CHAPTER V
REMEDIES FOR VICTIMS OF CRIME – A COMPARATIVE
ANALYSIS
5.1. History of Compensation of the victims of Crime
History of payment of compensation by State may be traced in The Hammurabi Code
of ancient Babylonian1 which makes the earliest reference to State Compensation for Victims
of Crime. It provides that “if the robber is not caught, then shall he who was robbed claim
under oath the amount of his loss; then shall the community, on whose ground and territory
and in whose domain it was, compensate him for the goods stolen. If persons are stolen, then
shall the community pay one mina of silver to their relatives”
This principle was well accepted in England in the Anglo-Saxon Period of the
Seventh Century. The Kentish laws of Ethelbest contained specified amounts of
compensation for a large number of crimes ranging from murder to adultery.
In the early Common Law of Middle England, if a man was murdered, the victim‟s
family was entitled to a wergild of four pounds. Over time, the Criminal justice system was
separated from the civil system due to the simultaneous growth of Royal and Ecclesiastical
Power2 offences like murder, robbery and rape did not remain within the category of tort to
be settled by compensation but were regarded as crimes against society and were punishable
as such. Hence, State compensation disappeared and the State played a punitive role,
imposing punishment for not only the harm done to individual crimes but also harm done to
the King or feudal lord.
The doctrine of State compensation to victim again attracted attention of sociologists
and jurist in Europe during the Nineteenth century. Jeremy Bentham (1748-1832), a British
1. The Code of Hammurabi, a Collection of 282 laws inscribed on an upright stone pillar, was found by French
archaeologists in 1901, while excavating the ancient city of Susa, which is in modern-day Iran (Translated by
L.W.King). Hammurabi is the best known and most celebrated of all Mesoptamian Kings. He ruled the
Babylonian Empire from 1792-50 B.C.E.
2. Kaushal Kishor Bajpai, The History of compensation of the victims of Crime, AIR; WEB WORLD,
http://airwebworld.com/articles/index.php? article =1058.
164
philosopher, Jurist and social reformer, believed that due to the presence of the social contract
between State and the Citizen, victims of crime should be compensated, when their property
or person was violated. It is the role of the State to prevent crime and protect people and
property. If the State is unable to prevent a crime it falls upon the State to support the victim.
State compensation is further justified because it is the political, economic and social
institutions of the State that generate poverty, discriminations, unemployment and insecurity.
The justification for compensation has not been fully accepted.
Despite the activism of Penologists like Jeremy Bentham the acceptance of the
principles of compensation to the victims remained unfulfilled. During the 1950s Margery
Fry, an English Penal reformer called refocusing on the plight of victims and the bestowing
of effective remedies on victims such as State Compensation. This heralded the establishment
of State Compensation Programmes in the American and European jurisdictions. The modern
approach of victimology acknowledges that a crime victim has right to be adequately
compensated, rehabilitated and repaired irrespective of identification and prosecution of
offender and the payment of such compensation should be made by the State.
Britain set up a non-statutory programme in 1964, which was administered by the
Criminal Injuries Compensation Board and the funds being sanctioned by the Parliament
annually. This programme was given statutory form in the Criminal Injuries Compensation
Act, 19953.
The move towards State compensation was mirrored in the United States, with
California being the first State to do so in 1965. In 1984 the Victims of Crime Act was enacted
by the Congress, which established a Crime Victims Fund within the US Treasury.
The need for a victim compensation framework has been recognized by the
international community. The Universal Declaration of Human Rights, 1948‟s Article 9
states that no one “shall be subject to arbitrary arrest, detention....” By reading the procedural
guarantees provided under Articles 6, 7 and 8, one could infer that for the violation of such
rights the victim is entitled to an effective remedy.
3. Terence Morris, British Criminology: 1935-49, Brit.J.Criminology 20 (1988)
165
The necessity for compensating victims of crime was emphasized and crystallized in
the United Nations Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power of 1985 and the 2006 Basic Principles and Guidelines on the Right to a
Remedy and Reparation for victims of Gross violations of International Human Rights Law
and Serious Violations of International Humanitarian Law. The former deals with the victims
of domestic crimes, while the latter with victim of international crimes.
The United Nations Declaration of Basic Principles of Justice for Victims of Crime
and Abuse of Power of 1985 recognizes four types of rights and entitlements of victims of
crime:
(a) Access to justice and fair treatment;
(b) Right to restitution
(c) Personal assistance and support services; and
(d) Compensation
Furthermore, the International Covenant on Civil and Political Rights, 1966 states
that a victim of unlawful arrest or detention shall have an enforceable right to compensation.
The European Convention for the Protection of Human Rights and Fundamental Freedoms,
1950, has an identical provision. American Convention on Human Rights, 1969, entitles a
person to compensation in case of miscarriage of justice due to wrong sentencing.
In India, specific provision for compensation to victim was inserted in Criminal
Procedure Code of 1973, as section 357A in pursuance of the recommendation of the Law
Commission in its Forty-first Report (1969). This provision states that “Court may award
compensation to victims of crime at the time of passing of the judgment, if it considers it
appropriate in a particular case, in the interest of justice”.
The definition of the world victim in Section 2(Wa) inserted by Amendment Act 2008
in Cr.PC, runs as: “Victim means a person who has suffered any loss or injury caused by
reason of the act or omission for which the accused person has been charged and the
expression victim includes his or her guardian or legal heir”.
166
This definition of the word victim is quite narrower than that of international approach
in the 1985 Declaration of UN in its resolution no. 40/34 of General Assembly.
5.2. Recommendations of Commissions and Committees on Justice to Victims in India
During recent decades, there has been significant change in the thinking of the
judiciary about the human rights of victims. The concern of the courts and the judicial
commissions and committees about the need to have a law on victim compensation or a
comprehensive law on victim justice has been reflected in their judgments and reports.
i. The Law Commission of India, 1996
The Law Commission, in its report in 1996, stated that, “The State should accept the
principle of providing assistance to victim out of its own funds, (i) in cases of acquittals;
or (ii) where the offender is not traceable, but the victim is identified; and (iii) also in cases
when the offence is proved” (Law Commission of India Report, 1996).
ii. The Justice Malimath Committee on Reforms of Criminal Justice System
(Government of India, 2003)
The Justice V.S.Malimath Committee has made many recommendations of farreaching significance to improve the position of victims of crime in the Criminal Justice
System, including the victim‟s right to participate in cases and to adequate compensation.
Some of the significant recommendations include:

The victim, and if he is dead, his or her legal representative, shall have the right to be
impleaded as a party in every criminal proceeding where the offence is punishable with
seven years‟ imprisonment or more;

In select cases, with the permission of the court, an approved voluntary organization
shall also have the right to implead in court proceedings;

The victim has a right to be represented by an advocate and the same shall be provided
at the cost of the State if the victim cannot afford a lawyer;

The victim‟s right to participate in criminal trial shall include the right: to produce
evidence; to ask questions of the witnesses; to be informed of the status of investigation
167
and to move the court to issue directions for further investigation; to be heard on issues
relating to bail and withdrawal of prosecution; and to advance arguments after the
submission of the prosecutor‟s arguments;

The right to prefer an appeal against any adverse order of acquittal of the accused,
convicting for a lesser offence, imposing inadequate sentence, or granting inadequate
compensation;

Legal services to victims may be extended to include psychiatric and medical help,
interim compensation, and protection against secondary victimization;

Victim compensation is a State obligation in all serious crimes. This is to be organized
in separate legislation by Parliament. The draft bill on the subject submitted to
Government in 1995 by the Indian Society of Victimology provides a tentative
framework for consideration;

The Victim Compensation Law will provide for the creation of a Victim Compensation
Fund to be administered possibly by the Legal Services Authority. (Government of
India, 2003).
iii. The National Commission to Review the Working of the Constitution
The Commission to review the working of the Constitution (Government of India,
2002) has advocated a victim-orientation to criminal justice administration, with greater
respect and consideration towards victims and their rights in the investigative and prosecution
processes, provision for greater choices to victims in trial and disposition of the accused, and
a scheme of reparation/compensation particularly for victims of violent crimes.
5.3. Indian Legislative Framework and Victims of Crime
In India, there are five possible statutory provisions under which compensation may
be awarded to victims of crime namely:

The Fatal Accidents Act, 1855

The Motor Vehicles Act, 1988

The Criminal Procedure Code, 1973
168

The Probation of Offenders Act, 1958

The Human Rights Act, 1993

The Domestic Violence Act, 2005; and

The Constitutional remedies for human rights‟ violations
Until 2009, there was no comprehensive legislation or a well-designed statutory
scheme in India that allowed a victim to seek compensation from either the perpetrator or the
State. The recent amendment to the Criminal Procedure Code of 1973 (hereinafter “CrPC”),
notified in 2009, addressed the victim‟s right to compensation. It is a step forward; however,
some inherent flaws remain.
Legal safeguards available to victims of crime may be traced through major
legislations i.e. CrPC and Probations of Offenders Act and also Constitution of India. Under
provisions of CrPC, the power to award compensation is vested under section 357. Subsection (1) and (3) vests power on the trail court to award compensation and sub-section (4)
gives power even to appellant or revision court to order for compensation. This section
clearly shows that the power in case of this Act vests only with the trail court and non-else.
As far as the Constitutional scheme is concerned, it is to be noted that it is the outcome of
various decision of Supreme Court of India either by reading Part-III rights(in some cases
Part-IV as well) with Art.32, 136 and 142 of the Constitution of India, which is to be given
either by the State or accused.
Compensation is awarded in the form of Constitutional remedy for human rights
violations. It is interesting to note that compensation available under a constitutional remedy
is far more readily invoked and of a greater quantum than that which is generally granted
under Sec.357 (3) of CrPC4.
Apart from invoking section 357 of the Cr.P.C., the victim may approach a higher
court under section 482, Cr. P.C. to claim compensation, which empowers a higher court to
4. A.K.Singh v.Uttarakhand Jan Morcha, (1999)4 S.C.C 476; D.K.Basu v.State of West Bengal, (1997)1 S.C.C
416; Chairman, Railway Board v.Chandrima Das, (2000)1 S.C.C 465; Saheli, a Woman’s Resource Centre
v. Commissioner of Police, (1990) 1 S.C.C.420; Nilabati Behera v.State of Orissa, (1993) 2 S.C.C 746;
Rudal Shah v.State of Bihar, (1983) 4 S.C.C.141; State of Punjab v.Ajaib Singh (1995)2 S.C.C 486.
169
exercise its inherent power in the interest of justice. The higher judiciary has applied this
principle in the cases of Bodhisattwa Gautam,5 Delhi Domestic Working Women‟s Case,6
Chandrima Das7 and Nilabati Behera.8
Apart from the Criminal Procedure Code, Section 5 of the Probation of Offenders
Act, 1958 gives limited discretionary power to the court to order reasonable compensation for
loss or injury in cases where the accused is let off with admonition or released on probation.
Sec 5 of the Probation of Offenders Act, 1958: Power of the court to require released
offenders to pay compensation and cost. In addition to this, The Motor Vehicles Act and the
Fatal Accidents Act are however beneficial legislations for compensating victims of certain
types of acts resulting in criminal justice. The Domestic Violence Act, 2005 has also made
provision for compensation to the victim of the domestic violence in the precinct of the
family or matrimonial home.
Rudul Sah v. State of Bihar9, Sebastian M. Hongray v. Union of India10, Bhim Singh v.
State of J&K11, Saheli v. Commr. of Police12, and Nilabati Behera v. State of Orissa13 are
some of the cases in which the Court made the State liable for compensation in the form of
public law remedy.
Hence, the whole gamut of legislative framework about compensation to victims of
crime can be summarized as follows:

Compensation from State, which is the outcome of judicial imposition or sometimes,
even ex-gratia under Constitution of India;

