This article is written by Tejaswi Netam, LL.B. 2nd year studying at Campus Law Centre, Faculty of Law, University of Delhi during her Internship at LeDroit India
Abstract
A victim is the pinpoint of a crime scene. It is him/her who suffers from the offence and then faces the judicial system in proving the act in order to send the offender behind the bars. But is punishing the offenders enough to serve the ends of Justice? Or is there something else required to make good to the victim? Compensation is generally termed as a civil law remedy but it has been incorporated in the criminal law as a measure to provide the victim with monetary compensation. In this article, I am discussing the schemes that are in place for the aforesaid purpose: the Victim Compensation Schemes in India, how the schemes are made to tackle the crime and the role of the National and State Legal Services Authorities.
Key words: Victim; Compensation; Scheme; Crime; NALSA, Fund.
WHO IS A VICTIM?
Generally, a person who has individually or collectively suffered any harm including physical agony, mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights through acts or omissions is known as a victim. The definition in the criminal procedure code was however absent in both the original CrPC,1898 and the New CrPC,1973.
The 2008 act of amendment to the code of criminal procedure ,1973 which passed in the year 2009 in its statement of objects and reason described the position of victims as the worst sufferers in a crime and having minimal rule in court proceedings. The need to vest certain rights in them along with compensation was felt which resulted in adding the sec 2(wa) which is now Sec 2(y) of Bhartiya Nagarik Suraksha Sanhita,2023 of which defined victims 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”
Loss and injury are not defined in The BN as their definitions are contained in the Bhartiya Nyaya Sahita,2023 which retained their meaning from that act by virtue of Sec 2(2).
It is that the legal definition of victim is wider than the general understanding as the guardian or legal heir is also included in the definition. Its origin lies in the Report of Law Commission of India-154th report of 1996.
The Universal declaration of human rights (UDHR) consists of 30 articles detailing an individual’s basic rights and fundamental freedoms. Although it doesn’t specifically mention victim compensation, Article 8 of it talks about “right to an effective remedy” and importance of justice and fair treatment and all. India is a signatory to the UDHR.
In the 154th LCI report, Compensation was proposed as a recognized method of protection that offered immediate support to the victim. The report stated that compensation could also be extended to the family of the victim in certain instances.
The oxford dictionary defined compensation as “money that is paid to someone in exchange for something that has been lost or damaged or for some problem:”
The case of Rudal Sah Vs State of Bihar, 1983 [1] was perhaps the first case where the Supreme court hearing the writ petition granted compensation for illegal detention. It was a PIL filed for release of Rudal Sah who remained in jail 14 years after the acquittal. After release, Rudal Sah sought relief including compensation for rehabilitation and medical expenses. The court reasoned that if article 21 is only limited to passing of orders releasing individuals from illegal custody, it would be gross injustice. Therefore, the Supreme Court issued notice on the ancillary relief and after hearing the parties deemed it fit to grant a compensation of Rs. 30,000/-.
Laws governing compensation schemes
Article 14 and 21 of the Constitution of India encompasses within its fold safeguards to victims of crime.
The provisions relating to compensation to victims of crime are contained in the following sections of the BNSS
Section 273– which talks about compensation for accusation without reasonable cause, basically a preventive mechanism designed for preventing false accusations.
Section 395 talks about compensation given to a Victim to be paid from the fine imposed in the sentence if the fine was imposed in the first place and directly paid by the accused person in case no fine was imposed.
Section 396 talks about the Victim Compensation Schemes.
- (1) deals with preparation of a scheme to provide funds for the purpose of compensation of victims or their dependents who have suffered loss or injury as a result of a crime and who require rehabilitation.
- (2) Empowers the District Legal Service Authority (DLSA) or the State Legal Service Authority (SLSA) to decide the quantum of compensation to be awarded under the scheme.
- (3) deals with a situation where compensation under section 395 is not adequate or the accused is discharged or acquitted and the victim has to be rehabilitated, then in that scenario, the trial court may recommend compensation under this section.
- (4) states that the victim or his dependents may apply to the state or the DLSA for award of compensation in cases where the offender is not traced or identified and no trial takes place.
- (5) empowers the state or DLSA to conduct due enquiry within 2 months and award adequate compensation after recommendation under 396(3) or application under 396(4)
- (6) talks about ordering immediate first aid facility or medical benefits to be made available free of cost or any other interim relief in order to alleviate the suffering of the victim.
- (7) declares that the compensation payable under this section shall be in addition to payment of fine to the victim under section 65, 70 and 124(1) of Bhartiya Nyaya Sanhita.
Which talks about fine to be paid to the victim in case of Rape(sec 65) and Gang Rape (sec 70) and Acid attack (sec 124(1))
The Malimath Committee report 2003 [2] Recommended establishment of Victim Compensation Fund. Victim compensation is a State obligation, whether the offender is apprehended or not, convicted or acquitted. This is to be organised in a separate legislation A Victim Compensation Fund can be created under the victim compensation law and the assets confiscated in organised crimes can be made part of the fund.
The Division Bench of the Supreme Court in Ankush Shivaji Gaikwad vs State of Maharashtra [3] opined that the provision of Compensation shall be mandatory and the trial court has to keep it in mind. The court
“it appears to us that the provision { in context of Sec 357 CrPC pari materia to the 395 BNSS} confers a power coupled with a duty on the Courts to apply its mind to the question of awarding compensation in every criminal case. We say so because in the background and context in which it was introduced, the power to award compensation was intended to reassure the victim that he or she is not forgotten in the criminal justice system. The victim would remain forgotten in the criminal justice system if despite Legislature having gone so far as to enact specific provisions relating to victim compensation, Courts choose to ignore the provisions altogether and do not even apply their mind to the question of compensation. It follows 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.”
