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Published : August 22, 2015 | Author : Manmeet Singh
Category : Criminal law | Total Views : 15502 | Rating :

Manmeet Singh
I am B.A.LL.B (Hon's) final year of LL.M at Himachal Pradesh University

Compensatory Jurisprudence

"While studying the biological, sociological, psychological, and criminological details about the victim - victimology brings into focus the victim-offender relationship and role played by victim." - Fattah

Compensation to victims is a recognised principle of law being enforced through the ordinary civil courts. Under the law of torts the victims can claim compensation for the injury to the person or property suffered by them. It is taking decades for the victims to get a decree for damages or compensation through civil courts, which is resulting in so much hardship to them. The emergence of compensatory jurisprudence in the light of human rights philosophy is a positive signal indicating that the judiciary has undertaken the task of protecting the right to life and personal liberty of all the people irrespective of the absence of any express constitutional provision and of judicial precedents.

Article 32 of the Constitution of India confers power on the Supreme Court to issue direction or order or writ, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III of the Constitution. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III is "guaranteed", that is to say, the right to move the Supreme Court under Article 32 for the enforcement of any of the rights conferred by Part III of the Constitution is itself a fundamental right.

The approach of redressing the wrong by award of monetary compensation against the State for its failure to protect the fundamental right of the citizen has been adopted by the courts of Ireland, which has a written Constitution, guaranteeing fundamental rights, but which also like the Indian Constitution contains no provision of remedy of compensation for the infringement of those rights. That has, however, not prevented the courts in Ireland from developing remedies, including the award of damages, not only against individuals guilty of infringement, but also against the State itself.

Article 32(1) provides for the right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights. The Supreme Court under Article 32(2) is free to devise any procedure for the enforcement of fundamental right and it has the power to issue any process necessary in a given case. In view of this constitutional provision, the Supreme Court may even give remedial assistance, which may include compensation in "appropriate cases".

Idea of Compensation
The Idea of Compensation to victim of crime particularly to the crime victims by the state is gaining much importance. Though this idea is an age old one, its development on more scientific lines and also as a branch of criminology has begun since a few decades ago. The modern states which are described welfare states have realized the importance of the subject compensation to the victims of crime and are accordingly taping up several victim compensation programmes, as part of their General welfare. Various countries have taken up the scheme of payment of compensation to victim of crime. There is a fund for payment of compensation to crime victims in Canada, Australia, New Zealand, United Kingdom, under the control of a board. We too need such fund to assist and assure the victims that ‘we care’.

Laws on Commission In India
The term ‘Compensation’ means amend for the loss sustained. Compensation is anything given to make things equivalent, a thing given to make amends for loss, recompense, remuneration or bay. It is counter balancing of the victim’s sufferings and loss that result from victimization. The rationale or basis for compensation may be the following three perspective:

1. As an additional type of social insurance
2. As an welfare measure another facet of the Government/Public assistance of the Unprivileged.
3. A way of meeting an overlooked governmental obligation to all citizens.

The penologist recognized that adequate compensation to the victims from the accused or alternatively from the state is objective of the science of victimology which is gaining ground and deserves attention.

In India there is no comprehensive legislation or statutory scheme providing for compensation to victims of crime. In some European countries provisions are made for payment of compensation to the victims of crime in the course of criminal proceedings. Justice requires that a person who has suffered must be compensated. Basically the accused is responsible for the harm caused to the victim. We have five statutes, under which compensation may be awarded to the victims of crime.

1. The fatal Accident Act, 1855
2. The motor Vehicles Act, 1988
3. The Criminal Procedure Code, 1973
4. The Constitutional Remedies for Human Rights Violation
5. The Probation of Offenders Act, 1958.

Concept of Victimology
"The word Victimology is a new coinage and has gained considerable importance due to the untiring work of Miss Margaret Fry of the John Howard Association of England, Benjamin Mendelsohn, who in 1937 developed a scientific method for the study of the criminal act which utilized biopsycho- social data on the criminal, on the victim and on the witnesses bystanders, and the World Society of Victimology having been himself the victim of discrimination, Mendelsohn became interested in the victim and in his/hers relationship with the criminal." Schafer defines Victimology as "the study of criminal victim relationship". Drapin and Viano define it as "that branch of criminology which primarily studies the victim of crime and everything that is concerned with such a victim". In the words of Fattah: "While studying biological, sociological, psychological, and criminological details about the victim -victimology brings into focus the victim-offender relationship and role played by victim."