Compensation from an offender which is the outcome either as a part of fine or
allocation of specific sum to victim either under Cr.PC or Constitution of India.
5. Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty, 1995 INDLAW SC 1920.
6. Delhi Domestic Working Women’s Forum v. Union of India, 1994 INDLAW SC 1120
7. Chairman, Railway Board v. Chandrima Das, 2000 INDLAW SC 600
8. Nilabati Behera v. State of Orissa, 1993 INDLAW SC 999
9. (1983) 4, SCC 141
10. (1984) 3 SCC 82
11. (1985) 4 SCC 677
12. (1990) 1 SCC 422
13. (1993) 2 SCC 746
170
Regarding judicial response, there exists plethora of cases where the compensation
has been awarded by the Supreme Court to the victims of the crime which not only present
the heart full moments but also exposed the sorry state of affairs that has been prevalent in
the lower courts even sometimes High Courts.
5.4. Protection of special categories of victims
There are significant developments in India in the form of new laws to promote the
cause of victims and to mitigate the sufferings of potential victims of vulnerable sections of
the population such as women, children and elders. The recent enactments passed by the
Indian Parliament that have a significant bearing on preventing victimization and giving relief
to victims include:
 The Protection of Women from Domestic Violence Act, 2005
A violation of the protection order by the respondent is an offence which can result in
imprisonment for one year or a fine upto Rs.20,000/- or both. If the protection officer
refuses to discharge his duties, he shall be punished with imprisonment for one year or
with a fine of Rupees 20,000 or with both.
 The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
Under this law, an obligation is created of the children or adult legal heirs to maintain
their parents, or senior citizens above the age of 60 years who are unable to maintain
themselves out of their own earnings, to enable them to lead a normal life.
 Prevention of Child Abuse and Victim Protection
o The National Commission for Protection of Child Rights (NCPCR), 2007
The National Commission for Protection of Child Rights has been taking up various
issues brought forth in the area of child abuse. After inquiry, the National
Commission can recommend initiation of proceedings for prosecution or any other
action it may deem fit.
 Prevention of Caste-based victimization and protection for victims: The Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
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The victims are entitled to receive monetary compensation ranging from Rs. 25,000 to
2,00,000 depending on the gravity of the offence.
Inspite of this emerging trend the aspect of compensation remains subordinate to the
punitive role of the State. Justice V.R.Krishna Iyer, highlighted the continued apathy of the
criminal justice system as the victims of the crime do not attract the attention of the law14.
5.5. The Judiciary and Remedies for Victims of Crimes in India
The Indian judiciary, especially at the level of the Supreme Court and the High
Courts, has for long been concerned with the concept and practice of justice – not only in the
pursuit of justice for the privileged and affluent few but, more importantly, in the pursuit of
justice for all. The judiciary was called upon to play an important role in preventing and
remedying abuses role in preventing and remedying abuses and misuses of power and in
eliminating exploitation and injustice. It was necessary for this purpose to make procedural
innovations that would enable it to meet the challenges posed by such new roles. In doing, so
the judiciary, being alive to its social responsibility and accountability to the people of the
country, sought to liberate itself from the shackles of Western thought-ways.
5.6. Supreme Court of India and Remedies for Victims of Crimes: Compensation
through Writ Petitions
Supreme Court through its decisions has always ensured complete justice in its
judgments and its decisions to allow the victims to approach High Court under Art.226 is a
forward step to achieve the ends of equity and justice. Injustice anywhere is a threat to justice
everywhere. Such decisions of the Supreme Court are really to be welcome because people of
India do not have any law to deal with mass disaster. A special jurisdiction of the Supreme
Court under Article 32 was created, which confers on it the status of the custodian of the
Constitutional Rights and the protector thereof.
In India, the judgement of the Supreme Court in Rudul Sah v. State of Bihar15 added a
new dimension to judicial activism and raised a set of vital questions, such as liability of
14. Rattan Singh v. State of Punjab, AIR 1980 SC 84
15. (1983) 4 SCC 141
172
State to compensate for unlawful detention, feasibility of claiming compensation from State
under Article 32 for wrongful deprivation of fundamental rights, propriety of the Supreme
Court passing an order for compensation on a habeas corpus petition for enforcing the right
to personal liberty. Enforcement literally connotes compelling the observance of law.16
5.7. Development of Constitutional Jurisprudence and Remedy of Compensation in
India
Article 32 of the Constitution of India confer power on the Supreme Court to issue
direction or order or writ, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement
of any of the rights conferred by part III of the Constitution. The right to move the Supreme
Court under Article 32 for the enforcement of any of the rights conferred by part III of the
constitution is itself a fundamental right. Even if the conditions for issue of any of these high
prerogative writs are not fulfilled, the Supreme Court would not be constrained to fold its
hands in despair and plead its inability to help the citizen who has come before it for judicial
redress, but would have power to issue any direction, order or writ including a writ in the
nature of any high prerogative writ, as observed by the Supreme Court.17 Otherwise, the
entire remedy for enforcement of fundamental rights would become a mere rope of sand so
far as the large masses of the people of this country are concerned.
The conventional judicial remedies available in civil law limit the role of the courts
too much as protector and guarantor of the indefeasible rights of the citizens. The courts have
the obligation to satisfy the social aspirations of the citizens because the courts and the law
are for the people and expected to respond to their aspirations. The purpose of public law is
not only to civilise public power but also to assure the citizens that they live under a legal
system, which aims to protect their interests and preserve their rights. The concern of the
highest court to do justice rather than mechanically applying the law based on precedents is
reinforcing the credibility of the judiciary among the public, especially the helpless have –
nots.
16. The oxford English Dictionary (Catherine Soanes ed.,) 2003, 295.
17. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC, pp.187-88, para-13
173
The compensatory jurisprudence introduced by the Supreme Court of India by
invoking powers under Article 32 gained tremendous importance in recent times due to the
increase of the incidents of State lawlessness18, police lawlessness19, custodial violence20,
violence in jails21, unlawful detentions22 and other violations. This innovation made by the
Supreme Court is not only reducing the multiplicity of litigation but also helping the courts to
render speedy justice to victims of the infringement of right of life and personal liberty.
The Supreme Court categorically observed that the defence of sovereign immunity is
inapplicable and alien to the concept of guarantee of fundamental rights. Regarding the
liability of the State, the Supreme Court did not take cognizance of the doctrine of sovereign
immunity while deciding cases involving violation of any fundamental right, and it has
awarded compensation in a number of cases to the aggrieved persons whose fundamental
rights have been violated.
“The award of compensation in a proceeding under Article 32 by the Supreme Court
or by the High Court under Article 226 of the Constitution is a remedy available in public
law, based on strict liability for contravention of fundamental rights to which the principle of
sovereign immunity does not apply, even though it may be available as a defence in private
law based on tort”, as observed by the Supreme Court.23
5.8. Mass Disaster
In Charan Lal Sadu v. Union of India24, upholding the validity of Bhopal Gas
Disaster (processing of claims) Act, 1985, Justice K.N.Singh observed that in the context of
India‟s national dimensions of human right, right to life, liberty, pollution free air and water
is guaranteed by the Constitution under Articles, 21, 48 and 51(g), and therefore it is the duty
of the State to take effective steps to protect the guaranteed Constitutional rights. These rights
must be integrated and illuminated by the evolving international dimensions and standards,
18.
19.
20.
21.
22.
23.
24.
Rudal Sah v. State of Bihar, (1983) 4 SCC 141
Saheli v. Commr. of Police, (1990) 1 SCC 422
Sudha Rasheed v. Union of India, (1995) 1 Scale 77
Nilabati Behera v. State of Orissa, (1993) 2 SCC 746
Arvinder Singh Bagga v. State of U.P., (1994) 6 SCC 565
Nilabati Behera v. State of Orissa, (1993) 2 SCC (746)
AIR 1990 SC 1480
174
having regard to India‟s sovereignty, as highlighted by clause 9 and is of the U.N. Code of
conduct of Transnational Corporations.
An important suggestion made by Justice K.N.Singh is that Industrial Disaster Fund
should be established. The Fund should be permanent in nature so that money is readily
available for providing immediate, effective relief to the victims. Although the judiciary
could not give effective relief to the victims of disaster in this case and there was criticism for
the delay in proceedings and granting reliefs to victims, the Supreme Court initiated
legislative activism and the Public Liability Insurance Act, 1991 came into being to provide
immediate relief to victim of an accident, which occurred while handling hazardous
substance. The Act endorses the strict liability. However, the Act was welcomed and also
criticized as it provides compensation for the injury but does not prevent it.
The decision of the Supreme Court in D.K.Basu v. State of West Bengal has opened
up a new vista in jurisprudence of the country. “Currently judicial attitude has taken a shift
from the old draconian concept and the traditional jurisprudential system and affection of the
people has taken note of rather seriously and the judicial concern thus stands on a footing to
provide expeditious relief to an individual when needed rather than taking recourse to the old
conservative doctrine of civil courts obligation to award damages”.25
Writ petition under Art.32 is maintainable only if there is violation of fundamental
right, enforceable against the State. But in the Case of mass disaster the fundamental right –
the legal right – is being enforced against the private institutes and individuals as well. The
Supreme Court in Peoples Union for Democratic Rights v. Union of India26 held that “there
are few fundamental rights such as 17, 21, 23 or 24 which are also available against private
persons in case of violation of any such rights the court can make appropriate orders against
violation of such rights by private persons”. Such a claiming of compensation under writ
25. AIR 1997 SC 610
26. AIR 1982 SC 1473
175
petition was held valid by the Supreme Court under cases like Lata Wadhwa v. State of
Bihar27 and Indian council for Enviro Legal Action v. Union of India.28
Thus people affected in mass disasters – man – made disasters in the journey from
Bhopal to Kumbakonam – can be termed as class of people and for expedious relief to such
persons the writ petition can be filed. The concept of class action affecting the legal right of
people has arisen in the case of M.C.Mehta v. Union of India.29
The concept of right to compensation for mass disaster is gaining ground in the
country and the same right to compensation has been elevated by the various High Courts and
Supreme Court to the position of a legal right enforceable under Art.226 and under Art.32 if
there exists some class action affecting the legal right of people. Supreme Court in the case of
M.S.Grewal v. Deep Chand Sood30 held that “procedural defaults are not to be taken into
account when a public grief is to be remedied and in such cases Art. 226 can be validly
invoked”. Delhi High Court in the case of victims of Uphaar Tragedy v. Union of India31
held that “writ petition for damages in public law under Art.226 of the Constitution is
maintainable where facts are easily ascertainable”. Writ petition is maintainable in such cases
where facts are ascertainable and in the case of mass disaster the facts are themselves clear to
the extent that the incident has taken place due to the negligence or breach of duty to take
care which one owes towards other.
The Madras High Court and Jammu & Kashmir High Court for first time, have
awarded compensation for communal riots in two landmark decisions, viz., R.Gandhi v.
Union of India32 and Inder Puri General Stores v. State of J&K.33 In view of the High courts,
since people were denied of their livelihood, the State must pay for inaction in protecting the
properties of the affected. An important aspect of the complications to be considered is that
these types of incidents of riots are on the increase, the courts will be flooded with litigation,
27.
28.
29.
30.
31.
32.
33.
AIR 2001 SC 3218
AIR 1996 SC 1446
AIR 1987 SC 965
AIR 2001 SC 3660
2000 (86) DLT 246
AIR. 1989 Mad. 205
AIR. 1992 J&K 11
176
and the monetary capacity of the State exchequer will be severely burdened. Recently the
Rajasthan High Court in Nathulal v. State of Rajasthan34 has turned down such a petition.
Supreme Court has shown its sympathy towards the victims of mass disaster. The
Supreme Court‟s decision, to disburse Rs.1,503 crore compensation from union carbide to
victims or kin of the 1984 Bhopal gas tragedy, is a significant milestone in granting
compensation at expeditious stage to victims of disasters causing loss of people. Bhopal was
the single largest industrial accident in the world that ultimately affected over five lakh
people. In the absence of a specific mass tort law, it seems that judiciary has taken note of
vacuum of law and to adopt an activist stance. The Supreme Court of India, as a guardian of
Constitutional democracy is a watchdog of Fundamental Rights of the Indian citizens. In
Charan Lal Sahu v. Union of India35, it was laid down that the State acts as parens patriae.
Hence it is the duty of State to take care of the basic human rights and to provide proper
facilities for the same.
In the precedent – setting case of Rudul Sah v. State of Bihar36, the petitioner, who
had been acquitted by the court of sessions, but not released from prison for fourteen years,
presented a habeas corpus petition, wherein he also sought certain ancillary remedies like
rehabilitation, reimbursement of medical expenses, and compensation for illegal
incarceration. Since the petitioner was released before the actual hearing of the petition, the
mere issuance of a writ of habeas corpus would have been futile.
Under the conventional approach, the only remedy would have been to a file a suit to
recover damages from the Government, but the difficulties of filing such a suit were
immense. The court felt that if it refused to pass an order for compensation, it would be doing
only lip service to the fundamental right to liberty,37 and accordingly ordered the Government
of India to pay the petitioner a sum of Rs.30, 000.
34.
35.
36.
37.
AIR. 1993 Raj. 149
AIR. 1990 SC 1480
AIR. 1983 SC. 1134
Id. p. 1089
177
Not only life, but liberty with dignity, when violated must be compensated. The
remedy of awarding compensation against atrocities and illtreatment by authorities contains a
tremendous litigative value. The dignity of life and liberty laid down in Maneka Gandhi v.
Union of India38, found its logical end in compensating for violation of the same.
Handcuffing has been held to mandate compensation, as a consequence in State of
Maharashtra v. Patil.39 In keeping with the dignity of human beings, third degree methods of
interrogation have been condemned and compensation has been awarded in Lakshmi v. Sub
Inspector.40 In the area of encounter deaths, in awarding compensation in the case of
R.S.Sodhi v. State of Uttar Pradesh41 the Supreme Court has recognized that the vehemently
denied encounter deaths do take place.
The area of negligence of police in dealing with injured has shown the way for the
courts to rely on the evidence of the media, especially in respect of incidents concerning
police crimes, wherein adequate evidence or witnesses may otherwise be lacking. In this area,
the court‟s attention has been drawn by events that attract considerable media attention, such
as the shabby treatment to those injured in the police firing in the Mandal agitation, covered
by the video magazine Newstrack as laid down in P.V.Kapoor v. Union of India.42 The police
are also accountable if care or medical attention has not been accorded, as recognized in
SCLAC v. Union of India.43 In PUDR v. State of Bihar44, a quest was made for a formula to
award compensation in respect of police firing.
The Supreme Court in State of M.P. v. Shyamsundar Trivedi45, found that the victim
died in police custody as a result of extensive beating given to him. The Sub-Inspector of
Police was sentenced to pay a fine of Rs.50,000 and other accused sentenced to pay
Rs.20,000 each and the entire amount of fine on realisation was directed to be paid to the
heirs of the deceased.
38.
39.
40.
41.
42.
43.
44.
45.
AIR. 1978 ASC 597.
(1991) 2 SCC 373
1991 Cri.L.J. 2269
1991 (2) SCALE 463
1992 Cri. L.J.128
(1991) 3 SCC 482
AIR. 1987 SC 355
(1995) 4 SCC 262
178
The judiciary was cognizant of the need for effective mechanisms to award damages
for unlawful arrest, illegal detention, custodial death, encounter death and State atrocities.
The first case in which the Supreme Court confronted the compensation quandary was Khatri
v. State of Bihar46 (popularly known as the Bhagalpur Bliding case). The petitioners in the
case had been blinded in police custody and demanded compensation for violation of their
right to life. Justice Bhagwati observed that the court ought to be prepared to forge new tools
and devise new remedies for vindicating the fundamental right to life and personal liberty.
The court ordered the government to meet the expenses of housing these men in blind home
in Delhi, as an interim measure.
In Sant Bir v. State of Bihar47 case, where in a criminal lunatic was detained
unlawfully in prison for sixteen years after regaining sanity. Justice Bhagwati did not rule out
the possibility of Compensation for State excesses.
The remedy of compensation for violation of fundamental rights takes on special
significance in cases of Custodial deaths and torture. Although there is no specific prohibition
of torture and provision for compensation for its victims in the Constitution, such rights have
been read into the jurisprudence surrounding Article 21.
The reasons for the award of compensation for the violation of fundamental rights
were expounded in Saheli v. Commissioner of Police, Delhi48, where the court held that an
action for damages lies for bodily harm, including battery, assault, false imprisonment,
physical injuries and death, since damages represented a solatium for mental pain, distress,
indignity, loss of liberty and death.
The jurisprudential reasoning behind the award of damages in cases of violations of
fundamental rights was elucidated in Nilabati Behra v. State of Orissa49, which can be
considered a landmark case in the development of law in this area. The Supreme Court in this
case eschewed all hesitation and held that Article 32 imposed an obligation on the court “to
46.
47.
48.
49.
AIR. 1981 SC. 928
AIR. 1982 SC. 1470
AIR. 1990 SC. 513
AIR. 1993 SC. 1960
179
forge such new tools as may be necessary for doing complete justice and enforcing
fundamental rights”. The court also observed that “anyone who has been the vim of unlawful
arrest of detention shall have an enforceable right to compensation”.
In the case of D.K.Basu v. State of West Bengal50, as decided in the case of Rudul Sah
v. State of Bihar,51 the jurisprudential basis for the award of monetary relief, the Supreme
Court reiterated that pecuniary compensation was an appropriate, effective, and sometimes,
the only suitable remedy for redressal for rights violations, and, thus, leaving the aggrieved at
the mercy of remedies available in civil law, would hamper the Court‟s role as the protector
and custodian of the citizens‟ indefeasible rights to an unacceptable degree.52
A breakthrough decision was achieved in Devaki Nanda v. State of Bihar53, wherein
the petitioner‟s pension had been delayed for twelve years. Without much discussion in the
judgment, exemplary costs were awarded to the petitioner for intentioned deliberate and
motivated harassment of the petitioner, though no specific rights violation was cited.
In Sebastian Hongray v. Union of India54, a writ of habeas corpus was issued for the
release of two men in army custody, but never executed. The court ordered the payment of
exemplary costs to their wives (as the men were dead by that time). The court used the term
exemplary costs, when in fact it appeared that the payment was awarded in view of the
torture, agony and mental oppression which the wives of the deceased had to undergo, and
that was more akin to the concept of damages or compensation.
M.C.Mehta v. Union of India55, saw the Supreme Court to take a self-imposed
restriction. It asserted its power to award compensation for violation of fundamental rights,
but limited this remedy to appropriate cases, where the infringement was gross and patent,
that is, incontrovertible and ex facie glaring. To put simply, the infringement‟s magnitude
must be such as to shock the conscience of the court.56
50.
51.
52.
53.
54.
55.
56.
AIR. 1997 SC. 610
AIR 1983 SC. 1134
Supra note 36, p. 618
AIR. 1983 SC. 1134
AIR. 1984 SC. 1026
AIR. 1987 SC. 1086
Id. At 1091
180
From the above discussion of the Indian Constitutional jurisprudence – the granting of
compensation for violation of fundamental rights – it is seen that now courts can and do
award writ compensation for fundamental rights violation.
5.9. Compensation through the Provisions of Cr.PC
In a number of cases, the Supreme Court has laid down some guidelines with regard
to assessment of just and reasonable compensation to be paid to the victims of accidents in
light of the existing provisions of Cr.PC.
In Hari Singh v. Sukhbir Singh57, the Supreme Court said: “Section 357 (2) is an
important provision but courts have seldom invoked it. It empowers the court to award
compensation to victims while passing judgment of conviction. In addition to conviction, the
court may order the accused to pay some amount by way of compensation to the victim who
has suffered by the action of the accused. It may be noted that this power of courts to award
compensation is not ancillary to other sentences but it is in addition thereto. This power was
intended to do something to reassure the victim that he or she is not forgotten in the criminal
justice system. It is a measure of responding appropriately to crime as well as reconciling the
victim with the offender. It is to some extent, a constructive approach to the Crimes. It is
indeed a step forward in India Criminal justice system”.
5.10. Violence against Women
Violence against women is a manifestation of historically unequal power relations
between man and women, which have led to domination and discrimination against women
by men and to prevention of the full advancement of women. In fact, women are treated as a
second class citizenry and they are considered as a back seat drivers. Violence against women
is a human rights violation that manifests itself in a number of ways, namely:

