Victim Compensation in India: A Rights-Based Analysis

1. Introduction: The Shift from Retributive to Restorative Justice

Traditionally, the Indian criminal justice system was viewed as a duel between the State and the Accused, relegating the victim to the status of a mere “prosecution witness.”¹ As a Human Rights student, I argue that this model is insufficient. True justice cannot be achieved merely by incarcerating the offender; it requires the rehabilitation of the victim.²

The concept of “Compensatory Jurisprudence” has emerged as a beacon of Article 21, shifting the focus towards Restorative Justice—where the state acknowledges its failure to protect the citizen and the offender is made accountable for the injury caused.

2. Statutory Provisions: The Transition from CrPC to BNSS

The statutory landscape has recently shifted with the repeal of the Code of Criminal Procedure (CrPC), 1973, and the enactment of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.³

A. The Power to Grant Compensation (Court Discretion)

Old Law (Section 357 CrPC): Empowered courts to grant compensation out of the fine imposed or, if no fine was imposed, to order a separate compensation amount.⁴
New Law (Section 395 BNSS): Retains this power. It allows the Court, when passing judgment, to order the whole or any part of the fine recovered to be applied in defraying expenses properly incurred in the prosecution or as compensation for loss/injury.

B. The Victim Compensation Scheme (State Obligation)

Old Law (Section 357A CrPC): Added in 2009, this was a watershed moment requiring States to prepare a scheme for compensation where the offender is not traced or identified, or where court-ordered compensation is inadequate.
New Law (Section 396 BNSS): This section mirrors Section 357A but consolidates the framework.
- Mandate: Every State Government shall prepare a scheme for providing funds for compensation to victims or dependents who have suffered loss or injury and require rehabilitation.⁵
- Section 396(2): Grants the District/State Legal Services Authority (DLSA/SLSA) the power to decide the quantum of compensation upon the Court’s recommendation.⁶
- Crucial Addition: It explicitly incorporates provisions (previously 357B CrPC) regarding specific offenses like Acid Attacks, ensuring compensation is in addition to the fine paid by the convict.

3. Constitutional Tort Development: The “Public Law” Remedy

The most fascinating development for a human rights student is how the Supreme Court used Article 32 and Article 226 to bypass the tedious civil law process for damages (Law of Torts) and created a remedy within Public Law.

Theory: The State has a constitutional duty to protect the life and liberty of citizens (Article 21).⁷ When the State violates this (e.g., police torture) or fails to prevent it, it is liable to pay “exemplary damages” for the Constitutional Tort.⁸
Sovereign Immunity Rejected: The State cannot hide behind the defense of “Sovereign Immunity” in cases of fundamental rights violations (Nilabati Behera).⁹

4. Landmark Case Laws: Analysis & Decisions

Here is a summary of the pivotal cases that define this jurisprudence:

I. Rudul Sah v. State of Bihar (1983)¹⁰

Facts: The petitioner was acquitted by the Sessions Court in 1968 but was released from jail only in 1982 (14 years of illegal detention).
Issue: Can the Supreme Court under Article 32 award monetary compensation for the violation of Article 21?
Decision: YES. The Court held that if it only ordered his release, it would be “paying lip service” to his fundamental rights. It granted ₹30,000 as interim compensation.
Significance: This is the Magna Carta of compensatory jurisprudence in India.

II. Nilabati Behera v. State of Orissa (1993)¹¹

Facts: A 22-year-old boy was taken into police custody; his body was later found on railway tracks. Police claimed he escaped and was hit by a train; evidence showed handcuffs and torture.
Issue: Distinction between “Private Law” (civil suit) and “Public Law” (writ jurisdiction) for compensation.
Decision: The Supreme Court (Justice J.S. Verma) held that the remedy under Article 32/226 is a remedy in Public Law based on strict liability for contravention of fundamental rights. The defense of sovereign immunity (applicable in torts) does not apply here.
Award: ₹1,50,000 compensation awarded to the mother.

III. Ankush Shivaji Gaikwad v. State of Maharashtra (2013)¹²

Facts: The accused was convicted of murder, but the Trial Court and High Court did not order any compensation to the victim’s family.
Issue: Is it mandatory for the Court to apply its mind regarding compensation under Section 357 CrPC?
Decision: The SC held that while awarding compensation is discretionary, the application of mind is mandatory. Courts must record reasons if they decide not to award compensation.
Impact: This converted the “power” of the court into a “duty.”

IV. Karan v. State NCT of Delhi (2020) [Delhi HC – Recent Landmark]

Context: This case addressed the practical difficulty: How do courts determine how much the accused can pay?
Decision: The Court devised the “Victim Impact Report” (VIR) mechanism.¹³
1. After conviction, the accused must file an affidavit of assets/income.¹⁴
2. The DLSA conducts a summary inquiry into the financial capacity of the accused and the impact on the victim.¹⁵
3. A VIR is submitted to the Court to help determine the fair compensation amount.¹⁶
Significance: This operationalized the theoretical right to compensation.

