From victim to survivor: Journey of Indian women’s legal struggle for compensations against crimes

[dropcap]T[/dropcap]o call woman the weaker sex is a libel; it is a man's injustice to woman. If by strength it is meant moral power then woman is immeasurably man's superior. Has she not more self-sacrificing, has she not great powers of endurance, has she not greater courage? Without her, man could not be."

— Mahatma Gandhi

The paradox in a society which exists today is that even though women are guaranteed equality before law and non-discrimination based on sex, the atrocities unleashed on women, both as child and adult, are endless and growing. Social degradation has reached such an alarming state that safety of women and the girl child has become a burning question and an area of great concern.

Women are 48.5% of our population, around 65 crores. The atrocities faced by women in India can be gauged from the long (but certainly not exhaustive) list of social ills they face, which includes female foeticide, malnutrition, child marriage, forced illiteracy, physical abuse, domestic violence, dowry, bride burning, sex trafficking, bonded labour, religious prostitution, cursed widow-hood, acid attack, honour killing, rape and murder.

In the post-independent era, the Constitution of India guaranteed equal rights for the woman with the man under Article 14, Article 15(1), Article 16, Article 39(b) and Article 40 ensure that State shall not discriminate between men and women and that the women will get equal opportunity. The State was even cast with the duty to make special provisions for women and children under Article 15(3) and Article 42. Article 51 (A)(e) mandates that  all practices derogatory to the dignity of the women should be renounced.

It is ironic that today a girl child struggles to survive in their mother's womb and India needed to enact a law to simply allow her to take birth. Like the list woes she faces, the list of laws addressing her is also ever increasing, but with no definite solution in sight.

The above Constitutional Directives and legislative framework were put to test for the first time in 1979-80 in the Mathura Rape Case wherein a tribal girl was raped by two policemen in custody. In this case, the accused were let off despite the fact that it was proved that the victim was sexually assaulted in custody. Wide protests by the civil society and national media led to amendment of the Evidence Act, Code of Criminal Procedure and Indian Penal Code (IPC). Also a new offence of "Custodial Rape" was included in the IPC.

Later, in 1990, the  National Commission for Women was constituted as a Statutory Body to represent rights of women in all spheres of life.

Introducing the Victim Compensation Scheme

In the year 2009, while presiding a Sessions Court, I came across the case of a girl child who was studying in 8th standard. She was kidnapped by her neighbour for sex trafficking and sold off for Rs 10,000. She was repeatedly re-sold at different places in Delhi, Chandigarh and Amritsar. She was lucky to have survived the ordeal and had an opportunity to come back to her parents to narrate her tale of woes. While convicting the two accused with rigorous imprisonment of 8 years for the offence of procuring of a minor child and selling her for the purpose of prostitution, I had an opportunity to research about legal framework available in our country  to address the  plight of such victims under the criminal justice system, as it then existed.

I found that even though the world had already opened up to the sociological aspects of crime and was treating Victimology as a separate field, the criminal justice system of our country was yet to open up fully to rights of victims of crime. World over it was being recognised that each criminal act not only does injure and traumatise the victims and their families, but also denigrate the social fabric. The civil rights movement and the feminist movement had started drawing attention of the criminal justice system towards the plight of the victims of the crimes, including the need of victim compensation and Victim Assistance Programme.

In November 1985, UN General Assembly, adopted the Declaration of Basic Principle of Justice for Victims of Crimes and Abuse of Power. This highlighted Four Rights to the Victims i.e., Access to Justice and fair treatment, Restitution, Compensation and Assistance.

However, our country just had a basic stipulation in the form of Section 357 CrPC and Section 5 of Probation and Offender Act, which could be acted only upon the conclusion of the trial and that too when the case ends in a conviction. They provided for payment of compensation to the victims only by the convict.

In its 41^st report, even the Law Commission of India highlighted the fact that trial courts are not utilising the statutory power under Section 357 CrPC to compensate the victims of crimes.