The 7th United Nations Congress on Prevention of Crime and Treatment of Offenders came out with a declaration of basic principles of Justice of Victims of crime and abuse of power, which was later adopted by the U.N. General Assembly. In the declaration, the U.N. defined the "Victims of Crime" as follows:

1. "Victims" means 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.

2. A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term "victim" also includes, where appropriate, 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. Victims are several time suffering emotionally the most.

Compensation To Victims In Crime
The reactions to crime have been different at different stages of human civilization. There are number of theories available pertaining to 'Reaction to crime'. Important among these theories are Retribution theory, Utilitarian theory, Deterrent theory etc. In common, every theory provides justification punishment. We can summaries the objects of punishment as:

1. partly of making example of the criminal;
2. partly of deterring the criminal from repeating the same act;
3. partly of reforming the criminal by eradicating the evil will; and
4. Partly of satisfying society's feeling of vengeance which the act is supposed to evoke.

The law in the early stages of civilization was to compensate the victim and not to punish the offender. Narada was the first to recommend compensation to the victims by the offender in order to expiate his sins. "If we go back to the origin of criminal law, we see that the victim and his family occupy a central position: it is the victim and his family who have the right to request revenge or penitence. However, over the centuries, with the evolution of the state and the organization of state prosecution the role of the victim has changed: from his central position the victim has been shifted to a marginal one."

Few Problems
The basic problem one has to face while dealing with the compensation aspect of the crime is, ‘Is compensation for the Damage caused by Crime an objective of the Criminal Process’? A decision on this point is especially important when the judge imposes on the offender various financial obligations like court costs, fines, and compensation to the victim. Which of these obligations should take precedence over others if the offender’s financial means are insufficient to satisfy all of them? One more important problem that arises is the financial background of the offenders because often they tend to be poor. If the offender has committed an economic offence then he has the capacity to compensate, otherwise it is very difficult for the victim to get sufficient proportion of compensation.

The case of restitution to victims of crime rested primarily on two obligations: an obligation of the criminal who inflicted the harm against person or property and an obligation of the state, which failed to protect the victim. The second obligation is much more important because it is the duty of the state to provide effective security against the crime.

In India, the trend in this direction is quite good now. The dictum that ‘ King can do no wrong’ is in the wane. Modern welfare society, has taken the responsibility to protect its citizens from crime. That is why the punishment aspect solely rests with the state. Though retribution is having subordinate position in Indian legal system yet it is trying hard to get its feet moving. In last few decades retribution aspect has found its way in to the mainstream of criminal law.

Literature Review

Ø Compensation related to Constitutional Injuries

A constitutional solution to fill the gap in the legal right to compensation in the monetary way for the abuse of the many human rights has been found by the apex courts. The Apex Court in the case Rudal Sah v. State of Bihar for the first time laid down the principle that compensation can be given in the cases where any fundamental right of an individual has been injured and that the upper courts have the authority to do so “through the exercise of writ jurisdiction and evolved the principle of compensatory justice in the annals of human rights jurisprudence.”

We can clearly see that monetary compensation had been made in cases where an individual’s legal rights have been damaged. Even though there isn’t a statute defining such a claim, the courts have exercised this power wherever they deemed fit. If a person’s fundamental right is violated or where a writ petition is not generated by the court itself, the said person’s right to compensation comes into effect and he should be compensated adequately in such cases.

In Sebastain v. Union of India, “on account of failure of Government to produce in habeas corpus petition filed by wives, apex court awarded cost of Rs. 1 lakh to be given to wife of each of detenne.”

Ø Compensation under criminal law

The theory of compensation in criminal law is mainly about compensation to the victim of a crime. A victim to a crime is one who has suffered any loss because of some act or omission of the accused. The victim not only suffers physical injuries but also psychological and financial hardships too. The plight of a victim is only made worse by lengthy hearings and tedious proceedings of courts and improper conduct of the police. The victim is literally traumatised again in the process of seeking justice for the first injury. The legal heirs/guardians of the victim too come in the same definition.

The law makers made provisions in the Criminal Procedure Code, 1973 under Section 357(3) to enable the Courts to award any amount of compensation to the victims of a crime. This was depicted in the landmark case of Hari Kisan where the Supreme Court had awarded compensation as punishment, of Rs. 50,000. Not only this, the lower courts were asked and advised to “exercise the power of awarding compensation to the victims of offences in such a liberal way that the victims may not have to rush to the civil courts”

Ø Compensation related to Rape

The victim of rape has to suffer from many hardships like mental shock, lost income due to pregnancy and costs incurred during childbirth because of the offence. Also, in the present Indian society, a raped victim is looked down upon even though she is the victim and not the offender. During a rape trial, if the accused is just punished or asked to pay fine, the judgment does not favour the victim as her position is not restored. Hence it becomes extremely important to compensate such a victim.

