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Crime, Punishment and the Law An International Journal (2009) Vol.2.

17-30

Compensatory Jurisprudence for Victims of Crime in


India: A Comparative Analysis of the Legislative and
Judicial Precedents in the Backdrop of International
Norms and Standards.
Ashish Goel & Shilpa Goel

1. Introduction
At times, infliction of pain to offenders in the form of physical punishment for loss or
injury caused by their deliberations to victims may not alone be satisfactory (Ashworth,
1986; Mcdonald, 1987; Connell, 2003). The supposition that evil should be returned with
evil might have had some relevance in the past, but with the course of changing times, it
has become meaningless today (Fletcher, 1980). Therefore, a need was realized to evolve
a completely different approach to punishing the offender. This approach warrants some
justification for its being victim-centered and not concerned exclusively with the rights
of offenders (Shapland, 1984). In a way, this victim-centered-approach tries to question
the underlying objective behind criminal justice system where victims get nothing out of
the ongoing Court process except for the implied satisfaction (Andersen, 2003) that the
persons who had inflicted pain on them are sentenced to adequate penalty in form of
imprisonment. In an institution where there is a self-styled presumption of the suspects
being the innocent person (Batra, 2003), it requires a certain degree of consideration to
balance the powers and privileges of competing parties to obtain an outcome that is just,
fair, and equitable. However, especially in the Indian Courts of equity, given the liberal
construction of penal statutes coupled with compulsive judicial presumption towards
innocence, the offenders get the benefit of doubt and have, in a majority of trials, an
overwhelming likelihood of evading conviction for lack of substantive evidence against
conviction (Sinha, n.d.). Alongside, the right to speedy trial and legal aid helps the
accused in getting prompt case disposal whereas the victim suffers from the vice of delay
and procedural impropriety. This is precisely where the appreciation of a compensationconscious criminal justice delivery system arises which, if incorporated in the judicial
thinking has the potential to produce long term benefits to victims of crime and violence
in the pursuit of their long term self-interests. The author while conceding to the fact that
deterrence and retribution may seem effective in discouraging criminal behavior, attempts
to posit through comparative legislations that active incorporation of compensatory
jurisprudence is a better alternative to other theories of punishment in that it not only
imposes adequate penalty in form of compensation but also, as a logical corollary, assists
victims of crime to overcome their financial constraints. This becomes more important

Ashish Goel, B.A., LL.B, (N.U.J.S.), is the founding contributor of Breaking the Code of Criminal
Procedure.blogspot.com. He has written for international law journals and holds substantial interest in
comparative criminal law.
Shilpa Goel, LL.B (H.M.C.), LL.M (N.L.S.I.U.), is enrolled with the Delhi High Court. She wants to
dedicate this article to her parents Madan Goel & Bina Goel for their overarching support in life.

Electronic copy available at: http://ssrn.com/abstract=1779186

Crime, Punishment and the Law An International Journal (2009) Vol.2. 17-30

when a crime is committed against the poor, women, elderly, and persons who are
physically or mentally handicapped. The author here seeks to explore comparative
provisions, both legislative and constitutional, which incorporate the idea of
compensatory jurisprudence and defines the constitutional duty of Indian courts to
implement the legal principles stipulated therein and fulfill their international obligations
in order to foster law, complete justice and international social order.

2. Who are the Victims of Crime?


American Heritage Dictionary defines victim as (a) someone who is put to death or
subjected to torture or suffering by another; (b) execution or casting out a person to
satisfy a deity or hierarchy; (c) victims of war; (d) person who is tricked, swindled or
taken advantage of; and (e) a person who suffers injury, loss, or death as a result of a
voluntary undertaking. Though, there is no definition of victims of crime under the
Indian laws (Rao, 2005), its legal definition can be traced to the United Nations General
Assembly Declaration of Basic Principles of Justice for Victim and Abuse of Power,
1985. Article 1 and 2 of the Declaration defines victims of crime as, persons who,
individually or collectively, have suffered harm, including physical or mental injury,
emotional suffering, economic loss or substantial impairment of their fundamental rights,
through acts or omissions that are in violation of criminal laws operative within Member
States, including those laws prescribing criminal abuse of power. A person may be
considered a victim regardless of whether the perpetrator is identified, apprehended,
prosecuted, or convicted and regardless of the familial relationship between the
perpetrator and the victim. Furthermore, the term victim also includes the immediate
family or dependants of the direct victim and persons who have suffered harm in
intervening to assist victims in distress or to prevent victimization. It can therefore be
concluded that in strict legal terminology, victims are persons who suffer a loss or
injury by an act or omission of another and include all those persons who are, in the
ordinary course of natural events, dependant on such person, at the time when the act in
question was so committed or omitted.

