PROJECT REPOR REP ORT T
Retrospective justice and compensation to victim’s crime
Submitted to:-
Submitted by:-
Dr. Gurjinder
Nishant Jilova 105/10 Section B Semester X
Acknowledgement Page | 1
I would lie to than our honora!le teacher Dr. Gurjinder "or without her valua!le #uidance$ constant encoura#ement and detailed a%%roach would not have made it %ossi!le "or me to mae a %ro%er research "or the to%ic & Retrospective justice and compensation to victim’s crime,' (er %r)cised e*am%les$ detailed descri%tions and enthusiastic a%%roach made m+ e""orts to "lourish in a ri#ht direction. ,he wor contained herein is an amal#amation o" the remara!le wor o" various authors and I am than"ul to them "or their %u!lications that have hel%ed me %re%are this research %a%er to the !est o" m+ a!ilities. Nishant Jilova
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Table of Contents Introduction........................................................................................................................Ste%hen Scha"er studied e*istin# com%ensation schemes in countries in 155 and #ave the "ollowin# su##estions..........................................................................................5 ,he Declaration reco#ni2ed the "ollowin# ri#hts o" victim o" crime..................................3 ,he main o!jectives o" this article are................................................................................4 aws relatin# to 6om%ensation..........................................................................................4 6onclusion.......................................................................................................................11 Bi!lio#ra%h+....................................................................................................................1-
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INTR!"CTIN 7estorative justice revolves around the ideas that crime is$ in essence$ a violation o" a %erson !+ another %erson 8rather than a violation o" le#al rules9: that in res%ondin# to a crime our %rimar+ concerns should !e to mae o""enders aware o" the harm the+ have caused$ to #et them to understand and meet their lia!ilit+ to re%air such harm$ and to ensure that "urther o""ences are %revented: that the "orm and amount o" re%aration "rom the o""ender to the victim and the measures to !e taen to %revent remem!ers o" their communities throu#h constructive dialo#ue in an in"ormal and consensual %rocess: and that e""orts should !e made to im%rove the relationshi% !etween the o""ender and victim and to reinte#rate the o""ender into the lawa!idin# communit+. ,he %ro%onents o" the restorative justice ar#ue that %unishment societ+;s customar+ res%onse to crime: neither meets the need o" victim nor %revents reo""endin#. 7estorative justice aims at encoura#in# o""enders to tae res%onsi!ilit+ "or the conseictim induces or "acilitates the commission o" crime. ,here are certain o""ences in which the victim %la+s a ver+ im%ortant role and the wors towards the success o" crime$ e.#.$ a!ortion$ %rostitution. ,he stud+ o" victimo""ender relationshi% is$ there"ore$ considered necessar+ toda+ "or determinin# the ictims needs$ ii. to convince the o""ender his res%onsi!ilit+ o" the crime and the loss/injur+/harm caused !+ the crime and
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iii. his lia!ilit+ to re%air the o""ender this %rocess move stress is #iven to reconcilin# the o""ender with the victim and the communit+ !+ voluntaril+ %a+in# com%ensation "or the harm caused. ?hat reictim com%ensation' re"ers to %a+ments made "rom state "unds to victims o" crime. =dvocates o" victim com%ensation have ar#ued that since the state is res%onsi!le "or %rotectin# its citi2ens "rom crime$ the "ailure to do so o!li#ates the state to indemni"+ those who are victimi2ed. ,he state is !elieved to !e res%onsi!le to the victims !ecause im%risonment %revents o""enders "rom %a+in# dama#es. ,he #eneral wel"are %olic+ also is cited as justi"ication "or #overnmental assistance to the un"ortunate victims o" crime. ,he Indian aw$ as com%ensator+ measures victims o" crimes$ is not in enou#h and this as%ect needs to !e reviewed !+ the le#islature to "rame or enact necessar+ law$ so as to su""icientl+ com%ensate to victims o" crimes and to %rovide sa"e#uards to victims o" crimes$ !esides com%ensatin# him in monetar+ terms.
