Compensation and Restitution to the Victim: Justice to Victims
Written by: Gogula Madhavi Lakshmi
Introduction
Crime is steadily increasing in present times; it not only challenges the administration of criminal justice but also affects victims of crime adversely. The basic object of Criminal Justice is to protect society against crime and to punish the offender. However, Criminal Justice System remains generally unsatisfactory from the point of view of the victims of crime.
So far as criminology is concerned it stresses the reform, rehabilitation, and legal aid of the accused. The object of penology is not merely to protect and reform the criminals but there is a need for safeguarding the interests of the victims also. But the present criminal justice system does not satisfy the grief of the victim as it does not allow him to take part in the system of criminal justice.
In the name of maintaining law and order in society, the state does not allow a victim to take the law into his/her hands either to punish the wrongdoer or to compensate for the loss or injury suffered. The criminal law in India is not victim-oriented rather it is offender oriented and the sufferings of victims are totally overlooked in sympathy for the criminal. Though our modern criminal law is designed to punish as well as to reform the criminals, it overlooks the byproduct of crime, the victim. The right to life is one of the basic human rights guaranteed to every person by Article.
A prisoner, be he a convict or under trial or a detenu, does not cease to be a human being. Even when lodged in jail, he continues to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution. On being convicted of a crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retain constitutional rights. In India, the accused has been treated as a privileged person. He gets all possible help from all the corners of the country.
Not only does he get defence counsel at the cost of the state at the time of trial but he is also benefited after conviction. Due to over-vigilant NGOs and Human Rights Organizations, the aftercare reformative and rehabilitative programs for the accused are also on the rise. The punishment can be considered more as treatment, rehabilitation, correction, and re-socialization through probation, parole, and after-care community services. Thus, the lack of victim-oriented jurisprudence causes the deterioration of the conditions of victims and their family members.[1]
Compensatory Justice Jurisprudence in India Various Reports of Law Commission of India, as well as Committees on Reforms of Criminal Justice administration, have played an important role in developing compensatory jurisprudence in India. In order to give prominence in the Indian Penal Code, 1860 to the payment of compensation out of fine imposed and to give a substantive power to the trial court to this effect, the Law Commission of India in its 42nd report (1971) suggested the insertion of a new section in the Penal Code. [2]
The existing provision relating to compensation was inserted in the Code of Criminal Procedure through amendment and its application was expanded. It was provided in the modified Section 357 (545 of old Code) of Criminal Procedure Code,1973 that, in every case where the new Section 62 of the Penal Code is attracted, but the Court decides not to make an order for payment of compensation out of the fine, it should record its reasons.
Justice R. L. Narasimham, a member of the Law Commission, recommended the deletion of Section 545 (Section 357 New Code) from the Criminal Procedure Code and insertion of a new section in the Indian Penal Code to make improvements in the law concerning payment of compensation by the offender. He felt that Section 357 (Section 545 of Criminal Procedure Code, 1898) is wholly unsatisfactory firstly because, under Section 545, Cr. P.C. (357 New Code) compensation can be given only in money, to the injured party.
There is no provision for direct reparation for the harm caused. Secondly, the procedure involved in the section is circuitous, dilatory, and expensive and caused much harassment to the injured complainant. Besides, it does not cover cases of those accused persons who are unable to pay the fine. The evil effect of short-term imprisonment persists and the complainant also may not be able to derive any advantage as far as reparation is concerned. The 14th Law Commission, in its 156th Report (1997) on the IPC recommended a ‘Victim Compensation Scheme’ by State governments. It also opined that it wouldn’t be appropriate’ to include the order of payment of compensation by way of punishment.
