INTERNAL ASSESSMENT I

LAW OF PUBLIC ADMINISTRATION

RESEARCH PAPER: TRACING THE EVOLUTION OF

COMPENSATORY JURISPRUDENCE AND UNDERSTANDING THE
LINKAGES BETWEEN THE DSLA AND THE DELHI VICTIM
COMPENSATION SCHEME, 2018

Name: Shubhit Gaur

Class: BA LLB (Division D)

PRN: 18010125346
 TABLE OF CONTENTS

INTRODUCTION...........................................................................................................................3

BACKGROUND OF THE TOPIC..............................................................................................3

Historical Perspective..............................................................................................................3

Rationale..................................................................................................................................4

RESEARCH QUESTION...........................................................................................................4

RESEARCH OBJECTIVE..........................................................................................................4

LITERATURE REVIEW................................................................................................................5

RESEARCH AND analysis.............................................................................................................7

LEGAL FRAMEWORK IN INDIAN CONTEXT.....................................................................7

Public and Administrative Law regimes..................................................................................7

Surrounding Jurisprudence......................................................................................................7

ADMINISTRATIVE LINKAGES..............................................................................................8

Procedure.................................................................................................................................8

CHALLENGES.........................................................................................................................10

CONCLUSION AND SUGGESTIONS........................................................................................13

BIBLIOGRAPHY..........................................................................................................................15
 INTRODUCTION
BACKGROUND OF THE TOPIC

Historical Perspective

The law regarding victim compensation rely heavily on the administrative machinery responsible
for its implementation and therefore it is imperative that we understand key factors in this regard.
The Delhi Victim Compensation Scheme, 2018 as we know today has gone through various
evolutions to arrive at the form in which we see it today. In order to understand the rubrics of
our analysis and the topic better, we shall first look at the history and evolution of compensatory
jurisprudence.

The talks with regard to compensation for the victims of hate crimes and sexual assaults started
form as back as the United Nations General Assembly (Hereinafter ‘UNGA’) in 1985 whereby
the discussion was focussed on the theme of “Declaration of the Basic Principles of Justice for
the Victim of Crime and Abuse of Power”. In this, the term victim, for the first time, was coined
as inclusive of family members of the actual sufferer. India was a signatory state in the same. 1

On keen analysis it can be said that the principles of compensatory jurisprudence has been found
in the ethos of the Constitution of India, 1950. Through the perusal of the grundnorm, the right
to compensation finds its place in the words of the preamble itself such as ‘equity’, ‘socialist’
etc. Thereafter, rights given under Article 14 and 21 of the constitution solidify the position, only
to be forwarded by the language enshrined in the Directive Principles of State Policies
(Hereinafter ‘DPSP)

In the same vein, India has included provision for compensation to the victims in Section 357
and 357A of the Code of Criminal Procedure, 1973 (Hereinafter ‘ CRPC’ or ‘the code’).
2
Specific legislation in the form of Delhi Victim Compensation Scheme, 2018 has also been
introduced and modified over the years. 3

1
Colvin, Gregory. “Report on the Seventh United Nations Congress on the Prevention of Crime and the Treatment
of Offenders.” Crime and Social Justice, no. 25, 1986, pp. 55–61.
2
Section 357, Code of Criminal Procedure, 1973
3
Delhi Victim Compensation Scheme, 2018
 Rationale

The rationale of having compensatory jurisprudence as discussed under the UN’s convention
and further international and national conventions shows a shift from the position of the state as
the active and only authority to have jurisdiction in a criminal proceeding without having any
role of the victim in the entire process except being a mere mute spectator of it. Since, crime
was considered as a wrong against the society as a whole, the state took the responsibility to
punish those behind the orchestration of the event. 4

However, over due time, it was found that not only this process exclusionary to the victim but it
also give rise to the possibility that in case the prosecution fails to prove the case against the
accused which it has to do ‘beyond reasonable doubt’, then the victim remains unattended from
any relief or rehabilitative measures. Therefore, it has been found imperative that regardless of
whether the accused has been established as the offender or not, a person must be compensated
for the wrongs done against him/her if their status as a ‘victim’ is established. Because, the
state’s responsibility is not only restricted to punishing the accused but also towards the victims
of an offence and their subsequent rehabilitation.

