Compensation to Rape Victims- A Critical Analysis.

By Sandhya Gupta

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The criminal law of any country is the basis to punish the public wrongs done by an individual as well as to act as a deterrent for the society. The criminal law deals with various categories of crimes and their respective punishments/penalties. In India, one such category is the sexual offenses against women, of which the offense of rape is a part. Section 375 of the Indian Penal Code, 1970 defines rape and Section 376 deals with the punishment of rape. Compensation to rape victims in an integral aspect of ‘right to life’ and in Shri Bodhisattwa Gautam v Miss Subhra Chakraborty,[1] the Supreme Court made a remarkable observation that,

Rape is not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim’s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21.”

Compensation to a victim of rape is undeniably important for her rehabilitation, especially in a society where the victim of rape is treated worse than the perpetrator.  This not only helps the victim financially but also helps her in retaining a normal life in society.

RELEVANT STATUTORY PROVISIONS

Section 357 of the Criminal Procedure Code aims at providing compensation to the victims of crime, yet, despite this, most of the trial courts failed to utilize their power to award compensation to the victim. The same was highlighted in the 41st report of the Law Commission. Section 357 was incomplete in itself as it is incapable of taking regard of all the victims of the crime. Under this section, compensation is only granted when the trial is concluded. Hence, the legislature intervened and came up with a subsection i.e. Section 357A.

In 2008, an amendment was made to the Code of Criminal Procedure by which Section 357A was inserted in the code. This provision was inserted as a result of the recommendations of the 154th Report of Law Commission. Before this amendment, the main provision dealing with compensation to victims was Section 357, according to which the compensation was to be paid by the accused only on a successful conviction. Under Section 357 of the Code of Criminal Procedure, the State had no duty to compensate the victim which was a major flaw. However, Section 357A was a progressive step for improving the difficulties of the victims. This section imposed liability on the State to compensate the victim or his/her dependents who have suffered as a result of the crime. This Section addressed the lacuna in Section 357 with a focus on rehabilitating the victim even where the accused is not tried.

Section 357A requires every State Government in coordination with the Central Government to prepare a Victim Compensation Scheme. Through this scheme, the victim of a crime or his/her dependents will be able to claim compensation for their loss/injury. The State has to create and maintain a fund for providing the said compensation. A victim can get the benefit of the victim compensation through two ways. Firstly, the court which is hearing the victims’ case can recommend his/her case to the District Legal Service Authority or the State Legal Service Authority for compensation. The authorities will then award compensation to the victim according to the scheme prevailing in their State. Secondly, Section 357(4) allows the victim to directly approach the District Legal Service Authority or the State Legal Service Authority for compensation by making an application to them. This is a very useful provision for victims of a crime where the offender is not traced or identified as it enables the victims to get compensation in cases where a trial has not taken place.

This section also empowers the trial court to recommend for compensation under the scheme in cases where the compensation awarded to the victim under Section 357 is inadequate for rehabilitation or where the cases end in acquittal or discharge. Under this section, the District Legal Service Authority or the State Legal Service authority in addition to awarding compensation to the victim may also provide medical or first aid-benefits, or other interim relief, as may be required.

With the amendment of 2008, a modern approach towards victimology was taken, that a victim of crime has the right to be rehabilitated and compensated irrespective of the successful prosecution and identification of the offender.

A BRIEF ANALYSIS OF DIFFERENT VICTIM COMPENSATION SCHEMES

Almost all the states have come up with their own victim compensation schemes since the 2008 amendment. Most of the state schemes come with the purpose of compensation to the victims or their dependents who have suffered loss or injury as a result of the crime and who require rehabilitation, which is in consonance with Section 357A. However, the victim compensation schemes for Odisha and Meghalaya, not only aim at providing financial assistance to the victim but also aim at providing support services such as shelter, counseling, medical aid, legal assistance, education and vocational training depending upon the needs of the victim. This is a significant step when it comes to rape victims whose lives may come to a halt after the tragic incident. These supportive services can help the victim to start her life again by way of the education and training provided by the state. Victim compensation schemes of other states should include a similar purpose in their schemes in order to expand the ambit of protection provided under the schemes.

If we look at the definition clause for the term ‘victim’ in the Assam Victim Compensation Scheme, 2012, it defines victim as:

“Victim means a person who has suffered any loss or injury caused by the reason of the act or omission for which the accused person has been charged[2]

Here the words ‘has been charged’ connote that the accused has been identified, investigated and the court has charged him under the Criminal Procedure Code. This definition is not in consonance with Section 357A of the Criminal Procedure Code, which allows even a victim whose offender has not been identified to claim compensation under the compensation scheme. This definition in the Himachal Pradesh and Assam victim schemes seems to defy the very purpose for which these victim compensation schemes are set for.

Another problem with most of these victim compensation schemes is that there is no authority or body to monitor them. States can take reference from the Madhya Pradesh Victim Compensation Scheme on this point. Under the Madhya Pradesh Victim Compensation Scheme, a specific provision has been made for monitoring the scheme. The scheme mandates the formation of two committees at the State and District level for monitoring the Victim Compensation Scheme in each State. A proper authority for monitoring the Victim Compensation Scheme is necessary to keep in check the impact and results of the executed schemes. It ensures that the government and policy implementers are held accountable in case of inefficacy in attaining the desired purpose of the scheme.

Most of these victim compensation schemes do not lay out grounds for rejection of application for an award of compensation. Nor do most of these schemes mandate the State or District Legal Services Authority to give reasons for not awarding the compensation to the applicant/victim. However, the Delhi Victim Compensation Scheme, 2015[3] mandates the authority to give a reasoned order by laying down the grounds of rejection in writing while declining compensation.

