Compensation to victims is a recognised principle of law being enforced

through the ordinary civil courts. Under the law of torts the victims can
claim compensation for the injury to the person or property suffered by
them. It is taking decades for the victims to get a decree for damages or
compensation through civil courts, which is resulting in so much
hardship to them. The emergence of compensatory jurisprudence in the
light of human rights philosophy is a positive signal indicating that the
judiciary has undertaken the task of protecting the right to life and
personal liberty of all the people irrespective of the absence of any
express constitutional provision and of judicial precedents.

Article 32 of the Constitution of India confers power on the Supreme

Court to issue direction or order or writ, including writs in the nature of
habeas corpus, mandamus, prohibition, quo-warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights
conferred by Part III of the Constitution. The right to move the Supreme
Court by appropriate proceedings for the enforcement of the rights
conferred by Part III is "guaranteed", that is to say, the right to move the
Supreme Court under Article 32 for the enforcement of any of the rights
conferred by Part III of the Constitution is itself a fundamental right.

The approach of redressing the wrong by award of monetary

compensation against the State for its failure to protect the fundamental
right of the citizen has been adopted by the courts of Ireland, which has a
written Constitution, guaranteeing fundamental rights, but which also
like the Indian Constitution contains no provision of remedy of
compensation for the infringement of those rights. That has, however,
not prevented the courts in Ireland from developing remedies, including
the award of damages, not only against individuals guilty of
infringement, but also against the State itself.

Article 32(1) provides for the right to move the Supreme Court by
appropriate proceedings for the enforcement of the fundamental rights.
The Supreme Court under Article 32(2) is free to devise any procedure
for the enforcement of fundamental right and it has the power to issue
any process necessary in a given case. In view of this constitutional
provision, the Supreme Court may even give remedial assistance, which
may include compensation in "appropriate cases".

Idea of Compensation

The Idea of Compensation to victim of crime particularly to the crime

victims by the state is gaining much importance. Though this idea is an
age old one, its development on more scientific lines and also as a
branch of criminology has begun since a few decades ago. The modern
states which are described welfare states have realized the importance
of the subject compensation to the victims of crime and are accordingly
taping up several victim compensation programmes, as part of their
General welfare. Various countries have taken up the scheme of payment
of compensation to victim of crime. There is a fund for payment of
compensation to crime victims in Canada, Australia, New Zealand, United
Kingdom, under the control of a board. We too need such fund to assist
and assure the victims that ‘we care’.

Laws on Commission In India

The term ‘Compensation’ means amend for the loss sustained.

Compensation is anything given to make things equivalent, a thing given
to make amends for loss, recompense, remuneration or bay. It is counter
balancing of the victim’s sufferings and loss that result from
victimization. The rationale or basis for compensation may be the
following three perspective:

1. As an additional type of social insurance

2. As an welfare measure another facet of the Government/Public

assistance of the Unprivileged.

3. A way of meeting an overlooked governmental obligation to all

citizens.

The penologist recognized that adequate compensation to the victims

from the accused or alternatively from the state is objective of the
science of victimology which is gaining ground and deserves attention.

In India there is no comprehensive legislation or statutory scheme

providing for compensation to victims of crime. In some European
countries provisions are made for payment of compensation to the
victims of crime in the course of criminal proceedings. Justice requires
that a person who has suffered must be compensated. Basically the
accused is responsible for the harm caused to the victim. We have five
statutes, under which compensation may be awarded to the victims of
crime.

1. The fatal Accident Act, 1855

2. The motor Vehicles Act, 1988

3. The Criminal Procedure Code, 1973

4. The Constitutional Remedies for Human Rights Violation

5. The Probation of Offenders Act, 1958.

Concept of Victimology

"The word Victimology 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 Victimology 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 U.N. defined the "Victims of
Crime" as follows:

1. "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 Member States, including those laws prescribing criminal abuse
of power.

2. 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 time
suffering emotionally the most.

Compensation To Victims In Crime

The reactions to crime have been different at different stages of human

civilization. There are number of theories available pertaining to
'Reaction to crime'. Important among these theories are Retribution
theory, Utilitarian theory, Deterrent theory etc. In common, every theory
provides justification punishment. We can summaries the objects of
punishment as:

1. partly of making example of the criminal;

2. partly of deterring the criminal from repeating the same act;

3. partly of reforming the criminal by eradicating the evil will; and

4. 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 to 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."

Few 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 sufficient proportion of
compensation.

The case of restitution to victims of crime rested primarily on two

obligations: an obligation of the criminal who inflicted the harm against
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 the crime.
In India, the trend in this direction is quite good now. The dictum that ‘
King can do no wrong’ is in 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 subordinate position in Indian legal system yet it is trying hard to
get its feet moving. In last few decades retribution aspect has found its
way in to the mainstream of criminal law.

Literature Review

Ø Compensation related to Constitutional Injuries

A constitutional solution to fill the gap in the legal right to compensation

in the monetary way for the abuse of the many human rights has been
found by the apex courts. The Apex Court in the case Rudal Sah v. State of
Bihar for the first time laid down the principle that compensation can be
given in the cases where any fundamental right of an individual has been
injured and that the upper courts have the authority to do so “through
the exercise of writ jurisdiction and evolved the principle of
compensatory justice in the annals of human rights jurisprudence.”

