Introduction to Victim Compensation in India by Shikha at LexCliq

Internationally victims movement is still a relatively new step taken while, the first work in the field of victimology is dated back to the 1940s by Beniamin Mendelsohn and Hans von Hentig. With the resolution 40/34 on 29 November 1985, the United Nations General Assembly adopted “The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power”. This set a milestone which boosted the pro-victim movement internationally. The declaration was ratified by many of the member states of United Nations including India and United Kingdom. The United Nations General assembly in the resolution stated that millions of people thought out the globe are suffering  from loss, damage or injury as a result of crime and abuse of power but their rights have not been recognized adequately and appropriately yet. Not only they are suffering due to the crime or abuse of power but these victims and their families are also facing hardship while assisting in the prosecution of offenders in the court of law. They felt the necessity to secure an universal and effective justice, recognition, assistance and respect for the rights of victims of crime and of abuse of power.

It constitutes the need to set norms and minimum standards for the protection of victim of crimes. The declaration for the very first time gave a wide definition of victim which included the immediate family members of the victim as well. It speaks in favor of victims which include access to justice and fair treatment to them; restitution, compensation and assistance to victims and their dependants; treated with compassion and respect for their dignity. It says Judicial and administrative mechanism at the national level should be strengthened to enable the victims and their depennts to obtain redressal and medical, psychological, social assistance.

Various initiatives have been undertaken by the United Nations a in recent years to foster implementation of the Declaration throughout the world. In May 1996, the United Nations Commission on Crime Prevention and Criminal Justice in Vienna, adopted a resolution for the purpose to development a manual help countries develop programs for victims of crime. The Handbook or Justice for Victims was developed as a result the resolution. Also, an accompanying Guide for Policymakers was created for the implementation of the Declaration of 1985 and to ensure that their effectiveness and fairness of criminal justice system.

India

In India, the 41st Report of the Law Commission, which was submitted in year 1969 recommended few changes in the Code of Criminal Procedure of 1898. The Government of India as a result of the recommendation introduced the Code of Criminal Procedure Bill, 1970, which revised section 545 and it was reintroduced in the form of Section 357. The section as we reads it today provides for the provision for payment of compensation to victims of crimes. Thus, the Criminal Procedure Code incorporated the changes proposed in the said bill with the intention to provide relief to the victims specially to the poorer sections of the society. The amended provision of section 357 empowered the courts in India to pass orders for payment of compensation by the accused to the victims of crimes to a larger extent than what was previously permissible under the Code of Criminal Procedure. Section 357 brought significant changes in the framework of . Further, two new sub-sections were inserted in this section. Sub-section (3) of section 357 provides for payment of compensation even in cases where fine do not form a part of  the sentence to be imposed on the accused. Sub-section (4) outlined the jurisdiction and powers of an Appellate Court or High Court or Court of Session to order such compensation, while exercising its powers of revision courts with respect to the section.

Malimath Committee recommendations in the year 2003 recommended many recommendation to ensure justice to the victims in India. It said that the victims should be granted adequate compensation specially in cases of serious crimes. If state on its own expense if the victims are unable to borne the expense, should provide the victim with  the advocate of their choice. It also recommended for the establishment of Victim Compensation Fund as victim compensation is the obligation of the state, to provide compensation to victim in all serious crimes irrespective of whether the offender was convicted or acquitted by the court. This fund is to be organized by the state in a separate legislation. Victim Compensation Fund can be created under the victim compensation law and the assets confiscated in organized crimes can be made part of such fund. The recommendation were also made regarding the protection of the witnesses. The witnesses should be protected from being harassed during cross-examination. It also recommended for proper seating and resting arrangements for witnesses and that they should be treated with dignity. It also suggested that a separate witness protection law be enacted in India.

However, the scope for remedy to the victims in India in terms of compensation was limited under public law. Therefore, there was a need for a specific provisions to be introduced in India for providing compensation to the victim irrespective of whether the accused was found guilty or not during the criminal prosecution. So, new provisions were asses to section 357. With the Code of Criminal Procedure Amendment Act, 2008 amendment was made in the Code of Criminal Procedure, 1973 and a new provision of section 357 A- E  was to CrPC, which provides for the Victim Compensation Scheme. As per the earlier provision of section 357 direction was issued by the court to the convict to pay compensation to the victims on his conviction. However, in many cases the convicts are indigent which is the cause of crime itself so in order to overcome this situation section 357 A was added to CrPC. This was a much needed relief to the victims therefore, it was one of the most progressive legislation in favor of victims.

In section 357B provision is there for additional compensation to victims along with the fine under Section 326A or Section 376D of Indian Penal Code. Section 357 C provides for free first- aid and medical treatment to victims of offence covered under section 326A, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or section 376E of the Indian Penal Code, in hospitals established by Central or State Government. Provision is also there for compensation to person who are groundlessly arrested.

The definition of “victim” is provided under section 2(wa)as per the Code of Criminal Procedure (Amendment) Act, 2008 of the Criminal Procedure Code, 1973. The term “victim” means any person who has suffered any loss or injury which is caused by reason of the act or omission of the accused for which he/she has been charged for. The expression “victim” also includes his or her guardian or legal heir. This amendments made to the Code of Criminal Procedure 1973 in year 2008 acknowledging the rights of the victim specially right to compensation.

The right to compensation was also read as a part of the fundamental right of right to life under Art 21 of the Indian Constitution. As the victims’ rights gained momentum in India as well as abroad, keeping in mind the broad principles enumerated in the 1985 Declaration of United Nations, a statutory scheme of compensation payable by the state to the victims and their dependants was enacted.  Section 357A was inserted in the Code of Criminal Procedure, 1973, which obligated the states to provide for compensation to victims out of the victim compensation fund created for this very purpose. The 154th Law Commission Report in year 1996 said stated that compensation could also be extended to the family particularly their dependants of the victim in certain cases.

Central Victim Compensation Fund Scheme

The Central government has introduced a Central Victim Compensation Fund scheme to enable support to victims crime such as of rape, acid attacks, human trafficking and women killed or injured in the cross border firing. The victim or their dependent who satisfying the criteria of eligibility can receive compensation under the scheme. The criteria are:

  • Victim should not have been received  any compensation for loss or injury from any Government authorities or any other scheme of the Central/ State Government,
  • The substantial loss to the income of the family should have been occurred because of the loss or injury sustained by the victim or his dependents
  • In case where the offender of the crime is untraceable or cannot be identified, but the victim is identifiable, the victim or their dependents may also apply for compensation under section 357 A (4).

Apart from the provision in Code of Criminal Procedure, special laws in Indi also provides for Compensation to Victims. Example, The Probation of Offenders Act, 1958, Other special laws are: Motor Vehicle Act, 1988; The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act; 1989, Protection of Human Rights Act, 1993; The Workmen Compensation Act, 1923; Personal Injuries (Emergency Provisions) Act, 1962; Personal Injuries (Compensation Insurance) Act, 1963 in which compensation is awarded.

 

 

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