The Victim Compensation Scheme envisaged under Section 357A attempts to bolster victims’ rights and support their journey towards justice. But more often than not, the victim compensation scheme is beset with legal and practical issues. These range from incongruencies in the compensation amounts and framework of victim compensation in different states to inefficient nodal agencies to deal with these requests. Victims encounter practical difficulties in submitting a claim for compensation, and as a result, they are frequently undercompensated. This article examines these challenges and proposes ways to improve the existing system.
Lawlessness in a society brings out the worst in its members. That is why throughout history, humans have existed in communities regulated by natural, religious or man-made laws. Criminal laws in India operate on a solid framework of procedure that examines each relevant fact and evidence to conclusively determine whether one is guilty of a crime they have been accused of. The criminal justice system attempts to mete out justice and provide redressal to victims of violent crimes and even scholars of victimology argue that the State has a responsibility to bear the legal duty of providing reparations. Victim Compensation refers to payments made by the government to rehabilitate individuals that might have suffered at the hands of offenders.
Section 545(1) (b) of the Code of Criminal Procedure, 1898 was one of the first instances of restitution law in codified Indian law. It read– “payment to any person of compensation for any loss or injury caused by the offence, when substantial compensation is, in the opinion of the court, recoverable by such person in a civil court.” The 41st Law Commission Report, 1969 deliberated upon this section and made some recommendations that culminated into the introduction of the Code of Criminal Procedure Bill, 1970 that attempted to add Section 357 as it reads in the Criminal Procedure Code (CrPC) today. This Section is the primary source of law that deals with victim compensation in India.
International law too reflects upon and creates provisions to recognise the very fragile position that victims occupy and holds States responsible for mitigating such suffering. The UN General Assembly’s 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power lays down the standards to ensure fair treatment of victims of crime. The definition of a victim is so broad under the Declaration, encompassing individuals or groups of individuals who “have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights…” A person may be considered a victim even if the perpetrator has not been identified or prosecuted and even the dependent members of an individual are identified as victims. The declaration also highlights the State’s role in providing a financial contribution to the victims who have suffered devastating physical and/or mental injury and their families.
This article aims to see whether the victim is relegated to the background during the course of a criminal proceeding and if a favourable ruling is enough justice for them. What about compensation from the State? Does it help bring the victim to justice or can it just remain a lofty ideal?
Justice Denied? Reassessing India’s Victim Compensation Scheme
The most shocking crimes in India have stayed in our memories for years partly because of the struggle that victims and their families endured to get the justice they deserved. In 2012, the Nirbhaya case was a wake-up call for Indians on how unsafe women were in India even though it took eight years for the perpetrators to be served a sentence of death by hanging. In this period, the victim’s family has undoubtedly shouldered innumerable costs, both financial and mental. The dilemma that arises is whether the punishment of the offender is justice enough and whether the costs borne by the family should also be addressed.
A brief look at our criminal laws reflects how it is entirely focussed on the offender, to protect their rights and subject them to appropriate punishment while the victim(s) are often left to manage their affairs with little or no assistance. Scholars explain how legal systems conflate the victim’s interest with those of the systems.
“Since victims could not punish themselves, the state had taken over from this standpoint, it is self-understood that state and victims have the same interest: punishing the offender…That victims as witnesses might not want to serve the punishing state did not appear as a problem.” [i]
In theory, victim compensation as envisioned under Section 357A, CrPC attempts to bolster the rights of victims in India but in practice, remains far from satisfactory.
Upon registration of the FIR, the role of the victim in the investigation is reduced to identifying the offender or other material evidences recovered in the investigation. The victim is then relegated to the background, usually having no voice in the proceedings.
Victims are unaware of their legal rights and the application process is difficult. Added to that, victims might not have legal documents that are required to file for compensation; FIR copies, age proof etc. are just some examples of documents that victims might not have, thus, precluding them from availing compensation. In Delhi and Goa, the documents and materials that must be presented to support the application are very clear. It has not been addressed definitively in other states, which may make it harder for victims to prove their case.
Furthermore, eligible individuals require a bank account to receive compensation which all of them might not have the resources to acquire. In cases of incomplete applications or where additional information is required it becomes difficult to contact applicants that live in shelters or transitional housing.
Additionally, as per Section 357A, CrPC, the State Government is responsible for preparing a victim compensation scheme in coordination with the Central Government. The District Legal Services Authority /State Legal Services Authority [DLSA/SLSA] has been entrusted by all states to determine compensation and provide other temporary reliefs. This leads to the incongruity between laws in different states.
