COMPENSATION TO VICTIMS

Compensation to victims is a recognised principle of law being enforced through

the ordinary civil courts.Under the law of torts the victims can claim compensation
for the injury to the person or property suffered by them.It is taking decades for the
victims to get a decree for damages or compensation through civil courts, which is
resulting in so much hardship to them. The emergence of compensatory
jurisprudence in the light of human rights philosophy is a positive signal indicating
that the judiciary has undertaken the task of protecting the right to life and personal
liberty of all the people irrespective of the absence of any express constitutional
provision and of judicial precedents.

Article 32 of the Constitution of India confers power on the Supreme Court to

issue direction or order or writ, including writs in the nature of habeas corpus,
mandamus, prohibition, quo-warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by Part III of the
Constitution.

The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by Part III is guaranteed, that is to say, the
right to move the Supreme Court under Article 32 for the enforcement of any of
the rights conferred by Part III of the Constitution is itself a fundamental right.

The approach of redressing the wrong by award of monetary compensation against

the State for its failure to protect the fundamental right of the citizen has been
adopted by the courts of Ireland, which has a written Constitution, guaranteeing
fundamental rights, but which also like the Indian Constitution contains no
provision of remedy of compensation for the infringement of those rights.

That has, however, not prevented the courts in Ireland from developing remedies,
including the award of damages, not only against individuals guilty of
infringement, but also against the State itself.

Article 32(1) provides for the right to move the Supreme Court by appropriate
proceedings for the enforcement of the fundamental rights. The Supreme Court
under Article 32(2) is free to devise any procedure for the enforcement of
fundamental right and it has the power to issue any process necessary in a given
case. In view of this constitutional provision, the Supreme Court may even give
remedial assistance, which may include compensation in appropriate cases.

The idea of compensation:

The Idea of Compensation to victim of crime particularly to the crime victims by

the state is gaining much importance. Though this idea is an age old one, its
development on more scientific lines and also as a branch of criminology has
begun since a few decades ago. The modern states which are described welfare
states have realized the importance of the subject compensation to the victims of
crime and are accordingly taping up several victim compensation programmes, as
part of their General welfare. Various countries have taken up the scheme of
payment of compensation to victim of crime. The term Compensation means
amend for the loss sustained.

Compensation is anything given to make things equivalent, a thing given to make

amends for loss, recompense, remuneration or bay. It is counter balancing of the
victims sufferings and loss that result from victimization. The rationale or basis for
compensation may be the following three perspective: As an additional type of
social insurance

As an welfare measure another facet of the Government/Public assistance of the

Unprivileged.

A way of meeting an overlooked governmental obligation to all citizens.

The penologist recognized that adequate compensation to the victims from the
accused or alternatively from the state is objective of the science of victimology
which is gaining ground and deserves attention.

In India there is no comprehensive legislation or statutory scheme providing for

compensation to victims of crime.

In some European countries provisions are made for payment of compensation to

the victims of crime in the course of criminal proceedings.

Justice requires that a person who has suffered must be compensated. Basically the
accused is responsible for the harm caused to the victim.
We have five statutes, under which compensation may be awarded to the victims
of crime.

The fatal Accident Act, 1855

The motor Vehicles Act, 1988

The Criminal Procedure Code, 1973

The Constitutional Remedies for Human Rights Violation

The Probation of Offenders Act, 1958.

Compensation under criminal law:

The theory of compensation in criminal law is mainly about compensation to the

victim of a crime. A victim to a crime is one who has suffered any loss because of
some act or omission of the accused. The victim not only suffers physical injuries
but also psychological and financial hardships too. The plight of a victim is only
made worse by lengthy hearings and tedious proceedings of courts and improper
conduct of the police. The victim is literally traumatised again in the process of
seeking justice for the first injury. The legal heirs/guardians of the victim too come
in the same definition.

The law makers made provisions in the Criminal Procedure Code, 1973 under
Section 357(3) to enable the Courts to award any amount of compensation to the
victims of a crime. Not only this, the lower courts were asked and advised to
exercise the power of awarding compensation to the victims of offences in such a
liberal way that the victims may not have to rush to the civil courts.

