Victimology, and Compensation to Victims

The problem it answered

The history of crime and punishment in the whole civilized world reveals a steadily increasing concern with the treatment of the criminal and a virtual blackout of attention to the situation of the victim. Victimology begins from that observation. Every crime produces a victim, and victims — generally considered mere informants or witnesses in criminal trials, assisting the state in its endeavour to punish offenders — are now becoming the focal points of the criminal justice system.

The word, and the definitions

The word victimology was coined in 1947 by Benjamin Mendelsohn, a French lawyer. It is a relatively young branch of academic research whose objective is to gain knowledge about victims of crime and abuse of power, and which has from its inception adopted an interdisciplinary approach, with contributions from academic lawyers, criminologists, clinical and social psychologists, psychiatrists and political scientists. There are specialised international journals, a world society of victimology, and regional and national societies.

Victimology is basically the study of crime from the point of view of the victim — of persons suffering injury or destruction by the action of another person or a group of persons. The study of victimization is the study of crime giving importance to the role and responsibility of the victim and his offender.

The three aims: to analyse the magnitude of the victims' problems; to explain the causes of victimization; and to develop a system of measures to reduce victimization.

Who is a victim. A victim is a natural person who, individually or collectively, has suffered harm including physical or mental injury, emotional suffering or economic loss, or violations of fundamental rights. A person is a victim regardless of whether the crime is reported to the police, regardless of whether a perpetrator is identified, apprehended, prosecuted or convicted, and regardless of the familial relationship between perpetrator and victim. The term also includes, where appropriate, the immediate family or dependants of the direct victim, and persons who have suffered in intervening to assist victims in distress or to prevent victimization.

Separovic's synthesis is the broadest: victims are persons threatened, injured or destroyed by an act or omission of another — of a man, structure, organisation or institution — and suffering may be caused by another man or by another structure where people are also involved. He therefore interprets crime as the violation of basic human rights within the general universal concept of human rights accepted by the international community, with reference to the right to life, health, security and well-being; man-made victimisation is a violation of the human rights of the victim, and crime and victimisation need to be evaluated in terms of the violation of human rights of individuals.

A parallel development in Latin America was expressed by Elias Neumann in 1984, who looked at groups victimised by the legal system itself — victims of police brutality, of torture, or of the non-existence of legal assistance.

Shinder's statement of scope: victimology investigates the relationship between offender and victim in crime causation; it deals with the process of victimisation, of becoming a victim; and in that context it directs much of its attention to the victim-offender sequence, that is the question whether victimization can have criminogenic effects or can encourage crime.

Viano's vocabulary is worth having: victimhood, the state of being a victim; victimizable, capable of being victimized; victimization, the action of victimizing or the fact of being victimized; and victimizer, one who victimizes another.

The two sub-areas. First, the scientific study of criminal behaviour and of the nature of the relationships between offender and victim. Second, the administration of justice, and the role of the system of compensation and restitution to the victim.

The history

Before organisation. Before society became organised, people merely took the law into their own hands and avenged their victimisation without any restriction or outside interference. The response to victimisation becomes a collective responsibility when individuals became identifiable through their social groups, in the form of clans or tribes.

The invention of compensation. Alternative methods of redressal were developed to reduce violence and to arrest feuding among clans: offenders who had surplus wealth devised the method of offering it to the victims as compensation. This was formalised through the code of Hammurabi, and existed under different connotations elsewhere — the death fines of the Greeks, early Hebrews, Hindus and Turks, the Roman law of the Twelve Tables, and the Law of Moses.

The Golden Age and the fall. In the ancient period criminal law was victim-oriented and victims enjoyed the dominant position in the entire criminal legal system, which is why Stephen Schafer calls it the Golden Age of victims. In the sixteenth and seventeenth centuries, with the industrial revolution, the renaissance and the French revolution, a sea change was noticed in every walk of life, giving birth to the adversarial system. In Schafer's terminology this was the period of decline in the victim's role: criminal law became offender oriented, the sufferings of the victim were entirely overlooked in misplaced sympathy for the criminal, and the victim became the forgotten man of the criminal justice system.