The trajectory of victim compensation in India shift as a journey from charity to right. We have moved from a system where compensation was a rare judicial “gift” (ex gratia) to a statutory and constitutional entitlement.¹⁷

The integration of the Victim Compensation Scheme in Section 396 BNSS and the mandatory application of mind established in Ankush Shivaji Gaikwad ensure that the victim is no longer the “forgotten man” of the criminal justice system. However, the true realization of this human right lies not just in the award but in its timely disbursement, ensuring that the scales of justice are truly balanced.

“Justice is not only about punishing the guilty; it is about healing the wounded.”

Challenges and way forward:

1. The Gap Between Statute and Reality

While the statutory transition from Section 357A CrPC to Section 396 BNSS (Bharatiya Nagarik Suraksha Sanhita, 2023) has solidified the text of the law, the context remains riddled with obstacles. As a human rights student, it is critical to look beyond the “law in books” to the “law in action.” The reality is that for many victims, compensation remains a “paper tiger”—promised by the Constitution but denied by bureaucracy.

2. Contemporary Challenges (The “Ground Reality”)

Despite the progressive judgments in Ankush Shivaji Gaikwad and Nipun Saxena, the implementation of victim compensation faces severe bottlenecks.

A. The “Empty Coffer” Syndrome (Financial Constraints)

Issue: Many State Legal Services Authorities (SLSAs) face a chronic shortage of funds. Unlike the consolidated funds of the Centre, state funds are often depleted or allocated inefficiently.
Impact: Victims are awarded compensation on paper, but actual disbursement takes years.
Recent Context (2024-25): The Supreme Court recently flagged “glitches” in payouts for acid attack survivors, noting that despite the NALSA scheme, victims were not receiving the minimum ₹3 Lakhs promptly, and private hospitals were still refusing free critical care.

B. Procedural Labyrinths & The “Interim” Illusion

Interim Compensation: Section 396(6) BNSS (and former 357A(6) CrPC) allows for immediate medical relief. However, in practice, this is rarely granted suo motu. Victims often have to file separate applications, which defeats the purpose of “immediate” relief.
The “Dependent” Ambiguity: The definition of “dependents” often leads to disputes. For instance, if the accused is the sole provider (e.g., a husband killing a wife), the children (victims) are left in a legal limbo regarding who claims the compensation on their behalf.

C. Disparity in Quantum (The Federalism Flaw)

Issue: Before the NALSA standardized scheme, a rape survivor in one state might receive ₹5 Lakhs, while in another, only ₹1 Lakh.
Challenge: Even with NALSA guidelines, implementation varies. Some states treat the NALSA limits as “maximums” rather than “minimums,” leading to arbitrary awards.

D. Low Awareness & The “Silent” Police

Duty to Inform: Under the new BNSS (Section 193/Section 230), the police are obliged to inform victims of their rights.
Reality: Police rarely inform victims about the Victim Compensation Scheme (VCS) unless a lawyer intervenes. Most victims believe compensation is only possible after conviction, unaware of the “Unidentified Offender” clause in Section 396(4).

3. Strategic Suggestions (The “Way Forward”)

To transform “Compensatory Jurisprudence” from a concept to a tangible right, the following reforms are urgent:

A. Legislative & Policy Reforms

Central Victim Compensation Fund (CVCF): A dedicated central corpus should be established to support states with lower budgets, ensuring that a victim’s right to dignity is not dependent on their state’s geography or economy.
Automatic “Victim Impact Assessment” (VIA): Instead of waiting for a victim to apply, the filing of a charge sheet for heinous crimes should automatically trigger a Preliminary Assessment by the District Legal Services Authority (DLSA).

B. Judicial Interventions

Mandatory “Application of Mind”: Courts must strictly enforce the Ankush Shivaji Gaikwad principle. Every judgment of conviction must have a separate paragraph explaining why compensation was (or was not) granted.
Decoupling from Conviction: Judges must aggressively use Section 357 BNSS (Order to pay compensation) even in cases of acquittal where the “benefit of doubt” is given to the accused but the victim’s injury is evident (e.g., in sexual assault cases where identity is not established but the assault is proven).

C. Administrative Streamlining

Single Window Clearance: A “One-Stop Centre” approach (Sakhi Centres) should have the direct power to process interim compensation claims without routing every file through the cumbersome court registry.
Garnishing Future Income: If an accused is indigent now but has future earning potential (e.g., young offenders), courts should pass “floating orders” that attach a percentage of their future income towards the victim.

4. Conclusion: Restoring Dignity

The journey of victimology in India has evolved from the Dark Age of Neglect to the Golden Age of Rights. However, a right without a remedy is a contradiction.

The “Victim” is not merely a provider of evidence but a holder of rights. The true test of the Bharatiya Nagarik Suraksha Sanhita will not be in its text, but in its ability to wipe the tears of the victim before the ink on the judgment dries. We must move from Compensation as Charity to Compensation as Constitutional Duty.

“The cry of the victim is often drowned in the noise of the trial. It is the duty of the law to amplify that whisper into a roar of justice.”