It has been 3 years since the enactment of New Criminal Law. A 3 years period is a very short time to examine the success of any legislation because usually legislations leave an impact on a long term basis. Though this blog examines the scheme of Victim Compensation Under New Criminal Law as a missed opportunity by the legislators. This means that legislators had an opportunity to improve the victim compensation scheme but they failed to incorporate the aspiration of vulnerable victims under the new criminal law scheme which nomenclaturely claimed to provide Nyaya to its Nagarik.
The problem is not only of open text used while drafting the criminal law but it is also a theoretical problem. The question is of retribution, restoration and restitution. Whether state responsibility ends merely on registration of FIR, filing of chargesheet or initiating prosecution or successfully convicting the accused or apart from these states has further responsibility towards vulnerable victims?
Table of Contents
History of Victim Compensation Scheme
Historically all the compensation used to recover under the civil law. Compensation is a civil remedy and a criminal should not be bothered about it. This conventional position has in recent times undergone a notable sea change, as societies world over increasingly felt that victims of the crimes were being neglected by the legislatures and the courts alike. Legislation has been introduced in many countries including Canada, Australia, England, New Zealand, Northern Ireland and certain states of the USA providing for restitution/reparation by courts administering criminal justice.
England was perhaps the first to adopt a separate statutory scheme for victim compensation under the Criminal Justice Act 1972. In which the idea of payment of compensation by the offender was introduced. This act gave the courts powers to make an ancillary order for compensation in addition to the main penalty in cases where injury, loss or damage had resulted.
Further the Criminal Justice Act 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. The act further required courts to consider the making of compensation orders in every case of death, injury, loss or damage and, where such order was not given, imposed a duty on courts to give reasons for not doing so.
In the U.S.A. the Victim and Witness Protection Act of 1982 authorises a federal court to award restitution by means of monetary compensation as a part of a convict’s sentence. The act requires the court to consider in every case “the need to provide restitution to any victims of the offense”. Though it is not mandatory for the court to award restitution in every case, the act demands that the court provide its reasons for denying the same. Domestic/Municipal legislation apart even the UN General Assembly recognised the right of victims of crimes to receive compensation by passing a resolution titled “Declaration on Basic Principles of Justice for Victims and Abuse of Power, 1985”.
The resolution constrained the provision of restitution and compensation. Again the UN General Assembly passes a resolution titled “Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 2005”.
History of Victim Compensation Under New Criminal Law
Code of Criminal Procedure, 1898 contained a provision for restitution in the form of section 545, which stated in su-clause 1(b) that the court may direct-
Payment to any person of compensation for any loss or injury caused by the offence when substantial compensation is, in the opinion of the court, recoverable by such person in a civil court.
The Law Commission of India in its 41st Report discussed the section 545 that
the word “substantial” appears to have been used to exclude cases where only nominal damages would be recoverable. We think it is hardly necessary to emphasise this aspect, since in any event it is purely within the discretion of the criminal court to order or not to order payment of compensation, and in practice, they are not particularly liberal in utilising this provision. We propose to omit the word substantial from the clause.
On the basis of recommendation made by the Law commission, Govt. of India introduced the Code of Criminal Procedure Bill, 1970 which aimed at revising section 545. The Code of Criminal Procedure of 1973 which incorporated the changes proposed in the Bill of 1970 states in its objects and Reasons that section 357 was “intended to provide relief to the proper sections of the community” and that the amended Code of Criminal Procedure empowered the court to order payment of compensation. By the accused to the victims of crimes “to a larger extent” than was previously permissible under the code. The changes brought by the introduction of section 357 were as follows-
(i) the word substantial was excluded.
(ii) A new Sub-section (3) was added which provides for payment of compensation even in cases where the fines do not form part of the sentence imposed.
The amendment to the Code of Criminal Procedure brought about in 2008 focused heavily on the rights of victims in a criminal trial, particularly in trials relating to sexual offences. Though the amendment left section 357 unchanged, but they introduced section 357A under which the court is empowered to direct the state to pay compensation to the victim in such cases where-
If the compensation awarded under section 357 is not adequate for such rehabilitation, or where the case ends in acquittal or discharge and the victim has to be rehabilitated.”
