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An Analysis On Victims Compensation A Human Rights Approach

The purpose of the criminal justice system is to protect the right of the individual against the intentional invasion by criminals. This system has always safeguarded the rights and privileges of the offenders. However, it does not give much similar concern to the rights of the victims. Victims are often viewed as a witness or as an informant to a crime against the state.

The victim has no role to play unless the police consider it necessary. It is the court that must preserve the sanctity of justice and it is the responsibility of the state to support the pillars of justice. However, punishing the offender, itself was not subserving the pain and suffering caused to the victim. Hence the concept of Victim Compensation evolved. But the question often arises whether the victims have a right to get compensation even if there is no conviction of the offender. This paper discusses such issues and how the Indian courts have tackled these matters.

Victims have the privileges of an acknowledgment as people under the watchful eye of the law. Casualty's privileges are basic freedoms. However, such rights just sign if they can be implemented. This paper has gone into depth about the human rights of victims and how the Indian Judiciary has protected these rights. The paper also discusses various provisions pertaining to compensation to the victims of crime.

Introduction
Injustice anywhere is a threat to justice everywhere- Martin Luther King, Jr.

The purpose of the criminal justice system in any country is to protect the rights of the individuals against the intentional invasion by the criminals by punishing them in accordance with the law. The process of criminal law has always safeguarded the interest of the offender in its duty for a fair and just trial. This process has also conferred certain rights and privileges on the accused. However, it does not give much similar concern for the victims of crime.

The victim is considered only as an informant for the material source of evidence and in most cases, he/she acts as an informant to set the criminal process in motion by reporting the crime to the police. After that he/she has no role to play unless the police consider it necessary. It has been often debated extensively on where to place the responsibility, whether the responsibility of the state ends merely by registering a case, conducting an investigation, initiating prosecution and sentencing an accused or the state has a further responsibility to the victim.

However, it is the court that preserves the sanctity of justice and the responsibility of the state is to support the pillars of justice. But the question often arises, whether the court bears a legal duty to compensate the victim if the offender is acquitted. In the present criminal justice system, according to law, if the court finds out that no offense is made out, then there is no question of having a victim. Although the court finds that an offense has been committed against the aggrieved complainant/victim, yet it may acquit or discharge the offender/accused on one or more of the following grounds.

They are:
  1. Despite the fact that the case is valid, yet no hint was found to implicate the accused in the crime during the examination.
  2. No adequate lawful proof was accessible against the charged at the preliminary for holding him liable.
  3. The supposed criminal the lead of the blamed could get secured under any for the special cases gave in the Indian Penal Code, for example, the privilege of private protection of property and individual, insufficiency, the madness of the blamed or need for men's rea.
  4. In some cases, prior the sanction for prosecution of certain authorities is required to prosecute an offender and for want of such sanction, the accused is entitled to an acquittal, and
  5. There might be an instance of error of truth or mixed up the character of the blamed person as the offender.[1]

In all these cases the acquittal of the offender/accused does not give solace to the victims/complainant as the accused go scot-free without any punishment. An accused is presumed to be innocent until he is proved guilty and the burden of proof rests on the prosecution. The victims are unfortunately the forgotten people in the criminal justice delivery system. Rehabilitation of the prisoner need not be by closing the eyes towards the suffering victims of the offense. Victims also have a right to get justice, to get compensated even if there is no conviction.

Concept of victim

As per the Code of criminal procedure, casualty implies a person who has endured any misfortune or injury brought about by reason of the demonstration or oversight for which the a denounced individual has been charged and the expression includes guardians and the legitimate beneficiary of the person in question.[2]

As set forth in the United Nations General Assembly Declaration (1985), Victims are defined in the broad sense 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 exclusions that are an infringement of National Criminal Laws or of universally perceived standards identifying with basic liberties.

Kinds of Victims

The Studies of Benjamin Mendelsohn culminated in the delineation of a typology of criminal victims.

This typology consists of the following six:

  1. Completely innocent victim (typically children or those who are attacked while unconscious);
  2. A victim with minor guilt;
  3. Voluntary victim, whose guilt is equal to that of the offender
  4. Victim more guilty than the offender;
  5. The victim who alone is guilty;
  6. The imaginary victim.[3]

Certain classes of vulnerable persons and victims would like special and larger attention. These are:
  1. Aged Victims;
  2. child victims'
  3. Victims of Sex Offenses;
  4. Female Victims;
  5. Minority teams and Weaker Sections;
  6. Consumer Victims.

