Indian Journal of Law and Legal Research Volume III Issue II | ISSN: 2582-8878

VICTIM COMPENSATION LAWS IN INDIA: THE VISIBLE

FAULT LINES

Hari Kishan, Baba Mast Nath University, Rohtak, Haryana (India)

ABSTRACT

Though the concept of victim compensation qua India is historical as

Manusmriti in Chapter VIII verse 287 says that if limb is injured, the
assailant shall be made to pay the expense of the cure. But in modern India,
the laws of compensation to victims are at nascent stage and developed only
in last decade. Under Indian legal frame work, though lately, but legislation
recognized that victim support and compensation for injuries is an integral
part of right to life under Article 21 of Indian Constitution and introduced a
statutory mechanism for grant of compensation to victim by incorporating
section 357A to the Code of Criminal Procedure Code 1973. The
cumbersome process, inherent technicalities, red tapism, corruption, lack of
awareness about rights in victims and social and peer pressure on victims not
to report the crime are some of the fundamental reasons due to which
compensatory schemes failed to adopt the victim centric approach. The
present paper analyses the prevalent laws for victim compensation in India
with apparent loopholes and emphasizes the need towards the development
of a system which cares the core concern of victims.

Keywords: Compensation, Victims, DLSA, Hostile, India.

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Introduction:

Victim was not a concern of traditional criminology anywhere in the world. The ethos of
criminal jurisprudence to prevent and punish the ‘crime’ would surreptitiously turn its back on
the victims of such crimes whose cries went unnoticed for the centuries. The victim-a defacto
sufferer of a crime had no participation in the adjudicatory process and largely was made to sit
out of court mere as a mute spectator. Although different jurisprudence all over the world had
their own programmes which would allow the compensation to victims for the crime committed
on them, but this jurisprudence was universally codified first of all in 1985 by United Nation
General Assembly (UNGA). UNGA adopted a declaration of ‘The Basic Principles of Justice
for the Victims of Crime & Abuse of Power’ and it was ratified by a considerable number of
countries including India. (Assembly, UG (1985) India ratified this convention in 1985 itself
but it takes another 23 years to introduce and define the word ‘Victim’ in its codified
legislation. The 2008 amendment Act of Criminal Procedure Code 1973 (Cr. P.C. hereinafter)
inserted section 2(w) defining the term ‘victim’ with an effect that every that person who has
suffered any loss or injury due to any crime on him or her by the accused and it includes his or
her guardians and legal heirs. Furthermore, keeping in mind the broad principle of 1985
declaration, section 357A was added in Criminal Procedure Code with the hope that it will
revolutionize this grey area of victimology. (Bajpai & Gauba, 2016). The provisions under
section 357A are framed with an intention to make it a complete code and hence provinces in
India are directed to formulate the Victim compensation Schemes in their respective territorial
jurisdiction. Unlike other legislative or judicially coined provisions in Indian criminal
jurisprudence, section 357A is not deficient or loosely worded. It mandates compulsory
compensation to victim in different scenarios like acquittal/discharge of accused, delayed or
incomplete or abandoned trials and untraced/unidentified accused. It has also made the
provisions to provide ad-interim compensation to victims. But unfortunately, the objectives
with which the provisions were added in criminal procedure code have failed miserably to serve
the subjects positively. Although Courts in India have always advocated the extension of such
compensatory laws interpreting these as welfare legislation. The Supreme Court of India
(Ankush vs State) has emphasized that the concerned authorities should follow the positive
approach inclining towards the victim while hearing the cases of compensation. It held that if
any court denies the compensation to victim then the reasons for the same should be recorded.

The vigilantism of constitutional courts of India could not succeed to channelize the unruly and

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loathsome hyper-technical procedures adopted by the authorities accountable for victim

compensation. The underlying events for poor implementation of laws of victim compensation
for victim in India include lack of a centrally monitored mechanism for all the states . Besides
it, different states have different quantum of compensation for victims (Tekan v State).
Furthermore, provinces also failed to frame the schemes as per the requirement of central Act
in the form of section 357A of central code. Lack of awareness among general population,
under reported or unreported criminal cases (specifically sexual offences), poorly planned
budgets allocation for compensation are among other causes which have destroyed the mandate
of section 357 A of the code of criminal procedure.