Ste#hen Schafe$ studied e%isting com#ensation schemes in &' count$ies in (')*-)' and gave the following suggestions i.6om%ensation to victims o" crime could !e !rou#ht within the %urview o" criminal %rocedure and dealt with in the same criminal court which deals with the o""ence. ii. 6om%ensation ma+ !e claimed !+ the victim !ut i" he doesnAt$ the court should deal with it as %art o" its "undamental duties. iii. I" the
iv. 6om%ensation should !e "i*ed with re"erence to o""enderAs economic and social %osition. v. ?here the o""ender is not in a %osition to com%ensate$ the state must undertae its res%onsi!ilities. vi. ,he state should set u% a com%ensation Cund with the aid o" "ine and other sources o" revenue. ,he .N. 6on#ress on Erevention o" 6rime and ,reatment o" @""ender too u% the cause and a contri!uted su!stantiall+ in dra"tin# a declaration o" victimAs ri#ht. It was %laced on the a#enda o" the 4 .N. 6on#ress in Filan$ =u#ustSe%tem!er 15. ,he .N. General =ssem!l+ ado%ted the Basic Erinci%les o" Justice "or >ictims o" 6rime and =!use o" Eower: this declaration is s%eci"icall+ concerned with societal res%onse to the needs o" the victim. The decla$ation deals with two focal a$eas:
8a9 >ictims o" crime and 8!9 >ictims o" a!use o" %ower. ,he "irst cate#or+ relates to conventional de"inition o" crime and the declaration la+s down norms "or %rovidin# "or i. standards "or access to justice and "air treatment$ ii. restitution "rom the ;o""ender$ iii. com%ensation "rom the State and. iv le#al assistance.
The Declaration recognized the following rights of victim of crime i+ Access to ,ustice and fai$ t$eatment - ,his ri#ht includes access to the mechanisms o" justice and to %rom%t redress$ ri#ht to !e in"ormed o" victim;s ri#hts$ ri#ht to %ro%er assistance throu#hout the le#al %rocess and ri#ht to %rotection o" %rivac+ and sa"et+. ii+ Restitution includin# return o" %ro%ert+ o" %a+ment "or the harm or loss su""ered: where %u!lic o""icials or other a#ents have violated criminal laws$ the victims should receive restitution "rom the State. Page | 6
iii+ Com#ensation when com%ensation is not "ull+ availa!le "rom the o""ender or other sources$ State should %rovide "inancial com%ensation at least in violent crimes$ resultin# in !odil+ injur+ "or which national "unds should !e esta!lished. iv+ Assistance victims should receive the necessar+ material$ medical$ %s+cholo#ical$ and social assistance throu#h #overnmental$ voluntar+ and communit+; !ased means. Eolice$ justice$ health$ and social service %ersonnel should receive trainin# in this re#ard
The main ob,ectives of this a$ticle a$e i. ,o now the %ro!lems o" victims$ ii. ,o understand the o""ences a#ainst the victims$ iii. ,o now the laws related to victims$ iv. ,o understand the com%ensation o" victims$ v. ,o now the 7i#hts o" victims$ vi. ,o now the remedies o" victims
aws $elating to Com#ensation ,he %rovision relatin# to com%ensation to the victims o" crime !+ the o""ender are contained in Section H54 o" the 6riminal Erocedure 6ode$ 14H and Section 5 o" the Ero!ation o" @""enders =ct$ 15 and some other statues Section 5 o" the Ero!ation o" @""enders =ct em%owers a trial court$ in its discretion$ to order "or ;reasona!le com%ensation; to an+ %erson "or his loss or injur+ caused to him !+ the o""ender who is released under Section H or Section - o" the =ct. ,he %ower to com%ensate the victims o" crime under Section H54 o" the 6riminal Erocedure 6ode is not a new remed+ %rovided under 6riminal Erocedure 6ode o" 14H. ven Sections 5-5 and 5-3 o" the 6riminal Erocedure 6ode$ 1 %rovided "or com%ensatin# victims o" crime. ,he aw 6ommission o" India noted in its Cort+ Cirst 7e%ort 8139 our courts did not e*ercise their statutor+ %owers under this section as "reel+ and li!erall+ as the+ could !e desired. ,he 6ommission "avored %a+ment o" com%ensation out o" "ine im%osed on the o""ender. =ccordin#l+$ ?ith a view to #ive a su!stantive %ower to the trial court to this Page | 7
