VICTIM COMPENSATION IN INDIA – AN ANALYSIS
Author: Vasundhara Saxena
Amity Law School, Delhi
Victimology continues to evolve on a daily basis as the court adopts different practices and guidelines to ensure the dignity of the affected party. But, do we have sufficient support of the law when it comes to rehabilitating victims into society? Does the state satisfactorily ensure that victim of various crimes successfully finds their way into leading a normal life? While almost all states have their victim compensation schemes now, this paper seeks to examine how truly effective and practically implemented are these schemes. The Code of civil procedure provides for such compensation to victims under Section 357, which has further been facilitated and made into a multitude of victim compensation schemes drafted by state governments for their respective states. This research paper will examine some of these provisions along with the scheme at large, along with its shortcomings.
The victim compensation scheme essentially brings us to question the very roots of where the concept comes from. Victimology is an upcoming branch in India, and the Victim compensation scheme is one such provision that brings this concept to practical application. The term victimology was coined by the French lawyer, Benjamin Mendelsohn. The definition and recognition of the Term Victim have also changed substantially in the past century, the evolution has moved from being a small branch of victim study under the larger discipline of criminology to be a separate discipline called ‘victimology’. The focus has shifted from treating the victim as a subsidiary to giving the victim the importance of being a ‘key player’ in the process of justice. It was only after the second world war that the sub-discipline of victimology began to receive objective attention from academicians as a separate branch of law. The Welfare notion of state intervention for the rehabilitation and the sustenance, readjustment, and mixing back into society needed state assistance began to evolve in those times. One of the first people to suggest the concept of Victim compensation internationally was Margery Fry, a British prison rights activist who was accompanied by Professor Jeremy Bentham, who also argued that the state is bound to play a pro-active role in restoring the victim’s position back to original. As a result of her efforts, Britain set up a victim compensation scheme in as early as 1964, New Zealand followed suit by setting up their victim compensation fund in as early as 1963 and then other nations like Canada followed as well. The works of Benjamin Mendelsohn and Hans Von Hentig, who wrote on the subject as early as 1948 about the need for separate treatment of victims in his book titled ‘The Criminal and His Victim’ are early figures whose work can be seen as the roots of victimology. Victimology has evolved at different paces in different areas, dependent on various social and political factors. It may be very diverse and exclusive in some nations and completely non-existent in others. Many countries have transformed their victim schemes, with Japan at the leading front and other nations have followed suit. The last 20 years have specifically brought about phenomenal growth for the subject. These programs have grown and developed all over the globe. Victim compensation schemes have very well been hit by the same problems as hundreds of other well-meaning schemes that lack implementation. Despite having implementation, many of them fail to provide an amount which really puts the victim in a better position than a person who received a token amount as a mere formality which is barely helpful in really changing the position of the victim. A lot of victims do not apply for the scheme, fewer receive it. It is even argued by some, that the gesture is a mere token in nature taken by the government to symbolically exhibit their well-meaning intention for victims of a crime.
In India, the first steps towards victim compensation have been taken by the Indian Judiciary. The first few instances include judgment by Justice Krishna Iyer, as in the case of Ratan Singh vs. state of Punjab, he says “ is a weakness of our jurisprudence that the victims of the crime, and the distress of the dependents of the prisoner, do not attract the attention of the law. Indeed, victim reparation is still the vanishing point of our criminal law ! This is a deficiency in the system which must be rectified by the Legislature.”
INTERNATIONAL LAWS AND OBLIGATIONS FOR RELIEF OF VICTIMS
The United Nations adopted the ‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power’, adopted by General Assembly resolution 40/34 of 29 November 1985. This declaration introduced several different concepts like introducing a definition as to who qualifies as a ‘victim’ which talks about compensation and giving reparations as well as strengthening the judiciary’s mechanism. This was followed by the Declaration on the Protection from Enforced Disappearance adopted by the UNGA in its resolution passed on 18th December 1992. This was also followed by another resolution on the same issue passed by the UNGA which was the ‘International Convention for the Protection of All Persons from Enforced disappearance’ which essentially aimed to protect individuals who were considered to have been arrested, detained, abducted or deprived of any liberty by the agents of law themselves – this included police brutality and custodial brutality. Here, in summary, the right to justice, right to information regarding the investigation, and the right to compensation. Here, the convention includes provisions for restitution, information satisfaction, restoration of dignity, rehabilitation, compensation. The latest resolution regarding the subject is the issue of victim protection which was in the form of guidelines, called the ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’ Besides, the Organised Crime convention in Article 14 and 25 and the Trafficking in Persons Protocol Article 6 (6) make specific reference to and provide for compensation at an international level.