Bottlenecks of Victims Compensation schemes across India:

(a) Ignorance about the Victim Compensation Schemes:

A large chunk of population of India is ignorant of their legal rights. The poor rate of
compensation indicates the lack of awareness among police and affected families about
compensation schemes (Dube: 2018). Police is at forefront to receive and process the
complaints and hence police should sort out and streamline such applications to the maximum
benefits of victims. But the fact of matter is that state police is not trained and sensitize in this
regard to take a lead and channelize the application on behalf of victim or his families. The
families of victims are unaware of the provision of compensation. In several police station
across India, particularly in rural areas, where the authors made enquiries, the inspectors did
not know the modalities of scheme. Although, all those victims got the compensation timely in
which the media attention was involved but everyone is not equally fortunate. There are no
regular workshops for the prosecuting agencies which may enhance the awareness about such
provisions. This lack of awareness in general population along with prosecuting agencies can
be seen on ground with the help of following table 1.1. (GSLSA Data: 2019)

Table 1.1: Total number of victims given compensation vis a vis cases registered.

Year No of cases registered for sexual No of Victims to Amount Paid

offences against children whom (Rs.)
compensation
was paid

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2017 2555 81 1,98,96680/-

2018 3073 289 5,55,90,000/-

2019 1546 122 2,80,74,000/-

When compensation is not granted to victim, then it is collective failure of system. The system
includes investigating agencies, prosecution, NGOs, peer groups of society, media, employers
and at the top of these the courts. The courts are not sensitive and works mechanically. The
Supreme Court of India (Hari Krishan Vs Sukhbir Singh) accepted the failure of courts to
invoke the provisions of compensation under the code of criminal procedure while speculating
that courts in India were ignorant of the purpose of such provisions. In Ankush Shivaji Gaikwad
Vs State of Maharashtra, Supreme Court came down heavily on the rampant practice amongst
courts of ignoring the rights of victim to compensation under provisions of law in crime.

(b) Non-Uniformity of Schemes Among States of India:

Section 357A of Cr.P.C directs the states to formulate their own schemes for victim
compensation. Pursuant to this, many states have formulated the schemes of compensation to
victims as per whims of their executive or legislative bodies in absence of any pan India
uniform framework. The amount of compensation decided by the states indicate a wide degree
of discrepancy. For Instance, compensation to rape victims for rehabilitation varied across the
states starting from Rs. 20,000/- (Chhattisgarh) to 10,000,00/- (Goa). Similarly, the
compensation for rapes with minor is varied greatly across the states with lowest in States like
Chhattisgarh & Karnataka and highest in Goa. In cases of loss or injury causing severe mental
agony as in offences of kidnapping, human trafficking, sexual harassment etc., different states
have decided varying limits, some as low as Rs. 10000(Arunachal Pradesh) to others as high
as Rs. 10 lakhs (Goa) In a landmark judgement (Tekan v. State of Chhattisgarh) the Supreme
Court delving on the issue of compensation opined, “it is clear that no uniform practice is being
followed in providing compensation to the rape victim for the offence and her rehabilitation.
This practice of giving different amount ranging from Rs. 20000 to Rs. 10 lakhs for the offence
of rape under Section 357A needs to be introspected by all States and Union territories. They
should consider and formulate a uniform scheme especially for rape victim in light of the

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scheme in the State of Goa.”

Besides the quantum of compensation, the procedure laid down in the states also varied to an
extent. Many states have prescribed two months as the statutory period, but states like
Arunachal Pradesh provides for 30 days time to decide the claim. (cl. 6(iv) Arunachal Pradesh
Victim Compensation Scheme, 2011). Similarly, the state of Delhi and Goa have specifically
mentioned the documents and materials which are to be submitted along with application to
support the claim (cl. 5 Delhi Victims Compensation Scheme, 2011; cl. 5 Goa Victim
Compensation Scheme, 2012). These include copy of the FIR (First Information Report) or
complaint to magistrate, medical report, death certificate, where applicable, copy of judgment
in specific cases. But unfortunately, it has not been prescribed categorically in other states,
which may make it difficult for victims to argue and sustain their claims.