Under this provision even if the accused is not tried but the victim needs to be rehabilitated, the victim may request the state or District Legal Service Authority to award him/her compensation. This provision was introduced due to the recommendation made by the law commission of India in its 152nd and 154th reports. Before the introduction of section 357A victims used to go to high court for compensation because section 357 was only limited to conviction. If the prosecution fails to establish the guilt of the accused and the accused is not convicted then the court can’t grant compensation to the accused. So two conditions were necessary for section 357 :-
1. There must be identified accused.
2. The accused must be convicted by the court of law.
The Victim Compensation Under New Criminal Law makes no substantial and significant changes in sections like 357, 357A and 357C now 395, 396 and 397 respectively. Now will talk about what are the missed opportunities which could have been incorporated in the New Criminal law for victim compensation.
- The word “May” should be replaced by “Shall[1]”- section 395(1) sub Clause (3) and section 396(3) uses the term “May” making this novel and rehabilitative provision at the mercy of courts. The constitutional court i.e. The High court and Supreme Court in various judgments[2] have noted that the compensation provisions are not liberty used, courts are very reluctant to grant compensation. Knowing the ground reality the legislators didn’t make this provision mandatory, casting the duty upon the magistrate to consider the scheme of compensation in every case.
- Reason for not granting the compensation- one sub-clause also be added like in England[3] and USA[4] that when the court doesn’t provide compensation the court has to give its reason for the same. It is also because the discretion is best disclosed by providing reasons so that the victim has something to challenge the order of denial. In this respect the Apex court in Suresh Vs. State of Haryana (2014) noted in Para 14-
We are of the view that it is the duty of the courts, on taking cognisance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial relief. On being satisfied on an application or on its own motion, the court ought to direct grant of interim compensation, subject to final compensation being determined later.
Such duty continues at every stage of a criminal case where compensation ought to be given and has not been given, irrespective of the application by the victim. At the stage of final hearing it is obligatory on the part of the court to advertise the provision and record a finding whether a case for grant of compensation has been made out and if so who is entitled to compensation and how much. Award of such compensation can be interim.
- No provision relating to victim Impact statement- there is no single provision under the new criminal law for recording the victim impact statement. Even during the determination of quantum of sentence there is no provision relating to the recording of a victim impact statement. Certainly a victim impact statement will increase the amount of compensation. Legislators had the best opportunity to include this provision in new criminal law but they missed to incorporate it.
- No guiding factor for determination of amount of compensation- No single section and sub-section guide how the magistrate decides the amount of compensation leading to uncertainty in every case. Although the courts in various cases have held that the following factors should be considered while considering the question of compensation-
1. Nature of Crime.
2. Nature of injury ex. mental, physical, and financial.
3. Manner of inflicting the injury.
4. Accused capacity to pay.
5. Financial history of offenders.
6. Monetary loss caused to the victim, i.e., loss of job or opportunity.
7. Justness of the claims of victims.
- Notice to victim and victim representation– the present provision doesn’t mandate or cast duty upon the court to send notice to the victim. As for the fact we all know prosecution has no interest in seeking compensation from the court but the victim or his /her dependent has. So one section should be incorporated in criminal law that the victim shall be given notice that the question of compensation is being considered and he/she can make representation.
Certainly the Victim Compensation Under New Criminal Law has been paid sufficient attention to victimology but still there are many gaps which need to be filled. A well drafted legislation will make the clear intention that the victim is no longer neglected in the administration of the criminal justice system. Already the 2008 amendment has shifted the theoretical approach from restitution to restorative justice. Now we need to implement restorative justice by engaging the victim in every stage so that victim interest is not undermined. By incorporating the above provisions the new criminal law will achieve its goal to provide Nyaya to its Nagrik.
also read The Two Husbands of Vera Tiscenko Case
About Author
Prof Ajay Chakrawarti is a dedicated legal scholar and academic currently serving as an Assistant Professor of Law at Abhiyoday University in Khadgaon, India . He holds a Master of Laws (LL.M.) from the prestigious National Law School of India University (NLSIU), Bengaluru. With a profound commitment to legal education and academic rigor, Professor Chakrawarti brings a highly analytical approach to his teaching and research. His scholarly foundation at India’s premier law university deeply informs his work, where he focuses on mentoring the next generation of legal professionals while contributing thoughtfully to contemporary legal discourse.
Citations
[1] Ankush Shivaji Gaikwad Vs. State of Maharashtra 2013
[2] Ankush Vhivaju Gaikwad v. State of Maharashtra, Manu/sc/0461/2013. See also Suresh v. State of Haryana, (2015) 2 SCC 227, Dilip S. dhanukar v. Kotak Mahindra Co. Ltd. and Anr. Manu/sc/1803/2007, Hari Singh v. Sukhbir Singh, (1988) 4 SCC 551
[3] The Criminal Justice Act 1972 & 1982
[4] The Victim and Witness Protection Act of 1982