Grievances of Victims

The grievances of victims are often following as:
  1. Inadequacy of the law during allowing the victim to participate within the prosecution in a criminal case instituted on a police report.
  2. Failure on the part of the police and prosecution to stay the victims wise concerning the progress of the case.
  3. Inconvenience throughout interrogation by the police and drawn-out court. iv. Lack of prompt medical help to the victim.
  4. Absence of brief clinical help to the victim.
  5. Lack of protection once the victim's area unit vulnerable by the bad person. vii. Failure within the restitution of the victim.[4]
Along with the social stigma and trauma that crime will turn out, these grievances of the victim area unit secondary.

Historical Evolution Of Victims Compensation

The compensation for the victims of crime is an old institution. One of the earliest references relating to state compensation for victims of crime was the Hammurabi code of ancient Babylonian. This standard was acknowledged in England in the Anglo-Saxon time of the seventh century.

With the progression of time, a differentiation was made between the criminal equity framework and the common framework because of the synchronous development of Royal and Ecclesiastical Offenses like homicide, assault, and theft didn't stay inside the class of misdeed to be settled by remuneration yet were viewed as violations against society and were culpable all Because of this, the idea of state compensation disappeared and the concept of the state playing a punitive role in imposing punishment for the commission of any wrong.

Realizing the fact that imposing punishment was not subserving the needs of the victim, hence again the concept of state compensation was discussed at the fifth International Prison Congress in the latter half of the Despite the activism of Penologists like Jeremy Bentham, the acceptance of the principles of compensation to the victims remained unsatisfied.[5]

During the 1950‟s Margery Fry, an English penal reformer called refocusing on the plight of victims and the presenting of effective remedies on victims such as This heralded the formation of state compensation programs in the American and European jurisdictions. Great Britain set up a non-statutory program in 1964, which was administered by the Criminal Injuries Compensation Board and the funds being sanctioned by the Parliament This compensation was granted in the form of a lump-sum payment to the victim and was computed in the same manner as damages in a civil award. This program was given legal structure in the Criminal Injuries Compensation Act, 1995 which processed pay dependent on a tariff scheme. This took into account the need for special care and dependency.

The move towards state compensation was mirrored within the U.S, with California being the primary state to try and do this in 1965. In 1984 the Victims of Crime Act 1984 was enacted by Congress, which established against the law Victims Fund among the U.S.A. Treasury. This compensation is provided solely to innocent victims and people WHO area unit is concerned in monstrous crimes.

Development in India
The penal law history in India is often copied to the days of the organization and also the era of British rule. The forty-first report of the Law Commission of India was submitted in 1969 that mentioned Section 545 of the Criminal Procedure Code of 1898. tho' the construct of victims' compensation isn't specifically mentioned it's recognized in some type within the Criminal Procedure Code of 1898.

The terribly 1st trace of restitution are often found in Section 545 (1)(b) within the Code of Criminal Procedure (CrPC) of 1898, on condition that the court might direct payment to anyone of compensation for any loss or injury caused by the offense, once substantial compensation is, within the opinion of the court, recoverable by such person during a civil court. however, the correct of compensation to victim compensation beneath CrPC was obtainable solely wherever a substantive sentence of the fine was obligatory.

The 154th Law Commission report on CrPC counseled that it absolutely was essential to include a provision within the Code that provided for a comprehensive theme of payment of compensation for all victims. On the idea of the recommendations created by the Law Commission within the same report, the government of India introduced the Code of Criminal Procedure Bill, 1970, that geared toward redaction Section 545 and re-introducing it within the variety of Section 357.

Section 357 led to important changes. The word substantial was excluded and 2 new subsections were inserted. subdivision (3) provides for payment of compensation even in cases wherever the sentence doesn't impose a fine, whereas subdivision (4) printed the jurisdiction and powers of courts with relevancy to the section. It states that associate order award compensation could also be created by an associate tribunal or by the tribunal or Court of Session once it physical exercise its powers of revision.

Again, associate change was created and sub-section (1) of Section 357A of the CrPC was introduced that mentioned the preparation of a theme to supply funds for the compensation of victims or his dependents WHO have suffered loss or injury as a result of against the law and WHO needs rehabilitation.

Sub-section (2) states that whenever the Court makes a recommendation for compensation the District Legal Service Authority or the State Legal Service Authority because the case could also be, shall decide the quantum of compensation to be awarded beneath the preceding theme.[6] it's important that the Legal Services Authority, comprising of technical specialists, has been entrusted the task of deciding the quantum of compensation, since they're higher equipped to calculate/quantify the loss suffered by a victim.

In sub-section (3) the trial court has been empowered to make recommendations for compensation in cases where:
  1. Either the quantum of compensation fixed by the Legal Services Authority is found to be inadequate; or,
  2. Where the case closes in absolution or release of the blamed and the casualty must be restored.

Notwithstanding, there is the degree to additionally stretch out pay to casualties in these cases that end in absolution or release past restoration to remuneration for misfortune.
The section provides a victim with a specific right of appeal in the following circumstances:
  1. Acquittal of the accused,
  2. Conviction for a lesser offense, and; iii. Inadequate compensation. The arrangements in the CrPC after the ongoing revision are broader in their methodology of tending to the situation of victims.

