This post has been contributed by Mr Anil Malhotra, BSc. LL.B (Punjab), LL.M (London) who heads the firm Malhotra and Malhotra Associates, headquartered at Chandigarh, India. Mr Malhotra has to his credit books such as “International Indians and the Law,” (2014), “Surrogacy in India : A law in the Making (2013),” “Indians, NRIs and Law” (2011), “India, NRIs and the Law” (2009) and “Acting for Non-Resident Indian Clients” (2005). He can be reached at email@example.com.
An innocent girl child suffers rape. Shocking and revolting, angry reactions emerge. The aftermath of the victim will be a complicated mountain of worries, problems and difficulties, sans solutions. Heartless indifferent attitudes of public authorities with sheer apathy will create misery and intolerable grief for the unfortunate victim. A rehabilitative law is far away to heal compounded and multiplied obstacles.
Lamenting on the plight of rape victims, in Delhi Domestic Working Women’s Forum Vs Union of India & Others, the Supreme Court in 1994 noted a major shift in “penelogical thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims of conventional punishment.” While propounding the thought requiring courts to consider the making of a compensation order, the Supreme Court indicated broad parameters in assisting the victims of rape and felt that schemes will have to be evolved to wipe out the tears of such unfortunate victims and for implementation of which necessary steps be taken. In 2014, the Supreme Court In Re: Indian Woman says gang raped held that the obligation of the State does not extinguish on payment of compensation, as rehabilitation of the victim is also of paramount importance.
THE STATUTORY PROVISION
Section 357-A of the Code of Criminal Procedure was inserted in 2008 making it mandatory that every State Government in coordination with the Central Government shall prepare a Scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of a crime and who require rehabilitation. The salient features of this mandatory provision enjoin that the State Legal Services Authority shall decide the quantum of compensation to be awarded under the Scheme of the concerned Government. The various States have framed schemes of compensation ranging from Rs. 1 to 10 lacs with no uniformity. Some exist on paper whereas few are not yet funded by respective Governments.
THE FACTUAL POSITION
The provision in law exists to ameliorate the plight of an unfortunate victim of rape. But, the actual relief is very far away. The Schemes of State Governments, if notified, are unknown and its actual benefits are not accessible to those victims who may actually need it. The laudable shift of thinking advocated by the Supreme Court for making payment of compensation or providing rehabilitative aid thus still remains illusory. The slow pace of working of the criminal justice system for trying the offender further adds to the woes of the rape victim. The traumatised sufferer has neither the means nor the resources for the process to end and to wait for the Court to conclude that aid, assistance or compensation be finally awarded upon conclusion of the case for awarding of punishment to the offender. A speedy, friendly and victim-sensitive Central legislation on rehabilitation is thus the need of the hour.
COURTS TO THE RESCUE
In the situation as it exists, the Supreme Court in 1993 in its erudite expression in Nilabati Behera Vs. State of Orissa has held that the Supreme Court and High Courts being the protectors of the Civil liberties of the citizens, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its writ jurisdiction under Articles 32 and 226 of the Constitution. The Supreme Court clearly recognised the need for an award of compensation in writ jurisdiction for contravention of Human rights and fundamental freedoms thereby providing much needed succour to unfortunate victims who cannot reach out to justice under conventional legal systems. Further, in 2012, in Dr. Mehmood Nayyar Azam Vs. State of Chhattisgarh, the Supreme Court in another salutary view observed that when the Court moulds the relief by granting “compensation” in writ proceedings for enforcement or protection of Fundamental rights, “it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the Fundamental rights of the citizens.” The Supreme Court further stated that “the payment of compensation in such cases is not to be understood as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by and order of making monetary amends under the public law for the wrong done due to breach of public duty by not protecting the fundamental rights of the citizen.” Thus, our Constitutional Courts perform a yeoman service to underprivileged sections of society in culling out much-needed relief whenever needed and for which the Courts act even suo moto to those in dire need.
THE END AND THE FUTURE
Rape is a heinous crime for which we need swift trial and stringent punishment. Simultaneously, compensation awarded to the victim may be programmed to be rehabilitative or tailored to suit the need of the victim and the child so born. In the furtherance of the progressive view and the thinking propounded by the Supreme Court, such crutches of financial aid neither compound or condone the offence. The mandate of the Indian Constitution to secure social justice to have-nots must not be illusive and must be promoted. Laws which provide this must be implemented with vigour. Rehabilitation in the true spirit with financial support is a yearning cry. Compensating rape victims is the obligation of the Government and not a charity.
Image from here