3. International Norms and Standards


3.1. UN Declaration on Rights of Victims
The General Assembly of the United Nations (UN) made a Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power while cognizant of the fact
that millions of people throughout the world suffer harm as a result of crime and the
abuse of power and that the rights of these victims have not been adequately recognized.
This Declaration is apparently a giant leap forward in placing a victim-justice-system
approach in lieu of the existing misplaced criminal-justice-system. The Magna Carta
(as it is widely recognized) (Akapin, n.d.) of the rights of the victims envisages a different
modus operandi to relate international norms and standards on criminal jurisprudence to
the municipal constitutional directives working together for the overall development of a
just and equitable society free from arbitrariness. It calls for the strengthening and
expansion of funds for compensating victims of crime which shall include, among other
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Electronic copy available at: http://ssrn.com/abstract=1779186

Crime, Punishment and the Law An International Journal (2009) Vol.2. 17-30

things, the necessary material, medical, psychological and social assistance through
governmental, voluntary, community based and indigenous means (article 13 read with
article 14). Article 12 of the Declaration provides that when the amount of compensation
is not fully available from the offender, it shall be the duty of States to provide adequate
financial compensation to (a) victims who have sustained bodily injury or impairment of
physical or mental health as a result of serious crimes; and (b) the family, in particular the
dependants of persons who have died or become physically or mentally incapacitated as a
result of such victimization.
3.2. European Convention on the Compensation of Victims of Violent Crime (CETS 116
Compensation to Victims of Violent Crimes, 24.XI.1983)
The Council of Europe in 1983, while considering that for reasons of equity and social
solidarity it is necessary to deal with the situation of victims of intentional crimes of violence
who have suffered bodily injury or impairment of health and of dependants of persons who
have died as a result of such crimes, requested Member States to compensate; (a) those who
have sustained serious bodily injury or impairment of health directly attributable to an
intentional crime of violence; and (b) the dependants of persons who have died as a result of
such crime (article 12). The Convention in article 4 provides that compensation shall
cover, according to the case under consideration, at least the following items, loss or
earnings, medical and hospitalization expenses and funeral expenses, and, as regards
dependants, loss of maintenance. This Convention has so far been ratified by seventeen
Member States, India though not being one of them. The Committee of Ministers of the
Council of Europe in their Resolution 77 (27) titled On the Compensation of Victims of
Crime adopted on the 275th plenary meeting on the Minister Deputies on 28th September,
1987, in the interest of victims, laid down guiding principles with a view to harmonizing
national provisions. Among others, the important recommendations that were put forward
by the Committee are that (a) the compensation should be the fullest and fairest possible,
taking into account the nature and the consequence of the injury (res. 4) and; (b) the
compensation scheme should provide for the possibility of granting in urgent cases
interim awards when there would be delay in determining the compensation (res. 8).
Moreover, it asks Member States to inform the Secretary General of the Council of
Europe every five years of the steps they have taken to implement this Resolution (part II
of the res.). In addition, the Council of the European Framework Decision of 15 March
2001 on the Standing of Victims in criminal proceedings imposes an obligation on the
Member States to fulfill the commitment towards a just and equitable criminal justice
system (Council Framework Decision, 2001).