RESEARCH QUESTION
In this paper, the author has attempted to answer the question of ‘what are the challenges in the
face of the current legal framework with regard to compensatory jurisprudence in India with
specific reference to its socio-economic conditions’. The same has been formulated after duly
looking at all the factors arising in the actual ground working of disbursement of compensation
to victims in India.

RESEARCH OBJECTIVE
The objective the author wants to achieve through the said research is to find optimum solutions
to the obstacles arising in way of rehabilitation of the victim so that the same can be put forward
to the public at large and due implementation be made for the ultimate benefit and evolution of a
better framework for disbursing compensation with regard to its quantum, accessibility and other
factors.

4
Fenwick, Helen. “Procedural 'Rights' of Victims of Crime: Public or Private Ordering of the Criminal Justice
Process?” The Modern Law Review, vol. 60, no. 3, 1997, pp. 317–333.
 LITERATURE REVIEW

In the current paper, we shall look at the administrative linkages of the law for providing
compensation to the victims of crimes for their subsequent rehabilitation. For the same,
understanding the history and evolution of compensatory jurisprudence was very crucial for
analysing the role of administration in the entire process.

The same was found readily available in the work of PV Reddi’s “Role of the Victim in the
Criminal Justice Process.” 5
whereby specific focus was given upon the rationale behind
introduction of compensatory jurisprudence as fully functioning part and parcel of the Indian
legal system. Specific reference to the UNGA s convention and the foundations of compensation
in the Constitution of India were given as well as highlighted.

Thereafter, the history and evolutions involving introduction and modification of various
provisions and amendments including the inceptive idea and genesis Delhi Victim Compensation
Scheme were very well traced in the work of RK Bag’s “Perspectives in victimology in
context of criminal justice system” 6

Thereafter to understand the current provisions of law, relevant jurisprudence and procedure for
disbursement, we had for our perusal the descriptive work of MP Jain and SN Jain’s
“Principles of Administrative Law” and RV Kelkar’s Law of Crimes. 7

This was furthered by looking at the Law Commission’s 42nd report on Indian Penal Code,
18608 as well as the Malimath committee’s report9 which posed challenges to the rehabilitation
of the victims in socio-economic conditions of the country, the prevalent Legal Justice system
and the scope to exploit the responsibility of state measures.

Finally, after the perusal of all the above mentioned enriching research materials, the research
gap was found to that after the introduction of the Delhi Victim compensation Scheme, there has
5
PV Reddi’s “Role of the Victim in the Criminal Justice Process.” Student bar Review, vol. 18, no. 1, 2006, pp. 1–
24.
6
Bag, R. K. “PERSPECTIVES IN VICTIMOLOGY IN CONTEXT OF CRIMINAL JUSTICE SYSTEM.” Journal
of the Indian Law Institute, vol. 41, no. 1, 1999, pp. 78–94.
7
MP Jain and SN Jain’s “Principles of Administrative Law” 7th Edn, 2020.
8
Law commission of India, 42nd Report on Indian Penal Code, 1860.
9
V.S. Malimath et al., Report of the Committee on Reforms of Criminal Justice System 76 (2003)
been minimal empirical research on the prospect of ground working of the DSLA’s with regard
to dispensation of compensation to victims of crim. How many victims are denied compensation,
on what grounds, controversy surrounding the DSLA’s autonomy, preparation of the victim
compensation fund are some grey areas which need nourishing research for them to be put in the
much needed spotlight.

