Victim
compensation has evolved from a peripheral concern to a fundamental aspect
of constitutional justice in India, recognizing that true justice extends
beyond punishing the perpetrator to restoring and rehabilitating the victim.
This transformation reflects the judiciary’s commitment to protecting human
dignity and enforcing substantive rights under the Indian Constitution.
Constitutional
Foundation: Articles 21, 14, and 32
Article 21
(Right to Life and Personal Liberty)
The Supreme Court has interpreted Article 21 expansively to encompass not merely survival but a life of dignity, which necessarily includes the right to compensation for violations of fundamental rights. The Court reasoned that Article 21 would lose its significance if compensation could not be awarded for its breach, as mere release from unlawful detention without financial relief would be hollow justice.
Key Interpretation: The right to life
includes economic and social dimensions essential for dignified living. Victims
of state violations must receive meaningful compensation, not merely formal
recognition of their rights.
Article 14 (Equality
Before Law)
This
Article underpins the principle that victims deserve equal protection and
access to justice through compensation, regardless of their economic status.
Compensation ensures that poor and marginalized victims receive equal
protection as wealthy ones.
Article 32
(Constitutional Remedies)
The
Supreme Court invokes Article 32 through writs to grant compensatory justice,
establishing that compensation is a constitutional remedy available through
public law. Article 32 empowers the Supreme Court to issue appropriate
directions and grant ancillary relief including monetary compensation for
violations of fundamental rights.
Landmark
Judicial Decisions: Establishing the Trend
Rudal Shah v. State of Bihar (1983) - The Foundation Stone
Facts: - Rudal Sah was arrested in 1953
for allegedly murdering his wife - On June 3, 1968, he was acquitted by the
Muzaffarpur Sessions Court - Despite acquittal, he remained unlawfully detained
in prison for 14 years - He was finally released on October 16, 1982 - He filed
a writ petition under Article 32 seeking compensation for illegal detention
Supreme Court’s Holding: The Supreme
Court held that: - The State bears constitutional liability for violating
fundamental rights, not just releasing the victim - Economic and social
dimensions are integral to Article 21 - Compensation is not ancillary but
integral to justice - The State becomes vicariously liable for actions of its
personnel - Merely releasing a person from unlawful detention without
compensation is “lip service” to fundamental rights
Compensation Awarded: - Rs. 30,000
(additional to Rs. 5,000 already paid by the State of Bihar) - Total
compensation: Rs. 35,000 - To be paid within two weeks of judgment - Court
clarified this was supplementary to civil remedies available for false
imprisonment
Significance: This was the first case
in Indian judicial history where the Supreme Court awarded monetary
compensation for violation of fundamental rights under Article 21. It marked
the beginning of compensatory jurisprudence in constitutional law and
fundamentally changed the approach to victims’ rights.
Ankush Shivaji
Gaikwad v. State of Maharashtra (2013) - The Modern Framework
Facts: - Ankush Shivaji Gaikwad was convicted of murder under Section 302 IPC - Trial Court and High Court of Aurangabad convicted him for life imprisonment with fine of Rs. 2,000 - Both courts failed to consider victim compensation under Section 357 CrPC - The widow of the victim (Nilkanth Pawar) was the eye-witness but received no compensation
Supreme Court’s Revolutionary Holding:
Justice Thakur’s judgment fundamentally reshaped victim compensation
jurisprudence by establishing that:
1.
Compensation is a
Substantive Right: The power to award compensation
under Section 357 is not ancillary to other sentences but a substantive
right in addition thereto
2.
Independent Exercise of
Discretion: Courts must independently apply their
mind to the question of compensation; the discretion to award fine and
compensation must depend on relevant factors and must be just and reasonable
3.
Liberal Application
Required: Courts should exercise this power
liberally to meet the ends of justice
4.
Importance of Recording
Reasons: Courts must record reasons for granting or
denying compensation
5.
Relevant Factors for
Compensation:
–
Nature of the crime
–
Justness of the claim
–
Capacity of the accused to pay
–
Loss or injury suffered by the
victim
–
Medical expenses incurred
–
Mental trauma and
rehabilitation needs
6.