ARTICLE 32 AND THE REMEDY OF COMPENSATION:

Compensation to victims is a recognised principle of law being enforced through

the ordinary civil courts. Under the law of torts the victims can claim
compensation for the injury to the person or property suffered by them. It is taking
decades for the victims to get a decree for damages or compensation through civil
courts, which is resulting in so much hardship to them.

The emergence of compensatory jurisprudence in the light of human rights

philosophy is a positive signal indicating that the judiciary has undertaken the task
of protecting the right to life and personal liberty of all the people irrespective of
the absence of any express constitutional provision and of judicial precedents.

The renaissance of the doctrine of natural rights in the form of human rights across
the globe is a great development in the jurisprudential field in the contemporary
era. A host of international covenants on human rights and the concern for
effective implementation of them are radical and revolutionary steps towards the
guarantee of liberty, equality and justice. Though the concept is new, the content is
not and these rights have been recognised since ages and have become part of the
constitutional mechanism of several countries. India recognised these rights under
Part III of the Constitution providing remedies for enforcement of such rights.

Article 32(1) provides for the right to move the Supreme Court by appropriate
proceedings for the enforcement of the fundamental rights. The Supreme Court
under Article 32(2) is free to devise any procedure for the enforcement of
fundamental right and it has the power to issue any process necessary in a given
case. In view of this constitutional provision, the Supreme Court may even give
remedial assistance, which may include compensation in appropriate cases.

A question regarding the awarding of monetary compensation through writ

jurisdiction was first raised before the Supreme Court in Khatri (II) v. State of
Bihar (1981). In this case, Bhagwati, J. observed:

Why should the court not be prepared to forge new tools and devise new remedies
for the purpose of vindicating the most precious of the precious fundamental right
to life and personal liberty.

In Sant Bir v. State of Bihar (1982) the question of compensating the victim of the
lawlessness of the State was left open.

In Veena Sethi v. State of Bihar (1982) also the Court observed that the question
would still remain to be considered whether the petitioners are entitled to
compensation from the State Government for the contravention of the right
guaranteed under Article 21 of the Constitution.

In the light of the views expressed by the Court in the above cases it can be said
that the Court had shown its concern for the protection of right to life and liberty
against the lawlessness of the State but did not actually grant any compensation to
the victims.

The seed of compensation for the infraction of the rights implicit in Article 21 was
first sowed in Khatri, Sant Bir and Veena Sethi, which sprouted with such a
vigorous growth that it finally enabled the Court to hold that the State is liable to
pay compensation.

This dynamic move of the Supreme Court resulted in the emergence of

compensatory jurisprudence for the violation of right to personal liberty through
Rudul Shah The Supreme Court of India in Rudul Shah v. State of Bihar (1983)
brought about a revolutionary breakthrough in human rights jurisprudence by
granting monetary compensation to an unfortunate victim of State lawlessness on
the part of the Bihar Government for keeping him in illegal detention for over 14
years after his acquittal of a murder charge.

In this case the SC held that Article 21, which guarantees the right to life and
liberty will be denuded of its significant content if the power of this court were
limited to passing orders of release from illegal detention. One of the telling ways
in which the violation of that right can reasonably be prevented and due
compliance with the mandate of Article 21 secured is to mulct its violators in the
payment of monetary compensation.

There must be direct and proximate nexus between the complaint and the arrest for
the award of compensation under sec. 358 of the Cr. P.C. Any person is entitled to
compensation for the loss or injury caused by the offence, and it includes the wife,
husband, parent and child of the deceased victim.

In Sarwan Singh's case court held that in awarding such compensation, the court is
to take into consideration various factors such as capacity of the accused to pay,
the nature of the crime, the nature of the injury suffered and other relevant factors.
Power to award compensation to victims should be liberally exercised by courts to
meet the ends of justice.

In addition to the conviction; the court may order the accused to pay some amount
by way of compensation to the victim who has suffered by the action of accused. It
is not alternative to but in addition thereto. The payment of compensation must be
reasonable.