Legislation Pertaining To Victims Compensation In India

In the CrPC, the following provisions pertaining to Victims and the compensation to them are:
  1. Sec. 250 authorizes a Magistrate to direct complainants or informants to pay compensation to people accused by them without reasonable cause.
  2. Sec. 357 empowers the court to force a sentence in criminal procedures to allow remuneration to the person in question and to arrange installments of the expense to the indictment.
  3. Sec. 358 empowers the court to order a person to pay compensation to another person for causing a police officer to arrest such other person wrongfully.
  4. Sec. 359 enables the court imposing a sentence in non-cognizable cases to grant compensation to the victim and to order payment of costs incurred in prosecution.
  5. Sec. 482 empowers a higher court to exercise its inherent power in the interest of justice whenever the victim approaches a higher court to claim compensation.[7]

Victims And Human Rights

Human rights are rights that every human being has by virtue of his or her human dignity.[8] They have been described as inalienable rights in the sense that without them life lived is not fully human life.[9] They have four major characteristics i.e., universal; inherent; invisible and inalienable.

On December 10, 1948, the United Nations (UN) General Assembly, unanimously passed a resolution approving the Universal Declaration of Human Rights (UDHR) as a common standard of achievement for all peoples and of nations. The thirty articles of the Universal declaration covers almost the entire range of human rights. In 1966, two international covenants were enacted to give effect to the Universal Declaration i.e:
  1. On Economic, Social and Cultural Rights; and
  2. On Civil and political rights.

The basic philosophy that lay behind the international covenants is that realization of the rights incorporated in the UDHR is possible only if every human being has civil and political rights as well as economic social and cultural rights.

The UDHR declares in Article 8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law.[10]

In current scenario the human rights are the concern of the International community as a whole since they are the rights that every human being has. Apart from giving legal sanctity to Human Rights, now there is a trend even to pay compensation to the victims of Human Rights violations.

The national conviction rate in India for offenses of the Indian Penal Code is only around 46%. Hence we need to look at whether the human rights of victims are being protected. Whether the victims of crime being adequately compensated and guilty getting adequately punished.

Declaration of basic principle of justice for victims of crime and abuse of power.
In 1985, to improve the plight of victims UN general assembly adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. It includes a number of rights of victims.

The recognition of these rights is possible when appropriate legal, administrative , and policy decisions are made to ensure justice to the victims of crime.[11] They are:
  1. Right to protection from crimes through policy and the law;
  2. Right to Information from organizations of criminal equity framework at each stage.
  3. Right to help at each stage; such help will incorporate clinical money related and legitimate guide.
  4. Right to gracious and human treatment.
  5. Right to compensation from guilty parties.
  6. Right to remuneration from State.
  7. Right to mediate at any phase of the procedures through direction, including the option to look for audit or endorsement.
The recognition of these rights is possible when appropriate legal, administrative and policy decisions are made to ensure justice to the victims of crime.

Judicial interpretation pertaining to human rights vis--vis victim's compensation
The Supreme Court of India has adopted new methods for the purpose of making human rights meaningful even to the victims of crime.

It is often seen that whenever the court enhances the compensation amount, it commutes or reduce the punishment. The Supreme Court is not consistent in awarding compensation while reducing the substantive sentence.

In the case of Palaniappa Gounder v. State of T.N., the Supreme Court reduced the amount of compensation from Rs. 10,000 to Rs. 5000 payables to the heirs of the deceased. The Supreme Court pointed out that there was no justification for substituting the monetary compensation for the substantive sentence.[12]

In Delhi Domestic Working Women's Forum V Union of India, the Delhi Domestic Women's Forum filed a writ petition in the Supreme Court under Article 32 of the Constitution to espouse the pathetic plight of four domestic servants who were subjected to indecent assault by seven army personnel in a train.

The Forum urged the Supreme Court to spell out the parameters on compensation to victims of rape. Taking note of the seriousness of the matter, the Supreme Court suggested to the Government to set up a Criminal Injuries Compensation Board, in order to award compensation to the victims of rape, whether or not a conviction has taken place. At the same time, the court directed the trial courts to award compensation to the victims of sexual assault on conviction.[13]

Constitutional Remedies and Human Right of Victims
Victims of crime had to travel the civil court to urge a decree for compensation or damages. This was leading to such a lot of hardship to them. Hence the court advancing the explanation for human rights and giving more focus to the constitutional guarantee for a right to measure with dignity under Article 21 declared that the court itself could award compensation in an exceedingly case of human rights violation.