Domestic violence

Dowry-related violence

Sexual harassment and Molestation
57. (1988) 4 SCC 551
181

Custodial violence against women

Acid Burning and Dowry deaths

Honour Killings

Son Preference

Femicide, Female foeticide and Female infanticide

Female Genital Mutilation

Rape

Prostitution and Trafficking

Pornography

Violence against Women at Workplace and Women Migrant Workers.
5.11. Atrocities against Women in India
The courts are alive to atrocities perpetuated against women, which is a welcome step.
In fact, these trends may be regarded as distinct and different from the rest, for not only are
the fundamental rights involved but also the directive principles as well as the fundamental
duties. The Compensation paid will help women start a fresh life, as in the Case of Saheli v.
Commissioner.58 The courts must resort to innovate in order to ensure that the real benefit of
the compensation goes to woman concerned, as was done in Padmini v. State of Tamil
Nadu.59 The Government was directed to pay compensation into a fixed deposit scheme for
the benefit of a victim of molestation.
This special type of atrocity has also caused the courts to ponder over what should be
the type of relief involved. The Guwahati High Court in Re A Police Gang Rape 60 in trying
not be patronising, said it would award ex gratia payment.
In SPS. Rathore v. State of Haryana61, the Supreme Court accepted the contention
that it could grant compensation only when there is a prime facie or established violation of a
guaranteed fundamental right. When the fundamental fact itself is in dispute, the court will
58.
59.
60.
61.
AIR. 1990 SC 513
1993 Cri. LJ. 2964
1988 (2) MWN (Cri). 14
J.T.2005 (5) S.C. 257
182
desist from ordering compensation. The exercise of the power under Article 32 or 226 for
conducting an enquiry to determine compensation in glaring and clear cases of custodial rape
or death or, illegal detention of the poor and helpless, is not feasible in such a case.
In Chairman, Railway Board v. Chandrima Das62, the victim was awarded by
Supreme Court with a Compensation of Rs.10 lakhs for being gang raped in Yatriniwas of
Railway. Since the right is available to non-citizens also, the reach of the right is very wide. It
was a case of gang-rape of a Bangladeshi national by the employee of the Indian Railway in a
room at Yatriniwas at Howrah Railways Station. These employees managed the Yatriniwas
the Government contended that it could not be held liable under the law of torts as the
offence was not committed during the course of official duty. However, the court didn‟t
accept the argument and stated that the employees of Union of India, who are deputed to run
the Railways and to manage the establishment, including the Railways Station and
Yatriniwas are essential components of the Government machinery which carries on the
commercial activity.
The Supreme Court has directed for payment of compensation to the victims of crime
and the court has even ordered that the compensation amount has to be realized from the
pocket of the offenders and erring public servants who are found guilty of such crime and
excesses. The case of Chandrima is a living example where the Apex Court while awarding
compensation to the Bangladeshi woman immunity pleaded by Railway officials who were
charged of the offence.
The Case Delhi Domestic Working Women’s Forum v. Union of India and others Writ
Petition (CRL) No. 362/93, arose out of an incident in which six women, working as
domestic servants in Delhi, were raped by eight army personnel in a moving train between
Ranchi and Delhi. The members of the petitioner forum, when prevented by the employers
from meeting the victims, sought the court‟s directions for expeditious and impartial
investigation of the offences. The court indicated the broad parameters for assisting the
victims of rape.
62. 2000 Cr. LJ 1473 SC
183
The Supreme Court in Delhi Domestic Working Women’s Forum v. Union of India
and others63, 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 setup Criminal Injuries Compensation Board where in 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. 64 While compensation under Section
357 A Cr.PC is general in nature and covers all crimes, this scheme is meant specifically for
rape victims.65 The court in this case, has taken a note of the fact that rape victims besides the
mental anguish, frequently incur substantial financial loss and in some cases are too
traumatized to continue in employment.
5.12. Custodial Deaths and Police Atrocities
Sometimes death of the accused occurs, while police officials interrogating the
accused persons in police custody. At that time, police force is alleged to have caused
atrocities on poor or downtrodden people in the garb of maintaining law and order in the
society, whether police, officer responsible for causing death or injuring to the accused
person under custody is liable or not for the act? Whether State is responsible for the action
of its employee – the police officer, or can the accused or his legal heir claim compensation
for the loss of life or injuries suffered by him from the hands of the police while in custody.
These are some of the questions for which the decisions of the Court provide the remedies.66
63. 2000 Cr. LJ 1473 SC .
64. Scheme for Relief and Rehabilitation of victims of Rape, 2005, available at:
http://www.new.nic.in/schemefor rehabilitation.pdf
65. Rehabilitation of Sexually Assaulted Women, Press Information Bureau, Press Release, 03 March 2011,
available at:http://pib.nic.in/newsite/PrintRelease.apex?relid=70465
66. Sewinder Singh Grover, re, 1995 supp. (4) SCC 450; Aravinda Singh Bagga v. State of UP, (1994) 6 SCC
656; Tirath Ram Saini v. State of Punjab, (1997) 11 SCC 623; Charanjit Kaur v. Union of India, AIR 1994
SC 1491; Smt. Kewal Pati v. State of U.P., 1995 Cri LJ 2920 (SC); Smt. Bheemamma v. SHO, Police
Station, Uppal Hyderabad, 2002 Cri LJ 694.
184
In the case of Sewinder Singh Grover, re67 about the allegation of custodial death of
Sewinder Singh Grover, the Apex Court in a petition under Article 32 not only directed
Central Bureau of Investigation to lodge First Information Report (FIR) and start criminal
prosecution against the offenders but directed the Union of India to pay Rupees Two Lakhs to
the widow of deceased by way of ex-gratia payment.
In another case of Aravinda Singh Bagga v. State of U.P,68 where there was police
atrocities against a woman, her husband and his family members. The Apex Court in a writ
petition under Article 32 of the Constitution has also directed the State to pay Rs. 10,000
each as compensation to the victim girl, and her husband and Rs. 5,000 each to his family
members who were being tortured by police. Over and above, the court further directed the
State Government to launch prosecution against offending police officers.
In the case of Charanjit Kaur v. Union of India69 the Apex court awarded
compensation to the wife and dependents of an army officer, who while in service died in
mysterious circumstances. Again in the case of “Tirath Ram Saini v. State of Punjab”,
70
the
Supreme Court directed the State to pay Rs.10, 000 to each of two persons for violation of
their fundamental right under Article 21 – for the wrongful confinement of two persons as
done by the police - which would not preclude the victim in pursuing any other civil and
criminal remedies against the offenders.
In Smt.Kewal Pati v. State of U.P.71 where the deceased was convict and was serving
his sentence, yet he was entitled to protection of life and safety to be ensured by the jail
authorities. The killing took place in the Varanasi jail by co-accused. His untimely death has
deprived the petitioner (deceased wife) and their children, his company and affection. The
legal representatives are entitled to be compensated to the extent of Rupees one lakh.
Although there has been no provision in the U.P. Jail Manual for grant of compensation to the
family of the deceased convict.
67.
68.
69.
70.
71.
1995 Supp (4) SCC 450
(1994) 6 SCC 656
AIR 1994 SC 1491
(1997) 11 SCC 623
1995 Cri LJ 2920 (SC)
185
In Smt. Bheemamma v. SHO. Police Station, Uppal Hyderabad72, the court held that
there was negligence on the part of the jail authorities in taking proper care of the deceased
and there was no medical treatment, nor any medical care. It was observed that when he was
advised to be taken to hospital, there was delay in taking him to the hospital. The court after
due consideration directed the Government to grant an amount of Rs. 20,000 as ex-gratia to
the petitioner.
5.13. Gender Inequities
In all societies, women do not enjoy the basic human rights inseparable from human
dignity, liberty and freedom, to their full extent. This is due to gender inequality, direct and
indirect discrimination, coercion and violence. The women‟s human rights are violated
primarily because of their sex. The term sex is applied to differences between men and
women that are based on female or male. The term gender is applied to the cultural aspects of
male and female roles, in other words the behaviour, personality and social attributes that are
expected of males and females, and these attributes become the basis of masculine and
feminine roles.
Indian Judiciary has made immense contribution to strike the balance between
discrimination caused to the working women and availing them of justice against such
discrimination. In Air India v. Nargesh Meerza73, the Air India and Indian Airlines
Regulations were challenged as violative of Article 14. Regulation 46 provided that an Air
Hostess was to retire from service upon attaining the age of 35 years or on marriage if it took
place within four years of her joining service or on first pregnancy, whichever occurred
earlier.
The Supreme Court struck down the Regulation providing for retirement of the Air
Hostess on her first pregnancy, as unconstitutional, void and violative of Article 14. The
court explained that the Regulation did not prohibit marriage after four years, to terminate her
service if she became pregnant, Court said, amounted to compelling the poor Air Hostess, not
72. 2002 Cri LJ 694
73. AIR 1981 SC 1829
186
to have any children. It was held not only callous and cruel act but an open insult to Indian
Womanhood. Court also said that it was not only manifestly unreasonable and arbitrary but
contained the equality of unfairness and exhibited naked despotism and was, therefore,
clearly violative of Article 14.
5.14. Sexual Harassment
Sexual violence against women is rooted in a global culture of discrimination, which
denies women equal rights with men, and which legitimizes and sexualizes the violent
appropriation of women‟s bodies for individual gratification or for political ends. Social and
cultural norms that deny women equal rights with men render women more vulnerable to
sexual abuse. Sexual violence does not exist in isolation. Rather, it is compounded by
discrimination on the basis of race, ethnicity, sexual identity, social status, religion, class,
caste and age all of which may place women at an increased risk of violence. Such
discrimination involves the denial of basic social and economic rights and restricts women‟s
access to justice.
Sexual violence against women is a human rights violation that cannot be justified by
any political, social, religious, or cultural claim. Rape, which is one of the form of sexual
violence, when used as a weapon of war, is systematically employed for a variety of
purposes, including intimidation, humiliation, political terror, extracting information,
rewarding soldiers, and ethnic cleansing. Women are often coerced into providing sex for
favours.
Sexual harassment in the workplace is a growing concern for women. Employers
abuse their authority to seek sexual favours from their female co-workers or subordinates,
sometimes promising promotions or other forms of career advancement or simply creating an
untenable and hostile work environment. Women who refuse to give in to such unwanted
sexual advances often run the risk of anything from demotion to dismissal. Women in
custody are often coerced into sexual assault, groping during body searches and shackling
during child birth for favours such as extra food or personal hygiene products, or to avoid
punishment.
187
In Vishakha v. State of Rajasthan74, Vishakha, a non-governmental organization
working for gender equality, had filed a writ petition seeking the upholding of the
fundamental rights of working women under Article 21 of the Constitution. The reason for
the petition was the gang rape of a Saathin (a social worker involved in women‟s
development programmes) of Rajasthan in 1992. The assault was an act of revenge as Saathin
had intervened to prevent a child marriage.
Supreme Court provided a landmark judgment on the area of sexual harassment
against women. As in this particular aspect, there is no law or enactment by the legislature,
the judiciary here applied its activist power and provides some guidelines. After providing
the guidelines the court said: accordingly the guidelines and norms would be strictly observed
in all work places for the preservation and enforcement of the rights of gender equality of the
working women. These directions would be binding and enforceable in law until suitable
legislation is enacted to occupy the field.
5.15. Sexual Harassment: Molestation
The accused – respondent on 12th August, 1988 at Taj Hotel, Delhi, tried to molest a
women employee – a clerk cum typist (Secretary to chairman of a Delhi based Apparel
Export Promotion Council), reported in Apparel Export Promotion Council v. A.K.Chopra75.
The respondent persuaded the typist to accompany him while taking dictation from the
chairman, so that her typing was not found fault with. While the typist was waiting in the
room, the respondent taking advantage of the isolated place tried to sit too close to her and
touch her despite her objections; and tried to molest her physically in the lift while coming to
the basement, but she saved herself by pressing emergency button, which made the door lift
open.
In appeal of the case, the Supreme Court held that “in a case involving charge of
sexual harassment or attempt to sexually molest, the courts are required to examine the
broader probabilities of case and not swayed away by insignificant discrepancies or narrow
74. AIR (1997) 6 SCC 241
75. AIR 1999 SC 625
188
technicalities or Dictionary meaning of the expression molestation or physical assault.” The
court also said that “the sexual harassment of a female employee at the place of work is
incompatible with the dignity and honour of a female and to be eliminated and that there can
be no compromise with such violation”.
5.16. Equal Pay for Women
Women are paid less than men for doing the same work, though India has both the
Minimum Wages Act and the Equal Remuneration Act, prohibiting discrimination. The Equal
Remuneration Act was passed in 1976 to ensure that there was no discrimination in pay,
which is not well known and there are few reports of cases wherein women have sought to
enforce their rights to equal pay. The protection of the Act covers almost all women
employees. The Supreme Court in a judgment delivered in Randhif Singh v. Union of India76
focused on the Directive Principles declaring equal pay for equal work. The court held that
though equal pay for equal work was not a fundamental right, it was a Constitutional goal. So
the Principles could be read into the fundamental right while interpreting law.
The equal pay principles in Article 39(d) can be read along with the fundamental right
to equality contained in Articles 14 and 16, the court said. To the vast majority of people, the
equality clauses of the Constitution would mean nothing of they are unconcerned with that
they do and the pay they get. This judgment may be used to support a writ petition in a High
Court or Supreme Court, if women are paid less than men for doing the same work.
Though the remedy of monetary compensation for violation of fundamental rights is
well established, courts have at the same time imposed limitations on their own power to
grant such monetary relief. For example, as in Tamil Nadu Electricity Board v. Sumathi77,
and also in chairman Grid Corporation of Orissa Ltd., v. Sukamani Das78, the courts may
refuse to issue a writ granting compensation, when disputed questions of facts arise, and the
tortuous liability is clearly denied by the State.
76. (1982) 1 SCC 618
77. AIR 2000 SC 1603
78. AIR 1999 SC 34 12
189
The existing procedure for getting compensation is time – consuming and creates
many problems for the victim as he has to first go through a criminal trial to establish the
culpability of the offender and then go through a civil trial for getting proper compensation
under Section 357 (2) Cr.PC is almost illusory. To avoid this, in victimologically – oriented
jurisprudence, both the trials, i.e., the trial for finding culpability of the offender and for
award of compensation to the victim should be synthesized into one trial so that both the
objectives can be achieved within the same period.
5.17. Maintenance for Divorced Wife
In the judgment of the case Mohd.Ahmed Khan v. Shah Bano Begam79, five Judges