The quantum of compensation depends upon facts, circumstances, the nature of the
crime, the justness of the claim of the victim and the capacity of the accused to
pay.

If there are more than one accused, quantum may be divided equally unless their
capacity to pay varies considerably. Reasonable period for payment of
compensation, if necessary by instalment, may be given.

In a certain case the Court held that where the amount fixed was repulsively low so
as to make it a mockery of the sentence, it would be enhanced; the financial
capacity of the accused, enormity of the offence, extent of damage caused to the
victim, are the relevant considerations in fixing up the amount.

The court in Balraj v. State of U.P. (1994) held that the power to award
compensation under section 357 (3) is not ancillary to other sentences but it is in
addition thereto.

The compensation for illegal detention is the area, which unearthed new doctrines
pertaining to the compensation laws in India. In yet another case, two women filed
a writ of habeas corpus to produce two persons (their husbands) who were found
missing. The authorities failed to produce them. The Court concluded, on the basis
of material placed before it, that the two persons 'must have met unnatural deaths,
and that prima facie they would be offences of murder. The Supreme Court
directed the respondents to pay Rs. 1, 00, 000/- to each of the wives of the missing
persons.

Award of compensation to victims by Court:

There is plethora of case law where the Supreme Court has awarded compensation
to the victims whose plight was brought to the notice of the apex court either by
themselves or by way of PIL with the aim of protecting the human rights of the
victims in our criminal justice system and to fulfill the constitutional obligation the
Supreme Court can direct the government to confer jurisdiction on the criminal
courts by making statutory provisions for the compensation to the victims of crime
irrespective of whether the accused is convicted or not and to make statutory
provisions for participation of the victims in prosecution along with prosecuting
agency in a criminal case instituted on a police report.

The court has also granted monetary compensation to victims of custodial violence
in many cases. In a landmark judgment of Nilabati Behra vs. state of Orissa (1993)
case the apex court awarded compensation of Rs. 1,50,000/- to the mother of
deceased who died in police custody due to torture. In D.K. Basu v. State of West
Bengal (1997) the Apex court held that compensation can be granted under the
public law by the Supreme Court and High Court in addition to private law remedy
for tortuous action and punishment to wrong doer under criminal law for
established breach of fundamental rights.

ANALYSIS OF COMPENSATION:

When a crime is committed against a person, the victim loses out a lot apart from
incurring damages and injuries. The work of a judiciary should not only be to
punish the guilty but also compensate the victim as even if the accused is punished,
the victims loss is not compensated. The compensation given should at least try to
put the victim in a state in which he was before. It is not like victims of crime can
never ask for compensation as such a prayer is available under civil laws, but filing
two different suits for the same offence in two different courts. The proceedings
for one suit are most of the times is agonizing, that such a procedure of filing
different suits only gives the victim a second traumatisation.

The idea behind providing compensation is legal as well as humanitarian. The

inability to protect the person by the State makes it legally obligatory for the State
to compensate him. The victim goes through such pain and many times permanent
loss of income only makes it logical for him to be compensated.
In cases where a person dies or is sent into a vegetative state, compensation should
be very high as many times, the victim himself is the sole bread earner of the
family and hence his injuries affect the life of his family too. In such cases, if the
accused is only imprisoned or asked to pay a small fine, no good happens to either
the accused or the victims family.

In the Indian society of the 21st century, many people want their brides to be pure
virgins. A victim of rape in such cases not only loses out on the opportunity to
marry into an otherwise decent family but is also discriminated upon for no fault of
hers. It is often said that the most prised possession of a woman is her dignity and
respect. In the society where people still have an old mindset, the life of such a
woman only degrades. It only makes sense to compensate such a victim well apart
from punishing the accused. Mental shock, loss of income and cost of litigation
should be taken into consideration when coming out with compensation and the
Courts should hence compensate the victims more frequently.

Thus, compensation is not only required but is in fact a very important aspect of
even criminal law and the courts should not use this sparingly but a little liberally.
Of course they should be careful of not awarding too high a compensation and
hence should be careful.