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Development of Compensatory jurisprudence by Supreme Court of India

Compensation to victims is a recognised principle of law being enforced through the ordinary civil courts. Under the law of torts the victims can claim compensation for the injury to the person or property suffered by them. It is taking decades for the victims to get a decree for damages or compensation through civil courts, which is resulting in so much hardship to them. The emergence of compensatory jurisprudence in the light of human rights philosophy is a positive signal indicating that the judiciary has undertaken the task of protecting the right to life and personal liberty of all the people irrespective of the absence of any express constitutional provision and of judicial precedents.

Article 32 of the Constitution of India confers power on the Supreme Court to issue direction or order or writ, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III of the Constitution. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III is guaranteed, that is to say, the right to move the Supreme Court under Article 32 for the enforcement of any of the rights conferred by Part III of the Constitution is itself a fundamental right.

The approach of redressing the wrong by award of monetary compensation against the State for its failure to protect the fundamental right of the citizen has been adopted by the courts of Ireland, which has a written Constitution, guaranteeing fundamental rights, but which also like the Indian Constitution contains no provision of remedy of compensation for the infringement of those rights. That has, however, not prevented the courts in Ireland from developing remedies, including the award of damages, not only against individuals guilty of infringement, but also against the State itself.

Article 32(1) provides for the right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights. The Supreme Court under Article 32(2) is free to devise any procedure for the enforcement of fundamental right and it has the power to issue any process necessary in a given case. In view of this constitutional provision, the Supreme Court may even give remedial assistance, which may include compensation in appropriate cases.

The idea of compensation:
The Idea of Compensation to victim of crime particularly to the crime victims by the state is gaining much importance. Though this idea is an age old one, its development on more scientific lines and also as a branch of criminology has begun since a few decades ago. The modern states which are described welfare states have realized the importance of the subject compensation to the victims of crime and are accordingly taping up several victim compensation programmes, as part of their General welfare. Various countries have taken up the scheme of payment of compensation to victim of crime.

The term Compensation means amend for the loss sustained. Compensation is anything given to make things equivalent, a thing given to make amends for loss, recompense, remuneration or bay. It is counter balancing of the victimís sufferings and loss that result from victimization. The rationale or basis for compensation may be the following three perspective:
  1. As an additional type of social insurance
  2. As an welfare measure another facet of the Government/Public assistance of the Unprivileged.
  3. A way of meeting an overlooked governmental obligation to all citizens.
The penologist recognized that adequate compensation to the victims from the accused or alternatively from the state is objective of the science of victimology which is gaining ground and deserves attention.

In India there is no comprehensive legislation or statutory scheme providing for compensation to victims of crime. In some European countries provisions are made for payment of compensation to the victims of crime in the course of criminal proceedings. Justice requires that a person who has suffered must be compensated. Basically the accused is responsible for the harm caused to the victim. We have five statutes, under which compensation may be awarded to the victims of crime.
  • The fatal Accident Act, 1855
  • The motor Vehicles Act, 1988
  • The Criminal Procedure Code, 1973
  • The Constitutional Remedies for Human Rights Violation
  • The Probation of Offenders Act, 1958.

Compensation under criminal law:

The theory of compensation in criminal law is mainly about compensation to the victim of a crime. A victim to a crime is one who has suffered any loss because of some act or omission of the accused. The victim not only suffers physical injuries but also psychological and financial hardships too. The plight of a victim is only made worse by lengthy hearings and tedious proceedings of courts and improper conduct of the police. The victim is literally traumatised again in the process of seeking justice for the first injury. The legal heirs/guardians of the victim too come in the same definition.

The law makers made provisions in the Criminal Procedure Code, 1973 under Section 357(3) to enable the Courts to award any amount of compensation to the victims of a crime. Not only this, the lower courts were asked and advised to exercise the power of awarding compensation to the victims of offences in such a liberal way that the victims may not have to rush to the civil courts.

Article 32 and the Remedy of Compensation:

Compensation to victims is a recognised principle of law being enforced through the ordinary civil courts. Under the law of torts the victims can claim compensation for the injury to the person or property suffered by them. It is taking decades for the victims to get a decree for damages or compensation through civil courts, which is resulting in so much hardship to them.

The emergence of compensatory jurisprudence in the light of human rights philosophy is a positive signal indicating that the judiciary has undertaken the task of protecting the right to life and personal liberty of all the people irrespective of the absence of any express constitutional provision and of judicial precedents.

The renaissance of the doctrine of natural rights in the form of human rights across the globe is a great development in the jurisprudential field in the contemporary era. A host of international covenants on human rights and the concern for effective implementation of them are radical and revolutionary steps towards the guarantee of liberty, equality and justice. Though the concept is new, the content is not and these rights have been recognised since ages and have become part of the constitutional mechanism of several countries. India recognised these rights under Part III of the Constitution providing remedies for enforcement of such rights.

Article 32(1) provides for the right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights. The Supreme Court under Article 32(2) is free to devise any procedure for the enforcement of fundamental right and it has the power to issue any process necessary in a given case. In view of this constitutional provision, the Supreme Court may even give remedial assistance, which may include compensation in appropriate cases.

A question regarding the awarding of monetary compensation through writ jurisdiction was first raised before the Supreme Court in Khatri (II) v. State of Bihar (1981).
In this case, Bhagwati, J. observed:
Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty.

In Sant Bir v. State of Bihar (1982) the question of compensating the victim of the lawlessness of the State was left open.