Bench of the Supreme Court declared that a Muslim husband having sufficient means must
provide maintenance to his divorced wife who is unable to maintain herself. Such a wife is
entitled to the maintenance even if she refuses to live with Muslim husband because he has
contracted another marriage within the limits of four wives allowed to him by Quran. The
judges declared that the Quran imposes an obligation to provide maintenance to the divorced
wife. The judgment created a storm and uproar in Muslim Community and Priests of Islam
started agitation.
In this case, the Bench declared that a Muslim divorced woman who cannot maintain
herself is entitled to get maintenance from her former husband till the time she gets married.
The judges rejected the plea that maintenance is payable for the iddat period only. They also
rejected the contention that deferred Mohr (dower) is a payment on the divorce of a wife and
hence, such payment under the personal law excludes the payment of any maintenance by the
husband in consideration of marriage. They observed that according to Quran, the dower is a
consideration and mark of respect for the Muslim Woman instead of being a consideration for
divorce.
The judges stated that the religion professed by spouse has no place in the scheme of
section 125 Cr.PC., which is a measure of social justice to prevent vagrancy and destitution.
79. AIR 1985 SC 945
190
The court held that if there is any conflict between personal law and Section 125 Cr.PC., then
it is clear from the language of the Section that it over-rules the personal law.
5.18. Fraudulent Marriage Ceremony
In Bodhisattwa Gautam v. Subhra Chakraborty80, the complainant Subhra
Chakraborty was a student of the Baptist College, Kohima and the accused Bodhisattwa was
a lecturer in that college. According to the FIR filed by the complainant and cohabited with
her, giving her a false assurance of marriage but also went through certain marriage
ceremony, by putting vermilion on her forehead before the God, and accepted her as his wife,
but later refused to recognise her as his life partner. The fraudulent ceremony made the
complainant to believe that she was lawfully married wife of the accused.
In this landmark case, the Supreme Court ordered the accused to pay Rs.1000 per
month as interim compensation to the victim of rape during the pendency of the criminal
case. The court observed that women with men under the Constitution enjoy equal status.
“Women also have the right to life and liberty; they also have the right to be respected and
reacted as equal citizens. Their honour and dignity cannot be touched or violated. They also
have the right to lead an honourable and peaceful life”.
5.19. Breach of Promise to marry
In Deelip Singh v. State of Bihar81, the Supreme Court observed that false promise to
marry will not ipso facto make a person liable for rape if the prosecutrix is above 16 years of
age and impliedly consented to the act. The court held that consent given a woman believing
the man‟s promise to marry her would fall within the expression without her consent vide
clause (ii) to section 375 IPC only if it is established that from the very inception the man
never really intended to marry her and the promise was a mere hoax.
When prosecutrix had taken a conscious decision to participate in the sexual act only
on being impressed by the husband‟s promise to marry her and the accused‟s promise was not
false from its inception with the intention to seduce her to sexual act, clause (ii) to Section
80. AIR 1996 SC 922
81. 2005 (1) SCC 88
191
375 IPC is not attracted and established. In such a situation the accused would be liable for
breach of promise to marry for which he will be liable for damages under civil law.
5.20. Invading Privacy...
Right to Privacy of Women and Right to Terminate Pregnancy
Privacy is a concept related to solitude, secrecy and autonomy. It is virtually
impossible to define privacy in strict legal terms. It varies with the times, the historical
context, the state of the culture and the prevailing judicial philosophy. Privacy is the ability of
an individual or a group to keep their lives and personal affairs out of public view, or to
control the flow of information about themselves. The simplest definition of privacy was
given by Judge Thomas Cooley in Olmstead v. United States82; he called it, the right to be let
alone invasion of privacy means “an unjustified exploitation of one‟s personality or intrusion
into one‟s personal activity, actionable under tort law and sometimes under Constitutional
law.”83 The injury inflicted by invasion of privacy basically deals with defamation of an
individual i.e., lowering him in the eyes of his fellowmen. These invasions cause far greater
pain and distress than a mere bodily injury.
The right to privacy is not a specifically guaranteed Fundamental Right under the
Constitution of India, but one of the necessary ingredients of Personal Liberty. However, the
Supreme Court of India, in a number of cases has held that it is implicit under Article 21 of
the Constitution guaranteeing the right to life and personal liberty84. In Re-Ratanmala85 and
in State of Maharashtra v. Madhukar Narian86, without referring to Article 21, the Supreme
Court has held that the right to privacy is available to even a woman of easy virtue and no
one can invade her privacy. In Radha v. State of U.P87 case, it was held that prostitutes are
also entitled to live a life of dignity. The Supreme Court in Neera Mathur’s case88 has held
that the right to privacy of women would preclude such questions to be put to female
82.
83.
84.
85.
86.
87.
88.
277 US. 438 (1928)
Black‟s Law Dictionary, 7th Ed., Garner Bryan A.
AIR 1993 SC 264; AIR 1984 SC 1562
AIR 1962 Mad 31
AIR 1991 SC 207
AIR 2004 NOC 19 (ALL)
AIR 1992 SC 392
192
candidates as modesty and self-respect may preclude disclosure of an answer. In this case, the
Supreme Court found that such probes in respect of information regarding her reproductive
functions like the regularity of menstrual cycle, the number of conceptions taken etc.,
amounted to invasion of privacy of a woman and therefore could not be made.
With the vast expansion of the concept of personal liberty, the right to privacy has
also been accepted to be compromised therein89, and that such right of privacy would include
the right to or not to bear or beget a child, the right to be or not to be a parent, the right to or
not to use contraceptives, the right to or not to sterilize oneself, the right to have sex without
the nuisance of a child, or to have child without the nuisance of sex by artificial
insermination. The right has accordingly been held to include the right to stoppage of
parenthood or motherhood in transit, that is, the right to terminate pregnancy prematurely by
aborting the foetus. But granting that the right to personal liberty of a woman includes her
right to terminate pregnancy depends on whether or not the exercise of such right would
affect the right to life of unborn child.
The answer of this question would obviously depend on the answer to the two
questions: viz., (i) whether or not an unborn child is a person within the meaning of the
life/liberty clause in Article 2190 and (ii) whether or not it has life or if it has life when the life
begins, because some believe that life begins immediately after conceiving and some believe
life begins only after completion of first trimester.
Right to life of Foetus: Abortion in India is an issue clouded with the questions of morality,
public morals, ethics, religious beliefs and women‟s rights. In India, Article 21 of the
Constitution guarantees the life and liberty of every person. But it is doubtful if this would
include the life of foetus as the meaning is restricted by the use of the world person.
In Bandua Mukti Morcha v. Union of India91 whoever, with intent to cause
miscarriage of a woman with child, does an act which causes the death of such woman, shall
89. Govind v. State, AIR 1975 SC 1378
90. As per Section 20 of Hindu Succession Act, Section 99(i) of Indian succession Act, and Indian Penal Code
(312-316) Child in Womb is considered as a legal person capable of enjoying legal rights.
91. AIR 1984 SC 802
193
be punished with imprisonment of either description for a term may extend to ten years, and
shall also be liable to fine; And if the act is done without the consent of women, shall be
punished either with imprisonment for life, or with the punishment above mentioned.
The question that arises is:
Is foetus a person? or
Is it a part of the mother?
Answering this question becomes imperative in the light of Article 21. The question
that remains is:
If foetus is a person then when does it achieve this status of personhood? (or)
When does the foetus attain a separate personality from the mother?
This never-ending quest for answers of these questions has made the status of foetus
very obscure. There seems to be no concrete view on this point. The opinion is divided and
unclear. However, it is submitted here that, foetus has a separate identity and is not part of the
mother. Keeping in mind the various international conventions and other authorities, it is
suggested that the foetus should be recognized and acknowledged as a separate entity
enjoying distinct legal rights and is not a part of the mother. In Common Wealth v. Cass,92 the
Massachusetts Supreme Judicial Court held that foetus was person within the meaning of
State Vehicular Statute. The Court came up with a syllogism to conclude that foetuses are
persons.
All human beings are legal persons.
Foetuses are human beings.
Foetuses are legal persons.
In Madhukar Narayan Mardikar v. State of Maharashtra93, the High Court observes
that since Banubi is an unchaste woman it would be extremely unsafe to allow the fortune
and career of a Government official to be put in jeopardy upon the Uncorroborated version of
such a women who makes no secret of her illicit intimacy with another person. She was
honest enough to admit the dark side of her life.
92. 467 NE 2d 1324 (Mass 1984).
93. AIR 1992 SC 207
194
Even a woman of easy virtue is entitled to privacy and no one can invade her privacy
as and when he likes. So also it is not open to any and every person to violate her as and
when he wishes. She is entitled to protect her person if there is an attempt to violate it against
her wish. She is equally entitled to the protection of law. Therefore, merely because she is
woman of easy virtue, her evidence cannot be thrown overboard.
5.21. Indian Judiciary to Remedy the Legislative Vacuum
Sensitization of the Judicial Machinery: The latest judicial trend reveals that the Higher
Courts are quite enthusiastic in using law as a tool of social revolution. In a recent judgment
of State of M.P. v. Babulal94, C.K.Thakkar J. opined that a socially sensitized judge is better
armour in cases of crime against women than long clauses of penal provisions, containing
complex exceptions and complicated provisions. Such a judgment stresses about the need of
gender sensitive judiciary to deal with crime against women. With the rise of crime against
women judicial behaviour displayed not only a greater sense of responsibility but also more
sensitiveness.
Gender Sensitivity of Judges Towards Victims of Sexual Abuse Particularly Rape Victims:
A male – dominated judiciary lacks the sensitivity required to handle rape cases, as is evident
from the way many rape trials have been conducted here, with the onus on the victim to prove
that she was indeed violated beyond doubt. Cross-questioning of a rape victim seeks more to
indict the victim than establish the crime, and in most cases, the aggressor walks free, which
is why many sex-offenders are not first-timers. In the case of Krishnappa v. State of
Karnataka95, the Supreme Court acknowledged the necessity of sensitizing a judge to such
inequality and discrimination, which is suffered by a woman. If the judge is a woman, in the
matter of judicial decision making process, may understand the problem of a woman better
being empathetic to her. This means a woman judge mentally puts herself in the shoes of a
woman and then only it will be possible for her as sensitized judge to understand the problem
of a woman with which she is facing including the problem of courtroom prejudice. Women
94. 2000 1 SCC 234, Para 29
95. AIR 2000 SC 1470
195
judges would be free of such prejudices and would ensure fair trial and conviction and create
a climate of deterrence.
In the case of State of Punjab v. Gurmit Singh and Others96, how the evidence of a
rape victim has to be considered by the court has been described by the Supreme Court. In
this case the Supreme Court being sensitized to the problems of sexual assault of women,
held inter alia, that the courts must, while evaluating evidence, remain alive to the fact that in
a case of rape, no self-respecting woman would come forward to court just to make a
humiliating statement against her honour such as is involved in the commission of rape on
her.
Criticizing the High Court where the sentence in a rape case of 12 years girl was
reduced, the Supreme Court held that High Court exhibited lack of gender sensitivity towards
the victim of rape and to the society by reducing substantive sentence in the established facts
and circumstances of the case and the courts have an obligation while awarding punishment
to impose an appropriate punishment so as to respond to the society‟s cry for justice against
such criminals.
In the case of victims of sexual abuse who are minors, it is worth referring to the
recent guidelines laid down by the Supreme Court of India in Sakshi v. Union of India &
ors97, which a sensitized judge should follow:
(i) Permitting use of a videotaped interview of the child‟s statement by the judge (in the
presence of a child support person);
(ii) Allow a child to testify via closed circuit television or behind the screen to obtain full
and candid account of the acts complained of;
(iii) The cross-examination of a minor should only be carried out by the judge based on
written questions submitted by the defence upon perusal of the testimony of the
minor; and
96. AIR 1996 SC 1393
97. AIR 2004 SC 3566
196
(iv) Whenever, a child victim is required to give testimony, sufficient breaks should be
given as and when required for by the child.
It may be interpreted here that a sensitized judge in case of an adult rape victim, can
take similar suitable steps also. The pity is that women are not adequately represented as
judges in the country‟s higher judiciary.
Violence against Women: In a landmark case, Vishaka and others v. State of Rajasthan and
others98, the Supreme Court Bench headed by Justice J.S. Verma, laid down number of
guidelines to remedy sexual harassment of a female at the place of work. The court laid down
the guidelines to be followed by the employer towards working women. The bill Sexual
Harassment of Women at their Workplaces (Prevention) Bill 2003 is not likely to transform
into Act. In this case, the Supreme Court said its directions would be binding and enforceable
in law until a suitable legislation is enacted.
In yet another landmark case, Delhi Domestic Working Woman Forum v. Union of
India
99
, the supreme court has suggested for payment of Compensation Board taking into
pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of
child birth if occurs due to rape. Such Board may be established under Article 38 (1) of the
Constitution of India. The Board is yet to be established by the Government.
In Air India v. Nargeesh Meerza
100
the Supreme Court quashed the provisions of the
rules which stipulated the conditions that the service of Air hostess shall be terminated on her
first pregnancy as unconstitutional. The court held this regulation as most unreasonable and
arbitrary and interfering with ordinary course of human nature, and hence violates Article 14
of the Constitution.
The courts in India have very widely interpreted the word cruelty under section 498-A
of The Indian Penal Code. What conduct amounts to cruelty depends upon facts and
circumstances of such case. The term cruelty has been designedly left by the judicial
98. (1997) 6 SCC 241; AIR 1997 SC 3011
99. 1995 1 SCC 14
100. AIR 1985 SC 1829
197
authorities too, to an elastic form to meet the necessity of the changing requirements and
concepts of the society. Cruelty is not a fact isolated from the environment and background of
the spouses, therefore, each case ought to be decided individually according to the peculiar
set up of the case.
In Rishi Kumar v. State of Haryana101 Punjab and Haryana High Court held that
baseless accusation by the husband about the infidelity of wife and that she was carrying in
her womb a child of someone else amounts to cruelty under section 498-A of IPC.
In Balbir Kaur v. Dhir Dass102, the Court discusses about what conduct amounts to
cruelty. In case wife is denied medical treatment and she is turned out of the house, the
conduct amounts to cruelty. Continued neglect and fake allegations about wife‟s, parents by
the husband also amount to cruelty.
In a popular case, Mohmmed Ahmed Khan v.Shah Baao Begam103, the Supreme Court
held that Section 125 of Criminal Procedure Code 1973 is applicable to the Muslim husband