3.3. U.S.A.
In the USA, the Congress passed the Victims of Crime Act, 1984 under which it
established a Crime Victims Fund in the U.S Treasury with a view to provide victim
assistance and compensation programs that offer ongoing support and services to
those affected by violent crime. This fund is largely collected from a variety of sources
which include, among others, criminal fines, forfeited bail bonds, penalty fees, forfeited
literary profits from federal criminals etc (State Program Guidelines, 2007). The
proceeds of the Funds are distributed yearly for assuring direct assistance and
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Crime, Punishment and the Law An International Journal (2009) Vol.2. 17-30

compensation to victims of crime. The legislation guarantees a certain amount of relief


for compensatable crimes like domestic violence, sexual assault, child abuse and the like.
There exists a designated Victims of Crime Act Assistance Agency to administer grants
who in turn sub-grant, although after exercising their discretionary powers, those grants
to organizations that provide services to the victims of crime.
3.4. U.K.
The Criminal Injuries Compensation Scheme which was approved by the Parliament of
UK resulted in the Criminal Injuries Compensation Act, 1969 and intends to compensate
victims of crime for the loss or expenses incurred as a result of that crime. The definition
of victim includes in its fold their dependants, close relatives and friends. In addition,
Powers of Criminal Courts (Sentencing Act), 2000 relates to the powers of courts to deal
with offenders and defaulters and to the treatment of such persons. Section 130 of the Act
is titled Compensation orders against convicted persons and provides that a court
instead of, or in addition to dealing with an offender in any other way, make an order
requiring him to pay compensation for any personal injury, loss, or damage caused to the
victim. Moreover, the offender can be asked to make payments for funeral expenses or
bereavement in respect of death resulting from his act. Under the Act, the Courts are
obliged to give reasons for their refusal to order payment of compensation. Where the
Court considers that the offender has sufficient means to pay both fine and appropriate
compensation, it shall give preference to compensation (clause 12). Besides, the Widgery
Committee (1978) and the Dunpark Committee Report (1997) on compensation by the
offender to victim express concerns over the absence of compensatory jurisprudence in
criminal trials, largely due to the lack of the victims being a party to those trials
(Campbell, 1984).
3.5. Australia
In Australia, The Victims of Crime Assistance Tribunal, 1997 established under the
Victims of Crime Assistance Act, 1996 (81 of 1996) seeks to fulfill the following three
objectives (section 1);
(a) To assist victims of crime to recover from the crime by paying them financial
assistance for expense incurred, or reasonably likely to be incurred, by them as a
direct result of the crime;
(b) To pay certain victims of crime financial assistance (including social financial
assistance) as a symbolic expression by the State of the communitys sympathy
and condolence for, and recognition of, significant adverse affects experienced or
suffered by them as victims of crime; and
(c) To allow victims of crime to have recourse to financial assistance under the Act
where compensation for the injury cannot be obtained from the offender or other
sources.
However, the victim must have suffered actual physical bodily harm or mental illness or
disorder or an exacerbation of a mental illness or disorder (whether or not flowing from
nervous shock) or pregnancy (section 3). The definition of injury does not include
injury arising from loss of or damage to property. Under the Act, the package of
compensation includes awards of financial assistance which cover medical expenses,
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insurance claims and reasonable counseling expenses incurred by the victims and also to
the victims relatives where death is resulted because of a criminal act.