A women’s right to compensation originates from Article 21 of the Indian Constitution which talks about right to life and personal liberty. The Supreme Court held that a woman can be compensated even in the middle stages of the trial as well as at the end of the trial. The Supreme Court even suggested the establishment of criminal injuries compensation Board under Article 38(1) of the Constitution of India whose function would have been to compensate such victims and provide them relief. However, no such board has been formed. [xx]

In the landmark case of DK Basu v. State of West Bengal, the Supreme Court held that a victim of custodial right has every right to be compensated as her Right to life has been breached by the officer of the State.

In another case, the Supreme Court held that the session’s court too has the power to award compensation to the victim even if the trial has not been completed. In fact, in the case State of Maharashtra v. Madhukar N. Mardikar, Supreme court held that “even a prostitute has a right to privacy and no person can rape her just because she is a woman of easy virtue.”

Article 32 And The Remedy of Compensation

Compensation to victims is a recognised principle of law being enforced through the ordinary civil courts. Under the law of torts the victims can claim compensation for the injury to the person or property suffered by them. It is taking decades for the victims to get a decree for damages or compensation through civil courts, which is resulting in so much hardship to them.

The emergence of compensatory jurisprudence in the light of human rights philosophy is a positive signal indicating that the judiciary has undertaken the task of protecting the right to life and personal liberty of all the people irrespective of the absence of any express constitutional provision and of judicial precedents.

The renaissance of the doctrine of natural rights in the form of human rights across the globe is a great development in the jurisprudential field in the contemporary era. A host of international covenants on human rights and the concern for effective implementation of them are radical and revolutionary steps towards the guarantee of liberty, equality and justice. Though the concept is new, the content is not and these rights have been recognised since ages and have become part of the constitutional mechanism of several countries. India recognised these rights under Part III of the Constitution providing remedies for enforcement of such rights.

Article 32(1) provides for the right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights. The Supreme Court under Article 32(2) is free to devise any procedure for the enforcement of fundamental right and it has the power to issue any process necessary in a given case. In view of this constitutional provision, the Supreme Court may even give remedial assistance, which may include compensation in "appropriate cases".

A question regarding the awarding of monetary compensation through writ jurisdiction was first raised before the Supreme Court in Khatri (II) v. State of Bihar In this case, Bhagwati, J. observed:

"Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty.”

In Sant Bir v. State of Bihar the question of compensating the victim of the lawlessness of the State was left open.

In Veena Sethi v. State of Bihar also the Court observed that the question would still remain to be considered whether the petitioners are entitled to compensation from the State Government for the contravention of the right guaranteed under Article 21 of the Constitution.

In the light of the views expressed by the Court in the above cases it can be said that the Court had shown its concern for the protection of right to life and liberty against the lawlessness of the State but did not actually grant any compensation to the victims.

The seed of compensation for the infraction of the rights implicit in Article 21 was first sowed in Khatri, Sant Bir and Veena Sethi, which sprouted with such a vigorous growth that it finally enabled the Court to hold that the State is liable to pay compensation. This dynamic move of the Supreme Court resulted in the emergence of compensatory jurisprudence for the violation of right to personal liberty through Rudul Sah The Supreme Court of India in Rudul Sah v. State of Bihar brought about a revolutionary breakthrough in human rights jurisprudence by granting monetary compensation to an unfortunate victim of State lawlessness on the part of the Bihar Government for keeping him in illegal detention for over 14 years after his acquittal of a murder charge.

The Doctrine of Sovereign Immunity

It is pertinent to examine in brief historically the action taken by individuals against the state. The Indian law was in a state of confusion from its colonial times. This was because the concept of tortuous liability – as it existed in England – was blindly followed in India. Though liability existed in some areas, the Indian courts had been so obsessed with the maxim “King can do no wrong” that they made a distinction between sovereign and non – sovereign functions.

The decision of the Supreme Court in Kasturi Lal v. State of Uttar Pradesh, laid down that the exercise of a sovereign function will not give rise to a tort action. This decision was erroneous, and to an extent was resolved by later decisions enumerated in this article, but has still not been completely overruled. Most judges either conveniently avoid reference to it or distinguish its ratio.