In Veena Sethi v. State of Bihar (1982) also the Court observed that the question would still remain to be considered whether the petitioners are entitled to compensation from the State Government for the contravention of the right guaranteed under Article 21 of the Constitution.

In the light of the views expressed by the Court in the above cases it can be said that the Court had shown its concern for the protection of right to life and liberty against the lawlessness of the State but did not actually grant any compensation to the victims.

The seed of compensation for the infraction of the rights implicit in Article 21 was first sowed in Khatri, Sant Bir and Veena Sethi, which sprouted with such a vigorous growth that it finally enabled the Court to hold that the State is liable to pay compensation.

This dynamic move of the Supreme Court resulted in the emergence of compensatory jurisprudence for the violation of right to personal liberty through Rudul Shah The Supreme Court of India in Rudul Shah v. State of Bihar (1983) brought about a revolutionary breakthrough in human rights jurisprudence by granting monetary compensation to an unfortunate victim of State lawlessness on the part of the Bihar Government for keeping him in illegal detention for over 14 years after his acquittal of a murder charge.

In this case the SC held that Article 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 release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured is to mulct its violators in the payment of monetary compensation.

There must be direct and proximate nexus between the complaint and the arrest for the award of compensation under sec. 358 of the Cr. P.C. Any person is entitled to compensation for the loss or injury caused by the offence, and it includes the wife, husband, parent and child of the deceased victim.

In Sarwan Singh's case court held that in awarding such compensation, the court is to take into consideration various factors such as capacity of the accused to pay, the nature of the crime, the nature of the injury suffered and other relevant factors. Power to award compensation to victims should be liberally exercised by courts to meet the ends of justice.

In addition to the 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 accused. It is not alternative to but in addition thereto. The payment of compensation must be reasonable.

The quantum of compensation depends upon facts, circumstances, the nature of the crime, the justness of the claim of the victim and the capacity of the accused to pay. If there are more than one accused, quantum may be divided equally unless their capacity to pay varies considerably. Reasonable period for payment of compensation, if necessary by instalment, may be given.

In a certain case the Court held that where the amount fixed was repulsively low so as to make it a mockery of the sentence, it would be enhanced; the financial capacity of the accused, enormity of the offence, extent of damage caused to the victim, are the relevant considerations in fixing up the amount. The court in Balraj v. State of U.P. (1994) held that the power to award compensation under section 357 (3) is not ancillary to other sentences but it is in addition thereto.

The compensation for illegal detention is the area, which unearthed new doctrines pertaining to the compensation laws in India. In yet another case, two women filed a writ of habeas corpus to produce two persons (their husbands) who were found missing. The authorities failed to produce them. The Court concluded, on the basis of material placed before it, that the two persons 'must have met unnatural deaths, and that prima facie they would be offences of murder. The Supreme Court directed the respondents to pay Rs. 1, 00, 000/- to each of the wives of the missing persons.

Award of compensation to victims by Court:

There is plethora of case law where the Supreme Court has awarded compensation to the victims whose plight was brought to the notice of the apex court either by themselves or by way of PIL with the aim of protecting the human rights of the victims in our criminal justice system and to fulfill the constitutional obligation the Supreme Court can direct the government to confer jurisdiction on the criminal courts by making statutory provisions for the compensation to the victims of crime irrespective of whether the accused is convicted or not and to make statutory provisions for participation of the victims in prosecution along with prosecuting agency in a criminal case instituted on a police report.

The court has also granted monetary compensation to victims of custodial violence in many cases. In a landmark judgment of Nilabati Behra vs. state of Orissa (1993) case the apex court awarded compensation of Rs. 1,50,000/- to the mother of deceased who died in police custody due to torture. In D.K. Basu v. State of West Bengal (1997) Ė the Apex court held that compensation can be granted under the public law by the Supreme Court and High Court in addition to private law remedy for tortuous action and punishment to wrong doer under criminal law for established breach of fundamental rights.

Analysis of compensation:
When a crime is committed against a person, the victim loses out a lot apart from incurring damages and injuries. The work of a judiciary should not only be to punish the guilty but also compensate the victim as even if the accused is punished, the victimís loss is not compensated. The compensation given should at least try to put the victim in a state in which he was before. It is not like victims of crime can never ask for compensation as such a prayer is available under civil laws, but filing two different suits for the same offence in two different courts. The proceedings for one suit are most of the times is agonizing, that such a procedure of filing different suits only gives the victim a second traumatisation.

The idea behind providing compensation is legal as well as humanitarian. The inability to protect the person by the State makes it legally obligatory for the State to compensate him. The victim goes through such pain and many times permanent loss of income only makes it logical for him to be compensated.

In cases where a person dies or is sent into a vegetative state, compensation should be very high as many times, the victim himself is the sole bread earner of the family and hence his injuries affect the life of his family too. In such cases, if the accused is only imprisoned or asked to pay a small fine, no good happens to either the accused or the victimís family.


In the Indian society of the 21st century, many people want their brides to be pure virgins. A victim of rape in such cases not only loses out on the opportunity to marry into an otherwise decent family but is also discriminated upon for no fault of hers. It is often said that the most prised possession of a woman is her dignity and respect. In the society where people still have an old mindset, the life of such a woman only degrades. It only makes sense to compensate such a victim well apart from punishing the accused.

Mental shock, loss of income and cost of litigation should be taken into consideration when coming out with compensation and the Courts should hence compensate the victims more frequently.

Thus, compensation is not only required but is in fact a very important aspect of even criminal law and the courts should not use this sparingly but a little liberally. Of course they should be careful of not awarding too high a compensation and hence should be careful.†

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