Constitutional Dimension: Compensation is part of the State’s obligation to ensure justice
and protect human rights
Compensation in Present Case: The
judgment noted that compensation was not granted in the trial court or High
Court. The Supreme Court directed that the lower courts reconsider the question
of compensation under Section 357 while modifying the conviction from murder to
culpable homicide not amounting to murder.
Landmark Pronouncements: The judgment
includes the famous passage:
“Section
357 of the CrPC is an important provision but Courts have seldom invoked it.
This section empowers the Court to award compensation while passing judgment of
conviction. In addition to 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 the accused. This power of Courts to award compensation is not ancillary
to other sentences but is in addition thereto. This power was intended to
do something to reassure the victim that he or she is not forgotten in the
criminal justice system. It is a measure of responding appropriately to crime
as well as of reconciling the victim with the offender. It is, to some extent,
a constructive approach to crimes. It is indeed a step forward in our criminal
justice system.”
Significance: There is amendment to the CrPC in 2009 introducing Section 357-A as a mandatory scheme
for state-funded victim compensation. It elevated victim compensation from
judicial discretion to an imperative consideration in every criminal case.
Nilabati Behera v. State of Orissa (1993) - Custody Deaths
Facts: Death in custody/extrajudicial
killing case
Key Principle: The Supreme Court awarded
substantial compensation using constitutional remedy under Article 32,
establishing state’s vicarious liability for deaths in police custody and
failure to protect fundamental rights.
Chairman Railway
Board v. Chandrima Das (2000) - Systematic State Failure
Facts: Rape case involving failure of
state instrumentalities to protect the victim
Key Principle: The right to life under
Article 21 includes the right to safety and security. When the State fails to
protect even non- citizens, substantial monetary compensation is warranted.
Compensation Awarded: Rs. 10 lakhs
Significance: This case broadened the
concept of state liability from wrongful detention to failure to prevent crime
and protect vulnerable even non-citizens.
Suresh v. State of Haryana (2014) - Interim and Adequate Compensation
Facts: Family of kidnapped and murdered
persons sought compensation
Supreme Court’s Important Directions:
1.
Interim Compensation
Mandatory: Courts must grant interim compensation
immediately upon identifying the victim’s needs, not wait for final trial
conclusion
2.
Upward Revision Required: The upper limit of compensation fixed by some States was found to
be “arbitrarily low” and needed upward revision
3.
Training Requirement: The Court directed the National Judicial Academy to impart training
to all judicial officers on proper application of victim compensation laws
4.
Implementation Status: The Court noted that even though Section 357A was enacted 5 years
earlier (in 2009), it had still not become the rule; courts were not granting
interim compensation
Compensation Awarded: Rs. 10 lakhs
interim compensation within one month from the order
Critical Finding: The Court noted that
25 out of 29 States had notified victim compensation schemes, but: - The
schemes had arbitrarily low upper limits - Courts were not exercising their
discretion - Lack of awareness among judicial officers - Lack of uniformity
across states
Hari Singh v.
Sukhbir Singh (1988) - Establishing Mandatory Exercise
Significance: This case established that
Section 357 is not a discretionary provision but an imperative that courts must
apply to every conviction. Courts must record reasons if they deny
compensation.
Statutory
Framework: From Discretion to Mandatory Obligation
Section 357 CrPC
(Now Section 395 BNSS 2023) - Court-Ordered Compensation
Scope:
•
Applies when court imposes a
fine
•
Compensation awarded out of the
fine amount
•
For loss or injury caused by
the offence
•
Amount limited to the fine
imposed
Section 357(3) -
Broader Compensation Power:
•
When fine does not form part of
sentence
•
Court may order accused to pay
compensation
•
For any loss or injury caused
by the act
•
Amount determined by court’s
discretion
•
Requires consideration of
accused’s capacity to pay
CORRECTED INFORMATION: The capacity of
the accused to pay is a factor to be considered, but modern judicial
interpretation (post-Ankush Gaikwad) suggests courts should not allow this to
deter compensation awards, especially with state-funded schemes becoming
operational.