Judicial Jurisprudence Towards Compensation Law In India

In Rudal Sah v. State of Bihar Supreme Court through Chief Justice Chandrachud held, "Article 21, which guarantees the right to life and liberty will be denuded of its significant content if the power of this court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured is to mulct its violators in the payment of monetary compensation." There must be direct and proximate nexus between the complaint and the arrest for the award of compensation under sec. 358 of the Cr. P.C. Any person is entitled to compensation for the loss or injury caused by the offence, and it includes the "wife, husband, parent and child" of the deceased victim. In Sarwan Singh's case court held that in awarding such compensation, the court is to take into consideration various factors such as capacity of the accused to pay, the nature of the crime, the nature of the injury suffered and other relevant factors. "Power to award compensation to victims should be liberally exercised by courts to meet the ends of justice… in addition to the conviction; the court may order the accused to pay some amount by way of compensation to the victim who has suffered by the action of accused. It is not alternative to but in addition thereto. The payment of compensation must be reasonable. The quantum of compensation depends upon facts, circumstances, the nature of the crime, the justness of the claim of the victim and the capacity of the accused to pay. If there are more than one accused, quantum may be divided equally unless their capacity to pay varies considerably. Reasonable period for payment of compensation, if necessary by instalment, may be given.

In a certain case the Court held that where the amount fixed was repulsively low so as to make it a mockery of the sentence, it would be enhanced; the financial capacity of the accused, enormity of the offence, extent of damage caused to the victim, are the relevant considerations in fixing up the amount. The court in Balraj v. State of U.P. held that the power to award compensation under section 357 (3) is not ancillary to other sentences but it is in addition thereto.

The compensation for illegal detention is the area, which unearthed new doctrines pertaining to the compensation laws in India. In yet another case, two women filed a writ of habeas corpus to produce two persons (their husbands) who were found missing. The authorities failed to produce them. The Court concluded, on the basis of material placed before it, that the two persons 'must have met unnatural deaths, and that prima facie they would be offences of murder. The Supreme Court directed the respondents to pay Rs. 1, 00, 000/- to each of the wives of the missing persons.

Awards of Compensation To Victims By Courts

There is plethora of case law where the Supreme Court has awarded compensation to the victims whose plight was brought to the notice of the apex court either by themselves or by way of PIL with the aim of protecting the human rights of the victims in our criminal justice system and to fulfill the constitutional obligation the Supreme Court can direct the government to confer jurisdiction on the criminal courts by making statutory provisions for the compensation to the victims of crime irrespective of whether the accused is convicted or not and to make statutory provisions for participation of the victims in prosecution along with prosecuting agency in a criminal case instituted on a police report.

The court has also granted monetary compensation to victims of custodial violence in many cases. In a landmark judgment of Nilabati Behra case the apex court awarded compensation of Rs. 1,50,000/- to the mother of deceased who died in police custody due to torture. In D.K. Basu v. State of West Bengal – the Apex court held that compensation can be granted under the public law by the Supreme Court and High Court in addition to private law remedy for tortuous action and punishment to wrong doer under criminal law for established breach of fundamental rights.

Universal declaration of Human Right, 1948 under Article 5 says that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment and also Article 8 of Universal Declaration of Human Rights and Article 14 of International covenant on civil and political Rights in Provides for compensation for violation of fundamental Rights.

Critical Analysis
When a crime is committed against a person, the victim loses out a lot apart from incurring damages and injuries. The work of a judiciary should not only be to punish the guilty but also compensate the victim as even if the accused is punished, the victim’s loss is not compensated. The compensation given should at least try to put the victim in a state in which he was before. It is not like victims of crime can never ask for compensation as such a prayer is available under civil laws, but filing two different suits for the same offence in two different courts. The proceedings for one suit are most of the times is agonizing, that such a procedure of filing different suits only gives the victim a second traumatisation.

The idea behind providing compensation is legal as well as humanitarian. The inability to protect the person by the State makes it legally obligatory for the State to compensate him. The victim goes through such pain and many times permanent loss of income only makes it logical for him to be compensated.

In cases where a person dies or is sent into a vegetative state, compensation should be very high as many times, the victim himself is the sole bread earner of the family and hence his injuries affect the life of his family too. In such cases, if the accused is only imprisoned or asked to pay a small fine, no good happens to either the accused or the victim’s family.

