RAPE COMPENSATION: AN OVERVIEW

The Author is Ms. Saloni Singh who is pursuing LL.M programme from Amity University, Lucknow and have completed her B.com LL.B from Banasthali Vidyapith, Rajasthan.

Introduction

Sexual abuse on women is a common phenomenon in our country. Under sexual abuse comes in many forms; rape, molestation, eve-teasing, child sex abuse, marital rape, domestic violence. Rape is the most heinous crime which is committed against women. It is a crime that shatters a women’s soul. It is not limited to bodily sufferings but to mental trauma which not just destroys the victim but her family as well. Every age group females are at equal risk. This is something which is affecting our society so seriously that it is impossible for women to feel safe even in their homes.  In spite of so many laws and amendments this issue still remains an alarming one. We all need to sanitize the society on this otherwise we have no idea that how many lives will turn into living hell.

  Nowadays, number of rape and rape victims is increasing so rapidly that something needs to be done. Firstly, we need to make existing laws workable. It needs to be executed in a right manner and at right time. Having machinery is not the solution but its ultimate execution will help the situation. Though the loss of the rape victims could not be calculated in monetary form, however for the sake of restoring the victim to her previous situation, monetary compensation is necessary. In order to save the society and protect the rights of victim,  the state takes the charge towards the victims for getting compensated for the injury claimed.

We all know that justice in criminal system is not the easy task; one need to be very patient about it and due to long time taking procedures sometimes justice gets adversely affected.

There is immense failure in law as the compensation is paid when these procedures are compiled which is the drawback in those cases in which early disposal is required.

 There is various root cause prevailing in our society relating to failure of state mechanism in justice delivery system to rape victims. Rape involves violation of fundamental right under Article 21 of The Constitution. For every violation there is compensation though money won’t bring back the dignity and innocence but for the sake of physical sufferings financial supports plays a important role. Victim compensation is becoming the main focus in the criminal justice; as attaining justice in criminal reforms is not that easy way in our Indian judicial system. Monetary assistance is just an aid to the victim to mitigate their sufferings and to attain the loss caused through injury. This recent phenomenon is the arousal of victims in legal system. In the ancient law the restitution or compensation was always the main stigma limb for the victim of crime so as to restore the physical harm loss injury caused by the crime they suffered.

 In ancient time the Kings were authorize to safeguard the interest and restore the state in case of loss. Compensation was never a alien concept this is prevalent in Hindu law from the ancient times during the sutra period. The manuscript so encodes liability on the offender or accused to pay compensation in regards for the damage caused by his act to the victim suffering injuries.     In modern times, there are different statutory provisions in criminal justice under which the compensation can be awarded to the victim of crime, viz. Fatal Accident Act, 1855, Probation of Offenders Act, 1958 and Code of Criminal Procedure, 1973.  In pursuance of the recommendations of Law Commission of India in its report[1] a comprehensive provision for compensation to victims of crime has been inserted in section 357 of the Code of Criminal Procedure, 1973 (herein after Cr. P.C.). According  to  s. 357   sub-s. (1)  and sub-s. (3), the court may award compensation to the victim of crime at the time of passing judgment, if it considers appropriate in a particular case in the interest of justice. These provisions make the trial courts and the appellate courts competent to award compensation to the victims of crime only after trial and conviction of the accused. These powers to award compensation are not subsidiary to other sentence, but it is in addition there to.[2]

The judiciary perceived criminal justice as the main stigma to impose punishment to offenders but the law has groundbreaking reforms as in synchronization with the international perspective where gradually the victim of crime has the fundamental right to attain compensation as for the rehabilitation and reparation of the harm and injury inflicted as on the victim. No uniform code or system runs to advocate the gesture in our legal system, but the legal position with time has now evolved after the year2008. In India, the compensation law in order to cope up with all the cases needs to enhance, expand and reviewed its governing principles. The compensation should not only be limited to penalizing the wrong doer by way of punishment, fines and forfeitures realized but the State should provide for the victim’s assistance out of its own funds. The State has to regulate the relationship between the victim and wrong doer to maintain the harmony and peace in the society and to serve the justice.

Hence, state should consider every aspect of victim’s sufferings while granting compensation so that proper justice can be done.

In case of victim‘s death; ‗dependent ‗[3]can claim on behalf of the victim of crime.

In India as the growing inclination towards the west and people as the benefit of availing education and knowledge in different sects have evolved so that today men and women tends to stand equal. The growing storms of feminism are electrified as the racism and discrimination in the society is so raised as the hierarchy of men dominated society exist and does not seems to end; from the very birth and till the work place; where the developing nations are working hard to eliminate this and make the legal system strong to stop such eradication people with the old conception tend to commit crimes as they are not still on the verge to accept the change which has led social imbalances, the mentality to stop women from achieving any identity and the fact to overrule women at ever possible place people commit offence which are so brutal and inhumane. From where the development is at door we have adhered ourselves as if all are so treated equal and given opportunity to grow and excel.

The fact that crimes against women, children and crimes against modesty are arising due to lack of compensation and liability but as the law tends to get strict against such offences and in order to protect the victim of crime. The legislature and judiciary are working so propounding and proposing case laws and schemes and funds to safeguard the interest and life of victims of rape and victims of acid attack survivors.

Basically, the aim of criminal justice system is to protecting and preserving the rights of its citizens against the intentional invasion by criminals who pollutes the society by infringing the norms of society. The victim has the right to get justice, to remedy for the loss suffered by him as result of crime against him. This is different from and independent from of the right to retribution, which is governed by Rule of Law. If the state fails in discharging its responsibility then the state must provide for the mechanism for the compensation to the victim of crime. The state is duty bound to do so in order to maintain social balance and justice in the society.

