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#India – A reparative justice #Rape #Vaw #Womenrights

RK Vij : Tue Aug 13 2013 IE

For the rape victim, compensation is a right, not mercy shown by the stateWhile directing the government of Madhya Pradesh to pay Rs 10 lakh as compensation to the victims of gangrape, the Supreme Court observed that the “trauma of rape victims continues throughout their life and such victims cannot be compensated by any amount”. Lately, the SC has reiterated that the trial courts must award compensation to the victims while sentencing convicts in criminal cases. Earlier, the parliamentary committee on the empowerment of women also expressed its concern about poor implementation of the compensation and rehabilitation scheme for sexual exploitation and human trafficking cases.

The Delhi gangrape case generated much anger against the rapists, and there was a widespread demand for the death penalty for those found guilty. Giving in to public pressure, Parliament amended the law to broaden the definition of “rape” and included provisions for the death penalty in certain cases. There is, however, scant evidence to suggest that death for rapists can be a deterrent. And in this clamour for punishment, the plight of the victims has largely been forgotten.

Our criminal justice system is based on the premise that the accused must be treated as innocent until proven guilty. Over time, this presumption has given rise to a range of rights for the accused, from free legal aid to a diligent, speedy trial. But the rights of the victim have not been paid much attention, either by the legislature or by the judiciary. The victim is generally left to the mercy of the state. The tasks of counselling and rehabilitation often fade into the background.

Ruling on Delhi Domestic Working Women’s Forum versus Union of India, 1985, which dealt with the rape of domestic workers by army personnel in a running train, the SC had held that rape transgressed the fundamental right enshrined in Article 21: the right to live with dignity. If the state could not protect this right, it was liable to paying compensation. The Court also directed the National Commission for Women to help set up a “criminal injury compensation board”, in keeping with the directive principles of state policy. Compensation, the SC said, must be awarded quickly, without waiting for the courts to convict the accused.

In Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty, 1995, for the first time, the SC directed the accused to pay an interim compensation of Rs. 1,000 every month, during the pendency of the trial. This decision eventually paved the way for a paradigm shift in the judiciary’s approach towards compensation.

Following various decisions by the SC, the Central government inserted a new section, 357A, in the Criminal Procedure Code in 2009, which directs state governments to set up a victim compensation scheme in coordination with the Central government. This scheme caters to the need of financial assistance for the victim, either by the district legal services authorities directly or through an initiative undertaken by a police station in-charge. The government of Chhattisgarh also notified such a scheme in August 2011 and provided for compensation up to Rs 1 lakh. But Section 357A needs to be implemented in letter and in spirit. Otherwise, the SC might be forced to intervene and fix the amount of compensation, as it did for the victims of acid attack in a recent verdict.

The recent amendments in criminal law, prompted by the Delhi gangrape, do attempt to provide a measure of redress for the victim. The newly added Section 357A provides that the compensation awarded under this section shall be in addition to that awarded under the punitive section of rape, that is, Section 376 of the IPC. The amended law also directs hospitals, both private and public, to provide free and timely first aid to the victim.

The criminal justice system is now progressing towards reparative justice. The victims of rape require psychological counselling and rehabilitation to reduce secondary victimisation at the hands of society. The police must be sympathetic in assessing the victims’ requirements. Compensation is the right of the victim. Not only should the amount of compensation be reasonable, but the procedure for awarding such compensation must also be simple and timebound. Victims should not have to run from pillar to post to realise their rights.

 

The author is additional director general of police in Chhattisgarh [email protected]

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