Victims of any crime and of human rights violations (regardless of their legal status) have a right to be compensated for the losses sustained due to the crime committed on her/him. Compensation can be sought through criminal, civil or administrative procedures, and can be awarded for material (including unpaid wages and medical expenses) and non-material (such as for pain, suffering and trauma) damages). The victim of a criminal act can claim for compensation from the offender as part of a criminal case. Compensation has to be ordered by the court and is part of a guilty verdict. In criminal cases victims can directly apply for compensation and thus, it is important that prosecutors are aware of the existence of this right to request the judge to make such order. Trafficked persons, as with all victims of human rights violations have a right to a remedy. This means they have a right to access criminal, civil and/or administrative procedures for seeking financial redress – compensation for material and non-material damages resulting from the crime committed to them, unpaid wages, restitution from the offender and other forms. The Legal Professionals should lobby with their governments for such compensation which is. Once such compensations become mandatory there will be reverse pressure on the Law enforcement to break the criminal networks which
In India the National Commission for Women has proposed a Criminal Injuries Compensation Board for the payment of compensation to victims of Rape . This proposal has been done on the Directives issued by the Supreme Court of India in the case Delhi Domestic Working Women’s Forum Vs. Union of India and others writ petition (CRL) No.362/93 had directed the National Commission for Women to evolve a “scheme so as to wipe out the tears of unfortunate victims of rape’’ The Supreme Court observed that having regard to the Directive principles contained in the Article 38(1) of the Constitution, it was necessary to set up criminal Injuries compensation Board, as rape victims besides the mental anguish, frequently incur substantial financial loss and in some cases are too traumatized to continue in employment. The Court further directed that compensation for victims shall be awarded by the Court on conviction of the offender and by the Criminal Injuries compensation board whether or not a conviction has taken place. The Board shall take into account the pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurs as a result of rape.
Salient features of the Scheme of Rehabilitation of Trafficked Victims is as follows:
DISTRICT MONITORING COMMITTEE –
The State Government shall establish in every District, a Monitoring Committee, which shall be headed by the Superintendent of Police of the District. The committee shall comprise of the following other members, whom the District Collector/District Magistrate would nominate:
(i) A police officer, preferably a woman
(ii) A woman social activist or a counsellor;
(iii) A Lawyer
(v) A Medical doctor;
(vi) A representative of the Panchayati Raj Institution or Municipality
The District Monitoring committee shall perform the following functions;
(a) To arrange for psychological and medical aid and counseling to the victim.
(b) To arrange for legal aid to the victim in filing the FIR till the conclusion of the trial;
(c) To initiate suitable measures to ensure the protection of the victim and witnesses till the conclusion of the trial.
(d) Monitor and expedite the progress of the investigation.
(e) To aid and assist in opposing bails, filing appeals and making
application for protection of the victim.
(f) In cases of young victims, to see that they receive education or
professional training or training for self-employment.
(g) To assist them in securing employment.
(h) To provide the required psychiatric treatment/counseling
(i). To facilitate the victims’ rehabilitation.
(j) Initiate action so as to ensure Anonymity of the victims.
(k) Ensure that Interrogations of the victim be conducted by female police
officers. During all stages of interrogation and examination of the victim or the applicant, at least one member of the DMC is present.
(l) To arrange shelter to the victim, for such period as the circumstances warrant.
(m) And such other functions as may be deemed expedient and necessary by the committee given the peculiar facts and circumstances of each case;
PROCEDURE FOR TRANSACTION OF BUSINESS BY THE DISTRICT BOARD (CIRRB):
(a) A victim, or her legal heir or any person/voluntary organization espousing the cause of women, or DMC may apply to the District Board for financial relief and rehabilitation in accordance with the provisions of this Scheme.
(b) Where the legal heir is:—
(i) A child, the application may be made on his behalf by a parent or guardian or by any voluntary organization.
(ii) A mentally ill person within the meaning of the Mental Health Act, the Application may be made by the person with whom the victim normally resides or a duly authorized medical officer or a voluntary organization; or by a parent/guardian.
(c) An applicant shall submit the following documents, as applicable, with the application:
(i) Medical certificate, where the application is being made by or on behalf of the victim; or
(ii) The death certificate of the victim, where the application is being made by a legal heir.
(iii) Copy of FIR/Complaint.
(d) On receiving the application and after having been prima facie satisfied that a case of rape has been made out, the Board shall order an interim financial relief of Rs.20, 000/-.
(e) The Board shall as far as possible grant the interim relief within a period of three weeks from the date of receipt of the application;
(f) Before awarding the interim and other relief’s, the Board shall satisfy itself about the claim, make a preliminary assessment about the nature of the claim as well as take into account the medical report and other evidences;
(g) The Board shall take the assistance of the District Monitoring Committee before arriving at any decision
(h) The Board may take other measures for the purposes of the rehabilitation or any special needs of the victim in addition to the financial relief
(i) In case of victims who belong to schedule caste / schedule tribes, the provisions of the scheme shall be in addition to the provisions prescribed for grant of relief under the scheduled caste and the scheduled tribes (prevention of atrocities) Act 1989. However, the District Monitoring Committee while deciding the relief under this scheme shall take into account the compensation payable to the SC/ST victim under that Act.
(j) The Board shall dispose the application for relief and rehabilitation within one month from the date on which the complainant gives her evidence or within one year from the date of receipt of the application whichever is earlier; In deciding the application for financial relief, the Board shall be guided by, but not completely controlled by, the stand of the applicant in the trial.
(ja) the Board shall release balance amount of RS 1.30 Lakh and any amount unspent towards relief and rehabilitation measures to the victim subject to the fixed limit as prescribed
(k) The Board shall as far as possible, award financial and other relief’s, as per the heads specified in the scheme.
(l) Award the compensation to the victim in lump sum subject to a maximum of Rs.2, 00,000/-. While awarding the final relief, the Board shall take into account the interim and other reliefs granted.
(m) The Board shall be guided by the peculiar needs of the victim in deciding the amount of compensation to be granted in each case;
(n) The financial relief that is awarded by the Board is in addition to rehabilitation measures that the Board may suggest/ administer in each case.
(o) In cases where the victim is a minor, the amount shall be paid to her guardian or next friend after satisfying itself about the legitimacy of the person for relief and rehabilitation of the victim;
(p) The Board shall keep the Best interests of the victim in mind at all times;
(q) The Board May reject any application where it is of the considered opinion that:-
(i) The applicant failed to take, without delay, all reasonable steps to inform the police, or other body or person considered by the Board to be appropriate for the purpose, of the circumstances giving rise to the injury; or
(ii) The applicant failed to co-operate with the police or other authority in attempting to bring the accused/assailant to justice; or
(iii) The applicant has failed to give all reasonable assistance to the authority or other body or person in connection with the application;
The Code of Criminal Procedure 1973 as amended by The Code of Criminal Procedure (Amendment) Act 2008 ( 5 of 2009) has now an added provision in the form of the section 357-A on victim compensation.
Section 357- A
(1) Every State Government in coordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependants who have suffered loss or injury as a result of the crime and require rehabilitation.
This added provision will now be an important tool in the hand of activist to push forward for victim compensation. This is strengthens the provision of Victim Protection in SAARC Protocol.
The author is practising Advocate in The Supreme Court of India