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Victim Compensation: An Overview

Crime is that essence of the society, whose existence can be neither neglected nor denied. Any art of crime involves various parties such as an Accused or Offender, an Abettor, the judicial and enforcement machinery and victim.

In modern society application of law has been accused centric, where the basis of any form of investigation or trial is with the motive to punish the Offender and not to bring the justice to the victim. The main component of any crime which is the victim is highly neglected and at times law enforcement agencies would go to any extend to punish the accused, unbothered of the fact that such an act of theirs is causing further victimization of the victim.

Today in any Rape case, the victim has to relive the trauma of that incident everyday since the initial phase of a trial, where lodging an F.I.R u/s. 154 of CrPC, the victim needs to narrate the whole incident to the concerned police officer and during the trial stage the victim is repeatedly asked questions regarding the incident which traumatizes her further. Moreover, at times the questions asked by the lawyers are such that makes victim's character questionable. Though Judges ask the lawyers to refrain from asking such questions and further traumatizing the victim. The scientific study of victim and his or her relation with the accused, law enforcement and Judiciary is known as Victimology.

The term victim in common parlance means, all those who experience injury, loss or hardship due to any cause and one such cause may be crime. Therefore, victimology may be defined as a study of people who experience injury or hardship due to any such cause. Such an injury may be physical, psychological, emotional and financial.

Definition of a victim:
As per Indian law, a Victim is defined under section 2(wa) of the CrPC,1973[1] 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 the Term “victim” includes his or her guardian or legal heir. The term 'legal heir' is also included in the definition of a victim under sec. 2(wa) of CrPC, 1973.

The question that whether the legal heirs who haven't suffered any loss or haven't been injured due to commission of an offence/ because of the act of the accused are also taken into consideration in the definition of the victim given under sec. 2(wa) of CrPC, 1973, has been answered by the Hon'ble Delhi High court in the case of Ram Phal v. State[2], where The Hon'ble Court was of the opinion that, it is not necessary for all legal heirs to undergo and experience a loss or injury. This judgment by the Hon'ble court overruled the prior 2011 judgement given by court in the case of Chattar Singh v. Subhash[3].

The term Legal Heir within the Definition of 'Victim' u/s 2 (wa) of CrPC has been further elaborated by the court in the case of M/s Tata Steel Ltd. V. M/s Atma Tube Products[4], where the court opined that, The Victim Compensation Scheme was only applicable to those dependents of the victim, who have actually suffered a loss or sustained an injury and are in dire need of rehabilitation. Apart from aforementioned the term 'Legal heir' has no applicability of Victim Compensation Scheme.

Historical aspect of compensation laws in India:
In India, existence of victim compensation has been evident since the Vedic period. The law revolved more around compensating the victim than to punishing the offender. The State played the role of an arbitrator. The individuality of the offender was not taken into consideration. The law emphasized upon the principle that, “no innocent should be punished for an offence that has been committed by an offender.”

The Indian law system believed in the reformation and rehabilitation of the offender and hence its focus remained on the redemption of the offender. The first act of compensation in the medieval era was noticed in the Darbar of Emperor Jahangir, where the husband of the washerwoman was killed by the Empress and to seek justice, the washerwoman had approached the 'Darbar' of Emperor Jehangir. When Jehangir got aware of the fact, he asked the washerwoman to execute his head with the sword.

The washerwoman said:
Sire, I have suffered, but I do not want either the Empress or the country to suffer by my obeying Your Majesty's command. I am prepared to take any punishment for this disobedience”. Impressed by washerwoman's words, Jehangir offered her an amount in order to compensate her of the crime that had been committed by the empress.

After the British Colonial rule and Following their legal legacy, India adopted the Code of Criminal Procedure which was formulated by the British and arbitrarily empowered it within India. In which, there is only one provision under Section 357 of the CrPC, 1973, which stated that the court could, while awarding sentence, award compensation. It was later in 2008 when victim compensation schemes were penned down by each state.

Compensation as a Constitutional aspect:
The right for compensation of a victim comes into the picture when the fundamental rights of a person has been violated
The fundamentals of victimology lie in the fundamental rights and DPSP. One of the most notable initiatives taken by the judiciary was the evolution of compensatory remedy through Article. 32 or 226/227.[5]

However, the current available remedies are at courts discretion and there are no subsequent provisions for a speaking order. Calculation / Computation of the compensatory amount is well within the court's jurisdiction.

Article 14 and 21 of the Constitution of India[6] protects the rights of a victim.

In Rudal Shah V. State of Bihar[7], the Hon'ble Supreme Court laid down the principle of compensation where compensation can be given to an individual whose fundamental rights have been violated as well as the higher court also has similar authority under Article 226. This landmark judgment played a pivotal role in evolution of principle of compensatory jurisprudence in India.

In MC Mehta V Union of India[8], the supreme court held that the power under article 32 in not constrained to taking measures when fundamental rights are violated or threatened to be violated but it also extends to take remedial measures that is inclusive of compensation for the rights being violated.

