Reparation Laws
Reparation Laws
Reparation Laws
DISCLAIMER
This article, with the contents, as received from the author, is
published. The views and opinions expressed by the author in this
article are his/her own and are not that of the Tamil Nadu State
Judicial Academy. It is imperative that the readers verify the contents
of the article with other relevant and authorised sources of
information.
The only reparation I want is for you to see rape as not my problem, but your problem. 1
Abstract
Reparation is considered as the most comprehensive means of compensating individuals
whose rights have been violated or abused. Reparation is commonly associated with
paying monetary compensation in most cases as means to offset damages suffered. The
reparation laws and compensatory legislations of various countries are discussed with
emphasis on Indian status. The compensation should not be aimed at monetary benefits
alone, but extended to a life assistance plan which is absolutely necessary for each and
every child victim. This will help the state to plan the effective and justified reparation as
required for the victim child affected by sexual abuse.
Introduction The word reparation came into birth in the late 14th century. It was derived
from the word "reconciliation," from old French reparation and directly from late latin
reparationem (nominative reparatio)” in general it means restore or repairing or
mending2. Reparation is arguably the most comprehensive means of compensating
individuals and groups whose rights have been violated. Reparation acknowledges that
*
Principal Subordinate Judge, Thanjavur
1
Congolese woman who was gang-raped by rebels asked the U.N. High Commission on Human
Rights to help stop the epidemic of sexual violence in the country. "What reparation do I want? I do not
want money," the woman said. "The only reparation I want is for you to see rape as not my problem, but
your problem."-Michelle Bachelet: Women Are Smart Investments
2
Online Etymology Dictionary, © 2010 Douglas Harper
http://www.dictionary.com/browse/reparation assessed on 3.11.2016
serious wrongs have been done and, consequently, that the injured person is entitled to
remedy and redress.3 Reparation is commonly associated with paying monetary
compensation. While this form of compensation is an important means to offset damages
suffered.
The principle of “Restitution and integrum” under International Law, calls for
redressal with 'life plan' for victims of serious human rights and humanitarian law
violations.
There are five forms of reparation for such serious human right violations4
Restitution
Compensation
rehabilitation
Satisfaction
Guarantees of non-repetition.
These remedies once existed in such historical places as ancient Greece and Rome,
biblical Israel, Teunoic Germany and Saxony England.5 In due course the practises
ceased but were revived in modern era by Margrey Fry an English Magistrate, whose
keen interest in victim compensation helped in passing reparation legislation in New
Zealand(1963) and Great Britain (1964) 6 respectively.
2.Global scenario
All over the world in the later part of the twentieth century witnessed a far
reaching change in the perspective of the criminal phenomena. The problems of the child
victim were spoken, debated and written and has been taken in hands by many Non-
governmental organizations by way of protecting the child victimization. The first
document endorsed by the nations of the world acknowledging the rights of victims and
need to improve their conditions is “UN Declaration of Basic Principles of Justice for
3
heo van Boven, „The Perspective of the Victim in The Universal Declaration of Human Rights:
Fifty Years and Beyond‟14 (Yael Dnaeli et al. eds., Baywood Publishing Co. 1999.
4
The Basic principles and Guidelines on the Right of Remedy and Reparation for victims of gross
violation of International Humanitarian law
5
Jacob 1976 The concept of restitution: An historical overview. In J.Hudson(Ed.,) Restitution in
criminal justice St.Paul Minnesota Department of Corrections
6
Edelhertz and Geis 1974 Public compensation to victims of crime New York , Praeger
Victims for Crime and Abuse of Powere adopted by the General Assembly in 1985. it is
considered to be the 'magnacarta' for victims7. Despite there being no separate laws
framed to improve the status of victims of crime, there are a few provisions in the code of
criminal procedure, 1973 dealing with restitution. In all these provisions, the term
compensation is used to refer to Restitution. The courts in India have also used the term
compensation both for restitution to victims of Crime by the offenders and for
compensation to victims by the state. Compensation is equating the sufferings of victim
with money.
However, the victim not only suffers physically but mentally and also by
participating in the criminal Justice process. The criminal justice system alienates the
victim making him or her feel like an outsider to both the offense and the system process.
