“Law should not sit limply, while those who defy it go free and those who seek its protection lose hope”. The primary purpose of the law is to protect the rights and interests of individuals, society, and the state. The concept of victim compensation was established by the Indian Judiciary to ensure justice and provide compensation to the victim of crime. This concept is in operation since the enactment of the Indian Constitution and has been evolving with the enforcement of various provisions and legislations.
This article deals with the concept of victim compensation, and the provisions related to it in the Indian Criminal Justice System. It also talks about the Victim Compensation Schemes and their eligibility criteria. In the end, it briefs the challenges in the implementation of such schemes.
WHO IS VICTIM AND WHAT IS VICTIM COMPENSATION?
The term ‘victim’ can be defined as “a person who has suffered any loss, harm, or injury caused by reason of the act or omission for which the accused person has been charged”.[i] The expression also includes the guardians and legal heirs of the victim. The loss or injury incurred can be physical, mental, or economic. Thus, a victim can be any person who suffered harm or loss because of violation of criminal law. The victim of crime is entitled to compensate for his loss by the way of Victim Compensation under Criminal Justice System in India.
Victim Compensation can be referred to as direct economic reimbursement to the victim to compensate for the harm or loss that resulted from the crime, such as medical expenses, loss of job, etc.
VICTIM COMPENSATION IN INDIA:
Section 357 and 357-A of the Code of Criminal Procedure, 1973 provides for the procedure to grant compensation to the victims of crime.
Section 357: Order to pay Compensation
Section 357 of the Code of Criminal Procedure applies to the order for compensation made by an Appellate Court, or by the High Court or Court of Session while exercising their revisional jurisdiction.[ii] The Supreme Court is also empowered to order compensation under this section. The Court, while awarding compensation, shall also consider any sum paid or recovered as compensation under the aforesaid section.[iii] The applicability of this section is limited under four specific circumstances.
I. In case of conviction and fine is a part of sentence: When a Court imposes a sentence of fine or a sentence of which fine forms a part, the Court may order the whole or a part of fine recovered to be applied[iv]-
i. in defraying the expenses incurred in prosecution of the case [Section 357(1)(a)]
ii. in payment to the victim for his loss or injury caused by the offence, when the court thinks that compensation is recoverable in a Civil Court [Section 357(1)(b)]
iii. when a person is convicted of causing death of another person or abetting such offence, the court can order for compensation under the Fatal Accidents Act, 1855 [Section 357(1)(c)]
iv. when a person is convicted of offence such as theft, cheating, criminal misappropriation, the fine recovered from the accused can be used in compensating any bona fide purchaser of such property [Section 357(1)(d)]
II. Payment of Compensation subject to Appeal: Where the fine is imposed in any case and it is subject to appeal, no payment of compensation shall be made before the elapse of time period allowed for appeal. In case where appeal is presented, no payment can be made before the decision of the court.[v]
III. In case of conviction but fine is not a part of sentence: When the Court imposes a sentence on the accused but it does not include fine, the Court can order the accused to pay, in form of compensation, the specific amount as mentioned in the order.[vi]
Section 357-A: Victim Compensation Scheme
By the 154th Law Report, the Law Commission realized that the government had not considered its previous recommendations. In their opinion, in order to achieve efficient application of Section 357, a new provision needs to be formulated. Keeping this in mind, Section 357-A[vii] was enacted in the year 2009. It lays down for the provision of the Central and the State Victim Compensation Schemes. Section 357-A says that each state is to set up a Victim Compensation Scheme in accordance with the Central Victim Compensation Funds Scheme guidelines.
CENTRAL VICTIM COMPENSATION FUND SCHEME:
The Ministry of Home Affairs, Government of India formulated the Central Victim Compensation Scheme in 2015 with an initial quantum of Rs. 200 crores. It laid down the minimum amount of compensation to be provided to the victims. The main objective of the scheme was to provide financial assistance, by the way of compensation, to the victim and his guardians or legal heirs for the harm or loss caused to them by the offender.
This scheme supported the existing State Victim Compensation Schemes and also reduced the disparities in the amount of compensation granted by different State/UTs. It increased the amount of compensation for the victims of rape, sexual assault, cross-border firing, terrorism, or Maoist violence.
Eligibility for availing Compensation: In order to be granted compensation under Victim Compensation Schemes, the following conditions are necessary to be fulfilled:
i. The victim has not received any amount of compensation from any Government authorities or under any other scheme of the Central or State Government.
ii. The harm or loss incurred by the victim or his dependents shall be in such a manner that it has caused substantial loss to the family income or needs expensive medical treatment which is beyond the means of victim.
iii. Where the accused has paid inadequate amount or has been discharged of his charges or the offender is not traceable or identifiable.
iv. The amount of compensation is subject to the condition that the government has not provided employment to any of the family members of the victim
CHALLENGES IN IMPLEMENTATION OF THE SCHEMES
There are various problems that stagger the efficient implementation of the provisions laid under Section 357 and 357-A. The main issue is the disparity in amount of compensation granted by different states based on the category of victim. Also, there is no systematic categorization of victims on the basis of nature of crime or age of the victim. There is no allocation of responsibilities of implementation between the Centre, the state governments and, other authorities.
The lack of awareness can be considered a problem in implementation of these schemes. People do not have relevant and adequate information about the scheme. Some State Governments fail to provide compensation because of their poorly planned budget allocation. They do not have an adequate budget for granting compensation. There is also a limited period of time for applying under the schemes which leads to non-grant of compensation to the victim.
Sections 357 and 357-A of the Code of Criminal Procedure, 1973 can be considered as remarkable steps towards providing justice as well as financial support to the victim and his dependents who have suffered harm or loss caused to them by the offender. However, these provisions fail to achieve their objective due to non-efficiency of the Judiciary and the Government in implementing such legislation.
[i] Section 2(wa) of Code of Criminal Procedure, 1973 [ii] Section 357(4) of Code of Criminal Procedure, 1973 [iii] Section 357(5) of Code of Criminal Procedure, 1973 [iv] Section 357(1) of Code of Criminal Procedure, 1973 [v] Section 357(2) of Code of Criminal Procedure, 1973 [vi] Section 357(3) of Code of Criminal Procedure, 1973 [vii] Inserted by Code of Criminal Procedure Amendment Act (2008)