Victims Compensation Scheme:A Primary Step to Ensure Justice to the Victims
VICTIM COMPENSATION SCHEME:A PRIMARY STEP TO ENSURE JUSTICE TO THE VICTIMS
- Harsh Khanchandani
INTRODUCTION AND BRIEF BACKGROUND
In an adversarial system like ours, 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. When a crime is committed, 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. They must try to restore and mitigate the damage done to victims who suffer mentally, psychologically, and financially as a result of the crime. Jurisprudence related to victimology has been widely debated on where to place the ball of responsibility- does the obligation of state merely ends with registering, investigating, and punishing the accused or it bears a legal duty to award compensation to the individual.
Nevertheless, the last few decades have witnessed ground-breaking reforms in the approach of the legal system nationally and internationally. Such compensation has been awarded in public law remedy under Article 21[1]. As. early as 1983, the supreme court of our country identified and recognized the right of the petitioner to seek [2]. Further, there have been several cases[3]where apex court has repeated its order to make compensation an integral part of the right to life.
The jurisprudence under Article 21 has gained traction since the beginning of the century and now applies to the rehabilitation of the victim or his family. However considering the narrow scope in terms of compensation which was limited to public law by the writ jurisdiction and noting the wide range of principles given in the 1985 declaration[4], a statutory scheme of paying compensation by the state was enacted. Accordingly, Section 357-A was inserted in the Code of Criminal Procedure, 1973[5].
Pursuant to this legal amendment, almost all union territories and states have made this scheme, which included a fixed and defined structure to give compensation. The result of this amendment can be viewed in the following cases: Delhi Domestic Working Women’s Forum v. Union of India and others[6], Ankush Shivaji Gaikwad v. State of Maharashtra[7], and other cases.
STATUTORY SCHEME FOR COMPENSATION: A BRIEF ANALYSIS
1. The objective behind this Scheme
• Almost all states have mentioned one simple objective behind the formulation of this scheme that is "for providing funds for compensation to the victims or their dependents, who have suffered loss or injury as a result of the crime and who require rehabilitation."
• However, there is one state which has attempted to widen the scope of this scheme by laying down an additional objective to provide support services such as counselling, legal assistance, shelter, medical aid, and other vocational training projects to the victim[8].
2. Definition of Victim under the scheme
• The majority of the schemes define the victim as a person who has suffered injury or loss and requires rehabilitation as a result of the crime. On the other hand, clause 2(h) of Himachal PradeshVCS[9]and clause 2(f) Assam VCS[10], mentions for the victim as an individual who suffers loss and injury caused due to act or omission for which accused \'has been charged\' narrowing down the scope of the scheme. It contradicts section 357A[11] which has been inserted in order to help those victims whose case could not proceed due to the want of identification of the accused.
• Some courts have agreed with the view of extending the definition of victim to include dependant members of the victim’s family or even guardians and legal heirs[12].
3. Implementation Authority
•All states have enshrined the work of awarding compensation and other interim relief toeither state legal service authorityor district legal service authority formed or formed under Section 9 and section 6 of the Legal Services Authorities Act, 1987[13]. A committee consisting of Chief Justice of High court as a patron is also constituted with retired judges of high court as members at the state level. Similarly, district judges of that particular district chair at the district level.
4. Eligibility Criteria for getting Compensation under the scheme
• The victim compensation scheme of various states lays down the basic condition for awarding compensation as suffering injury or loss leading to a substantial loss to the income of the family making it hard to meet expenses for medical treatment of the injury. The term substantial in the above context means considerable or extensive
•Apart from the above condition majority of the states have a common condition of not granting compensation if the same is received by the victim under other schemes of State or Central government or insurance companies.
5.Factors that need to be considered while awarding Compensation
• Although no specific guidelines have been enlisted to award and determine the quantum of compensation however there are some states like Gujarat and Delhi who have considered several factors while awarding compensation.