INDIAN PROVISIONS FOR COMPENSATION AND ROLE OF JUDICIARY
Indian society has seen cooperation from both the state and the judiciary in terms of compensating victims. There are provisions in both the Constitution as well as the Code of Criminal procedure, 1973 which provide for such compensation. However, it must be noted that the constitution does not have specific provisions for victims, they have to be read into various human rights provisions.
I. CONSTITUTIONAL PROVISIONS –
Even though there aren’t directly made schemes for victims in the Constitution, they have been read into Part III and Part IV of the Constitution. Directive Principles of State Policy, Article 41 and Part V for Fundamental Duties, Article 51A enunciate the duty of the state to fulfil the right of the public to assist and to have compassion for all living creatures. These provisions have been employed by the Judiciary to repeatedly protect and uphold the rights of individuals to exercise their rights. It was all the way back in 1983, the Supreme court stood up for victim rights in the gruesome case of Rudul shah vs. state of Bihar, the court gave orders for granting Rs. 35,000 by way of compensation to the victim after he was imprisoned without orders of the court for 14 years. There have been multiple cases where the Supreme court followed this recognition of victim rights and recognized the need to compensate them. A few cases in which compensation has been given were Manju Bhatia v. N.D.M.C., Bhim Singh v. State of Jammu & Kashmir, Dr. Jacob George v. State of Kerala, Paschim Bangal Khet Mazdoor Samity v. State of West Bengal & Ors, People’s Union for Democratic Rights Thru. Its Secy. v. Police Commissioner, Delhi Police Headquarters People’s Union for Democratic Rights v. State of Bihar. in Rohtash Kumar v. State of Haryana, the State of Haryana was made to pay Rs. 20 Lakh compensation to the Appellant. There is no one fixed limit beyond which compensation cannot be paid to the victim, as that would completely defeat the whole purpose, for every crime does not have the same factual matrix and one case could require more compensation than another.
II. PROVISIONS UNDER OTHER LEGISLATIONS-
There are other legislations as well which provide for such compensation in different scenarios – for eg. Consumer Protection Act, 1986; Fatal Accidents Act, 1855; Indian Railways Act, 1989; Merchant Shipping Act, 1958; Motor Vehicles Act, 1988; Probation of Offenders Act, 1958; Protection of Women from Domestic Violence Act, 2005; Sexual Harassment (Prevention, Protection and Redressal) Act, 2013). Another example could be that of which Probation of Offenders Act, 1958 which states that while releasing an accused on probation or admonition, the court can give an order for the offender to pay compensation to the victim under s. 5 of the Act.
III. PROVISIONS UNDER THE CODE OF CIVIL PROCEDURE, 1973 –
The addition of provisions to the Code finds their roots in the 41st Report of the Law Commission of India was submitted in 1969. On such a recommendation, the Code of Criminal Procedure Bill 1970 was introduced and what was the initial Section 545 was then revised and re-introduced as Section 357 as it is today. However, this recommendation and changed the format of the section found its way to the code only after the 2008 amendment. Initially, the amount was only limited to the amount of fine but now that limitation has been removed. Now the amount of compensation is independent of the amount of fine or even the very presence or absence of a provision for fine in the first place. Accordingly, the changes were accommodated.
The term ‘victim’ itself was introduced in the Code in the year 2008 under S. 2 (wa) which reads – “ The term ‘Victim’ means 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.” The usage of the word ‘charged’ means that the investigation of the offence has been done, accused identified and the charge has been framed after all that thorough investigation. However, the scheme has a larger ambit than the definition, for even in cases where the identification of the accused could not be possible, even then the scheme intends to include them.