KEY WORDS: Compensation, Victim, DSLA, Rehabilitation

 RESEARCH AND ANALYSIS
LEGAL FRAMEWORK IN INDIAN CONTEXT

Public and Administrative Law regimes

In the Indian legal framework, compensation to victims can be granted fewer than two regimes:
the Public Law regime and the Administrative Law regime. Whilst the public law regime
includes compensation given under Article 32 of the constitution of India against any violation of
fundamental rights by the state, its scope is limited only to the extent that the act is committed by
the state under the purview of Article 12 or even if by private individuals as per the doctrine of
horizontality, to be done only in relation to the violation of fundamental rights.10

However, the administrative law remedy gives scope and power to the legal and judicial
institutions of the country to extend the reliefs to the victims in a large number of cases, mostly
being the crimes or offences committed against a person who is directly affected by it and
requires rehabilitation thereto.

As already discussed, the compensation to a victim can be granted under Sections 357 and 357A
of the CRPC and the Delhi Victims Compensation Scheme, 2018.

Surrounding Jurisprudence

Section 357 of the Code puts three requirements to be fulfilled for the purposes of granting
compensation to a person. Firstly, that they should be established as a ‘victim’ i.e. it is proved
conclusively that an offence has been committed against them. It is not necessary as to conclude
who committed the offence but just the fact that the same has been committed. Therefore,
whether the accused is found guilty or not is irrelevant for grant of compensation under this
section.11

Secondly, it must be proved that the loss or the suffering the victim is going through is the direct
result of the offence which has been committed against them and for which, the compensation is

10
P.P.M.Thangaiah v.The Government of T.N W.P.10146/99 W.P.No.2705 of 1999
11
Hari Kishan v Sukhbir Singh 1988 AIR SC 2127
being asked for.12 And finally, they must be in a need of rehabilitation; as in they are going
through hardships to arrange for medical expenses, educational expenses, mental and physical
agony, cost of prosecution and travelling etc. This requirement has been done away in certain
cases such as that of an acid attack case whereby the court has clearly stated that the term ‘may’
under the section has to be conclusively construed as ‘shall’ for the purposes of application.

ADMINISTRATIVE LINKAGES
Section 357 further states that the compensation to be paid to the victim can be derived out of the
‘fine’ applicable under the Indian Penal code (‘hereinafter IPC’) if the offence is such which
involves the payment of the fine with or without a prison sentence.13 In case, the offence does not
include fine as part of the sentence, then the court has the authority to order the accused to pay
compensation to the victim. The quantum of compensation is decided by the court and then the
same is levied out of the accused’s personal assets such as sale of moveable and immovable
property, income etc. As per the provisions laid down under Section 421 and 431 of the code. 14

Thereafter, if the compensation standards are still yet to be matched and the receipts so far prove
inadequate then the court can ask for the compensation to be paid out of the victim compensation
fund formed under Section 357A which every state government in correlation with the central
government has to establish in their respective states. 15 The same process is applied for in the
cases where the accused cannot be identified or not being able to prove guilty on
recommendation of the court.

In order to better understand the administrative linkages between the law and the authorities, we
shall first look at the procedure established for disbursement of compensation under the Scheme:

Procedure

The Victim compensation fund is operated by the District Legal Services Authorities
(Hereinafter ‘DLSA’) or the State Legal Service Authorities. The process of initiating
disbursement of compensation can be done by four modes:

 On the application of the Victims and their dependents.

