Abstract
The Indian legal system had focused on the offenders for a long time. ‘Victim of a crime’ has neither been defined under any statute nor by the Indian judiciary. However, the United Nations General Assembly Declaration of Basic Principles of Justice for Victim and Abuse of Power that was adopted in November 1985 defines ‘Victim’ by virtue of Article 1 and Article 2. The legal system, as well as the citizens, have also concentrated on what happens with the offenders in matters ranging from the arrest of the offender till their sentence is pronounced. Generally, there is a tendency to forget about what a victim goes through and how the trial affects the victim. Society very rarely thinks about victimology. The article discusses how crucial is victim compensation and how is it necessary for society to put a full stop to the victimization of the survivors or the victims of acid attacks and sexual offenses.
Keywords: Victim, compensation, society, victimology
Introduction
In India, a proper victim compensation system is absent. In cases of rape and other sexual offenses, the talks always revolve around what has unfortunately happened. However, talks seldom revolve around the recourse for the victim after the commission of such an offense against them. Even certain members who belong to the legal fraternity do not know much about the concept of ‘Victim Compensation’. The entire purpose of compensation is to make good the loss that the victim has sustained. In today’s time, the meaning of the term ‘Compensation’ is just limited to monetary compensation which is usually measured in terms of pecuniary as well as non-pecuniary loss.
Sexual offenses can affect the life of a victim in numerous ways. It may affect both their mental and physical health. In addition to this, they may have to incur tangible financial costs. The concept of ‘Victim Compensation’ grants direct financial reimbursement to a victim for the expenses that the victim has to incur as a result of the commission of the crime including the medical cost, mental health counselling cost as well as the lost wages.
In India, each and every state has a program dedicated to victim compensation which performs the task of allocating funds to the victims and survivors of sexual assaults as well as other violent crimes.
In the case of Delhi Domestic Working Forum v. Union of India (1994), the Supreme Court said that keeping in mind the Directive Principle that has been mentioned under Article 38(1) of the Constitution of India, the Criminal Injuries Compensation Boards must be established in order to award compensation to the victims.
Victimology
Along with the victim the accused, police, prosecution, and defense are included among the stakeholders under such procedures of victim compensation. However, one tends to forget about the most important stakeholder, that is, the victim who initiates such procedures and puts them into motion. The person who undergoes mental, physical, or economic suffering is none other than the victim.
Broadly, victimization can be divided into two kinds, namely, Primary Victimization and Secondary Victimization. In Primary Victimization, the victim gets affected by the physical or mental injury directly. However, in Secondary Victimization, the victim gets affected second-hand, that is through police, prosecution, court, or defense.
In simple terms, the relationship between the victim and the accused, and the interaction that takes place between them can be defined as victimology. The introduction as well as the interaction of the victim with the criminal justice system is victimology. A victim can be victimized in a number of ways. Under the Protection of Children from Sexual Offences (POCSO) Act, 2012, it has been clearly stated that the identity of the victim as well as accused should remain anonymous and this is a duty that should be undertaken by the police, prosecution, and most importantly, by the society at large. When the media reports detailed and sensitive personal information about a victim, such a victim has to undergo humiliation and pain. Sometimes, the victims tend to slip into depression. In the case of Laxmi v. Union of India (2015), certain guidelines for the hospitals as well as other institutions were laid by the Apex Court in order to handle and deal with the victims of rape.
As far as secondary victimization is concerned, the police authorities immediately come to mind from the filing of FIR and recording examinations to the medical examination. Section 173 of the Code of Criminal Procedure, 1973 states that all the documents including charge sheets must be provided to the accused. However, no such provision has been made for the victims. The unawareness and lack of knowledge about whatever is going on in the police investigation is the major issue that the victims face.
The preparation of the accused happens by the defense lawyer before the cross-examination of the accused takes place. However, no such preparation of the prosecution witness happens. Thus, on one hand, the accused is always prepared beforehand for every possible thing and on the other hand, the prosecution witness is hardly aware of the possible things they may have to face by the defense. Since India does not have a well-equipped prosecution, this becomes one of the major reasons behind the high rates of acquittal. No counseling of the victim happens before the chief examination as well as cross-examination. In addition to this, the victim is also not notified in case of bail or parole of the accused. Therefore, it can be said that victimization is not limited to the police authorities only but it goes beyond that to many minor aspects.
The Malimath Committee of India had said that the inadequacy of the protection by law is the reason behind the enhanced number of victims. Although Delhi had begun the first Witness Prosecution Scheme, however, other than Delhi, there is no such Act or scheme in order to provide protection to the victim.
Witness Protection Scheme
It is very crucial that the witnesses are protected as there are chances of them being intimidated by the accused. If we look at the Courts in Delhi, there is a provision as per which the courtroom is divided into three parts. This is done so that the victim and the accused are not placed in front of each other in the same room.