and liable to maintain his divorced wife even beyond the iddat period.
In Partibha Rani
v. Surja Kumar104, the Supreme Court held that it cannot be said that upon entering to
matrimony the stridhan property of the married women has to be placed in the custody of
husband.
In Maya Devi v. State of Maharashtra105, the requirement that a married woman
should obtain her husband‟s consent before applying for public employment was held to be
invalid and unconstitutional.
In case of Vijay Kumar Sharma v. State of Uttar Pradesh106, Allahabad High Court
held that taking away the child without the consent or knowledge of the child‟s mother and
particularly without informing her, amounted to cruelty under clause (a) of Explanation to
section 498-A in as much as such a conduct of the accused.
101.
102.
103.
104.
105.
106.
1998 (1) Cr. L.J.378
AIR 1979 P & H 162
AIR 1985 SC 945
AIR 1985 SC 628
AIR 1986 SC 743
1991 (1) Crimes, 298
198
In addition to this, as in Renu & others v. State of Haryana
107
and also in Virbhan
Singh v. State of U.P108., leveling of false allegation regarding the incapability of wife to
conceive a child by the husband in divorce petition amounts to cruelty under section 498-A
IPC.
In Anjanabai v. State of Maharashtra109, the Bombay High Court held that the
scolding by the mother-in-law, which make the victim to commit suicide could be
constructed as a willful conduct of such a nature as would fall under the first or part of the
explanation to section 498-A IPC and presumption under section 113-A Evidence Act for
abetment of her suicide could be raised for committing the offence under section 306 IPC.
In Taiyab Khan v. State of Bihar110 (now Jharkhand), Additional Judicial
Commissioner, Ranchi sentenced 10 year‟s rigorous imprisonment to husband of the
deceased and his parents under section 304-B of the IPC. Judgment of conviction was
confirmed by the High Court of the State of Jharkhand at Ranchi. Present is a case of death of
a women having taken place within three years of her marriage. Death of deceased is said to
have been caused by poisoning. It is clear from the evidence of witnesses that the deceased
was being constantly harassed for demands on account of dowry.
The gendered visions do not remain limited to the private sphere. Their impact often
becomes visible even in the court of law like in the case Tirath Kaur v. Kirpal Singh,111
where the wife pleaded that she wanted to continue with her marriage but would not like to
give up her job, to which the court held that, refusal to give up a job amounts to desertion
and the husband is entitled to a decree of restitution of conjugal rights cases like these reveal
the presence and continuation of the ideology of the conventional Hindu woman.
The anti-woman bias in the Hindu code cannot be ignored. The presence of Hindu
fanaticism is evident in cases like the Sati or self-immolation by the eighteen year old Roop
107.
108.
109.
110.
111.
1990 (3) Crimes, 226
AIR 1983 SC 1002
1998 Mh.L.J.641
AIR 2006 SC 673
AIR 1964 Punjab 28 (PHC)
199
Kanwar (2004),112 on her husband‟s pyre, and her glorification and worship that followed.
Sati is a punishable offence under the Commission of Sati (Prevention) Act 1987 but many
consider it as a symbol of the glorious Hindu heritage, which is what probably led the
perpetuators to enjoy immunity for a long time and that which undermines the fundamental
right to life and liberty granted by the Constitution of India under Article 21.
In Apparel Export Promotion Council v. A.K. Chopra,113 the Supreme Court held that
punishment of removal of male employee from service after he has been found guilty of
sexual harassment of a female colleague is proper and reasonable, on the ground that sexual
harassment of a female at the place of work is a form of gender discrimination against
women and is incompatible with the dignity and honour of a female and needs to be
eliminated.
Empowerment of Children: Empowering the child is the road to prevention from abuse and
victimization. To empower the child, education is the tool. Therefore, primary education for
children has been made a fundamental right as per the decision of the Supreme Court of India
in Unnikrishnan‟s Case (1993). Article 21-A of the Constitution states that “The State shall
provide free and compulsory education to all children of the age 6-14 years in such manner as
the State may by law determine”114. The proposal also will have a positive impact on
eradication of child labour. The spread of elementary education through constitutional
measures would have a good impact on other social indicators like population growth, health
and women‟s development as well as enhancement of productivity of the economy and
reduction in unemployment. Making primary education a fundamental right under the
Constitution is a leaping step to empower children as education is the tool for development.
The implementation of this right will have a bearing on other kinds of victimization such as
child labour.
112. T.K.Rajalakshmi, Sati and the Verdict, Frontline, Vol.21, Issue 05, Feb.28- Mar.12, 2004
113. (1999) 1 SCC 759
114. 86th of the Amendment of the Constitution of India, 2002;
Article 21A:The State shall provide free and compulsory education for all children of the age of 6-14
years in such manner as the State may by law may determine; Amendment of Article 51-A : In Article 51A of the Constitution after clause (J) the following clause shall be added namely (K) who is a parent or
guardian to provide opportunities for education to his child; Article 45: The State shall endeavour to
provide early childhood care and education for all children until they complete the age of 6 years.
200
The main features of Right to Education Act, 2009115 are : To promote free and
compulsory elementary education to every child in India; To make right to education as a
fundamental right to all children under the age group 6-14 years; To ensure that no one is
denied of education due to economic backwardness and poverty. Education is included under
the National Common Minimum Programme (NCMP) of the government of India. Right to
education in India has been reconfirmed by economists such as T.W.Schultz, Gary S.Becker
and Amartya Sen.
Right to Education and Women: Education has become India‟s development gateway.
Women‟s education leads to better family health, lower fertility and higher quality of life.
The right to education finds its place in chapter IV of Indian Constitution as a non-justifiable
right, but has now been elevated by judicial interpretation to the status of a fundamental right
by the Supreme Court in its decision in Unnikrishnan, J.P. v. State of Andhra Pradesh116
which laid down that every citizen of India has a guaranteed right to free education up to 14
years of age and his right thereafter is subject to economic capacity and development of the
State. It flows directly from the fundamental right to life.
In protecting the Human Rights of Women under Criminal law the Supreme Court
laid down in the case of State of Tamilnadu v. Kaurppu Swamy and others117 that when
prosecuting for the offence of outraging the modesty of woman normally the testimony of the
victim should be accepted and that such testimony should inspire confidence of the court
even if there is absence of any corroboration in the case.
Women’s Right to Health and Nutrition: In a trend – setting judgment in Consumer
Education and Research Centre v. Union of India,118 the Supreme Court declared the right of
a worker to good health, medical care and safe hygienic workplace as embodied in a person‟s
fundamental right to life. Similarly, right to a healthy environment in Dr.B.L.Wadhera v.
Union of India,119 and to emergency medical aid in Permanand Kataria v. Union of
115.
116.
117.
118.
119.
www.indg.in/primary -education.
AIR 1993 SC 2178
(1993) 1 SCC 78
(1995) 3 SCC 42
(1996) 2 SCC 594
201
India,120and also in Paxhim Banga Khet Mazdoor Samita v. State of West Bengal,121 have
been declared a fundamental right for being essential facets of right to life.
Trafficked Victims: In India Crimes against women are among the highest in the world, and
conviction of the criminal, the lowest. A woman is raped every 29 minutes, according to
statistics compiled by the National Crime Records Burea. Reportedly, 58,310 rape cases are
pending trial; the cases that remain unreported could be much more.
Once a woman becomes a victim of the crime involving the trafficking her protection
becomes imperative. While dealing with the cases of trafficked victims, the Supreme Court
stressed the need for victim protection in Javed Alam v. State of Chattisgarh122 and also in
Zahira Habibullah Saikh v. State of Gujarat.123 The identity of the victim is required to be
changed for her protection. Care, support and shelter are to be provided to runaway children.
As viewed by John Milton: The child shows the Man as Morning shows the Day.
This succinct survey of judicial decisions shows that the courts in India have been
endeavouring to reconstitute the rights guaranteed by the statutes in context of women‟s
experiences and concerns. This has resulted in the meaningful expansion of human rights of
women. The forward looking ideas reflected in the landmark decisions of the higher courts
will have to trickle down to the lower levels of the judiciary and the bar and that will
ultimately expedite the social transformation that the feminist ideology envisions.
5.22. Sexual Abuse of Girl Child in India
Sexual abuse of the girl child is the harder facet of female exploitation. Child rape
which is highest of heinous Crimes, in the form of sexual abuse, continues significantly in
various States and Union Territories. Sexual abuse of a girl child is a fundamental violation
of rights of children. It is shameful and shocking that those responsible for the socialization
of children are destroying their future. The unfortunate girl children coming from poor
120.
121.
122.
123.
AIR 1989 SC 2039
(1996) 4 SCC 37
(2009) 6 SCC 450
(2004) 4 SCC 158; AIR 2004 SC 3114
202
backgrounds end up by being sexually abused cases of rape, flesh, trafficking and the rising
number of young sex workers speak of the social perversions.
Child sexual abuse is an activity relating to sex, organs engaged in for sexual
gratification, which takes advantage of, violates or deceives young children. Child sexual
abuse includes implying, using, inducing or coercing any child to engage in illicit sexual
conduct, it also includes the use of children in assisting with other persons to engage in
explicit sex. In the offence of rape, for the sake of consent the age of the women should not
be under 16. Sexual intercourse with false promise of marriage is rape as the consent is not
the legal consent.
Child sexual abuse is defined as “any kind of physical or mental violation of child
with a sexual intent usually by an elder person who is in possession of trust of power vis-avis the child.”124
5.23. Judicial Intervention to Protect Girl Child against Sexual Abuse
In spite of the enactment of certain legislative provisions, exploitation of children and
their sexual abuse are still unabated and position is no doubt very alarming. In these
circumstances there are no other options than judicial interventions to protect the children
from sexual abuse and to protect them. Judiciary has played an important role in curbing the
menace of child sexual abuse.
In Ghanshayam Mishra v. The State125, the victim was a young girl of 10 years and
the offender was an adult of 39 years, he was the victim‟s school teacher. Taking advantage
of his position by inducing her to come inside the schoolroom he committed rape. The
appellate court found no mitigating factor in favour of the offender, ordered for enhanced
punishment for 3 years to 7 years rigorous imprisonment.
In State of Punjab v. Major Singh126, the judiciary for the first time highlighted the
concept of abuse by outraging the modesty of a woman. In this case a female child of seven
124. Sunil S.Hosamani, Protection of Girl Child Against Sexual Abuse, Indian Bar Review Vol.XXXIII(1 to 4)
2006, p.223.
125. AIR 1957 Ori. 78.
126. AIR 1967 SC. 63.
203
and half months was considered to be woman under Section 354 of IPC, as the accused had
outraged and intended to outrage whatever modesty the little victim was capable of. The
accused had walked into the room where the child was sleeping and committed an indecent
assault on her. Section 354 of IPC reads as: A woman‟s modesty is her sex whoever uses
criminal force with intent to outrage it commits an offence.
In the case of Gorakh Daji Ghadge v. The State of Maharashtra127, the father raped
his 13 year-old daughter in his home. The High Court stated that crimes in which women are
victims need to be severely dealt with and in extreme cases such as this when the accused,
who is the father of the victim girl has thought it fit to deflower his own daughter of tender
age to gratify his lust, then only a deterrent sentence can meet the ends of justice.
In State of Karnatak v. Putturaja128, the Supreme Court has held that leniency in
matters of sexual assault is not only undesirable but also against public interest and such
types of offences must be dealt with severely and with iron hands.
In Jagadish Prasad Sharma v. State129, is a case of sexual abuse of a girl child aged
three and a half years old. The trial court convicted the accused for rape and sentenced for
rigorous imprisonment for life.
In the case of Sakshi v. Union of India and others130, the need for a law on child
sexual abuse was brought to the attention of the Supreme Court. The petitioners submitted
the Section 375 of the IPC defeated the very purpose and intent of the provision for
punishment of rape. Accordingly, the Indian Penal Code, the Indian Evidence Act and the
Criminal Procedure Code should be amended. The Supreme Court has given additional
guidelines in case of trials of child abuse. Pursuant to the order passed by the Supreme Court,
the Law Commission of India in its 172 Report reviewed the laws related to child sexual
abuse and recommended amendments to Indian Penal Code.
127.
128.
129.
130.
1980 Cr.LJ 1380
AIR 2004 SC 3466
1995 Cr.LJ 2501
AIR 1999 SC
204
In the Case of Vishall Jeet v. Union of India,131the Supreme Court issued directions to
the State Government for eradicating child prostitution and setting up rehabilitative homes for
those children.
In another landmark case, Gaurov Jain v. Union of India132, as decided by the
Supreme Court, regarding protection of basic human rights and dignity of life of children and
prevention of sexual abuse of the female children of the fallen women, every child has the
inherent right to life, which is already granted by Article 21 of the Constitution of India.
In this case, the Supreme Court has pronounced that the right of the child is the
concern of the society, so that the fallen women surpass trafficking of her person from
exploitation, equally children have the right to equality of opportunity, dignity and protection
and rehabilitation by society with both hands open to bring them into the main stream of
social life without pre-stigma affixed on them for no fault on her. It has been also held that
the State parties shall take all appropriate legislative, administrative, social and educational
measures to protect the child from all forms of physical or mental or sexual violence and
ensure care for child.
5.24. Judicial Trend about Sexual Assault (Rape) against Women in India
Violence against women is a manifestation of historically unequal power relations
between men and women which have led to domination over and discrimination against
Women by obstacle to the achievements of the objectives of equality, development and
peace.133 Rape is crime not only against the person of a Woman (victim) but against the entire
society. It destroys the entire psychology of a woman and pushes her into deep emotional
crisis; she looks down upon her in derision and contempt.
Due to the recognition of violence against women as a human rights violation, acts of
violence have been brought out of the private sphere, where they were treated as personal
tragedies, and in the public realm, where they have become the basis for policy, legislation
and demand for accountability.
131. AIR 1990 SC 1412
132. AIR 1997 SC 3021
133. 4th World Conference at Beijing 1995 Declaration
205
Jyoti Bhakare examines the various rape cases such as: Sheikh Zahir v. State of
Bihar134, Tukaram v. State of Maharashtra135, Mohd.Habib v. State136, State of Maharastra v.
N.Mardikar137, Chairman, Railway Board v. Chandrima Das138, and Delhi Domestic Working
Women’s Forum v. Union of India139 and reaches the conclusion. As noted by the author, the
pity is that “In many cases of child rape, the child had been penetrated through fingers or by
objects or been forced to perform oral sex; yet this is not considered as rape by the courts.
The present law does not recognize penetration of objects or parts of the body into the vagina
or onus; and forced oral or anal impediments as a crime through it is equally painful to the
victim.”140
In State of Punjab v. Gurmit Singh141, the Supreme Court while dealing rape cases
issued some guidelines as under:

It is mandatory duty on the trial court to conduct rape case in camera;

If permissible, preferably the cases of sexual assault are to be tried by lady judges,
wherever available;

The court should avoid disclosing the name of prosecutrix in their orders as far as
possible to avoid further embarrassment to the victim of sex crime.
In Dinesh v. State of Rajasthan142, the Apex Court went further holding that the name
of the victim shall not be published even in the publication of the judgments of the courts.
An alarmingly large percentage of rape cases are custodial in nature, without hardly
any culprit ever getting punished.143
134.
135.
136.
137.
138.
139.
140.
AIR 1960 SC 911
AIR 1979 SC 185
1989 Cr. LJ 137 Delhi
1991 (1) SCC 57
AIR 2000 SC 988
1995 (1) SCC 14
Jyoti Bhakare, Sexual Assault against Women Need for Reforms, Journal of Minorities Rights 1(1) 2010,
p.33
141. AIR 1996 SC 1393
142. AIR 2006 SC 1267
143. D.K.Bhatt, Human Rights and Gender Issues: A Socio-Legal Perspective, Indian Bar Review, Vol.27(1)
2000, p.32.
206
Rape by policemen, public servants, jail and hospital staff and management all fall
within the broad category of custodial rape and carry a more stringent punishment of ten
years‟, instead of seven years‟ imprisonment. 144 Police and armed forces have also been
reported to have committed inhuman torture and rape on innocent women and girl-children in
terrorist affected areas like Kashmir and earlier in Punjab. Rape and torture are also
sometimes used to oppress public movements, against Uttarakhand agitators at Rampur in
October 1994, as confirmed by National Commission for Women‟s Report, PUCC‟s and
High Court‟s judgment.145 Seven Women had been reported as raped and many others
molested by the police personnel on the night of 2nd oct.1994.
Recently, subsequent to tragic Delhi rape case (Nirbhaya Case) 146 changes have been
made to the laws relating to sexual offences under Criminal Law (Amendment) Act 2013.In
this Act, for the first time in the history of Indian legal system acid throwing or acid attack is
specifically defined as an offence. Perpetrators of acid attacks through acid at the victims
with the intention to disfigure, maim, torture, or kill. The long term consequences of these
attacks include blindness, as well as permanent scarring of the face, any body along with far
reaching social, psychological and economic and other difficulties. Now as per Section 326
A, a person who throws or administers acid on other person and causes a damage or
deformity deserves an imprisonment which shall be of minimum 10 years and may also be
extended to life imprisonment. If any fine is collected under Section 326A, then it is
forwarded to the victim for the purpose of medical expenses. Under this amendment, the
offence of rape is treated more critically. As per the new law, if the rape victim dies or is in a
„persistent vegetable state‟, the minimum punishment for the offender in such case shall be
20 years and it may be extend up to convicts natural life in jail or hanging till death. This time
the medical treatment of a rape victim has also been taken into consideration.
144. Section 376(2), Indian Penal Code.
145. The Hindustan Times, New Delhi Ed., 10th Feb 1996, p-1.
146. State v. Ram Singh , FIR No: 413/2012 (Delhi)
207
5.25. Jurisprudence and Gender: Towards Breaking Women’s Silence in Law
Most of the existing laws are masculine in terms of intended beneficiary and in
authorship, that it has been man‟s understanding of woman, her nature, her capacities and her
experiences rather that women‟s own definitions that has informed law, it becomes almost
imperative to rearrange the prevailing social, political and legal systems so that the feminine
needs, aspirations and interests, originating in women‟s distinctive existential and marital
state of being, find a genuine reflection therein.
An effective and appropriate representation of women from different strata of society
at Parliament and all State legislatures would certainly prove conducive to bring all laws in
India in consonance with gender equality and social justice. The status of women is a
benchmark of social process and is a very important component of the human development
index.
Ideologically a woman was considered a completely inferior species, inferior to the
male, having no significance, no personality; socially she was kept in a state of utter
subjection, denied any right, suppressed and oppressed. The important point to be noted here
is that the traditional theories of justice are male centered. The feminist jurisprudence
believes that legal theory is nothing but an ideology of male supremacy.147 But this is not a
full truth. Law-as legislation- always attempts to be gender neutral conceptually, procedurally
and substantively but fails by and large to deliver equality due to several factors – religious,
cultural and social. Discrimination against women is a manifestation of historically unequal
power relations between men and women which have led to domination over women.
Therefore, in the ultimate analysis, there can be no two options about the need of gender
sensitive laws, sensitive judiciary and effective vigilant and enforcement machinery to deal
with crimes against women.
Despite the galaxy of laws the position of women is still deplorable and miserable. It
clearly indicates that a superficial acceptance of modern notion of equality of sexes is
scarcely enough to combat centuries old patriarchal ideas and institutions. In spite of the
147. Feminism and Law, cited in Gender Justice by N.K. Chakraborty; p.43.
208
Constitutional, legislative and judicial efforts, there still exists a wide gap between the goals
as enunciated in Constitution and the situational realities of the status of women in India.
Gender disparity manifests itself in various forms, the most important being the decline in the
female ratio in the population since the last few decades. Women‟s subjugation to men is
pervasive in the political, civil, social, cultural and economic spheres. Women are still the
subject of suppression and oppression. Many promises of improving the plight of women
were made. However, women‟s empowerment remains as an unfulfilled distant dream.
Dominant cultures are still very prevalent in large parts of the country. Upendra Baxi opines:
what is truly striking about India is the lack of respect for the rule of law, not just among the
people, but also among those who make and those who enforce them.148
5.26. Landmarks in Victims’ Rights and Services: Victims’ Rights Key Statutes
United Nations
29 November 1985
The Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of
Power, Adopted by the General Assembly
of the United Nations – Resolution 40/34,
annex.
The Role of United Nations: On Practical level, the United Nations has sought to provide
humanitarian assistance to victims of natural and man-made disasters. Its peacekeeping
operations have also sought to assist victim of ethnic violence and civil strife. The United
Nations efforts in the prevention of discrimination against minorities and violence against
refugees and other vulnerable targets, especially migrants, women and children (including
International Programme for the Elimination of the Exploitation of Child Labour) are
noteworthy examples. However, more work needs to be done to fully address the special
requirements of Crime victims in developing countries, as well as special categories of
victims, such as victims of genocide, terrorism, organized crime and other type of mass
victimization149.
148. Upendra Baxi, The Crisis of the Indian Legal System, 1982, 95.
149. UN ODCCP, Centre for International Crime Prevention, Handbook on Justice for victims, New York,
1999, p.3.
209
Acts to provide for the establishment of a Scheme for compensation for criminal injuries
USA:
Use of tort laws to compensate victim
1982
Victims and Witnesses Protection Act
1984
Victims of Crime Act
1994
Violence Against Women Act
1997
California Victim compensation Programme
2000
Victims of Trafficking and Violence Protection Act
2004
Justice for All Act
The Scottish Association of Victim Support Schemes and
The National Organization for Victim Assistance
United
1983
Kingdom:
The European convention on compensation of victims of violent crime
Provides for many of the rights recognized in the U.N Declaration
1995
Criminal Injuries Compensation Act
Provides that the State shall make arrangements for the payment of
compensation to persons who have sustained criminal injury; Funding
is by the State and not by the offender.
France:
1986
The Guarantee Fund for Acts of Terrorism and other crimes (FGTI)
For Financing compensations
Its mission is three fold:
1) Compensate Victims of acts of terrorism
2) Compensate victims of other crimes – victims of crime (Civil)
3) Gain Recourse against those responsible for the damages
incurred
2008
French Law on compensation for Road Traffic Accidents.
2012
The Criminal Injuries compensation Scheme
French perspective of compensation as a Human Right on the ground
of equality or liberty or of property.
A better compensation for breach of human rights may lead to better
enforcement of human rights.
Compensation is inextricably linked to human rights
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1789
Declaration of the Rights of Man and of the Citizen (DDHC)
Gives the most essential duty to resist oppression
Add an alternative notion of duty to the Western notion of a right
Unlawful infringement of a right arises from the harmful consequences
of the violation of a duty. The infringement of a human right warrants
the payment of compensation.
New Zealand:1990
The New Zealand Bill of Rights
Applicability of the doctrine of vicarious liability for torts.
Victoria
in Australia: 1996
The Victims of Crime Assistance Act
South Africa: 1998
Witness Protection Act (WPA)
Provides, inter alia, for the establishment of a central office for
witness protection
People‟s
Republic of
China:
1979
The Criminal Procedure Law
Amendment in 1996
1979
The Criminal Law
Amended in 1997
China‟s System of compensation by the State was established in 1994
When the Criminal Law and Criminal Law Procedure of the People‟s
Republic of China were issued in 1979, China began to focus on the
Protection of victims.
China‟s Victims restoration system is not perfect compared with the
requirements on UN Declaration, in establishing victim – oriented
restorative justice, china still has a long way to go.
Outside the formal legal system, in some countries associations are formed for the
provision of all forms of the assistance to victims of crime: Prominent ones are:
Germany:
1977
Weisser Ring
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USA:
The Scottish Association of Victim Support Schemes and
The National Organization for Victim Assistance
India:
2003 Committee on Reforms of Criminal Justice System (Chaired by Justice
V.S.Malimath, hence called Malimath Committee, appointed by the
Government of India)
Concluded that “Criminal Justice Administration will assume a new
direction towards better and quicker justice once the rights of victims
are recognized by law and restitution for loss of life, limb and
prosperity are provided for in the system”, and that “Time has come for
a comprehensive law being enacted for protection of the witness and
members of his family”.
2013
Report of the Committee on Amendment to Criminal Law (J.S. Verma)
“Failure of good governance is obvious root cause for the current
unsafe environment eroding the rule of law, and not the want of needed
legislation. If there was a felt need for more laws, there are many
recommendations of expert are many recommendations of expert
bodies and judicial decisions that remain unimplemented” - Report of
the Committee on Amendments to Criminal Law, 1913, p.iii
Professor Upendra Baxi’s Criticism is that “Instead of doing any
sustained empirical work bearing on so critical a manner, the Report
relies merely on commonsense expressed ad nauseum in judicial
reiteration of the maxim; “it is better that ten guilty persons may
escape rather than one innocent person may suffer”150.
5.27. Victims’ Rehabilitation in International Legal systems
The UN General Assembly “Declaration of Basic Principles of Justice for victims of
Crime and Abuse of Power (November 29,1985)” an important recognition of the need to set
norms and minimum standards in international law for the protection of victims of crime. The
UN Declaration of 1985 recognized four major components of the rights of victims of crime:
150. Upendra Baxi, Introductory critique to The (Malimath) Committee on Reform of Criminal Justice System:
Premises, Politics and Implications for Human Rights, Amnesty International India, September 2003,
p. 19.
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(i)
Access to justice and fair treatment (clause 4 and 5 of UN Declaration);
(ii) Restitution (clause 8 and 11 of UN Declaration);
(iii) Compensation (clause 2 of UN Declaration); and
(iv) Assistance (clause 14 (Part B) of UN Declaration).
This UN Declaration of 1985 is the Magna Carta of the rights of victims globally.
The European convention on compensation of victims of violent crime, 1983 provides
for many of the rights recognized in the UN Declaration. The statutes on victims of Crime in
certain other countries include the Criminal Injuries Compensation Act, 1995 in the United
Kingdom, the victims of Crime Assistance Act, 1996 of Victoria in Australia, and the Victims
and Witnesses Protection Act, 1982 of the USA. Recent Developments in India take notice of
victims and reforms of Criminal Justice System. Malimath Committee (March 2003) –
Committee on Reforms of Criminal Justice System (Chaired by Justice V.S.Malimath,
Constituted by Government of India) in its lamentation held that Victims feel ignored and are
crying for attention and Justice.
India‟s National Human Rights Commission encourages the right to rehabilitation of
torture victims. This commission has recommended fining the police authorities and the
responsible police station to provide the funds needed for rehabilitation and other
compensation for injuries, in addition to relief through local and State Governments. But this
system results in long delays in collecting compensation.
The setting up of a Witness and Victim Protection Unit under the control of an
independent and accountable agency, by suitably modifying the available models, becomes
imperative. South Africa has enacted a Witness Protection Act, 1998 (WPA) which provides,
inter alia, for the establishment of a Central Office for Witness Protection, which will