12
R Gandhi v State of Tamil Nadu 2003 CriLJ 3942
13
Section 357(1) , Code of Criminal Procedure, 1973.
14
Section 357(3) , Code of Criminal Procedure, 1973.
15
Section 357A(1) , Code of Criminal Procedure, 1973.
  On the recommendation and re-recommendation of the courts.
 On the application of a police officer or the SHO of the area not below the rank of an
officer.
 On Suo Moto Cognizance of the DLSA

Once the process is initiated , the DSLA can provide interim compensation within 15 days of
the receipt of the application up-to the extent of 50,000 rupees in general cases and up to
1,00,000 rupees in case of acid attack victims.16

Thereafter, an enquiry is conducted to determine whether the person can be deemed as a ‘victim’
and if yes, then the quantum of compensation payable to them is discussed upon. Various factors
such as the medical expenses, prosecution cost, loss of job and educational opportunities, mental
and physical agony are considered. Any other incidental and necessary needs such as first aid,
medical help or anything else is to be taken care of by the DLSA.17

The enquiry is to be mandatorily completed within 60 days of the receipt of the application/
recommendation. In case the quantum of compensation decided by the DLSA is found
inadequate, the court upon its satisfaction can ask the DSLA to consider the matter and provide
for adequate compensation to the victim as per the provisions of the scheme. 18

The compensation payable is deposited under the name of the victim in a nationalised bank’s
branch or in a scheduled commercial bank, in case the former is not available. If the victim does
not have an account in the banks, the members of the DSLA are required to assist them in
opening a bank account and depositing the compensation therein.

In case the victim is a minor, the same account has to be opened in the name of the Legal
guardian. The amount so deposited must have 70 percent of its composition in the account in the
form of fixed deposit which can be liquidated only at the end of three years of such deposit and
the rest is available for immediate expenses. In case of minors, the amount for the fixed deposit
must be 80 percent of the total amount. The same can only be liquidated only after the minor
attains majority but not before three years of deposit. However, exception can be made on

16
Clause 13, Delhi Victim Compensation Scheme, 2018
17
Clause 10, Delhi Victim Compensation Scheme, 2018
18
Section 357A(5) , Code of Criminal Procedure, 1973
account of urgent requirements and the amount can be liquidated earlier in both scenarios upon
the discretion and satisfaction of the DSLA.

CHALLENGES

Section 357A of the Code of Criminal procedure makes use of the term ‘recommendation’ which
is very crucial in understanding the jurisprudence and scope of the section, besides its legislative
intent. The scope of the section is in sort restricted by the usage of the word recommendation as
it implies that the courts have powers only to the extent of taking cognizance of the case,
appraise the facts and evidences thereto and upon its satisfaction that a crime has been
committed against the victim, to ‘recommend’ compensation for the victim and not in actual
sense mandate it as an order.19 The courts cannot also exactly determine the amount of
compensation to be paid to the victim as well as the same has to be decided by the DSLA in
conformance with the guidelines issued in this regard.20

Apart from the orders of the court, the compensation can be disbursed on direct application to
the DSLA as well or on the recommendation of the SHO of Police. Additionally, Section 357
obligates the state government to actively work towards the compensation of victims by
preparing a draft in that regard, fund and maintain it.

What is the required essential is that the status of being a ‘victim’ is proved in the court. It is
immaterial thereafter that the crime was not committed by the accused indicted in the case but by
somebody else. The rationale behind this is to provide for a situation where the victim is not
denied compensation just because a case was not made against the accused in the case who was
subsequently acquitted.

As already discussed, the court cannot compulsorily mandate the disbursement of the
compensation to the victim under the ambit of powers arising from the force of Section 357A of
the code.21 However, it can be said that the legislative intent of enacting the scheme in the first
place is to create a remedial haven for victims of grievous crimes and therefore if the concerned
members of the DLSA deny the request of compensation specially on the recommendation by the
court, there needs to be specific mention of the reasons for taking such an action which should
naturally be based on strong logical grounds.22