4. Legislations in India dealing with compensation to Victims of


Crime
4.1. Code of Criminal Procedure, 1973
In India, the Code of Criminal Procedure, 1973 (2 of 1974), sets out elaborately the
procedures to be followed in a criminal trial. This Code, inter alia, contains a provision
which empowers a criminal court to order payment of a specified sum of money, by way
of compensation, at its discretion, to the offender for making good the loss or injury
inflicted by him on the victim. This is enshrined in section 357 (1) of the Code which
states that, the court may, while imposing a sentence of fine or a sentence of which fines
forms a part, order the fine recovered to be applied in (a) defraying the expenses properly
incurred in the prosecution, (b) in payment of compensation to the victim who has
suffered a loss or injury by an offence, if such person is entitled to it in a Civil Court.
On a perusal of this section, it emerges unambiguously that the three primary outcomes
which the section intends to give effect are;
(i)
A Criminal Court is empowered under the Code to order payment of
compensation if fine forms a part of the sentence.
(ii)
In payment of compensation, the Court has discretionary powers to either
defray the costs of the proceedings or to compensate the victim for the loss
or injury suffered by him or both, provided that the victim is entitled to
recover the amount in a Civil Court.
(iii)
The loss or injury must have been caused to the victim by the act or
omission of the offender who is so asked by the Court to compensate the
former.
It is important to note that the rule that compensation can only be paid if fine forms a part
of the sentence imposed, has been relaxed in Clause (3), which empowers a Court to
order payment of compensation even if fine does not form part of the sentence. This
Clause gives Court wide discretionary powers to exercise its statutory powers under the
section in order to do complete justice to the victims in a criminal trial. Moreover, section
357 is inoperative without section 421 of the Code, which provides for the means of
recovery of fine. In others words, the modes of execution of a decree or order for
payment of fine is stipulated under the section to ensure minimum abuse of the process of
courts. In pursuance of this section, the Court may either issue warrant for levy of amount
by attachment and sale of movable property, or realize the amount as arrears of land
revenue from movable or immovable property of the defaulter.
In addition to the above, the recent Code of Criminal Procedure (Amendment) Bill, 2008
(Bill No. LXXX-C of 2006) which echoes the recommendations of the Law Commission
of India (156th Report on the IPC, 1997), provides for the insertion of a new section i.e.
357A under which every State Government in co-ordination with the Central Government
shall prepare a Victim Compensation Scheme for providing funds for the purpose of
compensation to victims or his dependants for the loss or injury suffered. Clause (3)
empowers a trial Court to make recommendation for compensation if it satisfies itself,

Crime, Punishment and the Law An International Journal (2009) Vol.2. 17-30

that compensation provided to the victim is inadequate for his rehabilitation. Moreover,
Clause (4) is an important provision as it endows a right on the victim to make an
application for award of compensation to the Legal Services Authority, in case the
offender is untraced and trial does not take place. In addition to the abovementioned
provisions of law, Chapter XIX of the Code of Criminal Procedure is titled Trial of
Warrant- Cases by Magistrates and is divided into three parts. Part C is titled
Conclusion of Trial and section 250 of Part C provides for compensatable losses for
accusation without reasonable cause. According to it, in case a Magistrate is of the
opinion that there was no reasonable ground for making accusation against one or more
persons, instituted upon a complaint or FIR, he may show cause the person who instituted
such complaint or FIR why he should not pay compensation to such accused. The
Magistrate is empowered, after recording reasons, to make an order for compensation, not
exceeding the amount of fine he is empowered to impose, to be paid by such complainant
or informant to the accused.
4.2. The Probation of Offenders Act, 1958
Under this Act, the Court may release any person found guilty of an offence punishable
with 2 years, or fine, or both, after admonition or on probation of good conduct. While
releasing such person, the Court must take into consideration the nature of the offence
and character of the offender. Section 5 of the Act incorporates the idea of compensation
and lays down that a Court while directing release of an offender after admonition or on
probation for good conduct, may, in its discretion, order such person for payment of
compensation, for the loss or injury caused by his act or omission, as the Court thinks
to be reasonable. This section also empowers the court making such order to defray the
costs of proceedings. Clause (2) provides that the victim must be entitled to recover the
amount ordered to be paid under sub-section (1) as a fine. It is clear, that both Code of
Criminal Procedure and the Probation of Offenders Act do not give a right to recover
compensation, but simply leave it to the discretion and satisfaction of the Courts to grant
compensation when the need arises. This discretionary power makes it very difficult to
achieve the purpose of the provisions and enhances the chances of maximum abuse. The
Apex Court rightly observed in Sukhbir Singh (1988) that, section 357 is an important
provision but the Court have seldom invoked it perhaps due to the ignorance of the object
of it..we recommend all Courts to exercise this power liberally so as to meet the ends
of justice in a better way.
4.3. The Motor Vehicles Act, 1988
Section 40 of this Act embodies the idea of compensatory jurisprudence for the benefit of
victims of accidents arising out of motor vehicles and states that the owner of the vehicle
is obliged to pay a specific sum of compensation if his negligent act has culminated in the
death or permanent disablement of a person. The following section guarantees a speedy
recovery of such compensation by categorically stating that such claims shall be
disposed of as expeditiously as possible. Section 163 provides for a scheme of payment
of compensation in case of hit and run motor accidents which shall contain the form,
manner, and the time within which applications for compensation may be made, to whom
it may be made, and the procedures to be followed by administrative authorities.
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4.4. Other Miscellaneous Provisions


A. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
The sole objective behind this legislation is to prevent the commission of offences of
atrocities against the members of the Scheduled Castes and Scheduled Tribes, and for the
relief and rehabilitation of the victims of such offences. Section 21 of this Act imposes an
obligation on the State Government to effectively implement the provisions stipulated
therein. The use of words shall take such measures as may be necessary removes the
possibility of any discretion and mandates the government to, among other things,
provide (a) adequate facilities, including legal aid, to the persons subjected to atrocities to
enable them to avail themselves of justice; (b) provide for the traveling and maintenance
expenses to witnesses, including the victims of atrocities, during investigation and trial of
offences; and (c) provide for the economic and social rehabilitation of the victims of
atrocities. Moreover, on 31 March, 1995, in exercise of the powers conferred by subsection (1) of section 23 of the Act, the Central Government passed the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. Rule 12 is titled Measures
to be taken by the District Administration and Rule 12(4) provides that the District
Magistrate or the Sub-Divisional Magistrate or any other Executive Magistrate shall
make arrangements for providing immediate relief in cash or in kind or both to the
victims of atrocity, their family members and dependants. Such immediate relief shall
also include food, water, clothing, shelter, medical aid, transport facilities, and other
essential items necessary for human beings. Rule 15 further mandates the State
Government to prepare a model contingency plan for implementing the provisions of the
Act and shall contain, among other things, a package of relief measures including, (a)
scheme to provide immediate relief in cash or in kind or both; (b) allotment of
agricultural land and house-sites; (c) the rehabilitation packages; (d) scheme for
employment in Government undertaking to the dependant of one of the family members
of the victim; (e) pension scheme for widows, dependent children of the deceased,
handicapped or old age victims of atrocity; (f) mandatory compensation for the victims;
(g) scheme for strengthening the socio-economic condition of the victim; (h) provisions
for providing brick/stone masonry house to the victims; and (i) such other elements as
healthcare, supply of essential commodities, electrification, adequate drinking water
facility, burial/cremation ground, and link roads to the Scheduled Castes and the
Scheduled Tribes.
B. The Workmen Compensation Act, 1923
This Act provides for the payment, by certain classes of employers to their workmen, of
compensation for injury by accident occurred during or in the course of employment.
Section 3 envisages an employers liability for payment of compensation if any personal
injury is caused to a workman by an accident arising out of and in the course of his
employment, his employer shall be liable to pay compensation in respect of (a) any injury
which results in the total or partial disablement of the workman for a period exceeding
seven days; (b) any injury resulting in the death caused by an accident which is not

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directly attributable to the workman having been at the time thereof under the influence
of drink or drugs, or any willful disobedience of the workman to an order expressly
given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or
the willful removal of, or disregard to any safety guard or other device which he knew to
have been provided for the purpose of securing the safety of workmen. The Act also lays
down the process of determination of payment of compensation by enlisting the injuries
deemed to result in permanent partial disablement, the occupational diseases and
compensation payable in Schedules I, III, and IV annexed to it.
C. The Police Act, 1861
The Police Act of 1861 largely governs Indian police forces, aiming to make them a more
efficient instrument for the prevention and detection of crime. Section 15A of the Act is
titled Awarding compensation to sufferers from misconduct of inhabitants or persons
interested in land and provides that if in any area, death or grievous hurt or loss of, or
damage to property has been caused from inhabitants of such area, it shall be lawful for
any person, being an inhabitant of such area to make an application for compensation to
the Magistrate, for any injury suffered from misconduct.
D. Railways Act, 1989
Section 124A is titled Compensation on account of untoward incidents and provides
that when in the course of working a railway an untoward incident occurs, then whether
or not there has been any wrongful act, neglect or default on the part of the railway
administration such as would entitle a passenger (includes a railway servant) who has
been injured or the dependant of the passenger who has been killed to maintain an action
and recover damages in respect thereof, the railway administration shall be liable to pay
compensation. Section 124 entitles a passenger to compensation when an accident occurs
either by derailment or collusion between trains irrespective of whether there has been
any neglect, wrongful act, or default on the part of the railway administration.