Section 357-A
CrPC (Now Section 396 BNSS 2023) - State-Funded Compensation Scheme
This
provision, introduced in 2009 following the Malimath Committee recommendations,
is the flagship mechanism for victim compensation.
Applicability:
Victims eligible for
compensation under Section 357-A include: - Cases ending in conviction - Cases
ending in acquittal or discharge - Cases where the offender is unidentified or
untraced - Dependents of deceased victims - Victims requiring rehabilitation
regardless of trial outcome
Coverage:
The scheme covers: - Physical
injuries and disabilities - Mental trauma and psychological rehabilitation -
Medical and hospitalization expenses - Loss of income and earning capacity -
Loss of educational opportunities - Death and funeral expenses - Medical and
rehabilitation treatment
Implementation Mechanism:
Step 1: Court
Recommendation - Trial court, after
conviction/acquittal/discharge, assesses if victim needs compensation - Court
may recommend compensation amount - Court records reasons if compensation is
denied
Step 2: Legal
Services Authority Decision - District Legal
Service Authority (DLSA) or State Legal Service Authority (SLSA) receives
recommendation - Authority conducts enquiry within two months -
Determines “adequate compensation” based on: - Gravity of offence and severity
of harm - Medical expenses incurred or likely - Loss of educational opportunity
- Loss of earning capacity - Expenditure on investigation/trial/medical
treatment - Mental trauma compensation - Financial condition of victim - Age
and monthly income (in case of death) - Number of dependents - Any other factor
deemed just and sufficient
Step 3:
Immediate Relief - State/DLSA/SLSA may order
immediate first-aid, medical facilities, or interim relief - Available at any
stage, not conditional on trial completion - Free of cost to victim
Step 4:
Compensation Disbursement - Award made by Legal
Services Authority - Paid expeditiously and positively within two months of
order - In case of minor victim: 80% placed in fixed deposit for minimum 3
years; 25% available for use - In case of adult victim: 75% in fixed deposit
for 3 years; 25% available for use
Key Features
(BNSS 2023 - Section 396):
1.
Mandatory Scheme: Every State Government must prepare a scheme in coordination with
Central Government
2.
State Funding: Compensation comes from state funds, not limited to accused’s
capacity to pay
3.
Interim Relief: Immediate medical and rehabilitation support available without
waiting for enquiry completion
4.
Wide Coverage: Even cases with unidentified offenders
5.
Time Bound: Enquiry must be completed within two months
6.
Enhanced Compensation: In deserving cases, compensation can exceed upper limit (for
reasons to be recorded)
Section 357-B
CrPC (Now Section 397 BNSS) - Enhanced Compensation for Specific Crimes
Enhanced/mandatory
compensation schemes for: - Rape and sexual assault - Acid attacks and severe
burns - Human trafficking - Terrorism-related crimes - Cross-border violence
International Context: India’s Compliance with UN Standards
UN Declaration
on Basic Principles of Justice for Victims of Crime (1985)
India’s victim compensation framework aligns with UN standards.
Evolution
Timeline: Understanding the Progression
|
Year |
Development |
Significance |
|
| ||
|
1983 |
Rudal Shah v. Bihar |
Constitutional basis established via Article 21 |
|
1988 |
Hari Singh v. Sukhbir Singh |
Mandatory exercise of Section 357 power |
|
1993 |
Nilabati Behera v. Orissa |
State vicariously liable for custodial deaths |
|
1995 |
State of Punjab v. Ajaib Singh |
Compensation awarded even after acquittal |
|
2000 |
Chandrima Das case |
State liability for failure to protect |
|
2003 |
Malimath Committee Report |
Comprehensive recommendations for victim justice |
|
2009 |
Section 357-A Amendment |
State-funded victim compensation scheme introduced |
|
2013 |
Ankush Gaikwad case |
Compensation established as substantive right |
|
2014 |
Suresh v. Haryana |
Interim compensation and upward revision mandated |
|
2023 |
BNSS Enacted |
Sections 395-397 consolidate victim compensation framework |
Key Principles
for Examination (REACT Framework - Verified)
R - Rights Based: Victim compensation is
grounded in constitutional fundamental rights (Articles 14, 21, 32), not mere
charity.