District Legal Services Authority (DLSA) or the Committee while considering any matter
referred/recommended to it by the Trial Courts shall consider the same on basis of the
19
Md. Abdul Sahid Laskar and Ors. v The State of Assam and Ors. MANU/GH/0198/2021
20
Executive Engineer, Dhenkanal v N.C.Budharaj (2001) 2 SCC 721
21
VT More and Ors v State of Maharashtra AIR 2002 SC 2715
22
Umakant v State of Chattisgarh AIR 2014 SC 2943
parameters mentioned in the Delhi Victim Compensation Scheme and shall not go beyond the
stipulated parameters.
From the perusal of the jurisprudence surrounding clause 9, part 1 of the scheme, the answer
can be given in affirmative that the DLSA is under an obligation to forward the order declining
the grant of compensation to the trial court . Apart from this, the DLSA is expected to first, in
their own accord, conduct investigation by making enquiry about the facts and circumstances of
the case and thereafter on its satisfaction that the applicant is a victim, grant the compensation.

The satisfaction in this regard has to be determined by appraising the factors mentioned in the
Delhi Victim compensation Scheme. In case, such satisfaction is not achieved, then the
application may be rejected, the reasoning must be noted and the order be forwarded to the trial
court

Clause 11 of the Scheme states that it is the duty of the Secretary of the DLSA to send a copy of
order of grant of interim/final compensation after passing of its order to the trial court for
recording the purpose and for further disbursement.  
Clause 10(6) of the Scheme states that the DSLA has the authority to call for any requisite
records for the purpose of conducting the enquiry into the facts and circumstances of the case
and thereafter on such analysis decide whether compensation has to be granted to the applicant
or not. There is no bar on seeking the records from a particular source, the DSLA can ask for it
from the individual (applicant) or any institution (police).

The requirement of the law to establish upon the fact that whether the applicant is a victim or
not cannot be dispensed off. What can be done, however that the process be expedited with good
coordination amongst the authorities so that the enquiry is completed in a short period of time.

Whilst the scheme only enumerates payment of compensation to be paid only in either
nationalized or scheduled commercial banks, it can be argued however, that since the past
decade, the post office banking services have been enhanced and institutionalized to a greater
extent and including the same within the scheme will lead to increase in its accessibility to a
great extent.

It is pretty clear from the above discussion that there are many problems perennial to the
disbursement of compensation to the victims. The most highlighted amongst is to discuss upon
the scope of the term ‘recommendation’ in section 357 A of the code which makes it unclear
whether the DSLA have autonomy in deciding compensation and its quantum thereto or whether
the supremacy in relation to it remains with the courts.

It should remain undebatable that in case the accused has been found guilty, the recommendation
by the court after appropriation has been made from the fine applicable must be taken as an order
for payment of compensation for the reason that the status of victim has been established and
declared in a court of law which cannot be challenged in a legal services authority. Grey areas
occur when the quantum of compensation is to be decided which can be done in the range
enumerated under schedule I of the scheme, anywhere between the lower and upper limit. 23 The
second order by the court if any, should be conclusive that the quantum so decided earlier is not
adequate but even the courts cannot go beyond what has been stipulated under the scheme
otherwise that would be a blatant uprooting of the principles of rule of law.

Another fallacy arises with the scope of the term ‘victim’ under the code. Whilst the code is
unambiguous on the points that victims shall include only those against whom the act of crime
was committed along with their legal guardians or legal heir, however, the scope of
compensation to be granted is extended by including the term ‘dependents’ within the purview
of it. 24This shall include the grandparents, spouse, minor son etc. of the victim in regard to
whom the amount so obtained can be appropriated for expenses.
This is further contradicted and sort of confined when the scheme states that only 20 or 30
percent of the total amount can be liquidated whatever the case may be for immediate expenses
by the victim, without taking into any considerations of the rights of the dependent of the victim
who through earlier provisions of the scheme have been made substantial beneficiaries.
Furthermore, the liquidation for the rest of the amount other than the fixed deposit can be done
only on the ‘’discretion’ of the DSLA. This has although been enumerated as a cautious
provision against the hefty disposal of the funds available but can act as a shackle to the victims
who are left at the mercy of the executive organisation for meeting urgent and substantial needs.