Even the Supreme Court expressed anguish about the failure of criminal trial courts to come to the rescue of victims of crime by invoking Section 357 CrPC, when in case titled Bodhi Satva Gautam vs Shubhra Chakraborty, AIR 1996 SC 922, while applying the 1985 UN declarations of Victims of Crimes, it introduced the concept of Interim Compensation to the Rape Victims.

In the meanwhile, in a case titled Delhi Domestic Working  Women Forum vs Union of India 1994(3) Crimes 597,  the Full Bench of the Supreme Court ruled that victims of rape should be given interim compensation by the courts trying the cases. The Bench even issued direction to the States to set up a Criminal Injury Compensation Board.

The National Commission of Women also formulated a Scheme for payment of compensation of up to Rs 2 lakhs to the victims of rape with a stipulation of interim compensation.

Finally, it was in the year 2008 that Section 357 (A) CrPC was introduced with a stipulation of State-paid compensation to victims. However, record shows that despite its inclusion, no compensation scheme was enacted by any state up to the year 2011. Rather some of the states like Madhya Pradesh framed their Victim Compensation Scheme only in the year 2015, while Gujarat framed its first Scheme only after gap of 8 long years in the year 2016. Delhi notified its Scheme only in 2012.

It is in this backdrop, that in 2009 I happened to award the minor girl, who was trafficked for sexual exploitation, a Victim Compensation of Rs. 11,00,000 to be paid by the convicts.

Turning point: Nirbhaya case

Another turning point which our country faced was the brutal rape and murder of "Nirbhaya" in December 2012. Not only the whole nation but entire world was in shock over the brutality to which the victim was subjected. At that point of time, in around third week of December, 2012, when I was posted as an Officer on Special Duty with Delhi State Legal Services Authority (DSLSA), while "Nirbhaya" was under treatment and struggling for her life at a hospital in Singapore, DSLSA received a request from the Government of NCT of Delhi  to award some interim compensation to her.

When we processed the said request as per Section 357A CrPC and Delhi Victims Compensation Scheme, 2011, we initially found that there was no provision stipulated therein for awarding any interim financial compensation to victims of crime. Instead of turning down the request for want of specific clause in the Delhi Scheme, we took a second and deeper look and finally took recourse to Clause 8 of the Scheme, which provides for Medical Aid to the Victim. It is these words — "The Delhi State Legal Services Authority may order for immediate first aid facility or medical benefit or any other interim relief…"  — which came to our rescue, and relying on the specific words "any other interim relief …"  we awarded her interim compensation at that juncture.

As such finding the Delhi Victim Compensation Scheme, 2011 inept, we discussed the issue with Kiran Walia, the then Minister of Women and Child Development, Government of NCT of Delhi. We then undertook the initiative of redrafting the Delhi Victim Compensation Scheme so as to make it more victim friendly, compliant to the UN Declaration and full of best practices adopted in the world on the aspects of victim compensation.

In the New Draft Scheme, we incorporated several novel stipulations, including allowing Victims to file application for interim/final compensation on their own, without waiting for any recommendation of the area SHO or the Magisterial Court. It was also mandated that in cases of utmost hardship, the Secretary of the Legal Services Institutions can suo-moto, or on an application of the victim, proceed to process it and grant interim compensation to the victim or his/her dependants. This newly drafted scheme was subsequently adopted and notified as Delhi Victims Compensation Scheme, 2015.

Standardisation of victim compensation

In October 2015, after completing my three years deputation with DSLSA , I got repatriated back to Delhi judiciary. However, in October 2017, I was appointed by the Supreme Court of India as Director, National Legal Services Authority, a pan India national Body of legal services institutions.