The following provisions were introduced in the Code of Criminal Procedure in 2008 through an amendment. Section 357, which talks about an order to pay compensation with or without the order of a fine and Section 358, which talks about payment of compensation to a person who has been arrested groundlessly along with Section 359 which talks about the payment of costs in a non-cognisable offence. Section 357 specifically talks about empowering the court to impose a sentence which forms a part of the compensation to be paid to the victim. But the catch here is that the imposition of such a compensation only happens when a substantial sentence has been imposed and not in cases of acquittal. – but it must be noted that the court can impose such an order for compensation even when the sentence itself does not include the imposition of a fine. In Mangi Lal v. State of Madhya Pradesh, the supreme court held that it depends on the court’s jurisdiction how the compensation will be drawn, wholly or partially from the fine that was a part of the sentence or not. It was also clarified that this is not an ancillary power to add onto the sentence but only an addition thereto. The ambit of the section has also been explained and explored by various high court judgments, like State of Madhya Pradesh v. Mangu, where the Madhya Pradesh high court held that the accused can only be directed by the court and not the state to pay compensation to the victim. The Supreme court has further examined the reasons for the sparing and insufficient usage of the provision by the lower courts in the case of Hari Singh and State of Haryana v. Sukhbir Singh as quoted further below-
“It is an important provision, but courts have seldom invoked it, perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgment of conviction. 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. It may be noted that this power of court to award compensation is not ancillary to other sentences, but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well as reconciling the victim with the offence.”
It was also held in the case of Bodhisattwa Gautam v Shubhra Chakraborty that in cases of rape trials, interim compensation can also be awarded if the court finds it fit for the well being of the victim.
Section 357 (2) gives the power of deciding the quantum of compensation to the District legal authority of the area. Section 357(3) gives the power of imposing compensation order in different cases as per the discretion of the court. Section 357 (4) further widens the scope of who can claim compensation by extending it to victims even in cases where the offender could not be identified and the victim has been identified. Section 357(5) and (6) talk about providing first aid or extending any other kind of aid after conducting a preliminary inquiry.
ANALYSIS OF STATE COMPENSATION SCHEMES
Almost all states have victim compensation schemes now. Each state has notified its own scheme separately, and these amounts provided by these schemes are often drastically different from one another. These schemes were essentially a mechanism to ensure that the payment of these amounts to all victims can be done in a more systematic and institutionalised manner. The VCS is applicable even in cases when no amount of compensation is payable either due to acquittal or when the accused is not capable of paying a certain amount. These payments of compensation can also be made upon the recommendation of the court like in cases of Gang rape (S. 376D, Indian Penal Code), Acid Attack, (Section 326B, Indian Penal Code) to name a few. The section also aims to cater to other needs of the victims like that of medical aid. Proceeding charges etc.
There is a division over whether the legal heirs can or cannot claim benefit under the scheme. The Punjab and Haryana high court ruled in M/s Tata Steel Ltd. v. M/s Atma Tube Products held that legal heirs can only include people who have been directly affected whereas the Delhi high court has ruled otherwise in the case of Chattar singh vs. Subhash and Ors..
Most schemes do not define the ambit of what compensation really includes- for example, the term ‘Rehabilitation’. What it can and cannot include has been left to the discretion of the DSLA, such has been analyzed after a brief analysis of the VCS of 12 states. The implementation authority at large continues to be the District Legal Services Authority. However, in some cases, the responsibility of implementing the scheme has also been given to the State Legal Services Authority, like in the case of the Assam Victim compensation scheme of 2012, Delhi victims compensation scheme of 2015, Madhya Pradesh Victims compensation scheme of 2015, Gujarat Victim compensation scheme of 2015.
Monitoring or Supervising body – In most state, there is nobody to supervise the functioning of the Victim Compensation scheme. Not all states have a separate elaborate mechanism for ensuring the proper functioning of the scheme. For example, in Bihar, the state law department takes care of the functioning of this system, whereas in Madhya Pradesh, two-level departments (State level committee and District level committee) have been set up under the Home department of the State to overlook the implementation of such a scheme.
Eligibility- generally the requirement talks about a ‘substantial’ damage which makes the victim truly deserving of receiving external aid from the state. For example, in the case of the Goa scheme, Odisha scheme, Assam scheme to name a few, the damage must be ‘substantial’ and considerable in nature. In Odisha, the requirements include any individual who will find it difficult to continue and restart their life without compensation and if their personal dignity has truly been hampered, as stated in cl.7(b) of the Odisha Victim compensation scheme. The Criteria also varies from the state as some states set a financial threshold that qualifies the extent or amount payable to the victim.
Limitation – the time period for limitation actually varies from state to state. The scheme itself has to clarify the limitation period for every state. This period generally ranges from six months to one year or could even have more than one year period like 3 years, as specified limitation period as in the case of the Gujarat compensation scheme.
Amount of compensation – There is absolutely no consensus regarding the quantum of compensation which every state government may give. This question was explored in entirety by the Supreme court in the case of Tekan Alias Tekram Versus State Of Madhya Pradesh where the court found the VCS of the state of Chattisgarh to be dissatisfactory and hence proceeded to examine the schemes of other states with regards to victim compensation in the case of rapes.