The revival. In the twentieth century, after the close of the Second World War, some criminologists took upon themselves the task of understanding the importance of studying the criminal-victim relationship, in order to obtain a better understanding of crime, its origin and implications. Because of their efforts the United Nations passed a charter for victims' rights, and on similar lines came the European convention on the compensation of victims of violent crime; many states of Europe and America then enacted legislation for victim compensation. Beginning in the 1940s and particularly by the late 1960s the emerging science of victimology significantly boosted the victims' status, while the growing movement for women's rights and the broadening horizon of human rights jurisprudence influenced and promoted victims' interests.

Restitution as a theory of punishment

A fifth theory of punishment, restitution, gained significant ground in the twentieth century and is becoming more important in criminal procedure as technology advances and the criminal law becomes more moderate. The theory interprets the debt to society the criminal incurs through his offence in a more mercantile and perhaps more humane sense: in addition to suffering society's retribution, could the criminal's debt not also be paid through valuable service to the community and to the individuals he harmed?

While criminals serving active prison sentences have no real opportunity to recompense those they harmed, the methods of modern criminal justice are rendering active incarceration less necessary — more intensive probation, jail time served at weekends, and house arrest enforced by an electronic ankle bracelet allow convicted criminals to perform services or render payments while serving their sentences. Examples of compensatory punishment might be a thief who serves jail time at weekends but is allowed to work and live at home during the week on condition that he pay back the business he stole from plus damages, or a sexual offender placed under house arrest for a year and allowed to go to work on condition that he pay for psychiatric treatment for his victim.

Compensation fits the traditional purposes of punishment surprisingly well. Uncompensated labour can be a very unpleasant experience for people accustomed to thinking only of themselves, which is often the case in criminal offenders; the burdensome inconvenience of house arrest, weekends in jail, community service and handing away hard-earned paycheques can serve as adequate deterrence in individuals and in general, and has the potential to satisfy the requirements of retribution; while hardened criminals usually require more secure forms of restraint, electronic homing devices and strict probation are usually enough to restrain a majority of offenders; and the potential for rehabilitation is considerably stronger for criminals given the opportunity to experience what it is to work and give back to the people they have injured and to society as a whole.

The ancient Indian position

Reparation or compensation as a form of punishment is recognised from ancient times in India. In ancient Hindu law, during the Sutra period, the award of compensation was treated as a royal right. It was said to be the duty of the King to protect the property of his people, so that if the King could not restore the stolen articles or recover their price for the owner by apprehending the thief, it was deemed his duty to pay the price to the owner out of his own treasury, recovering it in turn from the village officers who by their negligence were accountable for the thief's escape. The law of Manu requires the offender to pay compensation and the expenses of cure in case of injuries to the sufferer, and satisfaction to the owner where goods were damaged; in all cases of cutting off a limb, wounding or fetching blood, the assailant shall pay the expenses of a perfect cure or, failing that, both full damages and a fine.

Victim compensation was therefore never an alien concept in the justice delivery systems of this country. The distinction drawn in twelfth-century English law between civil and criminal wrongs is one of the more prominent reasons for the later misconception that compensation belongs exclusively to the domain of civil law.

The statutory scheme

The provisions relating to compensation to victims of crime are found in sections 250, 357 and 358 of the Code of Criminal Procedure 1973, section 5 of the Probation of Offenders Act 1958, and sections 140 to 144 of the Motor Vehicles Act 1988.

Section 250 deals with compensation in a case instituted upon a complaint, or upon information given to a police officer or magistrate, on false or frivolous accusations; it does not apply to a case instituted on a police report or on information given by a police officer regarding a cognizable offence. Five conditions must be fulfilled: the case was instituted on a complaint or on such information; the person against whom it was made must be accused of an offence; the offence must be triable by a magistrate; the magistrate discharges or acquits the accused; and there was no reasonable ground for making the accusation.

