The Concept of Compensatory Justice

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True peace is not merely the absence of war, it is the presence of justice” ~ Jane Addams.

Introduction

‘Victims’ means person who, individually or collectively have suffered harm, including physical or mental injury, economic loss or substantial impairment of their fundamental rights. Justice J.N. Bhatt has defined victimology as “a science of suffering and resultant compensation”.

In Black’s Law Dictionary, the word ‘compensation’ has been defined as under: “money … reparation for the loss caused to another”. The word ‘compensation’ means to expiate the loss suffered. Thus, compensatory justice refers to the provision of resources to a victim of injustice with the goal of minimizing or reversing the impact of harm done by the injustice.

Compensatory Justice Under Indian Law

Under the law of torts, victims can claim compensation for the injury or the loss suffered by them.  The idea of compensation to victims of the crime is gaining much more importance. The concept of compensation in India goes back to 1857, when the courts made an attempt to regularise the pollution generated by the oriental gas company by imposing fines on the company and giving a right to compensation against the fouling water.

The modern welfare states have realized the importance of giving compensation to the victims of crime as part of their duty towards the protection of its citizen and also as part of their general welfare. Compensation is now being awarded as a matter of right not in just criminal law, but also in constitutional law, environmental law etc.

Justice requires that a person who has suffered must be compensated. Basically the accused is responsible for the harm caused to the victim. We have five statutes, under which compensation may be awarded to the victims of crime:

  1. The fatal Accident Act, 1855
  2. The motor Vehicles Act, 1988
  3. The Criminal Procedure Code, 1973
  4. The Constitutional Remedies for Human Rights Violation
  5. The Probation of Offenders Act, 1958.

The law makers made provisions in the Criminal Procedure Code, 1973 under Section 357(3) to enable the Courts to award any amount of compensation to the victims of a crime. Not only this, the lower courts were asked and advised to exercise the power of awarding compensation to the victims of offences in such a liberal way that the victims may not have to rush to the civil courts

Case laws

A question regarding the awarding of monetary compensation through writ jurisdiction was first raised before the Supreme Court in Khatri (II) v. State of Bihar (1981). In this case, Bhagwati, J. observed: Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty.

In Sant Bir v. State of Bihar (1982), the question of compensating the victim of the lawlessness of the State was left open.

The apex court the country in Rudul Shah V. State of Bihar (1983),  brought about a revolutionary breakthrough in human rights jurisprudence by granting monetary compensation to an unfortunate victim of  state lawlessness on the part of the Bihar government for keeping him in illegal detention for over 14 years after his acquittal in a murder charge.

On September 1, the High Court (HC) of Allahabad passed an order declaring that Dr Kafeel Khan had been wrongly detained by the Uttar Pradesh government, under the National Security Act of 1980. Khan’s 23-minute speech in Aligarh on December 12, 2019, which formed the basis of his detention, had been misrepresented by the police; taken as a whole, the speech was in support of national unity and peace, instead of seeking to undermine public order or create disunity.

In this respect, however, Khan’s case is not unique or isolated. Earlier this year, the Jammu and Kashmir HC found that many detention orders that had been issued after the effective nullification of Article 370 on August 5, 2019 had no merit at all, and deserved to be quashed. Once again, these orders came after the detainees had already spent many months in prison.

This raises an important issue of justice: If individuals have been deprived of months and years of their life for no justifiable reason at all, restitution of some sort must be provided. While lost time cannot be returned, and harassment cannot be undone, at the very least, compensation can mitigate some of the harm caused.

I’m of the opinion that when a state pauses someone’s existence in this world, the state should be made liable for at least giving compensation to that particular person.

Conclusion

We come to the conclusion that compensation is not only required but is in fact a very important aspect of even criminal law and the courts should not use this sparingly but a little liberally. Of course they should be careful of not awarding too high a compensation and hence should be careful.

The government should take into consideration the suggestions of the Supreme Court and set up Compensation Boards to help the victims with financial issues. Promoting victim friendly jurisprudence and building a responsive and remedial system is the need of hour.

(Rahil Amin Mir is pursuing law at Central University of Kashmir)