5. Indian Judiciary and the Development of Compensatory


Jurisprudence
5.1. The Constitutional Mandates
Part III of the Constitution of India embodies the essence of the doctrine of rule of law
and endows upon its citizens, in some instances persons (Article 14, 20-22, 25, 27, 28),
inalienable fundamental rights which cannot be tampered with, save recognized
exceptions and in compelling state interest. To ensure obedience by the State, the
Constitution provides mechanisms in the form of judicial review by the superior courts
whereby the impugned provisions of law and discretionary exercise of powers by the
legislature and the executive are struck down as being unconstitutional, ultra vires and
void. This power of judicial review is principled in Article 32 and 226 exercised both
by the Apex Court and the High Courts of respective States. Though there has not been

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any explicit mention of payment of compensation in these Articles, the pro-active


construction of constitutional terms by the Indian judiciary has paved the way in setting
landmark precedents to that effect. The analysis of the constitutional mandate of these
two articles and landmark precedents of the Apex Court follows in the subsequent
section. Additionally, the Directive Principles of State Policy set out in Part IV of the
Constitution spells out the obligations of a State to contribute in the achievement of
justice- social, economic and political. Though not justiciable in nature, in a government
of responsibility like ours, the directives are a weapon for the common citizens to make
their elected representatives accountable for the lack of appropriate initiatives ensuring
observance to the constitutional mandates. Article 38 is titled State shall secure a social
order for the promotion of welfare of the people and states that the State shall strive to
promote the welfare of the people by securing and protecting as effectively as it may a
social order in which justice, social, economic, and political, shall inform all the
institutions of the national life. Article 41, among other things, provides for public
assistance in cases of undeserved want. On a literal interpretation of these two articles
it emerges unambiguously that the intention of the founding fathers of the Constitution of
independent India was to authorize the respective States in Union to care-take the needs
and fulfill the legitimate expectations, in the form of compensation, of those who suffer
from the vice of State inaction.
5.2. A Compensation-Conscious Judiciary
There is always a presumption towards the application of compensatory jurisprudence by
the Indian Apex Court judges in matters connected with, or incidentally involving issues
of violation of fundamental rights brought before it in any petition under Article 32
irrespective of whether any legislation supports the move or not. The phrase appropriate
proceedings for the enforcement of [Part III rights] gives wide remedial as well as
injunctive powers to the Apex Court for the purpose of doing complete justice as far as
possible. The discretionary power to grant reasonable compensation is to be read in that
Article. However, this power is not absolute and has to be used sparingly with proper care
and caution. It is a settled principle of law, both on principles and precedents, that the
power to grant compensation can only be exercised in cases of gross abuse of Part III
rights either by the instrumentalities of State or any other private person. The exercise of
this power cannot in any circumstances be constitutionally permissible for deprivation of
mere legal or constitutional rights of aggrieved persons. The proper forum for the
determination of violation of legal rights sought through the invocation of writ powers is
High Court under Article 226 where action can be brought for violation of fundamental
rights and for any other purpose. This is due to the hierarchy of courts in the Indian
justice system where the rule is that a party must approach subordinate courts first and
higher courts must not be interfered with unnecessarily save permissible grounds of
inordinate delay or lost/inadequate remedy for no fault of the petitioner.
The first of its kind, Rudul Shah (1983), which came before a three judge bench of the
Apex Court raised questions relating to the competence of Courts to grant adequate
compensation/exemplary costs to victims against abuse of powers by State and its
administration while deciding a writ petition under Article 32. Here, the petitioner
challenged his illegal detention in prison for a period of fourteen years by invoking the
writ jurisdiction of Apex Court under Article 32 claiming a patent violation of his right to
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life and personal liberty guaranteed under Article 21. A landmark judgment of sorts,
Rudul Shah incorporated the idea of compensation where Apex Court assumed to itself
the power to order exemplary costs as a remedial measure which is in addition to, and not
including, the appropriate damages claims in civil courts.
This trend-setting decision of the Apex Court was echoed in almost all subsequent cases
where compensation as a remedy for lawlessness was proficiently argued. The conclusion
arrived by subsequent Benches on the issue almost reflects the arguments and reasoning
advanced in Rudul Shah, but the interesting trend to be noted is that the quantum of
compensation granted in subsequent cases has increased drastically from that of Rudul
Shah. One possibility may be the flexibility of cited facts and severe circumstances on a
case to case basis but what is more important is to appreciate the shift in attitude of the
judiciary towards the whole criminal justice system insofar as the rights of a victim is
concerned. The absence of reluctance in awarding huge compensation can best reckon a
feeling of sensitivity towards the real plight of victims and on the other hand a creative
mechanism to act as deterrence against unconstitutional excesses by State and its
administration. From 30,000 in Rudul Shah to 50,000 in Bhim Singh (1985) to 75,000 in
Saheli (1990) to 1,50,000 in Nilabati Behera (1993), in a way, the most powerful Court in
the world has not only recognized the abuse of power by instrumentalities of State but
has also firmly established the importance of human rights in a liberal democratic society.
In all the cases mentioned above, compensation has been awarded for the injury or loss
suffered by a citizen against the mischievous or malicious intent of government officials
that resulted in the invasion of his/her fundamental rights. In Nilabati Behera, Justice
Verma removed all kinds of ambiguity by categorically stating that Article 32 imposes a
constitutional obligation on the Supreme Court to forge new tools for doing complete
justice and enforcing the fundamental rights (Article 32 itself being one of them) which
also enables to award monetary compensation in appropriate cases where that is the only
mode of redress available. However, the quantum of compensation must depend upon the
nature of the offence committed, the character of the offender, the capacity of the accused
to pay and the intensity of the injury inflicted upon the victim (Swaran Singh, 1978).