It is during my current tenure as Director, NALSA that I happened to attend hearings before a Bench of the Supreme Court led by Justices Madan B Lokur and Deepak Gupta, which was hearing the bunch of  petitions filed post "Nirbhaya" incident. During the proceedings of the lead case WP (C) 565/2012 titled Nipun Saxena vs UOI., Indira Jaising, Senior Advocate, Supreme Court of India was assisting the bench as Amicus Curiae. In view of the fact that different Section 357A CrPC Victim Compensation Schemes were framed by 36 State Governments/Union Territories Administrations, there was a huge disparity in the process adopted and the quantum of compensation provided for. So much so that Victim Compensation Scheme of Goa provided for Rs 10 lakhs compensation to Rape Victims but Jharkhand provided for maximum of just Rs 20,000 compensation.

Anguished by this huge disparity in the quantum of compensation, the Supreme Court directed NALSA to set up a Committee so as to prepare Model Scheme for Compensation of for Women Victims of sexual offences and acid attack. Consequently, we constituted a Committee with Indira Jaising, Senior Advocate and Ministry of Home Affairs, Ministry of Women and Child Development, National Commission for Women, ASG Pinky Anand and civil society members.

Considering the Delhi Victim Compensation Scheme, 2015 as a base, a new Draft Model Compensation Scheme for women victim/survivors of sexual assault/other crimes 2018 was framed after researching about global best practices and niceties of VCS framed by all the States and UTs. It was circulated amongst all the State Governments and SLSAs, apart from other stake holders and was also published on NALSA website. Suggestions received from the different stakeholders were tabulated, discussed and incorporated.

The final Draft was presented before the Supreme Court Bench on May 10, 2018. I had the opportunity to assist Indira Jaising and after hearing us our proposed Model Compensation Scheme for Women Victims Survivors of Sexual Assault & other Crimes, 2018 , it was accepted by the Supreme Court on May 11, 2018 and direction was issued to all the States to adopt the same.

The uniqueness of this Scheme is that it has brought a national uniformity in the process and the quantum of compensation payable to the women victims. The Supreme Court has mandated that no Victim shall be paid less than what is stipulated in this NALSA's National Model Scheme, but with the liberty that the States can enhance compensation beyond what this Scheme provides.

The other highlights of the Scheme include provision of minimum Rs 5 Lakhs up to Rs 10 lakhs compensation for loss of life and gang rape. Provision of up to Rs 8 lakh compensation for victim of acid attack and burning and provision of compensation of up to Rs 7 lakh in rape and unnatural sexual assault.

Other unique feature of this Scheme is that it provides for creation of a dedicated Women Victim Compensation Fund within the already existing State Victim Compensation Fund. Also that this Model Victim Compensation Scheme is not in lieu of the current Victim Compensation Schemes devised by the State and it is only an addendum to the existing Scheme as a Part/Chapter of the current Scheme applicable only to the women.

The money in this Women VC Fund shall flow from Central Victim Compensation Fund Scheme, 2015 of GoI, out of Nirbhaya Fund, as well as from the State Victim Compensation Grants.

Another uniqueness feature of this Scheme is that for the first time mandatory reporting of cases is stipulated. Now police is obliged to report all cases covered in the Scheme with concerned SLSA/DLSA by sharing soft/hard copy of FIR as and when lodged.

The Scheme also provides for suo-moto cognizance of the victim compensation needs by the Secretary of the Legal Services Institutions in deserving cases for grant of interim relief without even waiting for any application/recommendation.

Another remarkable feature of this Scheme is the provision of instant compensation of Rs 5000 to Rs 10,000  in deserving cases, which is to be paid instantly as and when application is received or when the case is taken up for the first hearing.

There is no doubt that this Scheme will prove a milestone in victim friendly jurisprudence in the country so as to come to the aid of victims of crime and help them come out of their trauma and aid in their rehabilitation.

May 11, 2018 shall remain etched in my life's journey as a most revered day. This indeed brought a great sense of satisfaction on both personal as well as at the institutional level to us at NALSA.  It's a collective team work along with Alok Aggarwal, MS and Sunil Chauhan, PO.

This Model Scheme drafted by NALSA with the aid of other committee members is an important milestone in the development of Victimology in India as a whole and Victim Compensation Jurisprudence especially for the women in the country.