e""ect$ it recommended insertion o" a su!stantive %rovision "or %a+ment o" com%ensation to the victim o" crime. nder Section H54819 o" .the 6riminal Erocedure 6ode the court has !een em%owered to order the %a+ment o" com%ensation to the victim o" an o""ence out o" the "ine im%osed on the accused %erson while %assin# an order o" sentence o" which "ine "orms a %art. 6lause 8!9 o" su!section 819 %rovides that "or com%ensatin# the %erson who has himsel" su""ered injur+ or loss when com%ensation is recovera!le !+ a %erson in a civil court. 6lause 8c9 contains a %rovision "or com%ensatin# the heirs and de%endents o" the %erson who is victim o" a homicide. Su!section 8H9 o" Section H54 o" the 6ode$ which was introduced "or the "irst time in 14H$ %rovides that when a court im%oses a sentence o" which "ine does not "orm a %art$ it ma+ direct the accused to %a+ com%ensation. 6lauses 8a9 to 8d9 su! section 819 o" Section H54 re%roduce word "or word clauses 8a98!9$ 8!!9$ and 8c9 res%ectivel+ o" the old su!section 819 o" Section ;5-5 with the onl+ chan#e that de"inite article ;,he; has !een inserted in clause 8a9 !e"ore the word ;e*%enses;. Section H548H9 runs ;?hen a 6ourt im%oses a sentence o" which "ine does not "orm a %art$ the 6ourt ma+$ when %assin# jud#ment$ order the accused %erson to %a+$ !+ wa+ o" com%ensation$ such amount as ma+ !e s%eci"ied in the order to the %erson who has su""ered an+ loss or injur+ !+ reason o" the act "or which the accused %erson has !een so sentenced. It is indeed a ste% "orward in our criminal justice s+stem and re"lects the concerns o" the le#islature "or the victims o" crime who su""er loss or injur+ due to the act$ ne#lect or de"ault o" the accused. ,he o!ject o" su!section 8H9 o" Section H54 is to em%ower the court to award com%ensation to the heirs and de%endents "or the loss resulted "rom the death o" the victim o" the crime. ,he com%ensation should !e %a+a!le "or an+ loss or injur+$ whether %h+sical or %ecuniar+ and the court shall #ive due re#ard to the nature o" the injur+$ the manner o" in"lictin# the same$ the ca%acit+ o" the accused to %a+ and other relevant "actors. ,hus$ !+ the new Section$ the jurisdiction o" the criminal court has !een e*tended to li!erall+ order "or com%ensatin# a victim o" crime "or his loss or injur+ even in those cases where "ine dies not "orm a %art o" the sentence$ which ordinaril+ lies in the domain o" the civil court. ,he restorative and re%arative theories that have develo%ed in res%onse to the %li#ht o" the victims o" crime also underline the necessit+ o" com%ensate the victims o" crime. ,heir =r#ument is that sentence should move awa+ "rom %unishment o" o""ender towards restitution and re%aration$ aimed at restorin# the harm done and calculated accordin#l+. 7estorative theor+ encom%asses the notion o" re%aration "or the e""ects o" the crime. It envisa#es less resort to custod+$ with onerous communit+ !ased sanctions re