                                                          SUGGESTION:

No compensation can be adequate in order to redress the loss caused by such a heinous crime but the state authorities has failed in protecting victim’s fundamental right from such a serious violation, so here the state authorities is duty bound to give adequate and meaningful compensation which may help in the victim’s rehabilitation. So here are some suggestions in order to make compensation laws more realistic and meaningful in doing justice with the victim as well as with society:

·         Victims should be informed of their role and scope, timing and progress of the proceedings and also of the disposition of their cases especially where serious crimes are involved and where they have requested such information.

·         Proper assistance to the victims must be provided throughout the proceedings.

·         Avoiding unnecessary delay in disposition of cases and the execution of order and decrees which are granting relief to the victims.

·         Measures to minimize inconvenience faced by the victims during the case proceedings and protect their privacy and safety when necessary. Ensure the safety of their family’s as well as of witness from intimidation and retaliation[4].

·         Delay in payment of compensation should be avoided at all costs.

·         Establishment of institutions for rehabilitation and also medical teams should be made more active in order to provide assistance in urgent cases.

·         Development of better schemes so that the victims can avail compensation at early in order to meet the medical as well as procedural expanses.

·         Governmental fund for victims should be made and secured by the government so that they can meet such contingent situation.

·         Amendments should be made in the compensation laws as per the requirement from time to time to make the laws more workable and reliable in the situation.

·         Judiciary should be more active in disposing of the case as well as in interpretation the law. Wider scope of judicial interpretation must be there.

·         Quantum of compensation should be such that it can help the victims for their rehabilitation. Sufficient amount of compensation should be secured by every victim of crime.

·         Well-versed investigating officer and any other officer must be hired in case of such serious violation of victims right.

·         Principle of justice and fairness in the protection of victims’ interest must be encouraged throughout the procedures by the authorities. There should be no scope of any sort of favoritism to anybody.

·         Encourage more research in the same field in order to make laws more impactful and workable in situation like these for the victim’s satisfaction.

CONCLUSION:

Crime is regarded as serious failure and disruption in state mechanism; where the state fails in protecting the fundamental rights and welfare of its citizen. However the machinery may fail due to poor work or failure of tools and other insufficiency. The state to procure things in harmony again needs the legislation to ensure and fix the situation.  Compensation law is here redeemed the loss suffered by the victims due to such heinous crimes. Though money cannot undo which is already being done but it can at least help the victim in his rehabilitation.

Where crime is result of infringement of the human rights and liberties of the victim by offender. State takes the plea to restore and take actions against offender. But today the victim‘s compensation and satisfaction is also the focus of the state to safeguard human interest and restitution of same.

Crime addressed in our society in terms of punishment to wrong doer and restitution of the victims. The law and the court should act as the arbitrator between the state, victim and offender and should keep balance in justice delivery system. The theory of restitution can solve the conflict forced due to criminal law. The victim and the whole world as a general opinion of inner justice of punishment that looks not an immoral repaying of evil with evil but with good as it may create some sort of respect for law in the eyes of offender thus it demands that the victim of crime should forgive and forget the offender and the offender must pay the indemnity for his heinous act. If the first and foremost aim of criminal law is the protection of society and maintaining harmony then the second should be compensating the victim for the loss suffered by him due to failure of state mechanism.

 With the development in the concept of welfare state it is now felt that the administration of justice should be as such it will help the victims in their rehabilitation and restitution in more expeditiously and adequate manner rather than a long winding civil litigation against the offender. Moreover, the State having being failed in protecting the rights of its citizens, ought not to run away from its prime responsibility to rehabilitate the victims by making the adequate compensation for the loss suffered by him specially when nothing substantial can be recovered from the offender by way of reparation.

In India, penal laws provides for the compensation of the victims. Other nations of the world have introduced some or other schemes for dealing with the same. Though the enforcement machinery for proving the compensation to victim is different in very nations as per their need and requirement. Here in India, the programmes relating to this matter is not well implemented as compared to other nations. Legislature and Judiciary from time to time have taken steps to evolve the compensation law in India in order to give adequate and meaningful compensation to the victim of crime. Legislature have enacted two laws for this purpose namely the General Law and Specific Law and Judiciary also through cases have taken active role in making necessary changes in principles governing compensation law in India.

State is stepping ahead after the 2008 amendments in the Criminal Law which provide for the victim compensation scheme in order to rehabilitate victim. After 2013 Amendments in Criminal Law has definitely enhanced the ambit of justice towards women in India.

The fundamental duty of State towards its citizen is to safeguard their fundamental rights and provide adequate compensation in case of failure for their rehabilitation. Accused is libel for both penal punishment and to indemnify the loss but where accused is insufficient to indemnify the loss, it is the prime duty of State to indemnify as infringement is the result of State’s failure.

Hence, it could be concluded that some rights have been granted in our criminal justice system to the victims but still there is scope of enhancement, state machinery needs to be more serious in implementing and executing the law as mere having a law won’t make any difference but its proper implementation and execution will.

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[1] 41st Report, Law Commission of India on Indian Penal Code,1860 (1969)

[2]Gaur, K.D., Criminal Law and Criminology 851, Eastern Book Company, Lucknow, (2002)

[3] Under Delhi victim compensation scheme, dependent like mother, father, wife ,husband, minor children, unmarried daughter, are empowered to collect and claim reimbursement.

[4] K.D Justice to victim’s  crime: A Human Right Approach, eastern book company, Lucknow, 2004. P 361 .