The court has stated the following –
“Perusal of the aforesaid victim compensation schemes of different States and the Union Territories, it is clear that no uniform practice is being followed in providing compensation to the rape victim for the offence and for her rehabilitation. This practice of giving different amounts ranging from Rs.20,000/- to Rs.10,00,000/- as compensation for the offence of rape under section 357A needs to be introspected by all the States and the Union Territories. They should consider and formulate a uniform scheme specially for the rape victims in the light of the scheme framed in the State of Goa which has decided to give compensation up to Rs.10,00,000/-.”
The court further went on to issue the following directions –
“All the States and Union Territories shall make all endeavour to formulate a uniform scheme for providing victim compensation in respect of rape/sexual exploitation with the physically handicapped women as required under the law taking into consideration the scheme framed by the State of Goa for rape victim compensation.”
It is clear that while the court agreed that no amount of compensation can truly restore the dignity and respect of the individual, this aid is crucial in the aftermath and recovery as the victim tries to ease back into a normal existence.
THE CENTRAL VICTIM COMPENSATION SCHEME
The central government realised the need for intervention and making a somewhat centralised system of guaranteeing compensation victims through the Criminal Law (Amendment) Act, 2013 was enacted on 2nd April 2013, called the Central Victim Compensation scheme (CVCS) which was also one of the reactions to the Nirbhaya incident. The fund was called Nirbhaya fund. The Central victim compensation fund (CVCF) came to life in 2015. They even introduced the concept of having ‘One Stop Centres’ controlled by the centre in each state. This was an initiative by The Ministry of Women & Child Development where they will provide medical, legal aid through these centres.
Even though all states have complied with the mandate by formulating a scheme for compensation – but the question persists how well availed are these schemes? How successful are they? How well availed are these schemes? To analyze the same, take a look at the data of 2018 to 2019 provided by the National legal services Authority which reflects how aware people are of these schemes and how well utilized they are by the public.
|NATIONAL LEGAL SERVICES AUTHORITY|
|STATISTICAL INFORMTION IN R/O VICTIM COMPENSATION SCHEME U/S 357-A CR.PC|
|APRIL, 2018 TO MARCH, 2019|
|S.NO||SLSA||Applications received directly by Legal Service Institutions (A)||Applications / orders marked / directed by any Court (B)||Applications received including Court Orders (A+B)||Applications Decided||Applications Pending||Compensation Awarded in (Rs.)|
|7||Dadra & Nagar|
|8||Daman & Diu||0||0||0||0||0||0|
|14||Jammu & Kashmir||26||8||34||19||0||5325000|
|33||U. T. Chandigarh||7||12||19||10||10||8200000|
SOURCE – National legal services authority data, year 2018 to 2019.
The data shows that while some states like Odisha show much awareness about the scheme, states like Uttar Pradesh have surprisingly low numbers which are a complete mismatch given the high crime rates. Even though there has been a shift from the complete absence of such schemes to moving onto creating a scheme but there is still a huge difference between the actual convictions and the number of applications received in a state for such compensation, which means that a lot of deserving victims go on without aid from the state. Even though the scheme is a great effort to help out victims, there is still much divergence on the amount to be given, eligibility criteria by these states.
CONCLUSION AND CRITIQUE
In conclusion, the problem with the scheme lies at levels of drafting as well as implementation. The very fact that such a low number of victims actually received as compensation as reflected by the data speaks heavily. Schemes are of no use if they eventually fail to really help the public due to a lack of awareness. Distribution of information regarding this scheme should also be made compulsory for the court/authority. The coordination between the courts and the legal services authority that is meant to guarantee these compensations doesn’t seem to be positive according to the figures. In terms of drafting, the scheme has no uniformity in the entire country. No two states have any uniformity of the amount to be paid to victims. It has to be taken into account that the cost of rehabilitating the victim cannot be made uniform across the country, for everything from living costs, to residence differs from place to place, district to district, and state to state. However, these costs can be considered additional to that of the major compensation that is given specifically for the crime committed. The District legal services authority really needs to coordinate with the state to ensure that adequate budget allocation is done for victims, keeping in mind all these factors. Victims may come from very destitute conditions and may require regular government support or medical support. News articles have documented personal experiences of various acid attack victims who have failed to avail the scheme successfully. Stories of victims with no financial support for basic facilities like last rites, let alone medical support. Besides, there is no clarity of the criteria to be used to allocate these amounts to the victims, there is no uniformity or even clarity of any eligibility criteria as to who is and is not entitled to compensation. There is an absence of any overviewing or monitoring body that specifically supervises these functions of the DSLA. There are also multiple concerns raised over the inadequacy of amounts allocated to these victims, and whether their quantum is sufficient to successfully rehabilitate a victim into the society at least partially if not completely. To conclude, this scheme can still be said to be in its initial stages with opaqueness in a lot of areas, which needs to be changed to truly make it effective and available for all victims.
