Delhi High Court enhances mandatory compensation payable to survivors of child sexual abuse

The court observed that in any beneficial scheme or legislation, there cannot be a concept of maximum as there cannot be a price tag on the suffering of the survivor.  The court also held that survivors of  child sexual abuse merit compensation, irrespective of whether the accused is/are convicted or not.

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ON October 20, the Delhi High Court, in the case of X versus State of NCT of Delhi (acting through its secretary) & Anr., held that survivors of child sexual abuse ('CSA') will be entitled to interim compensation of 25 % of the maximum awardable compensation for rehabilitation purposes within a period of 60 days from the date of filing of the chargesheet. Raising the minimum compensation of ₹ 7 lakhs under the Delhi Victim Compensation Scheme, 2018, the single-judge bench of Justice Jasmeet Singh held that the final compensation should not be less than ₹ 10.5 lakhs. 

In the present case, a compensation of ₹ 50, 000 was first awarded by the Additional Sessions Judge (POCSO), South-East district, Saket courts, New Delhi to the victim of CSA, a seven-year-old girl.   The accused, in this case, was found guilty of aggravated penetrative sexual assault under Section 342 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO' Act).  

When the survivor sought enhancement of the compensation amount, the authorities denied the maintainability of the application on the ground that the DVCS did not authorise the review of the compensation award by the DSLSA/DLSA. Aggrieved, the survivor preferred  the present appeal before the high court. 

The counsel for the petitioner submitted that awarding inadequate compensation by the Special Court and the inactions by the DSLSA/DLSA affects the vulnerability of the child victim and violates her fundamental rights against sexual abuse under Article 21 of the Constitution. The DSLSA denied the petitioners' contention that the authority possesses concurrent powers as the Special Court to 'award compensation', and not 'merely disburse' compensation. 

In his 45-page judgment, Justice Singh begins with the view that survivor-centric justice is key to prevent re-victimisation of the survivor and deals with questions on the macro and micro level on account of clarification needed on the role of victim compensation under the POCSO Act. 

The need for sufficient and timely interim compensation

The court pointed out that interim compensation is a mandatory provision and stands in line with the Constitution, the POCSO Act, and its Rules.   In particular, it highlights Section 33(8) of the POCSO Act (Special Court to direct payment of compensation for any mental or physical trauma or for immediate rehabilitation of the victim), Rule 9 of the POCSO Rules of 2020 (procedure for the Special Court to recommend interim and final compensation), and Section 357 A of the Code of Criminal Procedure (Victim Compensation Scheme) which protects compensatory rights of victims of CSA. 

The Supreme Court in Rudul Sah versus State of Bihar and Another (1983) and a catena of other judgments have recognised the right to monetary compensation as a protected right under Article 21 of the Constitution. 

Relying on a study by the Supreme Court Registrar, the high court pointed out that child victims did not receive compensation from the government in 99 percent of POCSO cases. The court held that the survivors of sexual violence should not be denied compensation on account of them turning hostile or not succeeding in the conviction of the accused. 

In the judgment pronounced by Justice Singh, he emphasised the irrelevance of the guilt of the accused in granting interim compensation, and observed, "The focus is the survivor. Compensatory proceedings revolve around the needs of the survivor, not on the guilt of the accused".

Notably, the judgment delved into the factors that contribute to the victim turning hostile in court, namely the stigma attached to sexual offences, relationship between the accused and the victim ot the victim's family, financial dependence on the accused, and the absence of victim protection measures. "Poor investigations and weak prosecution have also contributed to acquittals", the court added.  

The judgment clarified that compensation stands as restitution for physical and mental injuries caused, and is 'completely delinked' from the conviction of the accused. Even if after the conclusion of the trial, the accused is acquitted, the court obligated the Special Courts to award maximum permissible compensation if the 'factum of rape of injury is substantiated'. 

Fixing the quantum of compensation

After hearing the submissions of the parties, the court observed that the maximum compensation provided under the DVC scheme is ₹ 7 lakhs. However, Justice Singh opined that statutes or schemes should not prescribe maximum limits for compensation. He observed, "In any beneficial scheme or legislation, there cannot be a concept of maximum. How can there be a price tag on the suffering of the survivor?" 

Fixing the final compensation at ₹10.5 lakhs, Justice Singh gave the POCSO Act  a purposive interpretation and termed it as a 'beneficial legislation'. He clarified that the said sum of Rs. 7 lakhs should be considered as a minimum base while adjudicating compensation in POCSO cases. Hence for POCSO survivors of "rape," it should be 7 + 3.5=10.5 lakhs (50% of 7 lakhs being added in POCSO cases as per DVC scheme), he held. It was also ruled that the special court had the right to adjudicate and grant compensation for more than ₹10.5 lakhs. 

Justice Singh further emphasised,  "The final compensation shall not be less than ₹10.5. Lakhs." 

Who can grant interim compensation and when

Ruling on the proper authority to assess the compensation, the court relied on the DVC Scheme and noted that it was the responsibility of the Special Court to investigate and quantify compensation to be awarded to the child victims. It further noted, that Rule 9 of the POCSO Rules, Section 33 (8) of POCSO Act, and observations of the Supreme Court in the case of Nipun Saxena and Anr versus Union of India (2018) emphasise the role of Special Court to quantify the compensation under POCSO Act. The court, thus, held that the DSLSA/ DLSA does not have the authority to evaluate or adjudicate on claims of compensation, the adjudication being the 'sole domain' of the Special Courts.

Also read: Establish exclusive special courts in districts with more than 100 cases under POCSO Act

On the issue of disbursement of interim compensation, the court held that while the special courts have the power to quantify compensation as well as disburse it, the DSLSA/DLSA has powers to only disburse an interim compensation immediately and not later than 60 days of the filing of the charge sheet. "The said interim compensation (by the DSLA/ DLSA) shall be separate from the interim compensation awarded by the special court", the court held.

The judgment noted that Rule 9 of the POCSO Rules of 2020 provides that interim compensation can be awarded by the Special Court, on its own, or based on an application by or on behalf of the child, at any time after the FIR has been registered. Thus, highlighting that the Rules are absent on any fixed time limit within which the compensation is to be disbursed, Justice Singh observed that as interim compensation, 25% of the maximum compensation should be paid within two months from the date of filing of the charge sheet. 

The court justified the disbursement of compensation by both the DSLSA/DLSA and the Special Courts, as follows: "The availability of multiple fora for grant of compensation empowers the right holder by giving them an agency to exercise their choice as well as to receive maximum compensation as quickly as possible". 

Explaining the process of awarding final compensation, the court held: "The special court shall decide the final compensation amount and the interim compensation granted by the DSLSA/DLSA and the special court, shall be adjusted from the final compensation amount awarded by the special court."

Read the order here.