By Apoorva Mandhani
While India?s criminal justice system has long relegated the victim to the periphery, the recent Supreme Court has ordered an award of maximum compensation of Rs. 10 lakhs to a minor rape victim. This highlights the gradual shift in the perception and acceptance of the concept of victimology and compensatory allowance as a whole.
Tracing the roots of victimology
Research shows that the idea of compensation to victims of crime is an old institution, with the old Hindu Law requiring restitution and atonement. In fact, the Laws of Manu required?compensation to be paid by the offender. In case of bodily injuries, the compensation was to?satisfy the expenses for the treatment, and a fine was to be paid to the King as well. The?obligations to pay damages or compensation, however, became a part of the Civil Procedure?towards the end of the middle ages. The State monopolized the institutions of punishment and the rights of the injured were separated from the Penal Law.
Subsequently, the ?Adversarial System? was born in the 16th and 17th century, with the advent of the industrial revolution, Renaissance and French revolution. This period has been acknowledged as contributing heavily to the decline in the victim?s role in criminal justice system.
It was in the 20th Century, after the close of the World War II, that several criminologists took up upon themselves, the task of understanding the significance of studying the criminal-victim relationship. They did this to obtain a better understanding of the crime, its origin and implication. In India, until 2008, the responsibility to compensate the victim was placed on the convict. However, the futility of the provision was soon realised, with the understanding that most convicts are either too poor or unwilling to honour such provision. An amendment was then introduced, providing for a victim compensation scheme, making it the responsibility of the State to maintain funds for compensating the victims.
The need for compensation
The counter-argument to the assimilation of punishment and restitution has almost always been that punishment must strictly be understood as intentionally inflicting pain. There are supposed to be two main reasons for exclusion of compensation from the purview of punishment per se.
The first is that there is a pre-existing civil law obligation to reimburse the victim for damages so that forced reparation does not add anything in terms of adverse consequences of the crime.
Secondly, even when the compensation order would be accepted in the framework of a criminal trial, it could never be imposed with the intention of inflicting pain on the perpetrator and hence it would still have to be excluded from the list of available punitive sanctions. In other words, antagonists to the scheme have often opined that detention and harsh punishment must be the closing scene of every court room drama.
At this juncture, it needs to be understood that the idea behind providing compensation is legal as well as humanitarian. The case for restitution of victims of a crime primarily rests on two obligations: an obligation of the criminal who inflicted such harm on the victim, and an?obligation of the State which failed to protect the victim. Besides, the expansion of jurisprudence in this context also saves the victim from the agony of fighting a civil suit, in order to seek compensation for the same wrong.
Welcoming the wave of change
Victim?s compensation has always been the weeping beggar at the door of justice. For far too long, the victims of crime have been the forgotten and forsaken lots of the criminal justice?system. In fact, it has been opined that in the absence of such recourse, the entire process might just lead to a ?second victimization? by the system. Thus, there is erosion of the confidence and trust that the common man places on the justice delivery system. However, it also needs to be acknowledged that stakeholders of the system, especially the police and the prosecutors turn apprehensive when they are being told that the only way to take restorative justice seriously is to abandon all beliefs, concepts and objectives attached to the traditional system of criminal law.
For most people, this is just a bridge too far. Therefore, it becomes imperative to promote interest in the potential of restorative justice, by re-emphasizing on the fact that victim?s rights are about improving a system, not about abolishing a system and then starting from scratch. With such understanding and assertions, the current wave of an improved understanding of the need to compensate the victim is definitely worth welcoming and working on.
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