Some of the states like Himachal Pradesh, Madhya Pradesh, Goa and Karnataka also mention grounds for rejection, withholding or reduction of compensation in their victim compensation schemes. Some of the common grounds include:

  • Furnishing false evidence
  • Failure to report the crime
  • Failure to co-operate with police/authority
  • Failure to give reasonable assistance to DLSA/SLSA
  • Facts and Circumstances of the victim make his/her ineligible for compensation, etc.

Most of the above grounds for rejection seem justified but rejecting the application on failure of the victim to give reasonable assistance to the authority isn’t fair especially for victims of grave crimes such as rape. A victim of rape may not be able to fully cooperate because she may still be suffering from the psychological trauma and distress.

There is no uniform criterion followed by these State Victim Compensation Schemes. Every State has its own set of eligibility criteria and restrictive clauses. For instance, in the Mizoram Victims of Crime Compensation Scheme, only families below the poverty line (BPL) can apply for compensation under this scheme[4].

Initially, the amount of compensation decided by the states under the Victim Compensation Schemes indicated a lot of discrepancies. The Supreme Court even took note of this discrepancy, in Tekan Alias Tekram v. the State of M.P[5], wherein it was observed that there was a huge degree of discrepancy in the amount of compensation in case of rape decided by the States under their Victim Compensation Schemes. The honorable Court went ahead and compared the amount of compensation provided by different states to a victim of rape. The Court highlighted this discrepancy by observing how the victim compensation scheme in Jharkhand provided a maximum of Rs. 20,000 as compensation to victims in cases of rape, while the victim compensation scheme for Goa had put a maximum cap of Rs. 10 lakhs for compensation to rape victims.

Taking note of this discrepancy in compensation, the Centre in 2015 came up with the Central Victim Compensation Fund Scheme Guidelines. An amount of Rs. 200 crores was allocated to this scheme from the Nirbhaya Fund. Under this Central scheme, a uniform compensation of minimum Rs. 3 lakhs for rape was fixed for all State Victim Compensation Schemes. Despite the guidelines in 2015, many States have failed to amend their victim compensation schemes accordingly.

CENTRAL VICTIM COMPENSATION SCHEME

In the year 2012, in the case of Nipun Saxena Vs. Union of India[6] the Honorable Supreme Court had asked NALSA to constitute a committee to frame the Model Rules for Victim Compensation for sexual offenses and acid attacks. NALSA accordingly finalized the ‘Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crime’ which received the Supreme Court’s approval in 2018. This was a remarkable move since it laid the foundation for an addendum to an already existing state compensation scheme which is specially designed for victims of sexual assault and acid attacks. This scheme provides for both the minimum and maximum quantum of compensation for the offenses listed in the scheme.

It mandates the police to report the offenses covered under this scheme by sharing the hard and soft copy of the FIR with the SLSA/DSLA. It also allows SLSA/DLSA to suo moto initiate preliminary verification of facts for grant of an interim compensation to the victims. It also provides provisions for instant compensation in deserving cases which may range between Rs. 5,000-10,000. It has further increased the minimum compensation quantum for rape cases as decided by the Central Victim Compensation Fund Scheme Guidelines. The minimum compensation in rape cases is Rs. 4 lakhs while for gang rape it is Rs. 5 lakhs[7].

The scheme is a significant milestone for the development and rehabilitation of female victims in society. However, the scheme has only recently come into force, and we are yet to assess its impact.

CONCLUSION

Looking at the few provisions of the different State Victim Compensation Schemes, we can see the disparity and ambiguity between the procedures followed by them. Apart from this disparity, there is a serious lack of awareness in society with regards to these schemes. In the year 2017, out of the 21,590 FIR on rapes, only 1448 rape victims received compensation. This is a shocking figure considering that not even 10 percent of rape victims are being compensated[8]. In Telangana, only 9 victims availed compensation under the State Victim Compensation Scheme in 2016-17 and 2017-18 (till November 2017). Most of these 9 victims were only from one district[9].

These figures state that there is a dire need for change in the existing system for compensation to rape victims. With rape cases on a rise every year, India needs a dedicated national authority to monitor and implement victim schemes for compensating victims of sexual offenses.

[The author is a fourth-year B.A. L.L.B. (Hons.) student at Dr. Ram Manohar Lohia National Law University, Lucknow.]

[1] Shri Bodhisattwa Gautam v Miss Subhra Chakraborty 1996 AIR 922

[2] Assam Victim Compensation Scheme 2012, s 2(f)

[3] Delhi Victim Compensation Scheme 2015, s 9

[4] The Mizoram Victims of Crime Compensation (Second Amendment) Scheme 2013, s 5(f)

[5] Tekan Alias Tekram v State of Chhattisgarh [2016] INSC 142

[6] Nipun Saxena v Union of India 2018 SCC OnLine SC 2772

[7] Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crime 2018

[8] Surinder S Rathi, ‘From victim to survivor: Journey of Indian women’s legal struggle for compensations against crimes’ (The Leaflet, 16 July 2018) <https://theleaflet.in/from-victim-to-survivor-journey-of-indian-womens-legal-struggle-for-compensations-against-crimes/&gt; accessed 21 July 2019.

[9]Sanjeev, ‘Implementation of Victim Compensation Scheme leaves a lot to be desired’(Factly, 14 April 2018)<https://factly.in/implementation-victim-compensation-scheme-leaves-lot-desired/>accessed 21 July 2019.

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