Compensation to Victims and Judicial Administration in India

Shilpashree L.[1]

There is a myth that that the Court will award compensation or damages in civil cases and punishment in criminal cases only. But the truth is that the Court has awarded compensation to victims of crime to redress their claims. In certain primitive and medieval period, the compensation was given to the victim or his family by the offender or his clan. The punishment infringed on offenders has been changed from retribution to expiation to reformation theory. Even though the legislations on crimes are criminal oriented, the courts have not overlooked the victim’s grief and have made significant contributions in addressing victim’s claims.

The idea of awarding compensation to victims has been reiterated worldwide. New Zealand has established Crimes Compensation Tribunal and has enacted Aid to Victims of Crimes of Violence Act, 1965. The noteworthy feature of the Act is that people who sustain injuries while trying to capture criminals to get compensatory relief. In England too there is an establishment of Criminal Injuries Compensation Board by the Government to grant compensation to the victims.

Firstly, the term ‘victim’ has to be understood constructively. Section 2(wa)[2] of the Code of Criminal Procedure, 1973 defines the term ‘victim’ in the following manner:

“Victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir.”

Article 1 and 2 of the U.N. General Assembly Declaration of Basic Principles of Justice for Victims and Abuse of Power defines the term ‘victim of crime’ in similar fashion.

In criminal cases, an offender will be punished with imprisonment or fine or both. This leads to the assumption that the justice is meted out. But a crime committed by an offender costs victim and his family. They have to incur few expenses. This can be considered as involuntary action. Hence, the expenses and loss borne by the victim and his immediate family or dependents have to be compensated financially by the offender. Compensation might not indemnify the whole of the loss a victim has gone through. But it makes sure that the justice is rightly served.

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The higher courts have played a major role in assuring compensatory justice to the victims of crime. According to Paranjape[3], “While awarding such compensatory relief, they have exercised due care and caution to ensure that people’s faith in judicial process is not shattered and the victims protective rights are not denied to them”.

The Constitution of India provides for compensation to victims under Article 21. Sections 357 and 358 of the Code of Criminal Procedure, 1973 talk about the compensation to be paid to victims. In Rudal Shah v. State of Bihar[4], Justice V.Y. Chandrachud observed that a person is entitled to compensation for the loss or injury caused by the offence, and it includes the wife, husband, parent and children of the deceased victim.

In Sarwan Singh v. State of Punjab[5], the Supreme Court enumerated the factors which the courts should take into consideration while awarding compensation to victims. This includes capacity of the accused to pay, nature of the offence and nature of injury suffered by the victim and his family. The Court further observed that the quantum of the compensation must be reasonable and depending upon the facts and circumstances of the case. In Bhim Singh v. State of J &K[6], a member of legislative assembly was awarded with Rs. 50,000 as compensation for illegal arrest and detention.

The Apex Court has brought the concept of ‘absolute liability’ into light in Bhopal Gas Tragedy[7] and held the Union Carbide Company is absolutely liable for the biggest 20th Century Industrial disaster and ordered the Company to pay compensation of 450 crores to the victims of the tragedy.

The above decisions reveal that the Court has left no stone unturned in giving justice to victims. The provisions of Cr.P.C. have also contributed to it. Section 357-A provides a scheme relating to victim compensation and every State Government has to have the same in cooperation with Central Government. Where the offender is not traced out or identified but the victim is identified and where no trial takes place, then the victim or his dependents, as the case may be, can make an application to the State or District Legal Service Authority for compensatory relief.[8]

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In D.K. Basu v. State of West Bengal[9], the Supreme Court made the following observations:

“The monetary and pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for the redressal of the established infringement of the fundamental right to life of a citizen by the public servants. The State is vicariously liable to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State; which shall have the right to be indemnified from the wrongdoer.”

Generally, the whole attention is paid by the crime investigators and the Courts on the criminals. Once an accused gets arrested, effort is made to determine whether he is a criminal or not and if he is convicted, further efforts are made on criminal reforms e.g., release on probation or parole, etc. Little attention is paid to the victims from the beginning to the end. At a point where there are no proper legislations to assist victims, judiciary has played a significant role in aiding victims by awarding compensation.

[1] Student.

[2] Amended in 2008.

[3] Professor N. V. Paranjape, Criminology, penology & victimolgy, 789 (Central Law Publications, 17th Edition, 2017).

[4] Rudal Shah v. State of Bihar, AIR 1983 SC 1086.

[5] Sarwan Singh v.  State of Punjab, AIR 2000 SC 362.

[6] Bhim Singh v. State of J &K, AIR 1986 SC 498.

[7] Union Carbide Corporation v. Union of India, (1991) 4 SCC 548.

[8] Dr. N. Maheshwara swamy, Criminology and criminal justice system, 243, (Asia Law House, Hyderabad, 2013).

[9] D.K. Basu v. State of West Bengal AIR 1997 SC 610.