‘An Analysis of Victim Compensation Schemes in India’
Polity & Governance
16th Nov, 2020
By and large, when it comes to the subject of criminal procedure
By and large, when it comes to the subject of criminal procedure, the spotlight tends to be focused on the rights and dignity of the accused. For good reason, various safeguards are accorded to the accused so as to protect them from any excesses. However, in recent years, there has been a global awakening regarding the rights of victims, who remain neglected by lawmakers.
- In 2003, the Malimath Committee report suggested various reforms to the CrPC, 1973.
- The report bluntly stated at the outset that the public at large was losing faith in the criminal justice system as it existed in the present state for the victims of crimes felt abandoned and ignored, with their cries for justice falling on the seemingly deaf ears of the state.
- A key suggestion of the committee was that the victim should be granted the right to seek fair compensation.
- The report recommended that a victim compensation fund be established and thus, by an amendment to the CrPC in 2008, Section 357-A was inserted.
- Therefore, presently, a victim of an offence may seek compensation under Sections 357 and 357-A of the CrPC, 1973.
- The difference between the two sections is significant.
- While under Section 357, it is the offender who is made to pay compensation, but under Section 357-A, it is the state that pays compensation to the victim in accordance with the state’s victim compensation scheme.
- Under Section 357-A 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.
- The philosophy behind the above concept is that it is the state’s duty to protect the victim from crime, and its failure to do so would render it partially responsible for the victim’s ordeal.
Analysis of Victim Compensation Scheme
- Under Section 357-A of the CrPC each state is required to set up a victim compensation scheme.
- Moreover, in 2015, the centre set up a model compensation scheme, which prescribed a minimum amount of compensation to be granted to victims of different offences (Press Information Bureau 2015).
- Each state was asked to notify new schemes in compliance with the same, and if it found itself facing any financial difficulties in adhering to the scheme, the centre would support the state from a ?200-crore fund earmarked for this very purpose.
- Unfortunately, despite the Ministry of Home Affairs’ directive asking states to modify the amount of compensation provided under Section 357A of the CrPC, some states are yet to amend their state victim compensation schemes.
- There exist large disparities among states, with regards to the amount of compensation they give to the victims of certain offences, in spite of the introduction of the central victim’s compensation scheme (and a fund of ?200 crore), which was brought to ensure that each state meets a specific minimum amount of compensation as prescribed by the centre for victims of specific offences (Press Information Bureau 2015).
Laws governing compensation of victims of crime
- 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.
- Constitution of India also provides for certain safeguards to the victim of crime.
- Article 14 and 21 of the Constitution supports the argument.
- 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.
- Despite the existence of such provisions as well as the establishment of the state and the central victim compensation funds (Press Information Bureau 2015), the victims of crimes rarely receive any compensation (Ankush Shivaji Gaikwad v State of Maharashtra2013).
- Furthermore, despite the Ministry of Home Affairs’ directive asking states to modify the amount of compensation provided under Section 357A of the CrPC, some states are yet to amend their state victim compensation schemes.
- The result of this is that the amount of compensation a victim of an offence receives in one state varies greatly from the amount a victim of the same offence would receive in another state.
Loopholes in the Schemes
- The Supreme Court in Nipun Saxena v Union of India (2019) noting drawbacks of existing schemes, found it fit to direct the National Legal Services Authority (NALSA) to frame a scheme for victims of sexual offences, including the offences falling under the Protection of Children against Sexual Offences Act.
- No entitlement for non-female victims: This pan-India scheme significantly increases the amount of compensation that can be availed by a victim of a sexual offence, but does not entitle non-female victims of serious crimes to receive greater compensation.
- Same body to assist victim and accused: Lastly, a notable flaw in the victim compensation schemes is that the victim may file an application seeking compensation before the state or district legal services authority. This is, however, the very same authority that is meant to provide assistance to the accused in getting legal aid.
- Conflicting role: Thus, at present, the legal services authorities have a conflicting role, for they are expected to be neutral while dealing with the protection of the rights of the accused on the one hand, and supporting the victim in securing their right to compensation on the other.
Issues and challenges
- Ineffective schemes: While Sections 357 and 357-A of the CrPC are steps in the right direction, their effect has been nullified due to the ignorance of the judiciary, which has failed to invoke these sections time and again.
- Non-uniform: Furthermore, 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.
- Disbursed compensation: Moreover, compensation under the schemes is sparingly disbursed.
- Ignorance by courts: Lastly, the courts too are at fault for their consistent ignorance of Sections 357 and 357-A of the CrPC.
- InAnkush Shivaji Gaikwad v State of Maharashtra (2013), the Supreme Court came down heavily on the rampant practice amongst courts of ignoring the victim’s right to compensation under Section 357 of the CrPC.
- The court held that though the wording of Section 357 made it appear as though the provision was merely directory in nature, by looking at the intention of the legislature behind enacting it, it was evident that Section 357 was to be treated as mandatory.
- Thus, it was the duty of the courts to at least apply their mind and give reasons for refusing to grant any compensation.
What measures are required?
- Separate body for victims: To avoid the conflicting role, ideally, there should be a separate body to deal with victims and their grievances so as to prevent such a conflict of interest.
- Victimology: Victimology is the only way forward, which could reinstil 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.
- Focus on effective implementation: While Sections 357 and 357A of the CrPC are steps in the right direction, their implementation requires much fine-tuning.
- Amendment: It is recommended that the legislature amend Sections 357 and 357-A of the CrPC, 1973.
The ancient Indian History is a witness to the fact that the victims of crimes have sufficient provisions of restitution by way of compensation to injuries. Reparation or compensation as a form of punishment is found to be recognized from ancient time in India. In ancient Hindu law, during Sutra period, awarding of compensation was treated as a royal right.
In today’s time, criminal cases are becoming a contest between the accused and the state. In the fight for hegemony between the State and the Accused, the victim's plight is often forgotten. The offender is apprehended, tried, punished or absolved, or even released on probation in certain situations, although found guilty in the Court. But the victims remain victims. Therefore, it needs of the moment for the criminal justice system to do something more than just punishing the criminal.