The author of this post is Ekta Chandrakar , Alumni- HNLU Raipur and currently pursuing LLM from Symbiosis Law School, Nagpur
Introduction
The objective of any criminal justice system is to protect people’s rights and society from criminals by punishing the convicts when they break the law. When a person is found guilty, he or she is sentenced to prison, among other things, and undergoes rehabilitation. The criminal justice system focuses entirely on the perpetrator, safeguarding his or her rights, punishing him or her, and utilising all available means to bring about his or her reformation through courts and other agencies. On the other hand, the victim is frequently left aside, with little or no help available.
Within the Indian legal system, the term “victim” is defined under Section 2(wa) of the Criminal Procedure Code, 1973 as, “a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression victim includes his or her guardian or legal heir.” However, following the ideas and footsteps of an international instrument, the roots of victims’ rights have developed in India. Since then, victims have been acknowledged as a part of the criminal justice system, and attempts have been made to better their circumstances. The Indian judiciary began compensating people for their injuries, and it was deemed a necessary component of life under Article 21 of the Indian Constitution and the same was upheld by a Constitutional Court for the first time the case of Rudal Sah vs State of Bihar. There are also a number of legislations that provide for the victim to be compensated, which can be granted by the trial court or a specially constituted claims tribunal.
VICTIM COMPENSATION SCHEME
Section 357 of the Criminal Procedure Code of 1973 expressly authorises the court, in its discretion, to impose a fine or punishment in the case of a death sentence that includes a fine, to pay compensation for the amount claimed by an individual who has suffered any loss or harm as a result of the offence. Victims, on the other hand, can only be reimbursed if the accused is given a substantive sentence, which includes a fine, and not if the accused is acquitted. The court, however, has the jurisdiction to pay compensation for a person’s damage or harm under section 357 (3) of the Cr.P.C, 1973, even if the fine is not part of the penalty. In Balraj vs State, it was held that the capacity to pay compensation is not complementary to the other sentences, but rather an addition to them. Despite such directives, the courts are hesitant to use their powers under Section 357 of the Code of Criminal Procedure. As a result, the courts have curtailed the rights of victims to get sufficient compensation.
With the continuous growing concerns regarding the provision of compensation for victims, Section 357A was inserted vide the Code of Criminal Procedure (Amendment) Act, 2008 in the Code of Criminal Procedure, 1973 as a response to the need to establish a legislative compensation system. This provision paved the way for the creation of victim compensation schemes (VCS), which require the state to compensate victims or their dependents who have suffered loss or harm as a result of a crime and require rehabilitation. This scheme would be applicable in circumstances when the accused’s compensation is insufficient or no compensation is payable due to the accused’s acquittal or release, or when the offender cannot be located or recognized.
The District Legal Services Authority (DLSA) or the State Legal Services Authority (SLSA) must decide on the amount of compensation to be given to the victims, subject to a state-imposed maximum limit. Apart from paying victims, Section 357A seeks to meet their immediate needs for first aid or medical assistance, as well as any other temporary relief that may be required. Almost all states have set up this system in their individual states to offer compensation and other forms of aid to victims and their families, in accordance with the legal mandate.
SHORTCOMINGS UNDER THE VICTIM COMPENSATION SCHEME
Some state governments have rigorously adhered to the scheme’s goal of providing solely compensation, while others have attempted to broaden the scope in order to give comprehensive help to victims. Thus, a major drawback is the inherent inconsistency in the implementation of the scheme with respect to states or districts.
The scheme does not define the term “rehabilitation,” leaving the DLSA/SLSA to interpret it as they see fit.
In the vast majority of states, there is no organisation in place to supervise how the VCS operates. Some have granted the Home, Prohibition, and Excise departments the power to supervise them, while others have given the authority to the legal department. As a result, there is no consistency in this area as well.
The qualifying requirements for granting compensation to victims vary as well, because the states have defined the phrase “substantial” differently.
The process for applying for compensation varies from state to state as well. In some jurisdictions, the procedure is simple wherein the victim makes an application to the DLSA/SLSA, but in others, the application must be accompanied by documents and other items. There are no clear rules for determining the amount of compensation to be awarded. The states set the upper limit, but the DLSA/SLSA set the lower limit at their discretion.
