Compensatory justice to the victim of a crime and judicial practices in India: An empirical study
| DOI | 10.1177/02697580211051213 |
| Published date | 01 May 2022 |
| Date | 01 May 2022 |
| Subject Matter | Articles |
International Review of Victimology
2022, Vol. 28(2) 167 –190
© The Author(s) 2021
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DOI: 10.1177/02697580211051213
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research-article2022
Article
Compensatory justice to
the victim of a crime and
judicial practices in India:
An empirical study
Madhuker Sharma
Lloyd Law College, India
Abstract
The Constitution of India guarantees that justice shall be delivered to all. The duty to ensure that
justice delivery is accessible to all is entrusted to state bodies. The legislature is expected to ensure
that the legal framework is there, the executive is expected to ensure that all infrastructural needs
of the justice delivery system are in place, and the judiciary is expected to ensure that justice is
delivered in their area. This paper deals with the issue of delivery of victim justice, with a special
focus on compensatory mechanisms laid down under the Code of Criminal Procedure 1973. The
Code empowers the courts to award compensation to the victim of a crime to ensure his/her
rehabilitation. In light of the observations made by the Supreme Court of India that the trial court
judges do not exercise their discretionary power under the relevant statutory provisions to award
compensation to the victims of a crime, this paper explores the extent of such failure and the
reasons behind it.
Keywords
Victim justice, compensatory justice, rehabilitation, compensation, constitutional guarantees,
judicial practices
Introduction
Victim justice, in simple words, is justice delivered for a victim; in criminal matters, it is delivery
of justice for a person who has suffered pain/loss due to crime committed by another person. The
victim is an important stakeholder in the criminal justice system; hence, delivery of justice for the
victim is as important as it is for the accused. It is the victim who has moved the criminal justice
Corresponding author:
Madhuker Sharma, Lloyd Law College, Plot No. 11, Knowledge Park – II, Greater Noida, Uttar Pradesh, 201306, India.
Email: drmadhuker74@gmail.com
168 International Review of Victimology 28(2)
system against the accused; hence, participation of the victim in criminal proceedings as long as
they last is as essential as participation of the accused. This has all been recognized by the criminal
justice system in India, which aims to ensure that victim justice is delivered, just as it aims to
secure justice for any accused.
In the criminal law domain, the mechanism securing delivery of justice comprises two compo-
nents: legislative enactments that guarantee effective rights and liberties; and a judicial system that
is easily accessible to all. It has many fundamental elements such as identification and recognition
of grievances, awareness and legal advice or assistance, accessibility of courts or claims for relief,
adjudication of grievances, and enforcement of relief.
1
The fundamental principles that make the
criminal justice system just, fair, reasonable, and equitable for the accused as well as for the victim
have been laid down in the Constitution in the form of guarantees conferred upon both of them.
The legislature recognizes the grievance when it criminalizes an act; the executive authority of
the state frames welfare schemes to ensure that legal aid, medical aid, financial aid, and other aids
are accessible to those who are needy; and the judiciary delivers justice by adjudicating the
grievances and ordering the appropriate remedies. The historical perspective of the role of the
judiciary lies in protecting the rights and liberties of individuals; it has always played a crucial role
and has always aimed to deliver justice in its true spirit.
2
The meaning of justice in this research paper is limited to the concept of compensatory justice;
and the meaning of delivery of justice is limited to the extent of the duty of the court to ensure that
the victim of a crime is compensated adequately through the mechanisms laid down under Section
357 or under Section 357-A of the Code of Criminal Procedure 1973 (hereinafter ‘the Code’),
which is considered by the Supreme Court as one of the foremost duties of trial court judges (Balraj
v State of Uttar Pradesh (1994) 4 SCC 29; Hari Kishan v Sukhbir Singh and Ors. (AIR 1988 SC
2127); Swarn Singh v State of Punjab (1978) 10 SCC 111).
Compensatory justice means the award of compensation to the victim of a crime because of
the harm or pain suffered by him/her. It aims to reinstate the victim to the position prior to the
commission of the crime. As stated by Aristotle, ‘what the judge aims at doing is to make the parts
equal by the penaltyhe imposes, whereby he takes from the aggressor any gain he may have secured.
What he does is to restore equality’ (Thomson, 1955: 148–149). The accused might have secured
some gain, be it psychological satisfaction,or gratification, or some property,by causing harm/loss to
the victim; considering the facts and circumstances of each case, the courtaims to restore equality by
taking away some gainfrom the accused and by awarding some gainto the victim. The judge tries to
take away the (accused’s) gain and restore the equilibrium (Chapman, 1991: 101).
When the law stipulates that a fine be imposed on the person convicted and the same is awarded
to the victim for the purpose of assisting him/her in rehabilitation, it admits that the victim has
suffered some harm, the convicted person has caused such harm to the victim, and the victim
requires rehabilitation; hence, the gain secured by the convicted person should be taken away to
restore the balance in favour of both. Compensatory justice requires that counterbalancing benefits
be provided to those individuals who have been wrongfully injured, which will serve to bring them
up to the level of wealth and welfare that they would now have if they had not been disadvantaged
(Chapman, 1991: 103).
Though the provision on awarding compensation to the victim of a crime has been there in
statute
3
in India since 1898, it was seldom exercised by the trial court judges until the last decade of
the 20th century; the same has also been stated by the Supreme Court in its judgement (KA Abbas v
Sabu Joseph and Anr. (2010) 6 SCC 230). This reluctance of the trial court judges still prevails,
despite the fact that the Supreme Court reminded the courts to exercise their discretionary power in
2International Review of Victimology XX(X)
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