An important problem lies in the interpretation of different provisions. While several states define a victim as a person who has suffered injury and requires rehabilitation, in states such as Assam (Section 2(f) of the Assam Victim Compensation Scheme 2012) an individual becomes a victim if they suffer injury or loss due to an act or omission for which an accused has been charged. Such a narrow definition can end up denying rehabilitation to victims where the accused has not been identified. Further, it is critical that the schemes define the word “rehabilitation” categorically so that the authorities know what form of rehabilitative assistance should be provided to the victims. All of the schemes have left it up to the DLSA/SLSA to interpret the term however they see fit, which might lead to inconsistencies.
Within the top limit for compensation imposed by each state, victims are entitled to a range of compensation amounts. Except for Delhi, no guidelines for determining compensation have been established. In general, the determining elements before the DLSA/SLSA are the victim’s losses, medical expenditures incurred, and the minimal sustenance amount necessary for rehabilitation. This necessitates the creation of a centralised, nationwide plan to ensure that victims are treated equally when seeking compensation. Furthermore, a uniform compensation scheme will also make it easier for the Centre to spread awareness about the same.
Most schemes contain the phrase “substantial loss of income,” which adds to the pressure of reaching a higher compensation threshold. However, in Odisha, the victim is entitled to compensation if the loss makes it difficult to live “as before without the financial aid or has affected his/her dignity or personality,” so increasing the criteria from bare survival to a life of dignity. Furthermore, in light of the vulnerabilities and special needs of individuals, certain states have created provisions to take into account the need provisions for additional funding, for example, in the case of underage girls and mentally challenged people. States must also consider special needs of the victims while calculating the compensation that needs to be awarded.
There needs to be a follow-up system that monitors the implementation of the victim compensation scheme as envisioned under Section 357A of the CRPC to optimally aid victims. An examination of the existing victim compensation schemes reveals that there is no monitoring body to scrutinise the working of Victim Compensation Schemes, although, SLSA can be deemed to have general powers for scrutinising and reviewing the effectiveness. States have different nodal agencies too, with States like Madhya Pradesh having a very effective system with several committees which collect state-level data and hold quarterly review meetings. Unfortunately, most states lack a sufficient framework. States should be mandated to submit a yearly report to the Central government that is reviewed by a team of experts to recommend suggestions and take action against relevant authorities, if necessary.
Community institutions can contribute in aiding victims with their applications. Police departments and other relevant stakeholders present at different stages of the criminal justice process should be trained in assisting victims in submitting claims as well as informing victims of their rights at the earliest juncture. National and SLSA’s should undertake awareness programs to make important information related to victim compensation schemes accessible and aid eligible individuals.
The DLSA/SLSAs must recognise the anguish of victims of crime. People with mental, physical or developmental disabilities might face more barriers when it comes to availing compensation and thus, they need to be addressed separately. Directives must be issued to offer the victims a combination of support measures, allowing them to rehabilitate, re-assimilate, and re-socialise to live a dignified life. Victims might fear retaliation and thus, the availability of protective services for victims also becomes a necessity. The importance of process simplicity must be stressed, and the pressure placed on victims to obtain licences, provide paperwork, and so on should be minimised as much as possible. Interim relief must be given to victims, particularly in cases of gang rape, acid attacks, and other violent crimes, without red tape and formalities delaying emergency attention. The sum allocated by State governments must be in line with current housing expenses, medical care, emergency shelter, and psychological assistance, among other things. Victim Compensation Schemes are efficient only if they provide quick relief and thus must reduce the backlog of applications.
This article examined the position of victims of crimes and briefly discussed Section 357 and 357A of the Criminal Procedure code to reveal that while we have provisions to compensate victims, there is an obvious lack of efficiency and uniformity in the victim compensation scheme in India. The Indian criminal justice system focuses primarily on punishing offenders and ignores the needs of the victim.
It is recommended that a uniform set of national guidelines be created in coordination with the State Governments. It is important that the law looks at the victim with more compassion and provide means for them to continue living their lives and recover from their horrifying experiences. Beyond monetary compensation, the State must also take into consideration other needs of the victim including counselling and psychological intervention, shelter and privacy. Rehabilitation of victims that have suffered through traumatic incidents should be a priority for the Indian Criminal Justice System.
[i] Kirchoff GF, Victimology: A Theory of Consequences. In Global Victimology: Theory, Facts, Legislation (1st ednLexis Nexis 2017).
About the Authors, Hunar and Soumya [2019-24] are pursuing B.A.LL.B(Hons) from the Gujarat National Law University, Gandhinagar (India).