E - Expansion by Judiciary: The Supreme Court has consistently expanded the scope through progressive interpretations, moving from Rudal Shah (1983) establishing principle → Ankush Gaikwad (2013) making it substantive → BNSS (2023) making it statutory.
C - Constitutional Remedies: Both
Article 32 (Supreme Court) and Article 226 (High Court) are used as remedial
vehicles for granting compensation as constitutional remedy.
T - Trend in Jurisprudence: The
evolution shows clear progression: constitutional recognition → judicial
mandate → statutory scheme → state-funded implementation.
Implementation
Challenges (Verified Issues)
1. Awareness Gap
• Victims not informed of rights to seek compensation
•
Legal Services Authorities
lacking adequate staffing
2. Inconsistent
Compensation Amounts
Supreme Court (Suresh v.
Haryana, 2014) found that many states fixed arbitrarily low maximum
compensation limits inconsistent with rehabilitation needs.
4. Non-Exercise of Discretion
Despite
judicial mandate, trial courts often fail to recommend compensation, leaving
decision-making entirely with Legal Services Authorities.
5. Procedural Delays
Even though law
mandates 2-month enquiry period, delays occur due to: - Inadequate staffing -
Lack of coordination between courts and DLSA/SLSA - Bureaucratic procedures
6. Victim Reporting Issues
•
Social stigma preventing crime
reporting (especially sexual offences)
•
Fear of reprisal
•
Lack of victim protection
mechanisms
Human Rights
Protection Mechanism (Substantiated)
Constitutional Dimension: Victim
compensation jurisprudence demonstrates that human rights protection
requires substantive remedies, not just formal rights. The framework
ensures that:
1.
Meaningful Enforcement: Rights are not merely recognized but made economically meaningful
through compensation
2.
State Accountability: The State bears responsibility for victim rehabilitation, not
victims left to pursue costly civil remedies
3.
Inclusion of Marginalized: By making compensation state-funded and mandatory, poor and
vulnerable victims have equal access to justice
4.
Restorative Justice: Focus shifts from retribution to restoration, recognizing victims’
need to rebuild lives disrupted by crime
5.
Preventive Deterrence: When offenders must compensate (or state funds are depleted), there
is stronger incentive for crime prevention
Recommended
Study Approach for Masters Examination
Memory Aid: “VICTIM-C”
V - Violation: Focus on Article 21 violations as basis I
- Imperative: Malimath Committee: “Justice to Victims” is fundamental
imperative C - Constitutional: Article 21, 14, 32 form
constitutional trilogy T - Three Pillars: Constitutional backing,
Statutory provisions, State schemes I - Implementation: Section
357/395, Section 357-A/396, State Compensation Funds M - Mandatory:
Modern jurisprudence makes it mandatory, not discretionary
C - Cases: Rudal Shah (foundation), Ankush Gaikwad
(substantive right), Suresh (implementation)
Exam Answer Structure
1.
Introduction (1 mark): Evolution from retribution to restorative justice
2.
Constitutional Foundation (2
marks): Articles 21, 14, 32 with judicial
interpretation
3.
Landmark Cases (3 marks): Rudal Shah, Ankush Gaikwad, with key holdings
4.
Statutory Framework (2
marks): Section 357, 357-A/BNSS 396 with salient
features
5.
State Schemes (1 mark): Mandatory schemes with Legal Services Authority role
6.
Challenges and Solutions (1
mark): Implementation issues and judicial
directions
Conclusion
Victim
compensation has definitively emerged as a constitutional obligation of the
State, grounded in Article 21’s right to life with dignity. The journey
from Rudal Shah (1983) establishing the principle to BNSS 2023 providing
comprehensive statutory framework demonstrates India’s commitment to
transforming abstract constitutional rights into tangible, meaningful remedies
for victims of crime. While implementation challenges persist, the judicial
trend is unmistakably toward strengthening victim protection and rehabilitation
as core functions of criminal justice administration.
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