su%%ort and counselin# o""enders to reinte#rate them into communit+. Such theories there"ore tend to act on a !ehavioral %remise similar to reha!ilitation$ !ut their %olitical %remise is that com%ensation "or victims should !e reco#ni2ed as more im%ortant than notice o" just %unishment on !ehal" o" the state. ,he Su%reme 6ourt o" India o!served %li#ht o" the ra%e victims in India and e*%ressed serious concern and su##ested that the de"ects in criminal laws !e removed soon. ,he 6ourt o!served as "ollows in Delhi Domestic ?orin# ?omen;s Corum v. nion o" India. ,he de"ects in the %resent s+stem are "irstl+$ com%lainants are handled rou#hl+ and are not #ivin# such attention as is warranted. ,he %olice$ more o"ten than not. (umiliate the victims. ,he victims have invaria!l+ "ound ra%e trials an e*%erience. ,he e*%erience o" #ivin# evidence in 6ourt has !een ne#ative and destructive. ,he victims o"ten sa+$ the+ considered the ordeal to !e even worse than the ra%e itsel". ndou!tedl+ the 6ourt %roceedin#s added to and %rolon#ed the %s+cholo#ical stress the+ had to su""er as a result o" the ra%e itsel".' In view o" this$ the 6ourt laid down the "ollowin# #uidelines "or trial o" ra%e cases i. ,he com%lainants o" se*ual assaults cases should !e %rovided with le#al re%resentation. Such a %erson must !e well ac
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dela+ advocates would !e authori2ed to act at the %olice station !e"ore leave o" the 6ourt was sou#ht or o!tained. vi. In all ra%e trials anon+mit+$ 8name not to !e disclosed9$ o" the victim must !e maintained$ as "ar as necessar+. vii. It is necessar+$ havin# re#ard to the directive %rinci%les contained under =rt.H 819 o" the 6onstitution$ to set 6riminal Injuries 6om%ensation Board. 7a%e victims "reiii. 6om%ensation "or victims shall !e awarded !+ the court on conviction o" the o""ender and !+ the 6riminal Injuries com%ensation Board whether or not a conviction has taen %lace. ,he Board will tae into account %ain$ su""erin# and shoc as well as the loss o" earnin#s due to %re#nanc+ and child!irth i" this accrued as result o" ra%e. ,he National 6ommission "or ?omen should !e ased to "rame schemes "or com%ensation and reha!ilitation to ensure justice to victims o" such crimes. ,he nion o" India shall then e*amine and tae necessar+ ste%s to im%lement them at the earliest. ,he 6ommittee "eels that the s+stem must "ocus on justice to victims and has$ thus$ made the "ollowin# recommendations$ which include the ri#hts o" the victim to %artici%ate in cases involvin# serious crimes and to ade
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iii. ,o now the status o" investi#ation and to move the court to issue directions "or "urther investi#ation on certain matter or to a su%ervisor+ o""icer to ensure e""ective and %ro%er investi#ation to assist in the search "or truth. iv. ,o !e heard in res%ect o" the #rant or cancellation o" !ail. v. ,o !e heard whenever Erosecution sees to withdraw and to o""er to continue the %rosecution. vi. ,o advance ar#uments a"ter the Erosecution has su!mitted ar#uments. vii. ,o %artici%ate in ne#otiations leadin# to settlement o" com%ounda!le o""ences. ,he victim shall have a ri#ht to %re"er an a%%eal a#ainst an+ adverse order %assed !+ the court acictim com%ensation is a State o!li#ation in allserious crimes$ whether the o""ender is a%%rehended or not$ convicted or acictim lo#+ %rovides a tentative "ramewor "or consideration. ,he >ictim 6om%ensation aw will %rovide "or the creation o" a >ictim 6om%ensation Cund to !e administered %ossi!l+ !+ the e#al Services =uthorit+. ,he law should %rovide "or the scale o" com%ensation in di""erent o""ences "or the #uidance o" the 6ourt. It ma+ s%eci"+ o""ences in which com%ensation ma+ not !e #ranted and conditions under which it ma+ !e awarded or withdrawn. It is the considered view o" the 6ommittee that criminal justice administration will assume a new direction towards !etter and
