LLM Notes: Compensation to Victims of Crime: A Judicial Trend Protecting Human Rights in India

 Overview: The Paradigm Shift

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

The legal basis for victim compensation rests on three constitutional pillars:

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

3. Low Upper Limits

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.