ASSIGNMENT

ON
‘Theory of Compensatory Jurisprudence with special
reference to Criminal Law Amendment Act 2013 ’

SUBMITTED BY
PRIYANKA KHALWADEKAR
YEAR: F.Y.LL.B – 2019-20
DIVISION: B
ROLL NO.: 04
SUBJECT: Law of Crimes
SEMESTER: 2

SUBMITTED TO:

K.C. LAW COLLEGE, MUMBAI

 a. Introduction

Crime is seen as cancer of society which is steadily increasing. It has been observed
that the administration of criminal justice remained generally unsatisfactory from the
point of view of the victims of crime. The basic object of the Criminal Justice is to
protect the society against crime and to punish the offender. The object of the
punishment is not merely to shelter and reform the criminals but there is need for
safeguarding the interests of the victims also.

In the era of human rights consciousness, the habeas corpus writ has functional
plurality and the constitutional regard for human decency and dignity is tested by this
capability. The compensatory jurisprudence introduced by the Supreme Court of India
by invoking the powers conferred under Article 32 of the Constitution of India gained
tremendous importance in recent times due to the increase of the incidents of political
anarchy, custodial torture, police lawlessness, illegal detentions, atrocities against
women, hostilities in jails and other crucial human rights’ infringements.

The Criminal Law (Amendment) Act, 2013 (Nirbhaya Act) provides for amendment
of Indian Penal Code, Indian Evidence Act, and Code of Criminal Procedure, 1973 on
laws related to sexual offences.

Pecuniary compensation is a judicially recognised and an endorsed mode of enforcing

fundamental rights by the courts of law for serving the lawful entitlements of persons
on being victimized of crimes-offences-human rights’ abuse.

b. Objectives
 Understand the need and object of compensation to the victims with with
special reference to Criminal Law Amendment Act 2013
 Examine and evaluate existing laws governing compensation to the victims
 Understand role played by judiciary in granting compensation to the victims

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 c. Relevant Laws

The right to compensation is some palliative for the unlawful acts of instrumentalities
which act in the public interest and which presents protection as a shield. The
compensation is available to a victim of State aggression under three heads of the
Constitution of India, 1950:
# Article 32: Right to Constitutional Remedies enforceable in the Supreme Court of
India;
# Article 226: Right to effective remedy enforceable by the aggrieved citizens in the
High Court of the States; and,
# Article 300: Tortious liability of the State.

The National Human Rights Commission and the State Human Rights Commissions
and a host of international covenants on human rights have also taken revolutionary
steps towards the guarantee of liberty, equality and justice.

Section 357A has been inserted providing for Victim Compensation Scheme- 357A.
(1) Every State Government in co-ordination 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 the crime and who
require rehabilitation. (2) Whenever a recommendation is made by the Court for
compensation, the District Legal Service Authority or the State Legal Service
Authority, as the case may be, shall decide the quantum of compensation to be
awarded under the scheme referred to in sub-section (1)

Compensation Under Probation of Offenders Act, 1958 The whole object of the
Probation of Offenders Act,1958 is to prevent conversion of youthful offender into
obdurate criminals of matured age, in case they are sentenced to undergo substantive
imprisonment in jail. The Probation of Offenders Act enables the Court, directing
release of an offender under Section 3 and Section 4 in its discretion to grant
'reasonable compensation' to any person for loss or injury caused to him by
commission of the offence and costs of the proceedings.

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Changes in law after Criminal Law Amendment Act 2013
Section 370 of Indian Penal Code (IPC) has been substituted with new sections, 370
and 370A which deals with trafficking of person for exploitation. If a person (a)
recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person, by
using threats, or force, or coercion, or abduction, or fraud, or deception, or by abuse
of power, or inducement for exploitation including prostitution, slavery, forced organ
removal, etc. will be punished with imprisonment ranging from at least 7 years to
imprisonment.

