“To those who abuse: the sin is yours, the crime is yours, and the shame is yours. To those who protect the perpetrators: blaming the victims only masks the evil within, making you as guilty as those who abuse. Stand up for the innocent or go down with the rest” ― Flora Jessop, Church of Lies
Today government jobs and massive ex gratia payments are indiscriminately being offered to the families of victims of crime — often even before the police investigation has begun. This has become a fairly common trend. The motive is cheap popularity— the idea behind all this is to consolidate the vote bank in the victim’s caste, community, or religion. The minister or politician who never met and did not even know the victim — suddenly wants to shed crocodile tears and appear generous and compassionate — in the eyes of the family and friends of the victim. On some other occasions, these sugar-coated announcements are made to quell public anger and divert attention away from the outrageous crime. In other words, if the police are not able to apprehend the culprits and public anger is mounting, the government tries to ‘buy’ peace by such ‘placatory gestures’. This practice has actually become a ‘convenient substitute for poor governance and inefficient policing’.
In a recent case of unnatural deaths (I am calling them unnatural deaths because, by the time of writing this article, police investigation does not seem to have arrived at a definite conclusion that they were indeed homicidal deaths or murders in the first place.) of two suspected cow-smugglers Junaid and Nasir in Bhiwani, Haryana, a Rajasthan minister of state and Congress MLA Zahida Khan who visited their native place in Bharatpur, Rajasthan announced compensations of Rs. 15 lakh to the families of each of the deceased, including a government job to one of the family members. Junaid, according to Dainik Bhaskar (February 18), was, incidentally, an accused in five cases in Rajasthan since 2014, including for an attempt to murder, and was carrying a reward of Rs. 4000 for his arrest.
Jurisprudential concept of compensation in Indian Law
Section 357 of the CrPC (Criminal Procedure Code) reads:
1. When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may when passing judgment order the whole or any part of the fine recovered to be applied—
- in defraying the expenses properly incurred in the prosecution;
- in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;
- when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;
- when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.
2. If the fine is imposed in a case that is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or if an appeal is presented, before the decision of the appeal.
3. When a Court imposes a sentence, of which a fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.
4. An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.
5. At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section.
The jurisprudential concept behind this section and the subsequently added Section 357A is derived from victimology. Ordinarily, a crime committed in an organized society is regarded essentially as an offence against the society or the State (that is, the nation-state), which binds its members to live by certain rules or laws on the pain of punishment of various kinds. That is why; criminal cases are titled “State versus Accused (by name)” and not “Victim (by name) versus Accused (by name)”. Victimology maintains that while the imprisonment of an accused meets the ends of justice for society, the victim is still left with his/her loss or injury suffered as a result of the crime. For example, the victim might need expensive medical treatment as a result of the injuries sustained due to the crime, and the free treatment available at government hospitals to all citizens may not be satisfactory for him/her to resume a normal life. It may also happen that the victim might suffer from some disability, which could also have a bearing on his/her earning potential in the future. This means that even as the accused could be put behind bars for a certain length of time to satisfy society, the victim continues to suffer.
Originally, the accused was supposed to pay for the compensation
It should be obvious that Section 357 is about compensation awarded judicially. The compensation was originally supposed to be recovered from the amount of the fine imposed on the convict where the fine is integral to the sentence. However, it has also been provided that if a fine is not integral to the sentence then, it could also be imposed separately. In any case, the money to be paid thus was supposed to be taken from the convict and not from the government, that is, not from public money. The idea was that the convict was responsible for the suffering of or loss to the victim and hence he must be made to compensate.
How the state was brought into the picture
An amendment to Section 357, namely Section 357A CrPC, was brought in with effect from December 31, 2009, through the Code of Criminal Procedure Amendment Act, 2008, (Act 5 of 2009). It reads as follows:
Victim Compensation Scheme
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 dependents who have suffered loss or injury as a result of the crime and who, require rehabilitation.
2. Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1)
3. If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make a recommendation for compensation.
4. Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for the award of compensation.
5. On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services Authority shall, after due inquiry award adequate compensation by completing the inquiry within two months.
6. The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for an immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer-in-charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.
How, in practice, the law and its spirit have been given a go-by
Let us analyze Section 357A. The legislative intent behind it was that the compensation that could judicially be extracted from the convict through the fine integral to the sentence or otherwise, might not be adequate—or maybe the convict is simply not in a position to cough up the money in any way. Then, the State or society as a whole was inserted into the picture to make up for it.
In the first place, the law says that the states must prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who, require rehabilitation. It is implicit that the law stipulates that the scheme must provide for not only funds but also some sound reasoning for grants therefrom. Obviously, the law cannot permit the states to act in an arbitrary manner.
Second, the amount to be paid is supposed to be recommended by the court after the trial or an appropriate Legal Service Authority—that is, sound reasoning has to be applied to it. It is not supposed to be announced in a feudal or whimsical style by some minister or the chief minister on the spot—in many cases, even before an FIR has been registered and the dead body has not even been lifted from the scene of the crime! If they wish, they can do so with their personal money, not with public money!
Also Read: Guns, bullets & wounds- the ‘hole’ truth
Third, the law does not speak of providing any government jobs. Then, under what law these people have been announcing government jobs? Where are those discretionary powers defined?