The Hon’ble Supreme court of India in Nipun Saxena and anr. Vs. Union of India and Ors.[4] Vide order directed NALSA (National Legal Services Authority) to set up a committee to prepare a model victim compensation scheme for survivors of Sexual Offences and Acid Attack Victims. Accordingly, a scheme – NALSA,’s compensation scheme for women victims/survivors of sexual assault/other crime -2019 was formulated.
It aims at setting up “women victims compensation fund” to be operated by the State Legal Service Authority, which will fund the compensation payable to the women victims and their dependents.
In case of multiplicity of schemes applicable to a person, there is no bar as the compensation received by her in other schemes would be taken into account in deciding the quantum of such subsequent application. The Minimum and Maximum Limits are prescribed by the rules of the scheme which prevent any arbitrary action and ensure equality and transparency.
The Central Victim Compensation Fund (CVSF) Guidelines [5] that came into force with effect from 06/07/2016 with a fund of 200 Crore rupees was another step by the Ministry of Home affairs aiding victims with adequate compensation. The main motive of the guidelines was to reduce the disparity in quantum of compensation amount notified by different states and UTs and also to encourage the states and UTs to effectively implement the compensation schemes notified by them under the provisions of Criminal Procedure Code and to continue financial support to the victims of various crimes especially sexual offences. It is administered by a committee headed by the additional secretary, Ministry of Home Affairs. The annexure to the guidelines fixed the minimum amount of compensation. Victims of age less than 14 years are to be given 50% increased compensation under these guidelines which is a key factor.
A lot of factors are taken into consideration while awarding consideration which include Gravity of offence and severity of mental or physical injury suffered by the victim, Expenditure that is likely to be incurred for treatment of victim including counselling etc and travelling during investigation, loss of employment as result of offence, pregnancy due to offence, disability suffered, financial condition of the victim, and such other factors which the authority may consider just and sufficient.
Challenges
The Ratio of Crimes reported by the data of Delhi police [6] and Beneficiaries under compensation scheme [7] show a staggering figure while the crimes reported are exceeding 20,000 each year the beneficiaries never exceeded 3,000 (upto the year 2021). It shows that the compensation schemes are not availed by the victims due to many reasons but most important of which are-
It is the responsibility of the state legal service authority to provide funds for the compensation of victims. However, there is a Lack of uniformity in this field the State victim compensation schemes are non-uniform and they fail to comply with the centre’s guidelines and continue to suffer from various other inadequacies, such as the usage of wide umbrella-like terms that cover several offences under one amount of compensation, resulting in a grave injustice to the victims of crimes differing in their nature and gravity.
Other problem is of Funding and its Disbursement. The State exchequer must cater for contingencies and be supportive of the expenditure incurred by the victims. Which unfortunately is not adequate to do the job. Disbursements of compensation are rarely done which itself is a huge problem. Despite the ruling of the apex court declaring compensation to be a right of a victim it is not implemented by the executive which is the next point.
Implementation: Although different compensation amounts have been set according to categories of the victims yet there is no systematic method for this categorization on the nature of the crime or the age of the victim. Age is a factor that is crucial in calculation of sentence but it is irrelevant while calculating compensation in several states.
Awareness. People are not aware about their rights and thus ignorant about the remedies available to them. It results in lesser applications to the state for compensation under sec 396 of the BNSS. Data shows that the victims availing compensation under the scheme is nowhere close to the incidents of crime being reported every year.
Measures
The criminal justice system should not only impose harsh punishment on the criminal but also aid the victim to rehabilitate. Victimology is the only way forward, which could reinstall confidence in the criminal justice system, for it is not the imposition of harsh prison sentences on the criminal that ultimately benefits the victim; rather it is the reparative actions that would lessen the victim’s injuries and losses. Introduction of formal mechanism of victim impact assessment to bring in objectivity and consistency in deciding the quantum of compensation. Focus on effective implementation shall also further the means while Sections 395 and 396A of the BNSS are steps in the right direction, their implementation requires much fine-tuning.
Conclusion
In the Indian Criminal jurisprudence, the accused is placed on an advantageous position and the accused is presumed to be innocent till proven guilty, and the accused is entitled to fairness and true investigation and fair trial. However, one cannot afford to treat the victim as a total stranger to the criminal trial. And the court has to protect the victim’s rights. In doing so every possible step shall be taken and the enactments made shall be given effect to so that the victims life may change for the good.
References:
1. https://indiankanoon.org/doc/810491/
2. https://www.mha.gov.in/sites/default/files/2022-08/criminal_justice_system%5B1%5D.pdf
3. https://digiscr.sci.gov.in/view_judgment?id=MTMyMjc=
4. https://patnahighcourt.gov.in/bslsa/pdf/Publication/116.pdf
5. https://www.mha.gov.in/sites/default/files/CVCF_revised_27072017_0.PDF
6. https://delhipolice.gov.in/Images/HTMLfiles/Crime%20In%20Delhi(2).pdf
7. https://drive.google.com/file/d/1JxjfUqHOFRStZ_e5CNHxPRrdgXhMB_xd/view?pli=1