The most important change that has been made is the change in definition
of rape under IPC. Although the Ordinance sought to change the word rape to sexual
assault, in the Act the word 'rape' has been retained in Section 375, and was extended
to include acts in addition to vaginal penetration. The definition is broadly worded
.The section has also clarified that penetration means "penetration to any extent", and
lack of physical resistance is immaterial. In aggravated situations, punishment will be
rigorous imprisonment for a term which shall not be less than ten years but which
may extend to imprisonment for life, and shall also be liable to fine.

A new section, 376A has been added which states that if a person committing the
offence of sexual assault, "inflicts an injury which causes the death of the person or
causes the person to be in a persistent vegetative state, shall be punished with rigorous
imprisonment for a term which shall not be less than twenty years, but which may
extend to imprisonment for life. In case of "gang rape", persons involved regardless of
their gender shall be punished with rigorous imprisonment for a term which shall not
be less than twenty years, but which may extend to life and shall pay compensation to
the victim which shall be reasonable to meet the medical expenses and rehabilitation
of the victim. The age of consent in India has been increased to 18 years.

Certain changes has been introduced in the CrPC and Evidence Act, like the process
of recording the statement of the victim has been made more victim friendly and easy
but the two critical changes are: 1. the 'character of the victim' is now rendered totally

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irrelevant, and 2. there is now a presumption of 'no consent' in a case where sexual
intercourse is proved and the victim states in the court that she did not consent.

d. Case Laws

Some of the landmark cases are listed as under:

1. Devaki Nanda v. State of Bihar. Here the petitioner’s pension had been delayed for
twelve years. “Exemplary costs” were awarded to the petitioner for ‘intentional,
deliberate and motivated’ harassment of the petitioner.
2. Khatri v. State of Bihar, (the Bhagalpur Blinding Case), it was alleged that the
police had blinded certain prisoners and that the State was liable to pay compensation
to the victims.
3. Rudal Shah v. State of Bihar, the courts awarded compensation only after
completely satisfying themselves that the authority blatantly exceeded their power and
acted with utter disregard for law.
4. Sebastian Hongray v. Union of India, the Supreme Court awarded compensation in
respect of persons missing from army custody. The Court awarded Rs. 1 lakh to the
widows as exemplary costs.
5. Mohan Lal Sharma v. State of U. P., it has been observed that the detenue is
entitled to the right to monetary compensation under the patronage of Article 21 of the
Constitution of India.
6. State of Maharashtra v. Patil., Handcuffing has been held to mandate
compensation as a consequence in the case.
7. Saheli v. Commissioner of Police, Delhi , wherein the Court held that an action for
damages lies for bodily harm, including battery, assault, false imprisonment, physical
injuries and death.

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8. Nilabati Behera v. State of Orissa, the jurisprudential reasoning behind the award of
damages in cases of violations of fundamental rights was elucidated in, which can
truly be considered as a landmark case in the development of law in this area.
9. M. C. Mehta v. Kamal Nath, the Supreme Court awarded compensation to the
victims of pollution. The damages were appropriated under as  damages for
restoration of the environment and ecology;  damages to those who may have
suffered loss on account of the act of pollution; Exemplary damages so that other
people are detained from causing environmental pollution.

e. Conclusion

The foremost progress has been made in recognizing, understanding and

supporting the status and position of victims and witnesses. However, as this
initial critique shows, there is still a long way to go. These are challenging
times and there are several benefits to be accrued for justice and for the
criminal justice system if the interest of the victim and the offenders is well
thought-out.Thus it can be concluded that in order to protect human rights and
fundamental freedoms of victims, we must generate awareness for human
rights in mind of people otherwise, the concept of human right will remain
absurd.

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 f. References

1. Law of Crimes Indian Penal Code- by Cyus J.

Poonawala
(Aart and Co., First editon, 2013)
2. Ratanlal and Dhrajlal- The Indan Penal Code Edtoria Board-
K.Kannan and Anjana Prakash
(36th Edition –Reprint 2019-Lexis Nexis)

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