Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
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Rajit Singh Lamba
Protection of rights and liberties against their intentional infringement should be the outright most important objective of a democratic government and their justice system. The judicial process and penal measures are the prime example of the means deployed by the State to attain these objectives. Those convicted are subjected to these penal processes justified as a form of social reform and a punitive measure. The term 'poetic justice' seems very handy at this point and the penal measure brings to an end the judicial process and starts the reform process concerning that particular instance of the disturbance caused to someone's peace. A forgotten body seems to be the victim at this stage. In the past, they have been treated as mere by-products, of the crime committed, by the Indian Judicial system but recent reforms in procedure and the gradual move away from the traditional presumption that the greatest satisfaction that can be provided to the victim is the conviction of the accused has provided some hope to these dejected personalities. Even though the wrong cannot be undone, a solace must be provided by the state by ensuring just compensation is provided to the said victim.
The Supreme Court of India, in the case of Maru Ram v. Union of India1, stated the following and summed up what was needed at the time:
"A victim of crime cannot be a 'forgotten man' in the criminal justice system. It is he who has suffered the most. His family is ruined particularly in the case of death and other bodily injury. This is apart from factors like loss of reputation, humiliation, etc. An honor which is lost or life which is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace"
The Indian example can be studied by looking at two sources; legislation and the responses given through our judicial system. The Criminal Procedure Code (CrPC) was amended in 2009 vesting the power to grant compensation under section 357. Under the section, this power was vested within the trial and revision courts to award compensation and the claim for compensation must be accompanied by conditions such as loss or injury that has been caused by the accused in the course of committing the offence. Our Constitution, specifically Article 38(1), provides that the country will strive to maintain social order and promote welfare of the citizens. This can be interpreted creatively to include victim rights and provide justification for the compensation provided to them and their dependents. Similarly, Articles 39, 40, and 41 calls for economic justice, equality in terms of the procedure and securing public assistance in the cases of public disablement respectively and can inter alia include the rights of the victims to attain compensation.
Compensation can be awarded for material and non-material damages suffered by the victim in the course of the crime in question. Courts also have the powers to provide litigation costs considering the growing lawyer costs today. Dependents of the victims are provided with compensation sometimes, for e.g. in the case of death of the victim, to provide some kind of solace in addition to bringing the death to justice. The court can also impose compensation in addition to a sentence where the penalty does not include a fine. This is evident from the judgment given in Hari Singh v. Sukhbir Singh2 as the object of this mechanism is to give assurances to the victim that they are not a forgotten party.
Another important issue discussed by the judiciary is the right to receive interim compensation. The Supreme Court decision in Bodhisattwa Gautam v. Sudhra Chakroborty3 states that there is no reason to deny the Court such right to award compensation pending the final decision of the matter. The above-mentioned schemes must also provide for such measures as offences such as rapes, and acid attacks are the ones that usually demand provision of interim awards as it is against the basic right of personal liberty and life. The landmark judgment given in the matter of Suresh v. State of Haryana4 laid down the following directions:
- The courts must properly assess issues such as taking cognizance of a criminal offence, existence of tangible material which evidences the commission of the crime, proper identity of a victim and the immediate financial condition and requirements of the victim.
- Should the courts be satisfied, they must direct the grant of compensation on an interim basis while the final decision remains pending. The victim in the criminal matter need not make the application for such interim awards.
- It is mandatory on the part of the court abide by the given provisions for compensation and must record their reasons irrespective of the decision.
- The victim's financial requirements and the gravity of the situation in question can be the determining factors for such awards. Additional factors may also play a role in determining the award.
Despite the existence of these provisions in our Constitution, the Law Commission of India in its 41st report stated that the courts were still hesitant to use this mechanism which led to the CrPC amendment in 2009 and specifically recognized the victim's right to compensation. The provision now states that when a court imposes a sentence or a fine, it may award compensation to the victim from the whole or part of the fine recovered from the perpetrator. The provision also stipulates every state government to set up a scheme to compensate the victim and their dependents that require rehabilitation due to the suffered loss or injury. The scheme comes in handy in situations where the compensation awarded in the judgment is not sufficient, the case ends in acquittal, or when the accused cannot be traced, identified, or when no trial takes place.