The victim is little more than a witness for the state, the emphasis is not on making the
victim whole. Rather, it is on processing the offender, Judging from citizen
disillusionment with the criminal justice system, there is a clear need to take some bold
steps to ameliorate the victim's suffering. Victim is provided with few ways to
compensate his monetary loss, which includes civil litigation and victim compensation.
The scope of assessing monetary loss recovery for a child who suffers sexual abuse
cannot be termed and recovered through civil litigation and there is no scheme of
insurance which can compensate him/her other than physical injuries.
A Recent report on “Reparations and Remedies for Victims of Sexual and Gender
Based Violence” states that remedies and reparation for victims of sexual and gender
based violence in India and UK means awarding compensation only8. Rape involves
violation of fundamental rights under Article 21 of the Indian Constitution. Compensation
for the violation of fundamental rights is given by way of penalizing the State for
violating the fundamental rights guaranteed by the Constitution of India and for the
breach of its public law duty. This compensation is in the nature of „exemplary damages‟
7
(2008) K.Chockalingam, Evaluation of the Implementsation of the “Victims Assistance
Fund in Tamilnadu, The Indian Journal of Criminology and Criminalistics VolXXIX issue No 1
Jan -April 2008 pg 8-20
8
2016 A Report for REDRESS (London), A Report on Reparations and Remedies for Victims of Sexual and Gender Based
Violence
awarded against the wrongdoer for the breach of a public law duty. This is apart from and
in addition to compensation granted for the loss or injury under the law of torts.
Reparation, is taken to mean the making of amends by an offender to his victim,
or to victims of crime generally, and may take the form of compensation the performance
of some service or the return of stolen property restitution these being types of reparation
which might be described as practical or material. The term can also be used to describe
more intangible outcomes, as where an offender makes an apology to a victim and
provides some reassurance that the offence will not be repeated thus repairing the
psychological harm suffered by the victim as a result of the crime.9
9
State of Gujarat v. Hon‟ble High Court of Gujarat (1998) 7 SCC 392.
10
Rattan Singh vs. State of Punjab AIR 1980 Supreme Court pg 84
11
http://www.humanium.org/en/rcri-world-ranking-by-countries/ lastly assessed on 3.11.2016 Humanium
is an international child sponsorship NGO dedicated to stopping violations of children's rights
throughout the world
12
Kids right index is listed by Kids right foundation which is an global organization in co-operation with
Eramus school of Economic, Rotterdam and International Institute of social studies.
13
www.kidsrightsindex.org,The KidsRights Index 2015,2016 assessed on 21.1.17
and deterrent values. The shift is increasingly towards victim centric compensatory
models of justice. Many societies have forged mechanisms to address these issues. The
idea underlying compensatory justice is not merely to rehabilitate the victim, but also
leads to a regime where societal values in seeing such crimes as aberrations, entitling the
victim to some form of compensation due to the stark intensity of the crime. Therefore,
the concept of a publicly funded and administered body to compensate victims of violent
crime has been in practice in many countries across the world for quite a while.
Compensation is granted not merely when the State is at fault but also when the crime is
violent and serious; and thus the role of the State assumes the welfare hue.14
3.1 Concept of restitution in India
All over the world in the later part of the twentieth century witnessed a far
reaching change in the perspective of the criminal phenomena. The problems of the child
victim were spoken, debated and written and has been taken in hands by many Non-
governmental organizations by way of protecting the child victimization. The first
document endorsed by the nations of the world acknowledging the rights of victims and
need to improve their conditions is “UN Declaration of Basic Principles of Justice for
Victims for Crime and Abuse of Power adopted by the General Assembly in 1985. It is
considered to be the 'magnacarta' for victims15. Despite there being no separate laws
framed to improve the status of victims of crime, there are a few provisions in the code of
criminal procedure, 1973 dealing with restitution. In all these provisions, the term
compensation is used to refer to restitution. The courts in India have also used the term
compensation both for restitution to victims of Crime by the offenders and for
compensation to victims by the state.