- “The word Victim logy is a new coinage and has gained considerable importance due to the untiring work of Miss Margaret Fry of the John Howard Association of England, Benjamin Mendelsohn, who in 1937 developed a scientific method for the study of the criminal act which utilized biopsycho- social data on the criminal, on the victim and on the witnesses bystanders, and the World Society of Victim logy having been himself the victim of discrimination, Mendelsohn became interested in the victim and in his/hers relationship with the criminal.” Schafer defines Victimology as “the study of criminal victim relationship”. Drapin and Viano define it as “that branch of criminology which primarily studies the victim of crime and everything that is concerned with such a victim”. In the words of Fattah: “While studying biological, sociological, psychological, and criminological details about the victim -victimology brings into focus the victim-offender relationship and role played by victim.” The 7th United Nations Congress on Prevention of Crime and Treatment of Offenders came out with a declaration of basic principles of Justice of Victims of crime and abuse of power, which was later adopted by the U.N. General Assembly. In the declaration, the
“Victims” means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within the Member States, including those laws prescribing criminal abuse of power.
A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted, or convicted and regardless of the familial relationship between the perpetrator and the victim. The term “victim” also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization. Victims are several times suffering emotionally the most. Compensation to Victims In Crime The reactions to crime have been different at different stages of human civilization.
There is a number of theories available pertaining to ‘Reaction to crime’. Important among these theories are the Retribution theory, the Utilitarian theory, Deterrent theory, etc. In common, every theory provides justification for punishment. We can summarize the objects of punishment as: partly of making example of the criminal partly of deterring the criminal from repeating the same act & partly of reforming the criminal by eradicating the evil will and Partly of satisfying society’s feeling of vengeance which the act is supposed to evoke.
The law in the early stages of civilization was to compensate the victim and not punish the offender. Narada was the first to recommend compensation to the victims by the offender in order to expiate his sins.
“If we go back to the origin of criminal law, we see that the victim and his family occupy a central position: it is the victim and his family who have the right to request revenge or penitence. However, over the centuries, with the evolution of the state and the organization of state prosecution, the role of the victim has changed: from his central position the victim has been shifted to a marginal one.
Problems
The basic problem one has to face while dealing with the compensation aspect of the crime is, ‘Is compensation for the Damage caused by Crime an objective of the Criminal Process’? A decision on this point is especially important when the judge imposes on the offender various financial obligations like court costs, fines, and compensation to the victim. Which of these obligations should take precedence over others if the offender’s financial means are insufficient to satisfy all of them? One more important problem that arises is the financial background of the offenders because often they tend to be poor. If the offender has committed an economic offence then he has the capacity to compensate, otherwise, it is very difficult for the victim to get a sufficient proportion of compensation.
The case of restitution to victims of crime rested primarily on two obligations: an obligation of the criminal who inflicted harm against a person or property and an obligation of the state, which failed to protect the victim. The second obligation is much more important because it is the duty of the state to provide effective security against crime. In India, the trend in this direction is quite good now. The dictum that ‘King can do no wrong’ is on the wane. Modern welfare society has taken the responsibility to protect its citizens from crime. That is why the punishment aspect solely rests with the state. Though retribution is having a subordinate position in the Indian legal system yet it is trying hard to get its feet moving. In the last few decades, the retribution aspect has found its way into the mainstream of criminal law.
The basic purpose of the United Nations is to protect the human rights of people and to maintain peace in this world. Therefore, for the improvement of humanity, United Nations has been playing a great role in protecting the human rights of the victims of crime. From time to time it has been calling the international conventions, declarations, and other forms of international seminars. One of the most important developments in the field of victim logy in the last twenty years has been the formal approval by the General Assembly of the United Nations on November 11, 1985, of the “UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power”.
In the Declaration the broadest definition of the victim has been given in paragraphs 1&2. The victim is not the person who himself suffered harm physical, emotional or economic loss but the term “victim” also includes, where appropriate, the immediate family or dependants of the direct victim and person who have suffered harm in intervening to assist victims in distress or to prevent victimization. Following rights have been granted to victims:
Access to justice and fair treatment
It is said that victims should be treated with compassion and dignity. They are entitled to justice and prompt remedy provided under national legislation. It is important o provide the information to the victims regarding their role, scope, timing, and progress of proceedings and disposition of their cases; while allowing the views and concerns of victims to be presented at appropriate stages when their personal interests are affected without prejudice to accused. It is also important to provide proper assistance to victims throughout the legal process take measures to minimize inconvenience to victims and more importantly protect their privacy and ensure their safety. Of course, avoiding unnecessary delay in the disposition of cases and execution of orders or decrees granting awards to victims.