In a way, it can be argued that by doing so; the governments have been usurping judicial function. The governments cannot argue that by doing that, they are dispensing whatever they understand by some sort of undefined social justice. Should that be so, what would be the relevance of the so-elaborately-created criminal justice system of ours as they are both supplanting and weakening the criminal justice system?
The law has been followed in its spirit only in respect of sexual assaults and acid attacks and that too when the Supreme Court ordered so in the case of Nipun Saxena vs Union of India (December 11, 2018). Following that, a committee was set up to prepare Model Rules for Victim Compensation for sexual offenses and acid attacks. Now, a victim of gang rape would get a minimum compensation of Rs. 5 lakh and a maximum of Rs. 10 lakh. In case of rape and unnatural sexual assault, the minimum compensation is Rs. 4 lakh and the maximum Rs. 7 lakh. Victims of acid attacks, in case of disfigurement of the face, would get a minimum compensation of Rs. 7 lakh, with a maximum of Rs. 8 lakh. The Union Government has informed the Lok Sabha in April 2022 that they have provided a one-time grant-in-aid of Rs. 200 crores under the Central Victim Compensation Fund (CVCF) to States/UTs under “Nirbhaya Fund” to supplement their respective Victim Compensation Funds.
Also Read: “Op History-Sheeter” to control Delhi crime
It is not expected that the police would be able to ‘solve’ every case or secure conviction in every case. As we are all aware, the average conviction rate of all crimes under the Indian Penal Code in the country stood at around 46% according to official figures given in January 2019. According to official figures given by the Union Government in March 2022, the conviction rate for rapes in India in 2019 was just 27.4%. In respect of murder cases, the ‘Crime in India 2020’ of NCRB placed the conviction rate at 41%. In the case of Manohar Singh vs the State of Rajasthan and Ors (January 16, 2015), the Supreme Court has held that the victim’s plight cannot be ignored even when a crime goes unpunished for want of adequate evidence. In other words, there ought to be a properly structured and rationalized system for crimes punished as well as unpunished—but, you cannot have an arbitrary system.
Government jobs are not anyone’s private property
Government jobs are a public trust. They are something on which the entire public has equal rights and equal claims. Governments have no authority to break into that ‘treasure’ for deriving political mileage, to quell public anger because they are not able to address the crime properly, or even out of sheer compassion.
The action of the governments in making ‘on the spot’ announcements for government jobs is plainly illegal. Governments cannot be allowed to abuse their discretionary powers in such an arbitrary and whimsical manner with an eye on the vote bank or to earn cheap political brownie points. The emphasis is on the abuse of the discretionary powers and that too in an arbitrary, feudal manner. There shall be no problem if the Union Government brings another amendment to Section 357 CrPC (say a new Section 357B) that legally provides for government jobs as a part of Victim Compensation Scheme. However, we must object to the current system because it is obviously prone to gross abuse.
Government jobs are scarce. Millions of young men and women toil hard for years altogether and spend crores on coaching centers. As a matter of principle, governments cannot snatch away their chances of getting a government job by giving the ‘revadi’ (largesse) of government jobs to those who did not deserve it in the first place on merit. If the governments really want to project themselves as extremely compassionate, they must bring in another amendment to the CrPC.
Abuse of the concept of ex gratia
An ex gratia payment, by definition, means one, which is made as a favor, though not compelled as a legal right. In the context of governmental administration, it can be regarded as a welfare measure of the State. The concept of ex gratia has, however, been grossly abused for political mileage even for something as honorable as compensations to the families of martyrs, particularly the soldiers of paramilitary forces killed in counterinsurgency operations. Over the years, it has been observed that while the Union Government grants compensation at a uniform rate, various state governments have been granting vastly different amounts to soldiers hailing from their respective states. It has been observed that for two soldiers killed in the same incident, while one state government could award as much as Rs. one crore, the other may award as low as Rs. four lakh! This is ridiculous because it was none of the faults of the other soldier, equally gallant, that he was not born in the other state!
In the case of victims of crime also, it has been observed that no uniform principle is followed by the governments. The amount often depends on the desperation of the governments to score political brownie points or, at times, the extent of public outrage over the crime. Thus, the amounts differ greatly from instance to instance and state to state—it is purely whimsical and arbitrary. No government has ever bothered to explain the criteria on which they decide the quantum of compensation or whether government jobs would be provided or not. In fact, it is extremely difficult to prescribe rational and consistent criteria for this. There is no scale on which one could measure the heinousness of a crime. There is no scale on which one could measure the helplessness of a family after the death of the breadwinner either. Every crime is bad enough and every family suffers.
Also Read: Communal crimes – why do the accused get off easily?
Precisely for this reason, this feudal practice gives opportunity to people like Asaduddin Owaisi, who, in the matter of the aforementioned incident involving Junaid-Nasir, has asked why the family of Kanhaiyalal killed by two Muslims in Udaipur in June 2022 was given Rs. 50 lakh compensation and the families of Junaid-Nasir Rs. 15 lakh each only? It need not be explained that such statements are perfectly capable of promoting communal disharmony. The responsibility for this falls squarely upon the arbitrariness inherent in the whole business of announcing compensations and government jobs.