We can clearly see that monetary compensation had been made in cases
where an individual’s legal rights have been damaged. Even though
there isn’t a statute defining such a claim, the courts have exercised this
power wherever they deemed fit. If a person’s fundamental right is
violated or where a writ petition is not generated by the court itself, the
said person’s right to compensation comes into effect and he should be
compensated adequately in such cases.
In Sebastain v. Union of India, “on account of failure of Government to
produce in habeas corpus petition filed by wives, apex court awarded
cost of Rs. 1 lakh to be given to wife of each of detenne.”

Ø Compensation under criminal law

The theory of compensation in criminal law is mainly about

compensation to the victim of a crime. A victim to a crime is one who has
suffered any loss because of some act or omission of the accused. The
victim not only suffers physical injuries but also psychological and
financial hardships too. The plight of a victim is only made worse by
lengthy hearings and tedious proceedings of courts and improper
conduct of the police. The victim is literally traumatised again in the
process of seeking justice for the first injury. The legal heirs/guardians
of the victim too come in the same definition.

The law makers made provisions in the Criminal Procedure Code, 1973
under Section 357(3) to enable the Courts to award any amount of
compensation to the victims of a crime. This was depicted in the
landmark case of Hari Kisan where the Supreme Court had awarded
compensation as punishment, of Rs. 50,000. Not only this, the lower
courts were asked and advised to “exercise the power of awarding
compensation to the victims of offences in such a liberal way that the
victims may not have to rush to the civil courts”

Ø Compensation related to Rape

The victim of rape has to suffer from many hardships like mental shock,
lost income due to pregnancy and costs incurred during childbirth
because of the offence. Also, in the present Indian society, a raped victim
is looked down upon even though she is the victim and not the offender.
During a rape trial, if the accused is just punished or asked to pay fine,
the judgment does not favour the victim as her position is not restored.
Hence it becomes extremely important to compensate such a victim.

A women’s right to compensation originates from Article 21 of the

Indian Constitution which talks about right to life and personal liberty.
The Supreme Court held that a woman can be compensated even in the
middle stages of the trial as well as at the end of the trial. The Supreme
Court even suggested the establishment of criminal injuries
compensation Board under Article 38(1) of the Constitution of India
whose function would have been to compensate such victims and
provide them relief. However, no such board has been formed. [xx]

In the landmark case of DK Basu v. State of West Bengal, the Supreme

Court held that a victim of custodial right has every right to be
compensated as her Right to life has been breached by the officer of the
State.

In another case, the Supreme Court held that the session’s court too has
the power to award compensation to the victim even if the trial has not
been completed. In fact, in the case State of Maharashtra v. Madhukar N.
Mardikar, Supreme court held that “even a prostitute has a right to
privacy and no person can rape her just because she is a woman of easy
virtue.”

Article 32 And The Remedy of Compensation

Compensation to victims is a recognised principle of law being enforced

through the ordinary civil courts. Under the law of torts the victims can
claim compensation for the injury to the person or property suffered by
them. It is taking decades for the victims to get a decree for damages or
compensation through civil courts, which is resulting in so much
hardship to them.

The emergence of compensatory jurisprudence in the light of human

rights philosophy is a positive signal indicating that the judiciary has
undertaken the task of protecting the right to life and personal liberty of
all the people irrespective of the absence of any express constitutional
provision and of judicial precedents.

The renaissance of the doctrine of natural rights in the form of human

rights across the globe is a great development in the jurisprudential field
in the contemporary era. A host of international covenants on human
rights and the concern for effective implementation of them are radical
and revolutionary steps towards the guarantee of liberty, equality and
justice. Though the concept is new, the content is not and these rights
have been recognised since ages and have become part of the
constitutional mechanism of several countries. India recognised these
rights under Part III of the Constitution providing remedies for
enforcement of such rights.

Article 32(1) provides for the right to move the Supreme Court by
appropriate proceedings for the enforcement of the fundamental rights.
The Supreme Court under Article 32(2) is free to devise any procedure
for the enforcement of fundamental right and it has the power to issue
any process necessary in a given case. In view of this constitutional
provision, the Supreme Court may even give remedial assistance, which
may include compensation in "appropriate cases".
A question regarding the awarding of monetary compensation through
writ jurisdiction was first raised before the Supreme Court in Khatri (II)
v. State of Bihar In this case, Bhagwati, J. observed:

"Why should the court not be prepared to forge new tools and devise
new remedies for the purpose of vindicating the most precious of the
precious fundamental right to life and personal liberty.”

In Sant Bir v. State of Bihar the question of compensating the victim of

the lawlessness of the State was left open.

In Veena Sethi v. State of Bihar also the Court observed that the question
would still remain to be considered whether the petitioners are entitled
to compensation from the State Government for the contravention of the
right guaranteed under Article 21 of the Constitution.

In the light of the views expressed by the Court in the above cases it can
be said that the Court had shown its concern for the protection of right to
life and liberty against the lawlessness of the State but did not actually
grant any compensation to the victims.

The seed of compensation for the infraction of the rights implicit in

Article 21 was first sowed in Khatri, Sant Bir and Veena Sethi, which
sprouted with such a vigorous growth that it finally enabled the Court to
hold that the State is liable to pay compensation. This dynamic move of
the Supreme Court resulted in the emergence of compensatory
jurisprudence for the violation of right to personal liberty through Rudul
Sah The Supreme Court of India in Rudul Sah v. State of Bihar brought
about a revolutionary breakthrough in human rights jurisprudence by
granting monetary compensation to an unfortunate victim of State
lawlessness on the part of the Bihar Government for keeping him in
illegal detention for over 14 years after his acquittal of a murder charge.