Conclusion ,he e*%andin# universe o" com%assionate criminolo#+ must so res%ond realisticall+ to the new challen#e o" human ri#hts and social justice as to salva#e$ solace and resituate Page | 11
victims o" crime and a!use o" %ower !+ resortin# to new methodolo#ies o" re%arative$ com%ensator+$ %reventive and other judicial remedies. ,he victims o" crime must claim our attention. Injustice to him/her can !e "ull+ undone onl+ !+ recitative justice$ !e+ond %unishment o" the o""ender. ,he most im%ortant interest o" the victims o" crime is restitution$ "rom the victim;s %oint o" view: restitution is !ene"icial !ecause it hel%s to mae whole the victim;s crime related loss. ,he %resent laws in the a!sence o" le#al mandate to %ass an order o" restitution to the victim o" crime in a%%ro%riate case onl+ do li% service to them. Fain# a mandator+ %rovision "or com%ensatin# the victim o" crime !+ o""ender ma+ not solve all the %ro!lems o" the victim o" crime$ !ecause this %rovision also will su""er "rom the same disadvanta#e that the o""ender in most o" the cases would !e dischar#ed or acictimi2ation' !+ the s+stem ma+ lead to disinterest and "uture non coo%eration !+ the victim. ?hen the victim chooses not to coo%erate with the s+stem$ it will colla%se. ,here"ore$ there is a need "or renewal o" em%hasis and enhanced sensitivit+ to the ri#hts o" the victim. >ictim;s ri#ht to assistance is now more acce%ta!le in the develo%ed countries. In India$ thou#h there are ver+ limited le#al %rovisions "or com%ensation to the victims o" crime !+ the o""ender$ it received a ver+ cold rece%tion at the hands o" judiciar+. (ence$ there is an ur#ent need "or streamlinin# the s+stem !+ le#itimatel+ includin# victim;s ri#hts and interests in the Page | 12
s+stem. So also$ the victim should !e made whole with monetar+ recover+ and su%%ort service. In this conte*t$ it is %ertinent to note that the Su%reme 6ourt in State o" Gujarat v. (onora!le (i#h 6ourt o" Gujarat10 directed the state #overnments to "rame law to %a+ com%ensation to the victims o" crime "rom the earnin# durin# their sentence %eriod. Such com%ensation should either !e %aid directl+ to the victims or throu#h common "und to !e created "or this %ur%ose or an+ other "easi!le mode. nactin# a law on these lines will !e in the "ul"illment o" the constitutional o!li#ation o" the State under =rticles H 819 and -1 o" the 6onstitution o" India$ which vouchsa"e justice and eictims o" 6rime and .N. Declaration o" Basic Erinci%les and Guidelines on the 7i#ht to 7e%aration "or victims o" violation o" (uman 7i#hts.
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0ibliog$a#hy
=huja 7am$ criminolo#+ victim in crime$ 7awath %u!lication Division$ New Delhi H$ HH$ H3 80039 5. ,he N General =ssem!l+ Declaration on the !asic %rinci%les o" Justice "or victims o" crime and a!use o" %ower 8159
Government o" India$ K6riminal Erocessor 6ode$ 8144H9 Section$ H54$H54819$ H548H9$ old su!section 5-5. 814H9$ %ro!ation o""ender =ct$ section 5$H and 8159$ aw commission o" India "ort+ "irst re%ort 8139
Srivastava S.S.$ 6riminolo#+ 6riminal =dministration$ Eu!lication division$ central law =#enc+$ NewDelhi$ H5 H4 80049
,he su%reme court o" IndiaAs discussion in the case o" Delhi Domestic worin# womenAs "orm v. union o" India 81-9
,he N #eneral assem!l+As ado%ted Declaration on the !asic Erinci%ls o" Justice "or victims o" crime and a!use o" %ower 8159
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