• Factors considered under Gujarat Victim Compensation scheme[14] are:
a.The gravity of the offense and the level of physical or mental injury or harm suffered
b.Expenditure incurred including counselling, travel, funeral as well as medical treatment.
c.Loss of future educational opportunity
d. Loss of employment opportunities as a result of offense
e.The relation between the offender and the victim.
f. Contraction of STD or HIV as a result of the offense.
g. Nature and occurrence of abuse.
h. Pregnancy as a result of the offense.
i. Disability suffered as a result of the offense.
j. Financial condition.
k.Age, monthly income, life expectancy, number of dependents in case of death.
6. Interim relief to victims.
• Most of the states have provisions relating to granting victims of crimes immediate relief. This includes immediate first aid or medical assistance and other benefits free of cost.
• In matters of an acid attack, clause 9(2) of the Gujarat victim compensation scheme[15] and clause 12 of Tamil Nadu\'s victim compensation scheme[16] provides to grant Rs. 1,00,000 as instant financial relief under 15 days of reporting the crime. Such compensation is awarded only when a certificate is issued by a police officer, not below the rank of offer-in-charge of the police station.
7. Quantum of compensation
• Lastly talking about the quantum of compensation, it is seen that there has been a wide discrepancy in compensation paid by states. As duly noted by the supreme court in the case of Tekan v. State of Chhattisgarh[17]that there is no uniform practice followed while awarding compensation specifically in the context of rape victims. In light of the same, a central victim compensation fund guidelines were issued recently to reduce the disparity while awarding compensation. Under the guidelines, a corpus fund of 200 crores has been set up for the victims. Further, it provides a minimum and a uniform amount of compensation for victims of acid attack and rape victims. However, few states are yet to implement such guidelines.
CONCLUSION
Victim compensation as a framework is still emerging in India and shy of constant evolution. It is yet to gain momentum to assist victims from different backgrounds. This scheme has helped victims of crime even when the verdict has not passed and the criminal has not been identified. This helps victims to overcome their adverse misfortunes and cope up with the damages and injuries caused. However, viewing the other side of the coin it shall be noted that there have been several loopholes and drawbacks. Firstly, It fails to determine a well-settled criteria for awarding compensation. In furtherance, there is no authority responsible for monitoring and overseeing the activities undertaken as well as the scope of duties for the authorities has been not defined completely. Lastly, there has been the grossly inappropriate amount of compensation that has been awarded. All this may prove to be hindrances for smooth implementation of the scheme. Howsoever, VCS is a solid attempt to give recognition to victims and their compensatory rights as well as bridge the gap. Making it a basic human right in modern criminology.
REFERENCES :-
[1]The Constitution of India, 1950, art. 21
[2]RudulSah v. State of Bihar, 1983 AIR 1086
[3]Bhim Singh, Mla vs State Of J & K And Ors, AIR 1986 SC 494 and Manju Bhatia v. N.D.M.C., AIR 1998 SC 223
[4] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,1985
[5]Code of Criminal Procedure Act, 1973
[6]Delhi Domestic Working Women’s Forum v. Union of India and others, 1995 SCC (1)14, JT 1994 (7)183.
[7]Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770.
[8]Odisha Victim Compensation Scheme, 2018, cl. 3
[9]Himachal Pradesh (Victim of crime) Compensation Scheme, 2012, cl. 2(h)
[10]Assam Victim Compensation Scheme, 2012, cl. 2(f)
[11]Code of Criminal Procedure 1973, sec. 357A
[12]Chattar Singh v. Subhash, 2011 SCC OnLine Del 81
[13]Legal Services Authorities Act, 1987, sec 6&9
[14]Gujarat Victim Compensation scheme, 2019, cl. 8
[15]Gujarat Victim Compensation scheme, 2019, cl. 12
[16]Tamil Nadu Victim Compensation Scheme 2018 for Women Survivors in Crimes, cl. 12
[17]Tekan v. State of Chhattisgarh, MANU/SC/0156/2016