Most states have provisions for providing temporary relief to victims, but in order for it to be accepted, a certificate from the official in charge of the police station is necessary, which may prove to be a difficult effort for the victims. In addition, there is no system in place in the state schemes to provide a justification for the rejection of a compensation claim.
The provision for appeals varies from state to state as well. Some states provide for the right to appeal, while others do not.
The legal service authorities perform a contradictory function because they are supposed to be impartial. They have to deal with the rights of the accused and at the same time have to support the victims to secure them compensation.
As a result, all states have followed the directives and implemented their own compensation schemes. All of the states have similar overall traits, however there are minor variations as stated above. The lack of clearly defined criteria for determining compensation, the authority’s duties not being well defined, absence of monitoring authority for the scheme’s administration, and the outrageously inappropriate and low levels of compensation are some of the flaws of the victim compensation scheme as it operates in states. There are a few more roadblocks in the way of the scheme’s seamless execution.
The central government has issued guidelines about the victim’s compensation scheme, but it has been placed entirely in the hands of the states, who have failed to follow the guidelines and have changed it to suit their needs. The judiciary must act in order to direct all states to follow the guidelines uniformly, ensuring that victims of one state are treated equally to those of another.
THE ROLE OF LEGAL SERVICES AUTHORITIES IN IMPLEMENTING THE COMPENSATION SCHEME
The District and State Legal Services Authorities have been tasked with deciding compensation and giving other interim remedies to the victims. Sections 6 and 9 of the Legal Services Authorities Act, 1987, established the Legal Services Authority at the state and district levels to offer free legal services to underprivileged individuals in society.
The DLSA and the SLSA are the two main agencies responsible for paying crime victims and/or their dependents. The authorities are required to examine the case and verify the facts in order to determine the appropriate amount of compensation for the victims. It is also their responsibility to assist the victims as soon as possible, particularly those who require medical assistance. In addition to the ability to distribute compensation, SLSA has the jurisdiction to decide appeals. Some states have explicitly defined the roles of DLSA and SLSA, whereas others have not. Odisha is one of the states that has listed the DLSA’s functions, which include:
- Providing financial, legal, medical and psychological assistance as per the procedure prescribed
- Arranging support services as well as shelter for the victim
- Providing rehabilitation with educational or professional training
- Issuing directives to the concerned authorities for providing protection to the victim as well as the family.
DLSA/SLSA determines on compensation criteria before deciding on the amount of compensation to be awarded. The losses of the victim, medical expenses incurred, and the minimum sustenance level required for rehabilitation are all considerations they evaluate. These variables differ from state to state.
As a result, both the DLSA and the SLSA must be sensitive to the victim’s grief and pain, as well as their demands and problems. Directives must be given to ensure that they get the best deal available in order to rehabilitate, re-assimilate, re-socialize, and live a good life. The procedure of transition must be made as simple as possible, and the burden imposed on the victims in obtaining certificates and other documentation work should be kept to a minimum.
Interim help must be provided to victims, especially in cases of gang rape, acid attacks, and other severe crimes with little or no formalities or other technical procedures. As a result, the primary agencies, DLSA and SLSA, shall make every effort to give immediate assistance to the victims.
CONCLUSION
Victim compensation is still in its infancy in India, and it is in dire need of modifications. We must continue to push for the attention of policymakers in order to assist the victims. This method of paying compensation to victims of crimes has, at the very least, given them some comfort. This assists victims in overcoming their misfortunes and dealing with the harm and injuries that ensue. However, while looking at the other side of the coin, this system still has a number of faults and drawbacks that function as roadblocks. As a result, both the administrative processes and the plan must be enhanced in every way to completely meet the needs of victims and to provide them justice.
Preferred Citation: Ekta Chandrakar , VICTIM COMPENSATION SCHEME AND THE ROLE OF LEGAL SERVICES AUTHORITIES IN ITS IMPLEMENTATION , The Criminal and Constitutional Law Blog, Published on 21st July 2021