 L. Wolhuter, et. al, Victimology : Victimisation and victim’s rights, (Routledge publication, 2008)
 R. Moby and S. Walklate, Critical victimology: International Perspectives (SAGE publication, 1994)
 Glazebrook, P. (1962). COMPENSATION FOR VICTIMS OF CRIMES OF VIOLENCE. The British Journal of Criminology, 2(3), 295-299.
 Booth, T. in ‘Comparitive analysis of the victim policies around the anglo speaking world’ (Routledge publication, 2007)
 Fattah, E. A. (2000). ‘Victimology: Past, Present and Future’. Journal of Criminologie, 33 (1), 17–46. https://doi.org/10.7202/004720ar
 Easton, S. in SENTENCING AND PUNISHMENT,215- 239, (Oxford University press, 2016)
 1979 SCC (4) 719
 Romani, C. ‘International law of victims’, 220, Max Planck Yearbook of United nations law, Vol. 14, p.219-72. (Koninklijke Brill N.V, 2010)
 United Nations Conference room paper, on National Approaches to compensation of victims of trafficking,
 Dube, D. ‘Victim Compensation schemes in India : An Analysis’ 342, International Journal of Criminal Justice Sciences 13 (1): 339–355 (2018)
 Sahni, S. et al (2017). Victims’ Assistance in India- Suggesting Legislative Reform (1st ed.). New Delhi: Anne Books.
 (1983) 4 SCC 411
 AIR 1998 SC 223
 AIR 1986 SC 494
 1994 SCC (3) 430
 1996 SCC (4) 37
 1990 ACJ 192
 1987 AIR 355
 (2013) 14 SCC 434
 Mohan, V. REVISITING VICTIM COMPENSATION IN INDIA, http://docs.manupatra.in/newsline/articles/Upload/6F5E12E5-2A56-49A9-BF1B-CBE1DF4F8726.2-F__criminal.pdf.
 Supra note. 11
 Chakrabarti, N. K., & Dube, D. in ‘R. Deb’s Principles of Criminology, Criminal Law and Investigation’ (4th ed., Vol. 1 2017).
 2004 CrLJ 880 SC
 1995 Cr.LJ 3852 (MP)
 AIR 1988 SC 2127
 1996 SCC (1) 490
 2013 (1) ILR 719 (P&H)
 176 (2011) DLT 356
 Supra note 11.
 Madhya Pradesh crime victim compensation scheme, can be accessed at http://home.mp.gov.in/en/victim-compensation-scheme-2015
Supra note 34.
 Gujarat victim compensation scheme, 2019 can be accessed at https://home.gujarat.gov.in/Upload/GUJARAT_VICTIM_COMPENSATION_SCHEME-2019_300519.pdf
2016 SCC Online SC 131
 Central victim compensation scheme, can be accessed at http://uphome.gov.in/writereaddata/Portal/Images/CVCF.PDF
 NSA statistical archives, can be accessed at https://nalsa.gov.in/statistics/r-o-victim-compensation-schemes-april-2018-to-march-2019
Harsha Raj Gatty, ‘ Supreme Court ruling on financial aid not enough, say acid-attack victims’, July 23, 2013 at 1:21, https://www.deccanherald.com/city/supreme-court-ruling-on-financial-aid-not-enough-say-acid-attack-victims-336650.html
 Amit Ganguly, ‘Scarred victims of acid attacks struggle to get their due’, March 7. 2014. Can be accessed at http://blogs.reuters.com/india/2014/03/07/scarred-victims-of-acid-attacks-struggle-to-get-their-due/
 PTI, ‘Acid attack victim loses battle for life, father writes to Nitish Kumar to ask for financial aid for last rites’, July 02, 2017, can be accessed at https://www.firstpost.com/india/acid-attack-victims-father-writes-to-nitish-kumar-asks-for-financial-aid-for-her-last-rites-3767901.html