Again, the grounds and criteria on the basis of which the District Legal Service Authority
(DLSA henceforth) (the decision-making authority) decides the claim are not defined or stated
properly by the states. Generally, the losses caused to the victim, the medical expenses
incurred, the psychological trauma caused to victim, the gravity of offence and the minimum
amount required for rehabilitation, are the determining factors before the authority. The state
of Delhi has made its scheme a far different and better than other states in term of grounds to
be considered while granting the compensation. Factors like age, income, occupation,
expenditure incurred on health, funeral, travelling etc are specifically mentioned in the schemes
of Delhi state. The authorities which may be approached by authority to seek the assistance
are different in different states like a medical board (in case of Arunachal Pradesh) or police
officer (in case of Odisha) or probation officer (in case of Madhya Pradesh).

The period of limitation for application is again different from state to state. It ranges from six
months to one year after the date of commission of the crime in many states, but in Delhi the
limitation period has been extended to three years (cl.17 Delhi Victims Compensation Scheme,
2018). Surprisingly State of Gujrat has failed to mention any limitation period in its victim
compensation scheme. The appellate body against the order of District authority are also not
uniform among the states across India. Most of states have designated the State Legal Service
Authority (SLSA hereinafter) as appellate authority but Delhi and Gujrat have not laid down
any provision in its scheme of appeal against order of DLSA. On the other hand, Madhya
Pradesh, has laid down two levels of appeal, first to the SLSA and second, to the Home
Department, Government of Madhya Pradesh within thirty days (cl. 11 Madhya Pradesh Crime

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Victim Compensation Scheme, 2015).

In one nation, for one kind of offence, the two schemes of compensation to victim are
unreasonable. The compensation given to victim is based on jurisdiction of DLSA. There is
plausibility that a crime against a victim may be committed at more than one place. In criminal
laws, the territorial jurisdiction of a single offence may be different. The continuing offences
like kidnapping or abduction have several places of jurisdiction in criminal law. In such
circumstances, a victim is at disadvantage when his/her case is tried at a place where the
quantum of compensation is meagre. The law of land speaks in volume about the equality.
Article 14 of Indian constitution says that every person shall be equal before law. If the schemes
of compensation are made according to the mandate of law (Section 357A of Cr.P.C), then it
cannot be considered as a policy matter and discrimination from state to state is unacceptable
and a bad law.

(c) Under Reporting or Non-Reporting of Sexual Offences:

The victim compensation schemes get a setback when the subjects to whom these are meant
for failed to approach for aid. Reasons of non-reporting of sexual offences like rape, kidnaping
of girl, sexual harassment at home or at work place, stalking, outraging of women’s modesty
are apparent. India is a deep patriarchal society where women, particularly young girls are kept
under tight control in both rural and urban settings, discouraging them from opening up about
sexual offences at home or at work place. The gender bias against women cannot be denied.
Women are blamed for rape committed on them. In India, women are commonly addressed in
the national language Hindi as ‘Aurat’ which is a word acquired from Arabic term ‘Awrah’. In
Arabic, it means the parts of the body to be clothed in order to take care of one’s dignity. (Arun
Ignatius: 2013). This sense of dignity bound to be maintained by women only further
discourages her to report the offences which are against her dignity and modesty. Moreover,
an unresponsive and lethargic law and order mechanism inhibits women from filing complaints
with the police. Even in heinous offences like rape, police officer will often advice the women
either to withdraw the complaint or to strike a compromise with the accused rapist. The women
under fear of getting dehumanise, generally refrain to report the incident to authority. If any
case is registered, then the social and family pressure made it for the victim troublesome to
continue with the case. Either the victim withdraws the case or forced to turn hostile at stage
of trial in court of law. A report of National Family Health Survey (NHFS-4: 2018) disclosed
that a minuscule portion of incidents of sexual violence is reported to police. An estimated 99