3.2 Compensation
Compensation, means compensating or being compensated; thing given as
recompense; In legal sense it may constitute actual loss or expected loss and may extend
to physical mental or even emotional suffering, insult injury or loss, 16 Further it means
anything given to make things equal in value: anything given as an equivalent, to make
14
J Indian Acad Forensic Med. July-September 2014, Vol. 36, No. 3 ISSN 0971-0973 286
15
Chockalingam.K., Evaluation of the Implementation of the “Victims Assistance Fund in Tamilnadu The
Indian Journal of Criminology and Criminalistics Vol XXIX issue No 1 Jan -April 2008 pg8-20 (2008)
16
Ghaziabed Development Authority vs. Balbir Singh (2004 5 SCC 65 (75) AIR 2004 SC 2141.
amends for loss or damage. In all States where the rule of law prevails, the right to
compensation is guaranteed by the Constitution or regarded as inextricably involved in
the right to property17
The word compensation is derived from the Latin word compensate meaning
weight together or balance.18 As per P.Ramanatha Aiyar‟s Advanced Law Lexicon, 3rd
Edn, 2005 the word compensation had been defined to mean an act which a court orders
to be done or money which a court orders to be paid, by a person whose acts or omissions
have caused loss or injury to another in order that thereby the person damnified may
receive equal value for his loss or be made whole in respect of his injury.19
Victim compensation takes place when the state, rather than the perpetrator,
reimburses the victim for losses sustained at the hands of the criminal. While it is true
that some victim compensation operations derive money from offender restitution, the
state is the entity that has direct contact with the victim. Compensation is equating the
sufferings of victim with money. However, the victim not only suffers physically but
mentally and also by participating in the criminal Justice process. The criminal justice
system alienates the victim making him or her feel like an outsider to both the offense
and the system process. The victim is little more than a witness for the state, the emphasis
is not on making the victim whole. Rather, it is on processing the offender, Judging from
citizen disillusionment with the criminal justice system, there is a clear need to take some
bold steps to ameliorate the victim's suffering. Victim is provided with few ways to
compensate his monetary loss, which includes civil litigation and victim compensation.
The scope of assessing monetary loss recovery for a child who suffers sexual abuse
cannot be termed and recovered through civil litigation and there is no scheme of
insurance which can compensate him/her other than physical injuries. The main head
under which the child can be compensated is victim compensation but it is found that the
potential of the same draws back the victim back into the criminal justice system.
3.3 Rehabilitation:
In India there are many legislation which forms a guidable factor for the awarding
17
Rustom Cavasjee Cooper v. Union of India (1970) SCC 248; AIR 1970 SC 564: (1970) 3 SCR 531
18
K.S.R.T.C. . Mahaneva Shetty (2003) 7 SCC 197 203) AIR 2003 SC 172 ( Motor Vehicles Act 1988
S.163 A and Sch 11)
19
Sandvik Asia Ltd.v. Commissioner of Income Tax AIR 2006 SC1223,
of compensation but it has not fixed any functional accountability on any one. Former
Chief Justice of India, Hon'ble P.Sathasivam observed that “Survivors of rape should be
compensated by giving them half of the property of the rapist(s) as compensation in order
to rehabilitate them in Society. He further added that “Merely providing interim
measures for their stay may protect them for time being but long-term rehabilitation is
needed as they (Family Members) are all material witnesses and likely to be socially
ostracized. 20
In general the rehabilitation is being approached in four fold
Physical
Mental
Psychological and
Social
Physical rehabilitation involves creating proper living and working conditions to the
victimised child. Mentally she needs help to restore her lost esteem. Psychologically she
needs help to overcome her depression and insecurity and socially, she needs help to be
accepted back into the social fold. Rehabilitation of a rape survivor cannot remain at the
compensation level alone. It is a complex situation that calls for multi-pronged approach
for implementation at different stages.
4. Laws on Reparation in India
There is no specific definition of reparation in Indian laws. The Indian criminal
Justice system has codes and the victim is provided with the section 357 Criminal
procedure code where the court is empowered to award compensation under Section,
either separately to compensate the loss of the victim or from the fine imposed by the
court on the accused. Also Special legislation enacted for protection of children POCSO
Act, 2012 provide section 33(8) provides compensation for immediate rehabilitation of
the child.
4.1 Criminal Procedure code
Section 357 Cr.P.C.
