VICTIM COMPENSATION
JUSTICE N. KOTISWAR SINGH
Chief Justice (Acting), Gauhati High Court
Who is a Victim?
UN Declaration of
Basic Principles of • Persons who individually or collectively have
Justice for victims of suffered harm including physical and
mental injury emotional suffering, economic
crime, including loss or substantial impairment of their
those law proscribing fundamental rights through acts or
criminal abuse of omissions that are violation of criminal law
power, 1985
• a person who has suffered any loss or
injury caused by reason of the act or
Section 2 (wa) - Code omission for which the accused person has
of Criminal Procedure been charged and the expression victim
includes his or her guardian or legal heir.
Genology of Victim Compensation
References of compensation being paid to victims of criminal offences is
found, amongst others, in:
Homer’s Illiad Code of Hammurabi
Manusmriti The Book of Exodus
one of the first “victim” rights statute” in history
Historical record of victim compensation in modern Indian
history
A story is told how Emperor Jehangir was faced with a problem in one of his daily ”darbars”
and how he solved it.
One day, the Empress in a fit of anger, hit her launderer whose work was not satisfactory
and the washer man fell down dead. On being persuaded, the widow attended Jehangir’s
“darbar” the next morning and on being asked by Jahangir as to who killed her husband,
she trembled and replied “the Empress”.
Jehangir was stunned, he drew his sword and said “The Empress killed your husband. Now,
with that sword, you kill the Empress’s husband. I command you to do it.”
The Laundress was nonplussed. She fell at the Emperor’s feet, recovered her equanimity
soon enough and 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.”
The story goes that Jehangir was so touched by the words of the washerwoman that he
made her a baroness and showered her with riches beyond measure.
It is perhaps one of the earliest known cases of victim compensation in modern Indian history.
International Scenario
NEW ZEALAND
UNITED KINGDOM
UNITED NATIONS
• New Zealand was one of • Criminal injuries
• The Declaration of Basic
the first nation to compensation was
principles of Justice for
establish a compensation introduced in 1964 as an
Victims of Crime and
plan in the year 1963. experiment on a non-
Abuse of Power
(Declaration) was statuary basis to provide
adopted by consensus in ex gratia compensation to
the United Nations the victims of crimes of
General Assembly in violence and to those
1985, reflecting the hurt in their attempts to
collective will of the arrest the offenders and
International Community to prevent crimes.
to address the interests
and concerns of victims
of crime.
International Scenario
• The idea of • Germany has a crime
GERMANY
NETHARLANDS
establishing a victim compensation
compensation fund program to provide
whereby compensation financial compensation
would be paid from for victims of violent or
government funds to personal crime which
victims of serious came into force in the
crimes of violence year 1976.
came up in the
Netherlands around
the year 1970..
International Scenario
PHILIPPINES
FRANCE
• In March 1977, Act. • The Government of
No. 77.5 of 3 January Philippines brought
1977 came into force the Victim
throughout the Compensation
Republic of France scheme in the year
guaranteeing state 1984.
compensation for
certain categories of
physical injury resulting
from crime.
Indian scenario : Victim compensation
154th Law Commission Report, 1996
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.
Malimath Committee recommendations - 2003
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 provisions relating to compensation to victims of
crime are contained in sections 357, 357(1), 357 (2),
357 (3), 357A, 358, 359 and 250 of the Code of
Criminal Procedure, 1973.
Laws governing
compensation to
victims of crime
Article 14 and 21 of the Constitution of India
encompasses within its fold safeguards to victims of
crime.
Recent Amendment
Amendments made to the Code of Criminal Procedure (CrPC), 1973 in 2008 as well as
through the Criminal Law (Amendment) Act of 2013, made a breakthrough in
acknowledging the rights of the victim.
Though one generally assumes compensation to be a remedy granted by civil courts and
sentencing a function of criminal courts, Section 357 clubbed the two remedies together,
thereby ensuring that the victim would not have to approach two different courts, hence
expediting the compensation process.
Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for
the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and
who, require rehabilitation.
Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State
Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the
scheme referred to in sub-section (1)
If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not
adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be
Sec 357-A CrPC rehabilitated, it may make recommendation for compensation.
Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his
dependents may make an application to the State or the District Legal Services Authority for award of compensation.
On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services
Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.
The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order
for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police
officer not below the rank of the officer incharge of the police station or a Magistrate of the area concerned, or any
other interim relief as the appropriate authority deems fit.
Difference Between S:357 & S:357 A - CrPC
Sec : 357 CrPC Sec : 357-A CrPC
it is the state that pays compensation
the offender who is made to pay
to the victim in accordance with the
compensation
state’s victim compensation scheme
the state can provide interim
compensation as listed under the
state’s victim compensation scheme,
regardless of whether the case has
resulted in a conviction
Under Section 357-A of the CrPC each state formulated a victim
compensation scheme.