It was ruled by the Supreme Court in a recent judgment where the Court stated that a Witness Prosecution Scheme must be there in each and every state. A positive step forward is taken with the introduction of such victim compensation schemes. In addition to this, certain guidelines were also released by the Apex Court in this respect which is as follows:
- The Centre has drawn the Witness Prosecution Scheme in 2018 along with the inputs from the States, Union Territories. In addition to this, the National Legal Services Authorities, Civil Society, High Courts as well as police personnel also provided inputs for the same.
- It has been observed that the witnesses are frightened and intimidated in order to give evidence and no protection from the violent or other criminal recrimination is provided to them. Thus, the main objective of this scheme is to make sure that the investigation, prosecution as well as trial of criminal offenses is not prejudiced.
From where do the states receive funds for the victim compensation program
In most states, a court fee has to be paid by the convicted perpetrator. This in turn serves as the source of revenue for the victim compensation program of each state instead of taxes. In addition to this, the federal Victims of Crime Act (VOCA) which was enacted in 1984 also provides support to all the state programs.
A limit has been placed on the total amount of money that can be paid on a single case and in addition to this, the limit on the amount of money that can be paid per category of expense has also been put. The average of the maximum benefit that a state provides under the victim compensation is about $25,000 as per the National Association of Crime Victim Compensation Boards (NACVBC). However, some states are able to provide more benefits while some states are able to provide lesser benefits as per their capacities.
Victim Compensation
In India, if we look at the criminal laws, the factors like nature of the offense, degree of the injury that is caused to the victim, and the capability of the accused to pay the victim are considered while the compensation is being paid. Today, we have certain concepts like the social investigation reports in order to cater to the victim. However, before the recent times, no care of the victim was taken.
Section 357 of the Criminal Procedure Code, 1973 provides for the order to pay compensation. However, there are several lacunas in this provision. It must be noted that this section has the word ‘may’ which implies that compensation is not mandatory. It is left to the discretion of the judges as to whether compensation must be awarded or not. In addition to this, Section 357 caters only to the victims where the conviction of the accused had happened. By virtue of Section 5 of the Probation of Offenders Act, 1958, the trial court is empowered to order the offender to pay compensation.
Though monetary compensation cannot replace the problems that a victim faces, it acts as a solace to the victim. The compensation let the victims know that they are a part of the Indian legal system and they have not been forgotten.
In the case of Nipun Saxena v. Union of India (2018), the earlier Delhi Victim Compensation Scheme of 2015 has been replaced by the Delhi Victim Compensation Scheme, 2018. In this case, the establishments of ‘One Stop Centers’ were also detailed out by the Court and the inspiration for this was taken from ‘BHAROSA’ in Hyderabad which is treated as a model for other one-stop centers in India.
The victim compensation can be divided into two kinds, that is, compensation for general offenses and compensation for sexual assault. An interim compensation relief is generally awarded to the victims of sexual offenses as an immediate need, however, if at any point of time, the Court concludes during the sentencing or the judgment that the compensation with which the victim has been compensated is not sufficient, then the Court can ask the accused to pay more compensation to the victim. A very important factor that the Court takes into consideration is that if the accused has enough capacity in order to pay the compensation. If it is found by the Court that the victim does not have enough capacity, it can direct authorities like the Delhi Legal Service Authority for paying the compensation to the victim.
In addition to this, it could also be requested by the advocates for referring the matter to the Delhi Legal Service Authority in case the compensation is not sufficient. However, it is very crucial to note that the power to quantify the compensation to the victim is available to no trial court.
When any sort of compensation is awarded to the adult victims, they receive 25% of the compensation immediately while the rest 75% is received by them as fixed deposits for three years. The interest of these is credited to the saving account of the victim. On the other hand, when any sort of compensation is granted to minors, 20% of the compensation is received by them immediately while the rest 80% of the compensation is given as fixed deposits once the victim gains the majority age.
Therefore, it can be said that certain steps have been taken by the Judiciary of India so that the exploitation of the victims of sexual offenses as well acid attacks can be curbed.
Conclusion
Society has a tendency of victimizing the victims and survivors of sexual offenses and acid attacks. It has often been observed that the survivors of acid attacks are excluded from society and the victims of rape have to face discrimination by society and sometimes, the treatment that is given to them is often worse than the perpetrators.
The schemes like the Witness Protection Schemes and certain landmark judgments on victim compensation as well as victimology play an important role in improving the situation and conditions of the victims. It is always advisable for the practicing lawyers that if any situation is witnessed by them where their clients have been victims of some horrifying offense, it is their duty to ask and request the court for awarding appropriate compensation to the victim. It is very crucial to understand that the well-being of the victim is very important.
ARTICLE BY NISHTHA GARHWAL