In the Indian society of the 21st century, many people want their brides to be “pure” virgins. A victim of rape in such cases not only loses out on the opportunity to marry into an otherwise decent family but is also discriminated upon for no fault of hers. It is often said that the most prised possession of a woman is her dignity and respect. In the society where people still have an old mindset, the life of such a woman only degrades. It only makes sense to compensate such a victim well apart from punishing the accused.

Mental shock, loss of income and cost of litigation should be taken into consideration when coming out with compensation and the Courts should hence compensate the victims more frequently.

We come to the conclusion that compensation is not only required but is in fact a very important aspect of even criminal law and the courts should not use this sparingly but a little liberally. Of course they should be careful of not awarding too high a compensation and hence should be careful.

The government should take into consideration the suggestions of the Supreme Court and set up Compensation Boards to help the victims with financial issues. Prior to CrPC(Amendment) 2008, India lacked an all-inclusive legislation for compensation of victims. “Compassionate treatment of victims under the criminal justice system itself leads to the belief in the system which is enhanced by way of compensation programmes, independent of conviction of offenders”

“It is need less to point out that the whole legislative paradigm coupled with lack of judicial determination has exposed numerous flaws of the present legal system about the compensation therefore there is need for revamping the whole legal system once. The mandatory changes that are needed are as follows:

· The suggestion given by the law commission of India in its 42nd report on Indian Penal Code must be taken in to consideration and it would be better if the legislature also take in to account the separate note of Justice R.L. Narsimha a member of the commission.

· The law must also provide recording of reason for not providing or providing the compensation as we have in the case of death sentence in Cr.P.C.

· The law must also provide for institutional set up as we have in western countries.

· If possible it would be better to give the compensation as a right to victim.”
# Article 32 and the Remedy of Compensation, by Justice G. Yethirajulu Cite as : (2004) 7 SCC (J) 49
# Mundrathi Sammaiah, Law on Compensation to Victim of Crime and abuse of power, 2002 at pp 178-79
# Supranote 2 at p 3
# Compensatory Jurisprudence in India, 42 (MU (2006) at p 91
# 42nd report on I.P.C. (1971) by law commission of Indi at p 51
# Rudul Sah v. State of Bihar [1983] AIR 1086 SC; (1983) 4 SCC 141
# Sebastain v. Union of India [1984] AIR 1826 SC.
# [1998] AIR 2127 SC.
# http://www.lawctopus.com/academike/theories-of-compensation-in-criminal-law/ accessed on 18.8.2015 at 11:35
# DK Basu v. State of West Bengal [1997] AIR 610 SC
# Maharashtra v. Madhukar N. Mardikar [1991] I SCC 57.
# Justice G. Yethirajulu, (2004)7 SCC (J) 49
# (1981) 1 SCC 627
# Ibid., p. 630, para 4
# (1982) 3 SCC 131
# (1982) 2 SCC 583
# (1983) 4 SCC 141
# P. Leelakrishnan. “Compensation for Government Law Lessness”. XVII C.U.L.R. (December 1992)
# G.P. Singh (Ed.), Ratanlal & Dhirajlal’s, Law of Torts, (Nagpur: Wadhwa & Co., 1992), 40 – 41.
# The first case in this regard was P.O. Steam Navigation Co. v. Secretary of State, (1868) 5 Bom. H.C.R. App. p 1. Where a distinct was made. It was followed by the decision in State of Rajasthan v. Vidyawati, A.I.R. 1962 SC 933. In so far as the tort was committed in the discharge of a non sovereign function. This was followed by Kasturi Lal’s case.
# A.I.R. 1965 SC 1039
# In State of Gujarat v. Menon, A.I.R. 1967 SC 1885., confronted with similar facts as the above, the Supreme court resorted to the contract of bailment to hold the state liable.
# See, 1996 Cr. L.J. Journal Section at p 46
# Nilibati Behra v. State of Orissa, AIR 1993 SC 1960; also see people’s union for civil liberty v. vol.AIR 1997 SC 1203; people’s Union for democratic Right v. Police Comm., Delhi (1989) 4 SCC 230
# 1997 Cr.L.J. 743
# Article 5 and Article 8 of Universal Declaration of Human Right, 1948, and see, Article 14 of International Convention on Civil and Political Rights, 1966
# Bhumika Sharma, ‘Compensation to Victims of Crime Under Criminal Law’ (mightylaws.in 2011) accessed 14 November 13
# Abhishek Anand, ‘Compensation to the Victim of Crime: Assessing Legislative Frame Work and Role of Indian Courts’ (legalserviceindia.com 2012) accessed 14 November 13


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