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percent cases are not reported and in most such cases the perpetrator are the members of her
family. According to NCRB, the number of cases filed have dropped from 95.4 percent in
2013 to 86. 6 percent of all investigated and guilty cases in 2017. The ultimate impact of under
reporting of cases falls on the schemes of victim compensation and eventually utilisation of
funds allocated for such schemes. Union of India, in 2013, set up a central fund called
“Nirbhaya fund” (named after an imaginary name given to gang rape victim of Delhi in 2012)
with a total corpus of Rs. 3,600/- crore for compensation and rehabilitation of rape victim
across India. Out of this total fund allocated 90 percent remain unused as per data released by
Govt of India in Nov 2019. (PIB: Govt of India,2019)

No state has reported utilisation of over 50 percent of the fund, Mizoram topped the list with
50 percent utilisation, followed by Chhattisgarh (43 percent), Nagaland (39 percent), and
Haryana (32 percent). Similarly, state like Telangana (6 percent) Delhi (4 percent) Tamilnadu
(3 percent) and Maharashtra (zero percent) are at bottom in terms of fund utilisation. It is
pertinent to note that for the underuse of the funds for compensation of victims of sexual
offences, the reasons are non-reporting of cases and loathsome and cumbersome procedure of
claim. The underutilisation of funds by different states is graphically represented as per graph
1.1:

The Percentage of Nirbhaya Fund Utilisation

50
Data are in the form
43
of percentage of
total funds allotted
32
26

6
4 3
0

Mizoram Chhattisgarh Haryana Goa Telangana Delhi Tamilnadu Maharashtra

Graph 1.1

(d) Hostile Victims: Not eligible for Compensation:

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Clause 6(3) of Karnataka Victim Compensation Schemes reads that Victim/claimant shall
cooperate with police and prosecution during the investigation and trial of the case.

A step further, clause 7(10) of the same scheme states that if a victim or his dependents have
obtained an order sanctioning compensation under this scheme based on false, vexatious or
fabricated complaint which is so held by trial court, the compensation awarded shall be
recovered with 15 percent interest per annum. Likewise, as per clause 10(7) of Delhi Victim
compensation scheme, DLSA/SLSA at any time after disbursal of compensation can initiate
legal proceeding for recovery of compensation amount fully or partly if victim shared any
relevant fact falsely during the enquiry. More or less, similar provisions are present in other
states also. The burden is on victim to an extent that he or she should remain faithful and helpful
to the prosecution otherwise he may be disentitled for the compensation. Probably, this may be
to sustain the decorum of judicial system as a public policy. But these clauses have given liberty
of using wide discretion to authorities. A victim, whatsoever may be circumstances, if turns
hostile then he ceases all the rights of claiming a due compensation. Merely turning to hostility
in an enquiry or trial, gives the discretionary power to authority to deny him/her the just
compensation.

Even this denial by district authority was confirmed by the high court. (Deccan Herald: 2019)
Kavita’s (changed name of rape victim) father filed a complaint against two men; one of them
allegedly raped her and the other man allegedly took pictures of her. In May 2015, he filed for
compensation for his daughter under the Karnataka victim compensation scheme. But during
the trial, the victim turned hostile. Karnataka High Court ruled that the victim was not eligible
for compensation because she failed to cooperate the prosecution which is essential
requirement of State compensation scheme. Although Kavita’s lawyer opposed this
vehemently citing the reasons that the court failed to assess the circumstances under which her
client turned hostile. The authors enquired the circumstances and found that the victim’s family
lived in the same village where the accused and their families lived. Victim’s family was
ostracised for complaining to the police. In the meantime, her father passed away as he could
not tolerate the social, pressure, reactions and ostracisation. The victim had to drop out of her
studies. Her mother was terminally ill. No administrative support or medical aid was given to
her. In her village, she had faced ostracization and humiliation. All this eventually made a
young girl to withdraw under pressure. Although, it is inevitable to mention that the medical
reports of victim had confirmed the rape. Now, the interpretation of the clause of victim

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compensation scheme to the effect that victim has to assist the prosecution in all circumstances
in order to get compensation is detrimental and fatal as social pressure in Indian society forces
the victims for ‘compromise’ with accused. In another case, in the state of Maharashtra, a
special court has ordered 16 years old rape survivor to returned the compensation as she turned
hostile during the course of trial even though accused was convicted by the same court based
on other independent witnesses and evidences.( News 18: 2019) Again, the circumstances
under which the minor victim turned hostile were not examined. The rape accused in this case
was victim’s father.