6. Suggestions and Conclusion


The paper elucidated on a variety of compensation-conscious laws both in India and
outside. However, more so in the Indian context, enforcement machineries share
reluctance in the proper application of these laws in spirit. This view has been
corroborated both by the Apex Court (Sukhbir Singh, 1988) and the highest legal research
body in the country i.e. Law Commission (Forty-first Report on the CrPC, 1898). Instead
of putting the blame entirely on the instrumentalities, we concede that it is anybodys
obligation to assist in the law enforcement process as and when the need arises.
Although there had been a considerable number of suggestions coming from different
parts of globe including the World Society of Victimology and State of the Council of
Europe, the concluding part of the paper suggests an Indian-context-specific solution to
the overall implementation of compensatory jurisprudence while echoing in an elaborated
manner the recommendations and suggestions put forward by the Malimath Committee,
154th Report of the Law Commission of India, among others. Before coming into the

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Indian context, it is advisable to carefully appreciate the suggestions given by the World
Society of Victimology and the International Victimology Institute Tilburg
(INTERVICT), an Institute aiming to promote and execute interdisciplinary research that
can contribute to a comprehensive, evidence-based body of language on the
empowerment and support of victims of crime and abuse of power. The World Society of
Criminology (15th Session of Commission on Crime Prevention and Criminal Justice)
sought for a strategic plan to adopt the UN Convention on Victim Abuse and Power and
recommended Member States to make all possible efforts to incorporate and apply the
principles and guidelines concerning victims in their domestic legislation and practices.
Also, an Expert Group Meeting must be convened with equitable geographical
representation to study ways and means to promote the use and application of the
principles and guidelines. Again, under the terms of Article 15.b of the Statute of Council
of Europe, the Committee of Ministers adopted a Recommendation, in an attempt to alter
the traditional criminal justice system where relations exists between State and offender
which has sometimes tended to add to, rather than diminish, the problems of the victims.
One of the major recommendations is that legislation should provide that compensation
may either be a penal sanction or a substitute for penal sanction or be awarded in addition
to a penal sanction. In case compensation is a penal sanction, it should be collected in the
same way as fines and take priority over any other financial sanction imposed on the
offender. In all other cases, the victim should be assisted in the collection of the money as
much as possible. In the Indian context, the Committee on Reforms of Criminal Justice
System (under the chairmanship of V. S. Malimath), acknowledged that one of the two
most important victims rights recognized particularly in continental countries is the right
to seek and receive compensation from the criminal court for the injuries suffered as well
as appropriate interim relief in the course of proceedings (Malimath Committee Report,
2009). This Committee recommended for a right-based-approach to compensatory
relief where the victims are not at the misery of criminal courts who, only when satisfied,
after exercising their judicial discretion, that a fit case for compensation exists order for
the payment of it. In view of the Committee, compensation shall be sought as a matter of
right and must not be dependant on irrelevant considerations. The Law Commission of
India in a series of Reports (41st, 42nd, 152th, and 154th Report) had extensively dealt with
the issue of compensation and recommended, inter alia, (a) formation of a Victim
Compensation Scheme where the Legal Services Authority shall appropriately determine