Despite the existence of statutory provisions and schemes of the States,
the victims of crimes rarely received any compensation. The same was
taken note of by the Hon’ble Supreme Court in Ankush Shivaji
Gaikwad v State of Maharashtra (2013) 6 SCC 770 and the Apex
Court made mandatory for trial Courts to consider grant of interim
compensation and to give reasons for not recommending compensation
to the victims of the crime
Notification dated 14th October , 2015 : Central government set up the
Central Victim Compensation Fund Scheme. The Scheme aims at
supporting and supplementing existing victim compensation schemes
notified by states and union territories and reducing the disparity in the
quantum of compensation notified thereof. It defines the scope for
budgetary allocation and provides for accounting and audit. It also opens
public participation by inviting funding.
Writ Court and Grant of Compensation
In Rudal Sah V State of Bihar AIR 1983 SC 1086
The petitioner remained in illegal detention for more
than 14 years. After notices were issued and when
the petition was taken up for hearing, the
Government informed that the petitioner has been
released from custody.
Under the general rule, the writ petition had become
infructuous. However, the Supreme Court issued
notice on the ancillary relief and after hearing the
parties deemed it fit to grant a compensation of Rs.
30000/-.
This was perhaps the first case where writ court in
India granted compensation for illegal detention.
Writ Court and Grant of Compensation
Contd.
In MC Mehta V Union of India AIR 1987 SC 965
The Supreme Court held that the power under Article 32 is not
confined to preventive measures when fundamental rights are
violated or threatened to be violated but it also extends to remedial
measures including compensation when the rights are already
violated.
Other judicial pronouncements
Hitendra Vishnu Thakur Vs State of Maharashtra (1994) 4 SCC 602
The Supreme Court observed as follows:
“…A procedural statute should not generally speaking be applied
retrospectively where the result would be to create new disabilities or
obligations or to impose new duties …”
A statute which not only changes the procedure but also creates new
rights and liabilities shall be construed to be prospective in
operation.
As Amendment Act of 2008 created new liabilities on the State, it
appears to be retrospective in nature.
Other judicial pronouncements
Suresh v. State of Haryana (2015) 2 SCC 227 :
“It is the duty of the courts, on taking cognizance of a criminal
offence, to ascertain whether there is tangible material to show
commission of crime, whether the victim is identifiable and
whether the victim of crime needs immediate financial… relief.
On being satisfied on an application or on its own motion, the
court ought to direct grant of interim compensation, subject to final
compensation being determined later.
Gravity of offence and need of victim are some of the guiding
factors to be kept in mind, apart from such other factors as may be
found relevant in the facts and circumstances of an individual
case.”
Other judicial pronouncements
Nipun Saxena v. Union of India Cri MP 16041/2014
Pursuant to Supreme Court directions NALSA drafted the Grant of
Compensation to Women Victims/ Survivor of Sexual Assault/Other Crimes-
2018.
Important features of the Scheme:
(i) Woman victim eligible for compensation from multiple schemes
(ii) Online application for compensation.
(iii) The enquiry to be completed within 60 days &
(iv) In Acid Attack case, and in all other deserving cases, the Secretary
DLSA to grant interim compensation.
Subsequently Supreme Court laid down that NALSA’s Compensation
Scheme for Women/Victims should function as a guideline to the Special
Courts for the award of compensation of victims of child sexual abuse under
Rule 7 until the Rules are finalized by the Central Government.
Other judicial pronouncements
In Re Alarming Rise in the Number of Reported Child Rape
Incidents [Suo Motto Writ (Crl) 1 of 2019]:
The Supreme Court awarded as an interim measure compensation of Rs
25,00,000 (Rupees twenty five lakhs only) to the rape victim and called for
reports from States and UT as regard payment of compensation including
interim compensation to victims of crime.
Report on victim compensation received and tabulated as under:
Interim compensation NOT provided - 99%
Interim compensation provided - 1%
Final compensation NOT provided - 99%
Final compensation provided - 1%
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Challenges
• State victim compensation schemes are non-uniform, 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.
Lack of
uniformity: Each state set a different compensation amount based on the category of
victim. Moreover, there is no systematic method for categorization of the
victim based on the nature of the crime or the age of the victim. Some
states took the age of the victim into account while others did not.
• The State exchequer must cater for contingencies and be supportive of the
Funds & expenditure incurred by the victims.
Disbursement: • Disbursements which are sparingly done, has to be increased and
consolidated.
The major problem in implementation of victim compensation schemes is
the serious lack of awareness. The victims availing compensation under
Implementation: the scheme is nowhere close to the incidents of crime being reported every
year
Measures
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: While Sections 357
and 357A of the CrPC are steps in the right direction, their
implementation requires much fine-tuning.
Thank You