Victim compensation act in a Criminal Trial:
The 154th law commission,[9] Recognized compensation as a method of protection that provided instant support to the victim and those dependent on victim. Under section 357 of Code of Criminal Procedure (hereinafter referred to as CrPC), which initially provided that the compensation to a victim of crime is to be given by the accused. Later the judiciary through judicial activism setup a precent wherein stating that, though offender is being punished for his offence/s, but during this process of trial, the victim is neglected. After the amendment of CrPC in 2008, it was found that the State is liable for compensation of a victim.

These amendments were based on the recommendations given in the Malimath Committee report.[10] A statement therein was made that the compensation to a victim must not only be as a token of relief but also a part of the substantial remedy. This statement was justified by a reasoning which stated that the crimes are a product of the imbalances caused in the societal institutions such as poverty, discrimination, unemployment, insecurity, etc. and the State was under an obligation to provide the victim of serious crime with compensation. The conviction or acquittal of the offender should not affect the compensation of the victim of crime. The Malimath committee[11] also recommended that the assets confiscated in organized crimes can be made part of the fund.

Criminal Law (Amendment) Act of 2013[12], also acknowledged the rights of the victim. Anomality of remedies provided by the civil court was compensation and punishment in criminal trials, sec. 357 clubbed the two remedies and made the legal hassle of victims approaching two different courts into expediting the process of compensation.

In Bhajan Kaur v. Delhi Administration[13], a writ petition was filed in Delhi High Court for payment of compensation to the wards of those, who were slaughtered in the riots after the assassination of former Prime Minister Smt. Indira Gandhi as the State had an obligation to protect the life of its residents.

Central Victim Compensation Fund Scheme (CVCF)
As now the States were under an obligation to provide victims of serious crimes with compensation under Central Victim Fund Scheme (hereinafter referred to as CVCF). The initial corpus of this scheme was Rs. 200 crores to provide support for the rehabilitation of the victims of rape, acid attacks, human trafficking and women killed in cross border firing.

The key objectives of CVCF are the following:
  • To support and supplement the existing victim compensation schemes notified by State/ UT administration.
  • To reduce disparity in quantum of compensation amount notified by different States/ UTs for victims of similar crimes.
  • To encourage States/UTs to effectively implement the Victim Compensation Schemes (VCS) notified by them under the provisions of section 357A of CrPC and continue financial aid to victims of various crimes especially sexual offences such as rape. It also includes acid attacks, crime against children, human trafficking etc.
However, to decide as to who all may be benefitted with this scheme there was an eligibility criterion which was set, which consists of the victim and those dependent on them
The victim shall not be receiving any form of aid under any central or state governmental scheme, for which the victim (Applicant) along with his/her dependents shall file a declaration along with the application form.

The Loss or injury sustained to the victim of his dependents shall be such that the family would have hard time to sustain financially or requires such expenditure beyond his financial capacity on medical treatment of such mental or physical injury.in cases where the offender is not traceable or not being able to be identified, the victim or his dependents can also apply for grant of compensation Section 357 A (4) of the CrPC. As the crimes have different dynamics hence, a minimum amount was set according to the severity of the crime that was considered for compensation under CVCF.

Conclusion
victim compensation scheme is a step taken by the government along with the judiciary, to setup a platform through which, victims of crime are provided some sort of relief to lessen their trauma and pain. As it is the duty of the State to maintain law and order in the society, and the sole reason that there is an individual who is a 'victim', is because of such a failure of the government and other law enforcement machinery and hence one can see it as a compensation amount that is provided by the State, since it failed to perform its duties.

The above article clearly reflects that victim compensation is not a new subject as referred to the ancient prevalent laws, but after British colonization, the prevailing laws became more of accused centric. Today, Through Judicial activism and setting up of precedents by the learned judges, we have had cases where victims are compensated by the State and along with that, if they find such a compensation to be not sufficient, then they can further initiate a civil suit in the same regards.

I personally believe that, there shall be more such schemes and Collection of Funds to be started such as the Nirbhaya Rape Victim Fund, where the Funds provided by people and government are not only used in medically and legally aiding the victim, but also helps in rehabilitation and help them to be financially independent again, as well as help them pass through the psychological pain and trauma, caused through the incident.

End-Notes:
  1. Code of criminal procedure, 1973, § 2 (wa), Act of Parliament (India)
  2. Ram Phal v. State, Criminal Law Journal 3220 (Delhi 2015)
  3. Chattar Singh v. Subhash, 2 ILR 470 (Delhi 2011).
  4. M/s Tata Steel Ltd. V. M/s Atma Tube Products, 1 PLR 1 (Punjab & Haryana 2014
  5. INDIA CONST. art. 32, 226, 227.
  6. INDIA CONST. art. 14,21.
  7. Rudul Sah v. State of Bihar, AIR 1086 (Supreme Court 1983)
  8. MC Mehta V Union of India AIR 1987 SC 965
  9. Law Commission of India, 154th Report, 1996
  10. Malimath Committee Report on Reforms of Criminal Justice System in India, 2008
  11. Ibid, 2008
  12. Criminal Law (Amendment) Act, 2013, No. 13, Act of Parliament, 2013 (India)
  13. Bhajan Kaur v. Delhi Administration, ILR 1996 DEL 754

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