/blog/post/2018/06/08/any-person-male-or-female-is-entitled-to-invoke-the-provisions-of-domestic-violence-act-2005/

[19] 2018 SCC Online SC 2772

[20] The Criminal Law Blog, National Law University Jodhpur, Sandhya Gupta, “Compensation to Rape Victims- A Critical Analysis”

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1. Criminology and Criminal Justice
2. Models of Criminal Justice System: Crime Control and Due Process