CONCLUSION AND SUGGESTIONS

Through the course of the paper we have discussed the emergence of compensatory
jurisprudence in the country, relevant provisions of the code of criminal procedure, 1973 and the

23
State of UP v Ravindra Prakash Mittal AIR 1992 SC 2045
24
Sudeep Rai v State of Sikkim MANU/SI/0015/2021
Delhi Victim compensation Scheme, 2018 to understand better the process and the
administrative linkages between the law at point and the various administrative and judicial
institutions responsible for enacting the same including the DSLA’s, the state and central
government and the courts of law. In the process of doing so, we have found that no doubt that
the provisions enumerated hereby are very progressive, substantial and needed for the upliftment
and rehabilitation of the victims, they suffer from certain challenges which must be looked after.
25
This include deciding upon the scope of the term ‘recommendation’ in the section 357A of the
code, lack of accessibility of the compensation fund, tedious process of enquiry done and the
methodology of the ultimate disbursements of fund to its beneficiaries. In regard to the same, the
following measures are suggested:

 Amendment in Section 357A: The legislature should for once clear the air on the term
‘recommendation’ by the courts to the DSLA so as to make it clear whether the DSLA
have complete autonomy in deciding the status of the victim or only to the extent of the
quantum of the compensation. Additionally, the word should altogether be replaced with
the term ‘order’ when the court is re-sending the matter to the DSLA in case they find the
compensation to be inadequate.
 Post Office Savings Account: There has been a wave of promotion being done for every
citizen to open up a savings account in their nearby post offices and has been well
received also by a majority of the population. Therefore, inclusion of the same for the
purposes of depositing the amount in the victim or guardian’s name will go a long way in
overcoming obstacles and speed fasting the entire process.
 Minimal formalities: One of the steps required in the process of compensation
disbursement is conducting an ‘inquiry’ by the DSLA which involves taking assistance
from local police institutions. This is also required in giving interim compensation and
immediate relief. For this, reports containing documents such as FIR, medical reports etc.
are required which may not be available for a plethora of reasons owing to the socio-
economic conditions of our country. Sometimes, the FIR is not registered in the first
instance or the medical report is not done due to the shame associated to it after the
commission of an offence. In such scenarios, if the purpose of providing justice and

25
Joshi, K.C. “COMPENSATION THROUGH WRITS : RUDUL SAH TO MEHTA.” Journal of the Indian Law
Institute, vol. 30, no. 1, 1988, pp. 69–77.
 rehabilitation to the victims is hindered, there is a need for relaxations and better fool
proofing the formalities.
 Recovery of Compensation: The Delhi Victim compensation scheme provides a clause
giving authority to initiate recovery proceedings by the DSLA at any later stage of the
trial with regard to the compensation provided to the victim. This, in the author’s opinion
is a wide loophole which can be exploited for the use of power. The main reason for the
same can be found in specific reference to rape cases in the country whereby most of the
prosecution cases fail as there is found to be some discrepancy in the victim’s statement
at two stages. However, this is a result of trauma and not untruthfulness on part of the
victim. Thus, there must be an amendment in the said clause to the effect that any such
proceedings must be done only after the approval by the courts and not prior to it,
 Liquidity: The amount of compensation so provided has a high limit of 70 percent to be
allocated as fixed deposit only available after 3 years which acts as an obstacle in
immediate relief of the victim. The limit for the same should be lowered done to the
range of 45-70 percent at the discretion of the victim or their legal guardian as the case
may be.
 BIBLIOGRAPHY
BOOKS

 MP Jain and SN Jain’s “Principles of Administrative Law”, 7th Edition, 2020

 RV Kelkar’s Criminal Law, 5th Edition, 2012

LEGILATIONS

 Code of Criminal Procedure, 1973

 Delhi Victim Compensation Scheme,2018
 Indian Penal Code, 1860

ONLINE DATABASES

 Manupatra
 SCC Online
 JSTOR
 Hein Online