The proposition that hostile victim should not get compensation does not hold much water
when victim has to pass ordain of defined and undefined norms of conservative Indian society.
Section 357A of Code of criminal Procedure 1973, specifically determine that compensation
to the victim may be given in circumstances when accused is not traceable, identified, acquitted
or discharged or no trial takes place. If offence against the victim is confirmed, the conduct and
character of victim should be immaterial. Deprivation of a victim from due compensation
merely because of his/ her hostility is a bad law because objective of scheme is to rehabilitate
and help the victim. These leakages and loopholes in victim compensation schemes need to be
cemented.

(e) Inherent Miscellaneous weakness:

‘Nemo Judex in Causa Sua’, a legal maxim which means that no one can be judge in his own
case. It is further extended by various judicial precedents that any person or body of person,
cannot be an accused and judge at the same time. DLSA is the authority which has been
mandated under section 357A of Cr.P.C to decide and pay compensation. On the other hand
the same authority is accountable to provide the legal aid to the accused under section 304 of
Cr.P.C 1973.This is mutual contradictory in nature as it may decide the cause of accused and
victim in a same case under its jurisdiction. Actually, there may not be a bias, but the
preconceived notional bias is ample to vitiate the administrative and judicial proceedings. Apex
Court of land has suggested the judicial or quasi- judicial bodies to avoid such preconceived
notional bias.

There is no clearly laid down criteria for determination of compensation and scope of duties of
authority. The process which has been laid down in the different schemes in most of the states
are devoid of grounds based on which compensation may be decided or rejected. The duties of

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District Legal Authority are largely undefined with complete discretion to accept or reject the
claim. The courts cannot direct the authority to give a specific amount of compensation, this
has been left on authority to decide.

The absence of a central monitoring agency to oversee the functioning of scheme is detrimental
to the objectives of these schemes. The grossly inappropriate amount of compensation
specified among various schemes, is also another barrier in achieving the objective of this law.

Besides the paltry amount and hyper technical procedure, the time taken by the DLSA is cause
of concern. A load of pending cases is bothering the already overburdened system. As per data
available from April 2019-March 2020, (NLSA:2020) the status of cases in some of the major
states is illustrated through the table 1.2.

Table 1.2: No. of pending cases for claims by victims across different Indian States.

State Application Application Application

received decided pending

Andhra Pradesh 86 17 71

Bihar 864 405 581

Delhi 2655 2574 1361

Haryana 507 505 100

Karnataka 943 839 1521

Madhya Pradesh 1569 961 517

Rajasthan 2010 2242 451

Tamilnadu 734 274 826

Uttar Pradesh 59 59 0

From the data of table 1.2, it can be easily analysed that the load of pending cases is gigantic

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which needs a prompt attention. The delay will further victimize the victim.

Conclusion:

There has been a paradigm shift in the approach of criminal justice system towards
victims of crime in India. Taking cue from the 1985 UN declaration (Assembly:1985)
,the restitution and compensation to victims have been inserted in codified law of land.
Initially, compensation to victims, out of fines imposed, not only minimal but was used rarely
(Sarkar, 2010). To fill the lacunae, Victim Compensation Scheme is a bold attempt
by the states to compensate the losses or injuries suffered by the victims as well as to
rehabilitate him/her. However, the schemes across the states are varied across the states in
many aspects. Even the amount paid as compensation differs among the states. The procedure
is hyper technical and it should be simplified for the maximum benefit of victims.
The DLSA/SLSA must be both sympathetic and empathetic to the pains and difficulties of
victims, with an aim to resettle them in society to a maximum possible extent. Mere hostility
of victim during trial in court should not be sole cause of rejection of his/her claim. The
circumstances of turning hostile of victim should be examined and assessed properly. The fact
that any person falls under the definition of victim, should be sufficient for eligibility of
compensation. The victim should be relieved of the burden to intimate the police or magistrate
promptly and to secure certificates or other documents. The general awareness among the
citizens, police, prosecution must be raised. Regular workshops for lawyers and judges should
be conducted to sensitise them about the schemes. There should be a central monitoring
agency and efforts must be made to uniformise the schemes across the nation. Interim relief to
victims must be provided, especially in cases of gang rape, acid attacks, etc., without the least
emphasis on formalities and technical procedures. The load of pending application must be
dealt with high handedness as delay of compensation to victim is injustice and it further
victimize the victim. Furthermore, the amount prescribed by the states must be in consonance
with the prevailing costs of living, medical treatment, psychological assistance etc. Lastly, it
is essential to remember that no amount of compensation can relieve the victim from the
humiliation and pain which he or she suffered, but awarding prompt monetary help to victim
provides some sort of solace.

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References:

1. Ankush Shivaji Gaikwad v. State of Maharashtra, 1SSC770(Supreme Court 2013)

2. Arunachal Pradesh Victim Compensation Scheme(2011) retrieved from
http://www.apslsa.org/documents/Victim%20Compensation%20scheme.pdf on 10
Dec 2020.
3. Assembly, U.G.(1985). Declaration of basic principles of justice for victims of crime
and abuse of power. UNGA Resolution,40,34.
4. Bajpai,G., Gauba,S. (2016). Victim Justice: A Paradigm Shift in Criminal Justice in
India (Ist ed.). New Delhi: Thomson Reauters.
5. Code of Criminal Procedure, Act 5 of 2009 & Section 357A.
6. Delhi Victim Compensation Scheme (2018) retrieved from http://bba.org.in/pdf/delhi-
victims-compensation-scheme-2018.pdf on 09 Dec 2020.
7. Dube, D.(2018). Victim Compensation Schemes in India: an Analysis. International
Journal of Criminal Justice Sciences (IJCJS), XXIII(1),339-355.
8. Goa Victim Compensation Scheme (2012) retrieved from
http://slsagoa.nic.in/schemes/05042016_1.pdf on 06 Dec 2020.
9. Gujarat Victim Compensation Scheme (2015) retrieved from
https://www.latestlaws.com/wp-content/uploads/2015/08/Gujarat-Victim-
Compensation-Scheme2013.pdf on 10 Dec 2020.
10. GLSA data: Kellog, S. (2019). Despite SC intervention, victim compensation in
POCSO cases poor due to cumbersome process, failure to invoke law, Firstpost. 28
Nov 2019.
11. Hari Krishan & state of Haryana v. Sukhbir Singh, AIR 2127 (supreme Court 1988).
12. Ignatius,A. (2013) Sexual violence in India, Malmo university, Available at
https://muep.mau.se/bitstream/handle/2043/16733/Arun%20Ignatius%20HR%20III%
20C-Thesis%20PDF.pdf accessed on 02 Dec 2020).
13. Karnataka Victim Compensation Scheme (2011) retrieved
https://kslsa.kar.nic.in/pdfs/vcs/vcs_2011.pdffrom on 10 Dec 2020.
14. Madhya Pradesh Victim Compensation Scheme (2015) retrieved from
http://www.home.mp.gov.in/en/victim-compensation-scheme-2015 on 10 Dec 2020.
15. National Family Health Survey, 2015-16: India. Mumbai: IIPS.
16. National Crime Record Bureau 2018.
17. Odisha Victim Compensation Scheme (2018) published in Odisha State Gazette

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(Extraordinary) on 31 March 2017.

18. PTI, (2019) Special Court Direct Recovery of Compensation from rape Victim Who
Turned Hostile, News 18, 05 July 2019.
19. Sarkar, S (2010). The Quest for Victim’s Justice in India. Human Rights Brief, 17(2),3.
20. Tekan @Tekram Vs State of Madhya Pradesh, SC (Criminal Appeal No 884 of 2015).

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