Restitution
Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families, or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services, and the restoration of rights. Governments should review their practices, regulations, and laws to consider restitution as an available sentencing option in criminal cases, in addition to other criminal sanctions. In cases of substantial harm to the environment, restitution, if ordered, should include, as far as possible, restoration of the environment, reconstruction of the infrastructure, replacement of community facilities, and reimbursement of the expenses of relocation, whenever such harm results in the dislocation of a community.
Compensation
When compensation is not fully available from the offender or other sources, states should Endeavour to provide financial compensation to victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes. The family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization. The establishment, strengthening, and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including those cases where the state of which the victim is a national is not in a position to compensate the victim for the harm.
Conclusion
The provisions of the Criminal Procedure Code concerning victim compensation occupy a prominent place in the progressive development of the law relating to victim compensation through the judicial approach. Keeping in view the whole scenario of compensatory justice jurisprudence, the ambit of the criminal justice system needs to be expanded keeping in view the overall change in the approaches, thinking, and circumstances.
The victim should not be forgotten while administering justice. The victim would remain forgotten in the criminal justice system if despite Legislature having gone so far as to enact specific provisions relating to victim compensation, Courts choose to ignore the provisions altogether and do not even apply their mind to the question of compensation. It follows that unless Section 357 is read to confer an obligation on Courts to apply their mind to the question of compensation, it would defeat the very object behind the introduction of the provision. Victims should fairly be compensated for the injury caused by the act of the offender. This would prove to be an effective means to attain the ends of justice.
The Courts should be empowered to impose compensation even in cases where the fine does not form part of the sentence. The discretionary power of the Court should be converted into a legal mandate requiring it in all suitable cases to pass compensation orders and when it decides not to do so it may be made obligatory to record reasons for doing so. The victim of an offence should be legally allowed to intervene in the criminal proceeding against the offender to claim compensation for loss or injury. Such a provision will certainly enhance the use of statutory provisions to compensate victims of crime.
References
- Law Commission of India, 42nd Report, 1971
- Law Commission of India, 152nd Report, 1994
- Law Commission of India, 154th Report, 1996
- Law Commission of India,156th Report, 1997
- Law Commission of India,226th Report, 2009
- Malimath Committee Report on Reforms of Criminal Justice System in India, 2003
- Singh, Mool, “Compensatory Justice in Criminal Law
- A Goal of Social Justice” in Crime and Criminology (ed) K.B. Agarwal & R,K. Raizada, Univ Book House (P) Ltd, 2004
- Bajpai, K.K. “The History of Compensation of the Victims of Crime” 2006 Cr.l.J. 26(Jr) -Deb, R., Principles of Criminology Criminal law and Investigation, S.C. Sarkar & Sons, Calcutta, 1991
- Sindhu, Sanjay, “Compensatory Jurisprudence Under Criminal Law : Flaws in Existing Laws That Needs Reforms” 2007 Cr. L.J.59 (Jr)
- Rajawat, J.S., “Reparation to Victim of Crime”, CBI Bulletin, December, 1994
- Singh, S.C., “ Compensation and Restitution to the Victims of Crime”, 1992 Cr. L.J. 100(Jr)
- Mahajan, R.K., “Justice to Victims” 1990 Supreme Court Journal 9(Jr)
- Mundrathi, Sammaiah, “Law on Compensation to Victims of Crime and Abuse of Power” Deep & Deep Publications Pvt. Ltd. , Delhi, 2002 – Vibhute, K.I., “Criminal Justice” Eastern Book Co. Lucknow, 2004 Siddique, Ahmed, “Criminology, Problems and Perspectives” Eastern Book Co. Lucknow, 2000
Keywords: Compensation and Restitution, Compensation and Restitution in India, Compensation and Restitution Laws, Compensation and Restitution principals, Compensation and Restitution under IPC, Compensation and Restitution Under Indian Penal Code 1860, Compensation and Restitution theories, Compensation and Restitution
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