function under the Control of the Minister of Justice and Constitutional Department. This
office will be responsible for the protection of witnesses in terms of the WPA151.
151. S.Muralidhar, Rights of Victims in the Indian Criminal Justice System, Geneva, International
Environmental Law Research Centre, 2004, pp. 4-5.
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5.28. Contextualizing Constitutional Torts
As submitted by the Indian Society of Victimology to Government in 1955, the
Victim Compensational Law will provide for the creation of a Victim Compensation Fund to
be administered possibly by the Legal Services Authority – a tentative framework for
consideration. At present, in the Indian Law, compensatory measure of victims of crime is
not enough. Compensation to victims of crime could be brought within the purview of
criminal procedure and dealt with in the same criminal court which deals with the offence.
The concrete manifestation of the principle of monetary, pecuniary compensation may
be seen in the genesis of the Constitutional Tort in various jurisdictions, in particular, the
U.S152. In the American context, the term Constitutional Tort, encompasses all claims for
damages brought against government officials for violating an individual‟s federal
Constitutional rights. Pecuniary compensation is a judicially recognized and endorsed mode
of enforcing fundamental rights by the courts, as also the right to compensation for victims of
unlawful arrest or detention.
This section deals with the victims in International Scenario, how different legal
systems around the globe treat the victims and what measures are embedded in their justice
system to grant relief to them. A limited attempt has been made here to ascertain the position
of victims under various Asian, European and American legal systems and what is the scope
of the impact of different international victim movement around the globe on the national
system. This section proposes to compare how for the existing standards of victim
rehabilitation conforms to the international norms and standards, with special emphasis on
U.S and U.K. Scenario. Like in the United States, Europe and other developed countries, both
the Government of India and the State Governments should enact exclusive legislations for
victims of crime, as the existing provisions in the Criminal laws are not sufficient. Though no
separate law for victims of crime has yet been enacted in India, the silver lining is that victim
justice has been rendered through affirmative action and orders of the Apex court of India.
152. For the genesis of the principle of pecuniary compensation in the U.S.: Christina Whitman, Constitutional
Torts, Mich.L.Rev. 79-5,6 (1980)
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5.29. Victim’s Position in US
In the United States, the Crime Victims Fund was established by the Victims of Crime
Act of 1984 (VOCA) and that serves as a major funding source for victim rehabilitation
services throughout the country. Funds come from offenders convicted of Federal Crimes not
from taxpayers. Other Financial resources are also available, such as private insurance. Every
State administers a Crime Victim Compensation Programme. These programmes provide
financial assistance to victims of both Federal and State Crimes. Although each State
Compensation Programme is administered independently, most programmes offer a
comparable range of benefits. The Federal Government, the National Victim Centre, the
National Institute of Justice and other organizations promoted restorative justice reform of the
Criminal Justice System. The United States provides funding to torture treatment centre
through the Torture Victims Relief Act, 1998. Funds seized from rogue States or terrorist
organizations, or their banks, could support the rehabilitation of victims of State terrorism.
5.30. U.S’ Bill of Rights
It is pertinent to note that in India, even a cursory survey of judicial decisions
conclusively establishes that the ambit of Writ Compensation has largely been restricted to
compensating victims whose guaranteed fundamental rights under part III of the Constitution,
have been infringed, as opposed to the American position, wherein a violation of any
Constitutional right can give rise to a valid claim for pecuniary redressal. The U.S. has a
written Constitution guaranteeing a Bill of Rights, which contains the Due Process of Law
Clause. The said clause confers wide powers on the judiciary to provide complete justice and
to order monetary compensation in appropriate cases.
In the United States, during the late 1960s, the Federal Government launched a series
of surveys to study Crime Victims. They study showed that many victims failed to report
crimes. Victims cited poor treatment by the Criminal justice system – long waits for trials,
confusing instructions and inadequate child care and transportation resources as the reasons
for their reluctance to co-operate. The victim assistance movement began in the US shortly
after 1960s, spurred by research on victims‟ needs grass root activism, substantial legislation
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and victim assistance programmes. Further, Victim/Witness programmes in the U.S became a
major feature of victimological development since 1970s. Furthermore, the statutory
approach is typified by the U.S., where almost all States and the Federal Government have
adopted statutory guidelines on how the police and other officials in the Criminal justice
system should deal with victims of crime.
A careful peep into the Indian Criminal Justice Delivery System reveals that victims
of crime in India are neither compensated comprehensively nor allowed to participate
effectively in the investigatory, prosecutor and sentencing process. In the background of the
proposals for reform suggested by the Law Commission as well as the Malimath Committee
and relevant statutory provisions and schemes satisfactorily operating in other countries. It is
high time to review the present law governing payment of compensation to victims of crime
in India and to evolve in India an effective system of reparation of victims of crime. It is also
imperative to create an institutionalized system of payment of compensation by creating
Victim Compensation Fund.
5.31. Victim’s Position in U.K.
The European Convention of Compensation of Victims of Violent Crime, 1983
provides for many rights recognized in the UN Declaration of Human Rights. The enactment
of the Criminal Injuries Compensation Act, 1995 introduced an effective rehabilitation
mechanism to redress the needs of victims of Crime. The concept of statutory compensation
for criminal injuries began in 1964 in U.K. and as a government initiative approved by
parliament in 1996. U.K. was the first country to establish a Scheme of Criminal Injuries
Compensation, in 2008, in order to attend the payment of compensation to persons who have
sustained criminal injury. The Criminal Injuries Compensation Authority (CICA) offers
purely financial compensation to the victims, or close relatives or friends of victims, of
violent crime. The Criminal Injuries Compensation Board dealt with similar claims. In the
U.K. Criminal Justice Act, 1988 has made fresh provisions for payment of compensation by
the Criminal Injuries Compensation Board. A specialized legislation called The Code of
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Practice for Victims of Crime sets out the services that the victim can receive from various
criminal justice agencies.
The year 2000 is a watershed since far reaching reforms have taken place in England,
such as the enactment of the Powers of the Criminal Court Sentencing Act, 2000, modifying
earlier laws and introducing a whole range of new and navel punishments, viz., curfew order,
community rehabilitation order, a community punishment order, a community punishment
rehabilitation order, a drug treatment and testing order, attendance order, a supervision order
and an action plan order. Above all, the Power of Criminal Courts Sentencing Act, 2000
provides for a compensation order.
5.32. Compensation and Human Rights: From a French Perspective
An award of compensation is a means to enforce human rights.
The Preamble of the French Constitution of the Fifth Republic mentions that the
people of France Proclaim their commitment to human rights as defined by the Declaration
of Rights of Man and of the Citizen (DDHC), adopted in 1789. The French law has no
distinction between human rights and fundamental French Law offers several ways to enforce
human rights, including the resistance to oppression, protected by Art.2 of the DDHC.
Nevertheless, compensation should be granted in cases of violation by the State. Full
compensation - nothing more, nothing less than the damaged - of any legal injury is the rule.
French court law does not apply a hierarchy among the protected rights. “The infringement of
a human right warrants the payment of compensation, and that this borrows the character of
fundamentality from the right violated”.153 Compensation itself seems to be in some cases, a
fundamental right. The right to obtain compensation is considered as property.
5.33. French Law and Indian Law
In France as well as in India, the interaction between the two concepts of human
rights and the payment of damages is visible. Indeed, an award of damages appears to be one
153. Christophe Quezel – Ambrunaz, Compensation and Human Rights (From a French Perspective), NUJS
Law Review, 189, April – June, 2011, p. 196.
217
of the best means to enforce human rights and compensation itself seems to have become, a
human right.
Proclaiming human rights is of no use if they are not enforced. Indian law uses writs
to secure human rights, as well as other means. The Supreme Court of India is an active
enforcer and guardian of fundamental rights. Nothing very similar to writs exists in French
law, though some mechanisms may appear similar. For example, the administrative judge, in
case of an urgent situation, may order any measure necessary to protect the fundamental
liberty. “Indian law encompasses some concepts that French law ignores, although some
similarities may be found, such as “parens patriae,” writs, or public interest litigations. A
right is a human right if it appears to be a natural one. French doctrine says that civil liability
comes from natural law. In French law as well as in Indian law, several statutes tend to have
this effect.
Charter of Environment: Everybody has the duty to take part in the preservation and
improvement of the environment, to prevent or mitigate consequences of harm to
environment, to compensate, according to the law, the damages done to environment
protection of environment is now a fundamental duty in French law, though it has been
enshrined for centuries in the Indian tradition; the Supreme Court of India has referred in
recent times to dharma and cites Manu and Kautilya
154
in this matter. People worship the
object of nature. The trees, water, land and animals had gained important position in ancient
India.
5.34. The New Zealand’s Bill of Rights
In Simpson v. Attorney General (Baigent‟s Case)155 the court of Appeal in New
Zealand, dealt with the issue in a very elaborate manner. The court considered the
applicability of the doctrine of vicarious liability for torts, the unlawful search, committed by
the police officials which violate the New Zealand Bill of Rights Act, 1990. The New Zealand
Bill of Rights Act is a commitment by the Crown that those who in three branches of the
154. K.M.Chinnappa and T.N. Godavarman Thirumalpad v. Union of India, (2002) 10 SCC 606.
155. 1994 NZLR 667
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Government exercise its functions, powers and duties will observe that the rights that the Bill
affirms. Accordingly, the courts are not only to observe the Bill in the discharge of their own
duties but are able to grant appropriate and effective remedies where rights have been
infringed.
Victim compensation refers to payments made from State funds to victims of crime.
Advocates of victim compensation have argued that since the State is responsible for
protecting its citizens from crime, the failure to do so obligates the State to indemnify those
who are victimized. The State is believed to be responsible to the victims because
imprisonment prevents offenders from paying damages. The State, which performs its
functions through huge apparatus of employees, is also liable, with few exceptions, to pay
monetary compensation, whenever its employees contravene rights, more so in any country
governed by the rule of law and democracy. The State is thus liable for its employees‟
misdemeanors in the area of their administrative functions.
5.35. Remedies for Victims of Crime and Abuse of Power in China
Generally speaking, China‟s measures to protect victims of abuse of power exist in
Criminal Procedure Law, Criminal Law, State Compensation, Police Law and Judicial
interpretations and regulations. China‟s Protection and redress system for victims of crime
has developed and been perfected gradually since the 1980s. China is doing her best to
improve the victim restoration system through legislation and administrative measures. Chen
Weidong, Professor of Renmin University of China, was quoted as saying that China‟s
current Criminal Procedure Law is hard to implement with lot of loopholes in it.
The system of State Compensation in China is being completed step by step. The
enforcement organs took measures to guarantee compensation for victims of abuse of power.
In fact, restorative justice is a new term in China. It was not until community correction in
2003 that the term as introduced. China‟s protection and redress system for victims of crime
has developed and been perfected gradually since the 1980s. China is doing her best to
improve the restorative justice system through establishing victim - centered restorative
justice involving the offender, the victim and the entire community.
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Restorative justice represents a paradigm shift in the way justice is dispensed in
criminal justice systems. The framework for restorative justice involves the offender, the
victim and the entire community in efforts to create a balanced approach that is offenderdirected and, at the same time, victim – oriented.
Based on China‟s Criminal Procedure Law (1996) and Criminal Law (1997), the legal
status and rights of victims of crime in the Criminal justice process are as below: 156