the quantum of compensation to be awarded; and (b) the right of a victim to approach the
State or District Legal Services Authority for payment of compensation in case the
offender is untraceable or for any other reason unfit for payment. It is imperative to give
full consideration to the recommendations of both the Malimath Committee and Reports
of Law Commission in good faith to ensure active participation in fulfillment of
international obligations towards the rights of victims.
In the light of above discussions and authorities cited, some of the suggestions of the
author are discussed hereunder. First, the author argues that section 357 should be
amended in a way to exclude all possibilities of judicial discretion. One way to ensure
this is to substitute the word may with shall which would obligate the criminal courts
to give effect to compensatory laws both in letter and in spirit. Secondly, in order to
reduce further victimization, interim compensatory measures must be adopted by the
Government to assist victims in escaping the unending suffering from protracted
litigation and uncertain conviction. Also, even the criminal courts, if circumstances so
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Crime, Punishment and the Law An International Journal (2009) Vol.2. 17-30

demand, can show cause the suspects undergoing trial as to why they should not give
interim monetary relief to the aggrieved persons. The Supreme Courts decision in
Bodhisathwa Gautam (1996) is a case in point where the rapist was asked to provide
interim monetary relief to the tune of Rs.1000 per month to the victim until the
conclusive determination of their litigation by the trial court. Thirdly, the quantum of
compensation depends upon varied considerations viz. nature of the offence committed,
character and background history of the offender, capacity of the accused to pay, intensity
of the injury inflicted upon the victim etc. A giant leap to outcome these significant
predicaments in awarding compensation, is to create Special Compensation Boards in
States funded from the Central Government which would come up with an ex ante or
an ad hoc compensation scheme for the victims of crime. This view goes in line with
the 2008 CrPC Amendment which suggests formation of a Victim Compensation
Scheme for providing funds for the purpose of compensation to victims of crime.
Fourthly, section 53 of the Indian Penal Code lists down various forms of punishment
inflicted upon offenders. Although it may sound drastic, but payment of compensation
by way of punishment deserves to be included in section 53 in order to act as a deterrence
against commission of violent crimes. Fifthly, the Directive Principles of State Policy in
Part IV are fundamental in the governance of the country and it shall be the duty of the
State to apply these principles in making laws and decision-making process. One of the
constitutional directives is that the State shall secure a social order for the promotion of
overall welfare of the people (article 38). The constitutional exercise of State powers and
functions to promote justice- social, economic, and political depends largely upon how
innovatively it acts in furtherance of the common interests of the citizens. It would be
failing in its constitutional duty if it does not make appropriate laws to benefit victims,
more importantly efficient tools for implementation of such laws and strengthening of
enforcement mechanisms.
Having said all that, it must be realized that not all victims are fully aware of these
international instruments and constitutional or legislative relief. In order to secure the
intent and purposes behind such laws, it is nonetheless significant to spread legal
awareness through diversified mediums among victims of crime so that they are known
of their rights and can competently fight for their ultimate realization.

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Crime, Punishment and the Law An International Journal (2009) Vol.2. 17-30

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