In Rural Shah v. the State of Bihar the Court held the State is liable to pay compensation to the petitioner for illegal detention, depriving him of his fundamental right to life and liberty guaranteed under Article 21 of the Constitution. This case added a new dimension to judicial activism and raised a set of vital questions, such as the liability of State to compensate for unlawful detention, the feasibility of claiming compensation from the State under Article 32 for wrongful deprivation of fundamental rights, the propriety of the Supreme Court passing an order for compensation on a habeas corpus petition for enforcing the right to personal liberty.

The Supreme Court in the above case observed:
It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of courts, civil and criminal. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a court of lowest grade competent to try it. But the important question for our consideration is whether in the exercise of its jurisdiction under Article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right.

The court further observed that within the circumstances of the case the refusal of this Court to pass an order of compensation in favor of the petitioner are going to be doing mere hypocrisy to his fundamental right to liberty which the authorities have so grossly violated. Article 21, which guarantees the proper to life and liberty, are denuded of its significant content if the facility of this Court were limited to passing orders of release from illegal detention. one in all the telling ways during 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 within the payment of monetary compensation.[14]

Conclusion
For too long, the law has centered its attention more on the rights of the criminal than on the victims of crime. It is high time we reverse this trend and put the highest priority on the victims and potential victims. President Gerald R. Ford

The purpose of the criminal justice system is not only to protect the rights of the offender but also the victims of the crime. In our criminal justice system, the burden of proving the crime beyond a reasonable doubt is upon the prosecution. Such factors have contributed to lesser conviction rates. Compensation to victims of a crime is a state obligation whether the offender is convicted or not. The present conviction rate in India is only 40%. Hence victims of crime need to be compensated even the court acquitted the accused.

There are crimes where the offender is not able to compensate the victim. Hence The state should be duty-bound to compensate for the mental and physical trauma caused to the victim.
Ultimately, the efficacy of the law and its social utility depends largely on the manner and the quantity of its application by the courts. A good law badly administered may fail in its social motive and if overlooked in practice, will fail in purpose and utility. Section 357A has a social motive to serve and has to be carried out in appropriate cases. The judges‟ discretion should not become the vanishing factor of victim compensation laws.

The machinery of criminal justice in India must be reinvented to become a system that is curious to the nature of crimes, their results on the victims, and the stigma it bears in society, and alive to the traits of human rights jurisprudence internationally. As responsible citizens, we must constantly remind the focus of justice that it owes a sacrosanct obligation towards the rehabilitation of a victim. Hence the enhancement of victim's rights and remedies should be an important concern of the criminal justice system.

End-Notes:
  1. Modalities for compensation to the victims of crime in the light of position prevailing in other countries so as to make it part of criminal jurisprudence in our country available at
    http://www.bprd.nic.in/WriteReadData/userfiles/file/201804230222365094527Report-VictimCompensation.pdf (Last visited October 12, 2019)
  2. Sec 2(wa) inserted by The code of criminal procedure ( Amendment ) Act, 2008
  3. The Culpable Victim in Mendelsohn‟s Typology available at https://files.eric.ed.gov/fulltext/ED140138.pdf (Last Visited October 18, 2020)
  4. Nidhi Singh, Compensation to Victims of Crime and rehabilitation measures in India (2010) (Maharshi Dayanand University)
  5. AN ANALYSIS OF THE VANISHING POINT OF INDIAN VICTIM COMPENSATION LAW available at http://docs.manupatra.in/newsline/articles/Upload/5C770380-C132-4069-A666-41373B4935FB.pdf (last visited at October 18,2020)
  6. AN ANALYSIS OF THE VANISHING POINT OF INDIAN VICTIM COMPENSATION LAW available at http://docs.manupatra.in/newsline/articles/Upload/5C770380-C132-4069-A666-41373B4935FB.pdf (last visited at October 18,2020)
  7. Modalities for compensation to the victims of crime in the light of position prevailing in other countries so as to make it part of criminal jurisprudence in our country available at
    http://www.bprd.nic.in/WriteReadData/userfiles/file/201804230222365094527Report-VictimCompensation.pdf (Last visited October 24, 2020
  8. Human Rights available at https://www.ohchr.org/Documents/Publications/HandbookParliamentarians.pdf (Last Visited on October 25, 2020)
  9. R.J. Vincent, Human Rights and International Relations, 14
  10. Universal Declaration of Human Rights available at https://www.un.org/en/universal-declaration-human-rights/ (last visited at October 25,2020)
  11. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power available at https://www.unodc.org/pdf/compendium/compendium_2006_part_03_02.pdf (Last Visited October 26, 2020)
  12. Palaniappa Gounder v. State of T.N (1977) 2 SCC 634
  13. Delhi Domestic Working Women's Forum V Union of India (l995)1 SCC 14
  14. Rudal Shah v. State of Bihar (1983) 4 SCC 141

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