The procedure involved with claiming such compensation through these state-level schemes is as follows:
- Make an application before the Legal Service Authority of the relevant state. This can be done for both, interim or final awards and can be done by the victim, their family or their local SHO. The application must be attached with the FIR, medical reports, and the copy of judgment or recommendation if the case has been disposed.
- The next stage is where the authority scrutinizes the application and verifies the truthfulness of the contents.
- The award given is done based on factors such as the gravity of the offence, loss of livelihood, in case of death their age, monthly income, number of dependents, whether the crime was an isolate incident or part of a series over a period of time etc.
- Once the authority is satisfied, they disburse the award by depositing it in a nationalized bank in the name of the victim or their dependents out of which, 75% shall be engaged in a fixed deposit for a minimum period of 3 years and the remaining 25% shall be available for the utilization and expenses. In case the victim is a minor, the fixed deposit will comprise 80% of the award.
Should there be any issues regarding the compensation that the authority is not or refuses to solve, it is within the rights of the victim to file a writ petition with the concerned high court under Article 226 of the Constitution.
A contentious issue has been compensation for mob violence victims, victims of misuse of arrest and general police powers, etc. and how the state compensation schemes should be utilized efficiently for consoling the victims. This can be seen in the Dr. Rini Johar v. the State of Madhya Pradesh where Justice Dipak Misra and Justice Shiva Kirti Singh penalized police officers for misusing their arrest powers and keeping the petitioner in custody without reason. This complete disregard of the law and personal liberty led to the courts ruling in favor of the petitioners and awarding a combined compensation of 10 lacs.5 The recent police violence in Jamia Milia Islamia has also led to calls for compensation to the victims of such savage attacks. In mid-2019, the State Government of Goa announced their plans to award compensation for victims of riot violence and mob lynching in the scale of Rs. 2 lacs, from their compensation schemes, which has led to other states such as Jharkhand and Uttar Pradesh to follow suit.
The courts have performed better in terms of the victim-centric approach ever since the CrPC amendment and continued to modernize and update the process. In Sarwan Singh v. State of Punjab6, the apex court stated that it is the duty of the judiciary to assess the appropriateness of awarding the compensation. The court must also assess the capacity of the accused to pay out the fine and compensation as otherwise it would not serve any purpose. These can be seen as attempts by the Supreme Court to affectively implement the benefits received from this provision in an attempt to provide a consolation to the aggrieved victims and their families.
All the intervention by the courts suggests that the legislature has not done a proper job in explaining the concept in a clear and proper manner which needs addressing. How much a victim should be paid and the techniques used for it seem very ambiguous as it may cover loss due to permanent or temporary disability, agony, effect on earnings, doctor expenses etc. The issue of inflated and false claims seems to be missing again which makes the calculation even more difficult. A grassroots level mechanism needs developing in unambiguous terms which deal with all rights relating to the calculation. The author suggests that it is high time a proper and comprehensive legislation is drafted that is straight to the point and accessible in terms of the language to the general public to remove all the obscurity in a case law dominated provision which might become a bit complicated for a layman to follow.
1. AIR 1980 SC 2147 https://main.sci.gov.in/jonew/judis/4426.pdf.
2. 1988 SCR Supl. (2) 571 https://main.sci.gov.in/jonew/judis/8225.pdf.
3. 1996 AIR SC 922.
4. Criminal Appeal No. 14451446 of 2012 https://main.sci.gov.in/supremecourt/2012/9914/9914_2012_Judgement_21-Aug-2018.pdf.
5. (2014) 8 SCC 273 (https://main.sci.gov.in/jonew/judis/41736.pdf )
6. 1957 AIR SC 637.
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