Victim became a party and was entitled to all kinds of rights as a party
-Article 82.2 of Criminal Procedure Law

A Victim has the right to entrust agents and ad litem
– Article 40, 41 of Criminal Procedure Law

A Victim may initiate a private prosecution
-Article 170 of Criminal Procedure Law

Civil Compensation to the victim prior to a fine or confiscation of property
– Article 36 of Criminal Law

The legitimate property of the victims shall be promptly returned to them
– Article 64 of Criminal Law

No Limitation during the period of prosecution is imposed in cases after the victim
has filed charges within the period of prosecution
– Article 48 of Criminal Law
5.36. Foreign Victims of Crime in China
The criminal justice system in China is very different from the system in the United
States. The investigation and prosecution of the crime is solely the responsibility of local
authorities regarding foreign victims of crime. While in China, Americans do not enjoy many
of the rights and presumptions to which they have grown accustomed under the American
justice system, such as the presumption of innocence, the right to remain silent or the right to
an attorney. The Chinese government does not provide monetary compensation to crime
victims, not does china have a national crime victim assistance office.
156. Gao – Feng Jin, The Protection and Remedies for victims of crime and Abuse of Power in China, Resource
Material Series No. 70, 131st International Training Course Participants Papers , p.145.
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5.37. Drug/Device Related Injury Compensation Regime in China
The drug/device related injury compensation practices that exist in China are neither
uniformly applied nor subject to legal, regulatory or industry sponsored guidelines. Chinese
law does not employ a strict no-fault approach to determination of the liability of the
manufacturer or distributor in drug and device – related injuries. In practice the manufacturer
or distributor is only liable for injuries caused by defective products. The current legal regime
does provide certain protection to patients injured by counterfeit or inferior drug or device
products, in relation to approved drugs. In most cases, compensation for drug or device –
related injuries is quite small. There are no viable benchmarks for evaluating compensation in
terms of severity of injury or duration of compensation and there are no benchmarks for the
amount a patient should receive. Since China does not have a common law system, judicial
decisions have played a very minor role in how compensation decisions are made.
5.38. No Fault Standard of Compensation
New Zealand, Sweden, Finland and Denmark have developed comprehensive
compensation scheme of no-fault systems that eliminate proof of defendant‟s negligence, and
which focus on timely and adequate compensation for drug-related injuries. For no-fault
compensation schemes, most of the funding is provided by pharmaceutical manufacturers or
by taxes, and there are limits on liability.
Thus, the scope of the compensation schemes ranges from global coverage systems to
plans narrowly tailored to specific objectives.
5.39. Key Role of Victims in Islamic Countries
Modern Society has sought to provide extended protection to the victim through its
criminal laws and systems of social security. The different criminal justice systems and other
forms of justice have not all followed an identical path of development. In some present-day
systems, such as those of Islamic countries and several European Countries, the victims play
a key role throughout the criminal justice process.
This brief analysis of the existing legal framework globally in relation to rights of
victims of crime suggests that the reorienting of the Indian Criminal Justice system to address
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the needs of a victims, of crime need not and perhaps should not be exclusive of the need to
enforce and protect the rights of suspects as well as the rights of the accused. It should be
possible to accommodate both requirements as has been done in countries like United
Kingdom and the United States of America.
5.40. Feminist Jurisprudence towards Women Empowerment
In any field of human life, an isolated approach cannot be successful. Similarly, the
movement of women empowerment cannot be successful unless men are directly involved in
understanding the plight of women and lifting up their position in society. According to
George Bernard Shaw, Liberty is responsibility. It is joint responsibility in the case of women
empowerment. Women still remain as a deprived lot of the society. Their rights are observed
more in violation than in adherence. Sex discrimination ranges from the exclusion of women
from development programmes to economic disparities. As regards employment, education
and general welfare, the Indian planning processes manifest clear and open bias against
women, which warrant concrete reforms in favour of women to ameliorate their plight.
Gender inequality has adverse impact on development goals as it reduces economic growth.
Blocking women‟s participation hampers the overall well being of the society. The content
and ambit of the feminist jurisprudence is very comprehensive covering areas of marriage,
divorce, inheritance, guardianship, rights of residence, compulsory registration of marriage,
rights of matrimonial property, domestic violence as well as access to resources, rights to
work, equal wages and benefits. Feminist Jurisprudence reflects the dynamic theme that
women must be made equal partners in the national development process and well equipped
to make informed choices in order to equalize their self work through empowerment.
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