Section 357 provides, where a court imposes a sentence of fine or a sentence of which fine forms a part, including a sentence of death, that the whole or any part of the fine recovered may be applied to (a) the expenses properly incurred in the prosecution; (b) the payment of compensation for any loss or injury caused by the offence, where in the court's opinion it is recoverable by that person in a civil court; (c) where the conviction is for causing death or abetting it, compensation to persons entitled to recover damages under the Fatal Accidents Act 1855; and (d) where the conviction includes theft, criminal misappropriation, criminal breach of trust, cheating, or dishonestly receiving or retaining stolen property, compensation to a bona fide purchaser of that property where it is restored to the person entitled. Where the fine is imposed in a case subject to appeal, no payment is made before the appeal period has elapsed or, if an appeal is presented, before its decision.

Under section 357(3), where a court imposes a sentence of which fine does not form a part, it may, when passing judgment, order the accused to pay by way of compensation such amount as may be specified to the person who has suffered any loss or injury by reason of the act for which the accused has been so sentenced.

Its object is to provide compensation to those entitled to recover damages from the person sentenced, even though the fine does not form part of the sentence. In awarding compensation the court must decide whether the case is one to be so treated; and the capacity of the offender to pay must be determined, because the object is to collect the fine and pay it to the victim, and the purpose will not be served if the offender has no capacity to pay and a sentence in default is imposed. An Appellate Court, Sessions Court or High Court exercising revision may also make an order under the section; and a civil court awarding damages in a later suit relating to the same matter should take into account any sum paid or recovered as compensation under it.

Section 358 deals with compensation to those arrested without any grounds: if the magistrate holds that the arrest was made without sufficient ground, he can pass orders of compensation for such an arrest.

Section 5 of the Probation of Offenders Act 1958 empowers the court to order a released offender to pay compensation and costs in appropriate cases, recoverable as a fine as under section 357.

Under sections 140 to 144 of the Motor Vehicles Act 1988 an application for recovery of damages may be filed within six months of the accident to the Motor Accident Claims Tribunals, and an action for relief in the criminal courts initiated.

The structural limitations

These legal provisions make it clear that the victim or his dependants have no legal right to claim compensation from either the offender or the State; the courts have no wide powers to deal with the plight of victims and must award compensation within the framework of these provisions.

The reluctance of courts to enforce the provisions relating to fines is a bottleneck, and it has two causes: the courts think that in most cases the offender is not capable of paying the compensation, and they are hesitant to keep files open indefinitely because of an increasing workload, and so award other sentences. The Law Commission of India in its 41st report expressed its view about the rigid attitude of the courts and the rare use of the provision.

There are further distinctions. Fines under the Code are part of the penalty, whereas under the Probation of Offenders Act the payment has no penal element; and under section 357 of the Code, where no fine is imposed, no order of compensation can be passed.

The Fifth Law Commission, in its 42nd report, dealt with compensation to victims of crime in India and highlighted three patterns of compensating victims reflected in the Codes of France, Germany and the former Russia: compensation by the state; compensation by the offender, either from the fine imposed or a specified amount; and a duty to repair the damage done by the offender. Among many later reports, the 142nd, 144th, 146th, 152nd, 154th and 156th made important contributions.

The Malimath Committee reflected that not only was the victim's right to compensation ignored except as a token provision under the Code, but the right to participate as the dominant stakeholder in criminal proceedings was taken away from him: he has no right to lead evidence, he cannot challenge the evidence through cross-examination of witnesses, nor can he advance arguments to influence decision-making.

The institutional response

The Protection of Human Rights Act 1993 was enacted nearly five decades after the United Nations adopted the Universal Declaration of Human Rights in 1948, with the aim of protecting the human rights guaranteed by the Constitution. The function of the National Human Rights Commission is detailed in section 12 of the Act, which gives it power to inquire into complaints of human rights violations or of public servants' negligence in preventing such abuse, and empowers it to recommend measures for the effective implementation of constitutional and legal safeguards. Since the enactment, the Commission has worked as a watchdog, providing protection to people victimised and whose rights have been infringed by the commissions or omissions of the State.

The Indian Society of Victimology, established in 1992, drafted the Victims (Criminal Injuries) Right to Assistance Bill 1996, providing assistance to victims of criminal injuries and abuse of power, and setting out the whole scheme regarding the institution of funds, the machinery for their distribution, the eligibility of the victim, and the method of computing compensation.

