Author Name:   Arvind Lakhawat Advocate

The reason for the 'trial' setting in motion in a court of law is because of the unutterable sin by an accused towards the victim.

Compensation: A Ray of Hope

Abstract
The reason for the 'trial' setting in motion in a court of law is because of the unutterable sin by an accused towards the victim. It is for the irreparable loss that 'HE' suffers, a case is instituted in a court of competent jurisdiction. However when the final decision is pronounced after a long wait, it dictates for the punishment to the guilt. The victim is the forgotten man in the penal philosophy of India and further turns to be a victim of our criminal justice system. The best evidence is the name of the statute itself. Indian Penal Code, 1860, the title gives a clear and poignant note that the law only move with the principle, 'Eye for an Eye'. Let it be 26/11 or Dhananjoy Chatterjeee's Case , the demand which sets loud is castigating the wrongdoer. It was only in 2008 when the serious lapses in Ruchika's case forced The Code of Criminal Procedure, 1973 to initiate the term 'victim compensation'. In the backdrop of these events, there continues to be heated debate around certain aspects of monetary compensation for the crime. While the major part of this article is inclined towards relevant judicial provisions that have sought to address the needs of the victims of crime, the concluding part offers certain suggestions as regards the nature of the changes that are required in order to make the system respond effectively to the needs of victims.

Compensation: A Ray of Light Amidst The Dark Clouds

'A 'Dalit girl' from Haryana, immolated herself after her alleged gang-rape -guilty need to be severely punished' turned out as a familiar sentence for every news channel. The aforesaid statement hints at the mindset of the Indian society towards the heinous act. The provisions in our penal philosophy have compelled the people to think from this perspective. Punishment to the offenders of law is the ultimate line with which even a Judge tries to put an end to a case. It is the victim who sets the criminal law in to motion but then goes into oblivion. As per Section 2(wa) of the Code of Criminal Procedure, 1973, 'Victim' is defined as 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. The time demands the law of the land to lean towards the victim and Victimology is an answer of the hour. The novel concept of Victimology is a step towards fulfilling the avowed promises made by our constitution makers. The golden words of the Preamble highlights 'Social justice', but hardly it stand to its meaning in a case of criminal offence as the law has only prescribed penal provisions without passing a single clause for victim compensation. If for a case to be instituted in a court of law, two parties are the essential requirements then how is the same law expecting of giving justice to the victim by merely penalizing the accused. Although the loss an individual has suffered is irremediable, however compensation to the victim is believed to be 'an oasis in a desert'. Antagonists to the scheme of compensation have raised their voice by narrating- the main aim of a criminal justice system is to control the crime in the society and therefore detention and harsh punishment must be the closing scene of every court room drama. The previous message is highly acceptable but then compensation becomes more important than retribution when the crime is committed against the poor, women, elderly or the one who has undergone a mental shock for the monstrous act. It is a weakness of our jurisprudence that victims of crime and the distress of the dependents of the victim do not attract the attention of law. In fact, the victim reparation is still the vanishing point of our criminal law.

It is not more than 3 years when the amendment was brought to the Code of Criminal Procedure, 1973 by inserting several clauses in relation to the rights of the victim. Section 2(wa) was slotted in for defining 'victim' while the new section 357 A mandates that the State Government in coordination with the Central Government shall prepare schemes for providing funds for compensation to victims. With this the Code of Criminal Procedure, 1973 even grows more ornamentally elaborated but the words hardly stand implemented. Still the debate continues, for the opponent has come with the question as by what standard means the quantum of compensation be fixed for an offence. And here lies no answer by the supporter to the scheme. With not much delay of the amendment being passed, the Gujarat High Court posed a question before its Government for deciding the costs to be given to the victims in 2002 riots. To decide with this issue- the efficiency of the State Government is to be marked. Although a universal provision cannot be made in a nation like India, still efforts can be cumulated for finalizing the compensation chart within a state. By maintaining records of the most frequently occurring crimes, heinous crimes in the area, crimes related to women and children and more lists adding on to the columns, the local Government through District or State Legal Service Authority can easily categorize the basic amount for compensation to the victims. Since the basic Articles of the Constitution (say as to Article 14, 19 and 21) are subjected to the interpretation of the Court for the final conclusion in any particular case, therefore setting a predetermined chart before knowing the intensity of a crime would again lead to injustice. Hence a compensation chart towards offence of similar nature must be set out by every State Government with a scope for Judiciary to bring certain alteration as to the need. In rarest of the rare cases or when the 'Act of God' is involved or any terrorist's effort is marked then the Apex Court along with the Government must decide the compensation for the victim.

With an increase of 12.5% to the offences committed in a particular year, the amendment to the Code of Criminal Procedure, 1973 in the year of 2009 stands as a support for the victims. The inserted section 357A clearly marks a line of distinction from the previously mentioned sections on compensation i.e. Section 357- Order to pay compensation. Under Section 357A, compensation is payable out of funds created by the State Government where as under Section 357, the fine need to be recovered from the convict only. Secondly, the compensation is payable even if the offender is not traced or identified under the newly added section while Section 357 can only demand compensation only when conviction of the guilt is assured. Thus Section 357A adds a ray of hope for the victims as monetary compensation turns out to be a sure assurance to every sufferer of the act. Again the dilemma lies as to how efficiently these words are going to be implemented in real life. In addition to the amended section, the clause that reads: compensation to the injured party need to be given within 2-3 months of the occurrence, irrespective of the fate of the case, must be inserted. Again if these words go strictly implemented in Indian society, another group of crowd would allege the victims of taking undue advantage under this provision. Hence the check-point for granting compensation should be the sole authority of the Judiciary and if any falsity in the victim's pleading are found in subsequent proceedings, then and there 'he' should be counter-penalized. However the scheme of compensation should move in favour of the victim when the court founds him a real sufferer to the act even if he fails to accumulate the evidence.

