Victims Compensation scheme is a step taken by the government along with the judiciary, to setup a platform through which, victims of crime are provided some sort of relief to lessen their trauma and pain. As it is the duty of the State to maintain law and order in the society, and the sole reason that there is an individual who is a ‘victim’, is because of such a failure of the government and other law enforcement machinery and hence one can see it as a compensation amount that is provided by the State, since it failed to perform its duties.
Offences committed by individuals, companies, etc. are classified under various laws according to the nature of the offence. For example, offences against private rights come under civil laws and offences against the state come under the criminal law. When an offence is proven by the appropriate court, the victim or the sufferer gets relief from the court by way of either by compensation, injunction and action or by punishment of the offender.
Usually, compensation and injunction is given in the case where damages to private rights are caused like in torts or any civil law and punishment is awarded to the offender with or without fine under criminal law. However, there is no clear distinction as to why compensation should not be awarded in criminal cases as well. Injury to the rights of a person are damaged even in a criminal case, for example, in the case of theft, a right of a person to his property gets damaged as the property goes out of his possession. But the right of a victim to a crime to restitution has not yet been identified in the statute.
Read Also Positive Social functions of Crime and Criminality
V.N. Rajan in his work on Victimology in India (1995) (APH) has given the following theories for justification of victim compensated-
(1) State Theory
(2) Welfare Theory
(3) Mercy Theory
(4) Shared risk Theory
(5) Society’s Responsibility Theory
(1) State Theory
The State rules exist for maximum individual and social welfare. The State exercises its power by the enactment of laws and administration of its executive and judicial functions. The citizens are deprived of the remedy of resorting to private vengeance for the wrongs caused to them as and the existence of State is for their individual and social security.
Maintenance of law and order is the primary duty of the State. If the State fails in its duty to protect the citizens and the society due to disobedience of law by any person, it is the duty of the State to compensate the citizens who are law abiding persons. For such failure of the State, all citizens irrespective of their income or type of loss are entitled to compensation.
In this reference, some cases decided by the Courts need to be mentioned. In R. Gandhi v. Union of India AIR 1989 Mad. 205 the Madras High Court in a PIL directed the Government to pay compensation for inaction of police to protect the properties of Sikh Communities who were riot victims after assassination of Mrs. Indira Gandhi. The Court awarded damages under Articles 21, 38, 19 (a) to 19 (g) and 300A of the Constitution. The maintenance of law and order as a State function being at the top State list in the Constitution no Government worth the name can abdicate this, function and put the life and liberty, the hearth and homes of the citizens in jeopardy.
In Inderpuri General Store v. Union of India,AIR 1992 J & K 11 the facts of which were similar to R. Gandhi’s case, the High Court of Jammu and Kashmir, held the State under a constitutional duty to compensate the victims adequately, the State being under an obligation to protect the life and property of all citizens, to ensure the benefits of Fundamental Rights enshrined in the Constitution. The State which represents the will of the people has to compensate the victims by granting adequate compensation.
(2) Welfare Theory
According to the welfare theory, one of the State’s humanitarian functions is to compensate the victims of the crime in the like manner as the functions of the State e.g., the duty towards the sick, the disabled underprivileged, unemployed persons etc. This duty is not contractual but the social consciousness of the rulers and citizenry make such duty.
(3) Mercy Theory
The “mercy theory” is closely related to the ‘welfare theory’. The State has to deal mercifully with some individuals. This theory holds that the Government should grant compensation to victims of crime as mercy. This theory has been described to be ‘less general’ and ‘inclusive’. The theory of ‘social welfare’.The State often grants, ex-gratia compensation to the victims of crime such as riots, insurgency etc. Sometimes, such provisions are enacted in the statutory form also.
(4) Shared risk Theory
According to theory, the State is like an entrepreneur or any employer who charges the cost of the risk also from the consumer in the cost of the service or product. The consumer in this way contributes towards the payments to those consumers who are to be compensated for the loss or damage caused. In the same way, each individual pays to the State the tax which includes the cost of the premia as in the insurance for the compensation to be paid to the victims of crime.
(5) Society’s responsibility Theory
According to this theory, for the crime, it is the society which is responsible because the crime is the result of certain conditions in society e.g., unemployment, squalor, lack of equal opportunities, poor education etc. and therefore the Government is responsible to pay compensation. The socio-economic crimes, white collar crimes and guilded crimes affect the entire nation and worst affecting economically weaker sections of the society. How far this theory applies to such crimes to compensate the victims of crime, is not clear.
Justification for victim compensation programme, sometimes, contradictory
According to V.N. Rajan, justification for victim compensation programmes are, sometimes, contradictory. Victim of offence of rape, if resists, the offender becomes more violent and therefore she contributes to the aggravation of crime. To the contrary, the victim of offence of rape contributes towards the crime if she does not resist because she is a willing victim and thus becomes accessory to the crime.