The jurisprudential complaint. While victimology has grown rapidly in many countries, in India it has been understood more as a method of sentencing the perpetrator of the crime than as a method of restituting the victim.

Compensation to victims of crime

Hari Shankar v Sukhbir Singh (1988). The Supreme Court directed all trial courts to exercise the power of awarding compensation to victims of crime under section 357 liberally, so as to meet the ends of justice in a better way. That approach is now visible across cases of rape, homicide, State lawlessness and custodial violence.

Bodhisattwa Gautam v Subhra Chakraborty (1996). The respondent complained that the appellant had developed a sexual relationship with her on the false assurance of marriage, had compelled her to undergo two abortions, and had ultimately deserted her. Held: the Court has jurisdiction to pass orders compelling the accused to pay maintenance to the victim during the pendency of the criminal proceedings. The case is unique because it held that the court has jurisdiction to award compensation even where the accused is not convicted, given the slow progress of proceedings; and it emphasised that where a court trying a rape case has jurisdiction to award compensation at the final stage, there is no reason to deny it the right to award interim compensation.

Dr Jacob George v State of Kerala (1994). The case related to causing the death of a woman while performing an abortion with her consent. The Supreme Court reduced the sentence of four years' rigorous imprisonment imposed by the High Court to two months' imprisonment, already undergone, but enhanced the fine from Rs 1,000 to Rs one lakh, to be paid to the deceased's minor son. The sentence was modified because the ultimate aim was the rehabilitation of the victim's minor son — the clearest illustration in Indian law of a sentence being restructured around the victim rather than the offender.

State of Punjab v Ajaib Singh (1995). The Court went a step further, granting a large compensation to the victim even after acquitting the accused, since during the pendency of the trial the accused had offered to pay a sum of Rs five lakhs to avoid litigation. The underlying facts were an incident of 16 December 1976 on the G. T. Road at Phagwara in which two Punjab Traffic Police officers fell out over the authority to check a truck, resulting in the death of an Assistant Sub-Inspector and a constable by shooting from the service revolver of a Sub-Inspector; the question before the Court on special leave was whether the High Court's order of acquittal was so palpably erroneous or perverse as to warrant interference.

Delhi Domestic Working Women's Forum v Union of India (1995). The Court gave a broader interpretation to the term victim to include those whose basic human rights have been violated, holding that the jurisdiction to pay compensation is part of the overall jurisdiction of the courts trying the offence of rape, which is an offence against basic human rights and the fundamental rights of liberty and life.

Inder Sinha v State of Punjab. On proven evidence of violations of human rights committed by the Punjab police, the Supreme Court ordered compensation to be paid by the State as a token for its failure to enforce law and order and protect its citizens.

Compensation to victims of abuse of power

Compensation for abuse of power came through the writ jurisdiction and the wider connotation of Article 21. The Supreme Court attempted to fill the lacuna in compensation for police excesses by using its power under Article 32, and Article 21 became a sentinel of the poor against governmental lawlessness.

Rudul Shah v State of Bihar (1983). The Court granted compensation of Rs 35,000 against the lawless act of the Bihar government which had kept the petitioner in illegal detention. Its reasoning is the foundation of the whole branch:

• Refusal to pass an order of compensation would be doing mere lip-service to the petitioner's fundamental right to liberty which the State Government had so grossly violated.
• Article 21 would be denuded of its significant content if the power of the court were limited to passing orders of release from illegal detention.
• One of the telling ways in which the violation of the right can reasonably be prevented, and due compliance with the constitutional mandate ensured, is to compel its violators to pay monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present the State as a shield for their protection. The State must therefore repair the damage done by its officers to the petitioner's rights; it may have recourse against those officers.

People's Union for Democratic Rights v State of Bihar (1987). About twenty-one people, including children, died and many more were injured due to ruthless and unwarranted police firing. The Court laid down a working principle: ordinarily, in the case of death, compensation of Rs 20,000 is paid. It added the necessary qualification — this is not to suggest that in the case of death the liability of the wrongdoer is absolved when Rs 20,000 is paid, but that as a working principle, for convenience, and with a view to rehabilitating the dependants of the deceased, such compensation is being paid.