After drawing out the pros and cons to the amended provision (Section 357A) of the Code of Criminal Procedure, 1973 from the perspective of the victim, this part will try to show how this very provision even caters its hand for help towards the culprit. Section 357A of the Act is a typical provision to the Indian context. The makers have tried to put the burden of monetary assistance over the Government than on the petty wrongdoers. Contextualizing this very provision with the socio and economical aspect of our nation, further observations are made- In our below the poverty line economy with majority of criminals from such a background, compensation recovery is but an unequal provision that benefits those with financial means and seems unrealistic in our majority poor society with little material benefits. Hence shifting the burden of compensation to the funds raised by District or State Legal service authority, there is a green signal for compensating the victims without putting monetary pressure over the accused from a poor family. However this provision does not imply that a wrongdoer with the capacity to compensate can be set free by merely shifting the onus over the Government. In such a situation Section 357 of the Act need to claim superiority over Section 357A. The writing from a legal perspective would go incomplete if the landmark case on victim compensation is not mentioned. Hence, the case that initiates and has attached an idea is Hari Kishan & State of Haryana v. Sukhbir Singh, where the death penalty of the offender was commuted to life imprisonment and the State paid 50,000/- as the amount of compensation. Combining the precedents set out for the compensation to victims along with the recommendations laid down in Justice Malimath Committee Report (Government of India, 2003), India could be a place where the rights of the victims are not only meant but protected. The Committee even prays for organizing a separate legislation by Parliament in consonance with the Indian Society of Victimology.

Adding to the Code of Criminal Procedure, 1973, special statutes in India do show a way for compensating the victims. The Fatal Accidents Act, 1855 contains several provisions where compensation to the dependants for the loss occasioned by the death of a person is provided. However, here again the process is time consuming, lengthy and indeed expensive for why it has turned to be an obsolete option for the victims. The exceptional one that seems decorated from several other of similar kind is the Motor Vehicles Act, 1988. Here the compensation stands as a guarantee for the victims. To avoid anomalies and simplify the procedure the Act has also provided for standard amount of compensation payable to victims. However the drawback of the Act is its name itself for it can only lend hands to help those victims who go affected by any form of accident related to motor vehicles only. Thus charts of compensation related to offences that are frequent in the society need to be developed for the easy scheme for victims.

Victim compensation is indeed a new horizon in settling claims for losses incurred and quenching the thirst for retribution. However there are crimes that cannot be measured or made up in terms of monetary compensation especially when the victim undergoes a psychological loss, say in the case of rape. The trauma which the victim of the crime undergoes in our society or the stigma which a woman feels after being victimized of rape is ineffable. Then a woman is left to starve, to lead a life full of loneliness, just because she was the innocent who was victimized. It is true that money cannot repair the chastity and purity which is the most precious asset of Indian women; nevertheless if sufficient compensation is granted to her, she would not have to depend on the mercy of any body. The sad plight of a ravished girl and child born as a result of the offence of rape is far too well known in our conservative, male dominated and double standard society. Hence at that time a monetary help would justify the old saying- A drowning man clutches at a straw. Apart from compensation to the victim, various other problems that a victim faces need to be marked. Very little has been done either statutorily or through schemes to address the entire range of problems faced by victims of crime. There is a need to take a fresh look at the position in which the victim of a crime is placed in our criminal justice system. Lastly, the demands are to be clutched for the summation with a hope that it shall add for an easy and quick support to the victims. Even after 100 years of penal provisions in India that has neglected the definition of 'victim' itself, the law makers did not even try to initiate a separate law for the victims. Hence separate laws need to be constituted and duly implemented. A comprehensive scheme for payment of compensation by offender, as well as by State, based on sound and certain legal premise must be evolved. The compensation to the victims of crime should be State responsibility and for implementing this welfare measure the District and the State Legal Service Authority need to be prompt. In addition to it, a Separate Administrative Tribunal in the name of 'Crime Compensation Tribunal Board' must be set up at every divisional headquarter under the chairmanship of a Judicial Officer of the rank of a District and Sessions Judge. Above all, here again lies the fear of corruption- that is prevalent in Indian society. The funds that are raised by the District or State authorities for the compensation to victims must be secured by a group of officials with delegated power. In a concluding note, it would be just to say that the scheme of victim compensation would indeed add on a new arena of hope to Criminal Justice System of India but cannot wipe out the criminality from our society. It is the awareness and transformation within oneself that can help dropping the number of crimes in days to come. 'We' are the culprits and 'We' are the victims therefore we are the one who can nullify the essence of these terms.

Endnotes:
[1] He’ connotes to the victim of a crime. As per Section 2(wa) of The Code of Criminal Procedure, 1973,‘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.
[2] Trial’ means a formal examination of evidence by a judge, typically before a jury, in order to decide guilt in a case of acriminal or civil proceeding, Oxford Learner’s Pocket Dictionary, 4th Edition, Oxford University Press, 2011.
[3] Penal’ means punishment for the criminals, Oxford Learner’s Pocket Dictionary, 4th Edition, Oxford University Press, 2011.
[4] Dhananjoy Chatterjee v. State of West Bengal 2004 AIR 3454
[5] The statement was taken from The Hindu dated October 10, 2012
[6] Naroda-Patiya case’ famously known as Post-Godhra riots 2002.
[7] AIR 1988 SC 2127.

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