Nilabati Behera v State of Orissa (1993). A case of custodial death. The Court reiterated that in cases of violation of fundamental rights by the State's instrumentalities or its servants, the court may direct the State to pay compensation to the victim or his heirs by way of monetary amends and redressal, and that the principle of sovereign immunity is inapplicable in such cases. The State was directed to pay Rs one lakh to the deceased's mother, and the other liabilities of the respondents or any other persons for custodial death remained unaffected. The Court held that it is not helpless, and that the wide powers given to it by Article 32 — itself a fundamental right — impose a constitutional obligation to forge such new tools as may be necessary for doing complete justice and enforcing fundamental rights, which enable the award of monetary compensation in appropriate cases. In support it referred to Article 9(5) of the International Covenant on Civil and Political Rights 1966, holding that the provision indicates that an enforceable right to compensation is not alien to the concept of a guaranteed right.

D. K. Basu v State of West Bengal (1997). Reaffirming Nilabati Behera, the Court laid down four propositions that now govern the field:

1. It is a well accepted proposition in most jurisdictions that monetary and pecuniary compensation is an appropriate and indeed an effective, and sometimes perhaps the only suitable, remedy for the redressal of an established infringement of the fundamental right to life of a citizen by public servants. The State is vicariously liable, the defence of sovereign immunity is not available to it, and the citizen must receive the amount from the State, which shall have the right to be indemnified from the wrongdoer.
2. In assessing compensation the emphasis is on the compensatory and not the punitive element. The object is to apply balm on the wounds and not to punish the transgressor or the offender; awarding appropriate punishment for the offence, irrespective of compensation, must be left to the criminal courts in which the offender is prosecuted, which the State in law is duty bound to do.
3. The award in the public law jurisdiction is without prejudice to any other action, such as a civil suit for damages lawfully available to the victim or the heirs of a deceased victim in respect of the same tortious act.
4. The quantum will depend on the peculiar facts of each case, and the amount awarded and paid by the State may in a given case be adjusted against any amount later awarded as damages in a civil suit.

The case is best known for its directions on custodial torture: the Court concentrated on the problem, defined torture, analysed its implications, and issued a number of directions to eradicate the evil.

The apex court's approach has given a boost to victims and to compensatory jurisprudence in India. But whatever little effort has been made should not die as a populist movement, as has happened with many innovative measures; it therefore seems necessary to institutionalise it by suitably amending the existing provisions of the Code and by a separate legislation dealing with compensation to victims of crime, laying down norms for determining the quantum of monetary compensation as well as the responsibility for primary assistance and other services to victims traumatised both physically and psychologically.

Two further points close the subject. First, when viewed from the broader perspective of human rights, victimology encompasses more than victimisation and victims' rights; in India it has been confined within the realm of criminology and therefore understood as including only victims of crime, and the broader interpretation helps us come out of that mode of thought to include other victims as well. Second, the media has a role: some victims are further victimised by media that fiercely compete to report sensational news, particularly crime news, and such reports more often than not have an adverse effect on victims. The media must realise the power it wields and use it judiciously and responsibly, for the media, like the State, must always attempt to preserve social order.

- On the definition, nature and development of victimology, give Mendelsohn and the date, the three aims, Separovic's human rights framing, and Schafer's Golden Age and decline. That is a complete answer to the first head of the module. - On the victim and the criminal justice system in India, use the Malimath Committee's four disabilities — no right to lead evidence, no cross-examination, no argument, and compensation as a token provision — and then the structural point that the victim has no legal right to claim compensation from either the offender or the State. - On the concept of compensation, keep the two lines separate: compensation to victims of crime under sections 250, 357 and 358 and the Probation Act; and compensation to victims of abuse of power under Articles 32 and 226 through Rudul Shah, PUDR, Nilabati Behera and D. K. Basu. - On rehabilitation and reconciliation of victims, use restitution as a theory of punishment, the compensatory punishment illustrations, and Jacob George, where the sentence was restructured around the rehabilitation of the victim's son. - On the ancient position, the King's treasury rule and the law of Manu are the strongest available answer to any claim that victim compensation is a Western import. </content>