(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death)
of which fine forms a part, the Court may, when passing judgment, order the whole or
20
P. Sathasivam, CJI, 23rd Jan 2014
any part of the fine recovered to be applied -
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or injury caused by the
offence, when compensation is, in the opinion of the Court, recoverable by such person in
a Civil Court;
(c) when any person is convicted of any offence for having caused the death of another
person or of having abetted the commission of such an offence, in paying compensation
to the persons who are, under the Fatal Accidents Act, 1855, (13 of 1855) entitled to
recover damages from the person sentenced for the loss resulting to them from such
death;
(d) when any person is convicted of any offence which includes theft, criminal
misappropriation, criminal breach of trust, or cheating, or of having dishonestly received
or retained, or of having voluntarily assisted in disposing of, stolen property knowing or
having reason to believe the same to be stolen, in compensating any bonafide purchaser
of such property for the loss of the same if such property is restored to the possession of
the person entitled thereto.
Section 359 Cr.P.C.
1) Whenever any complaint of a non-cognizable offence is made to a Court, the Court,
if it convicts the accused, may, in addition to the penalty imposed upon him, order
him to pay to the complainant, in whole or in part, the cost incurred by him in the
prosecution, and may further order that in default of payment, the accused shall
suffer simple imprisonment for a period not exceeding thirty days and such costs
may include any expenses incurred in respect of process-fees, witnesses and
pleader's fees which the Court may consider reasonable.
2) An order under this section may also be made by an Appellate Court or by the High
Court or Court of Session when exercising its powers of revision.
4.2. The Probation offenders Act 1958
Section 5, Power of court to require released offenders to pay compensation and costs
(1)The court directing the release of an offender under section 3 or section 4, may, if it
thinks fit, make at the same time a further order directing him to pay
(a) such compensation as the court thinks reasonable for loss or injury caused to any
person by the commission of the offence; and
(b) such costs of the proceedings as the court thinks reasonable.
(2) The amount ordered to be paid under sub-section
(i) may be recovered as a fine in accordance with the provisions of sections 386 and 387
of the Code.
(3) A civil court trying any suit, arising out of the same matter for which the offender is
prosecuted, shall take into account any amount paid or recovered as compensation under
sub-section (1) in awarding damages.
4.3 Protection of Children from sexual offences Act, 2012
Section 33(8) reads that in appropriate cases, the Special Court may in addition to the
punishment direct payment of such compensation as may be prescribed to the child for
any physical or mental trauma caused to him or for immediate rehabilitation of such child
4.4 Protection of Children from sexual offences Rules , 2012
Rule 7
1) The Special Court, may in appropriate cases, on its own or on an application filed
by or on behalf of the child, pass an order for interim compensation to meet the
immediate needs of the child for relief or rehabilitation at any stage after
registration of the First Information Report. Such interim compensation paid to the
child shall be adjusted against the final compensation if any,
2) The Special Court may, on its own or on an application filed by or on behalf of the
victim, recommend the award of compensation where the accused is convicted, or
where the case ends in acquittal or discharge, or the accused is not traced or
identified, and in the opinion of the Special Court the child has suffered loss or
injury as a result of that offence.
3) Where the Special Court under sub-section (8) of Section 33 of the Act read with
sub-sections (2) and (3) of Section 357-A of the Code of Criminal Procedure, makes
a direction for the award of compensation to the victim, it shall take into account all
relevant factors relating to the loss or injury caused to the victim, including the
following:-
(i) type of abuse, gravity of the offence and the severity of the mental or physical
harm or injury suffered by the child;
(ii) the expenditure incurred or likely to be incurred on his medical treatment for
physical and or mental health;
(iii) Loss of educational opportunity as a consequence of the offence, including
absence from school due to mental trauma, bodily injury, medical treatment,
investigation and trial of the offence, or any other reason;
(iv)loss of employment as a result of the offence, including absence from place of
employment due to mental trauma, bodily injury, medical treatment, investigation
and trial of the offence, or any other reason
(v) the relationship of the child to the offender if any;
(vi) whether the abuse was a single isolated incidence or whether the abuse took
place over a period of time;
vii)whether the child became pregnant as a result of the offence;
viii)whether the child contracted a sexually transmitted disease (STD) as a result
of the offence
ix) whether the child contracted human immunodeficiency virus(HIV) as a result
of the ofence.
(x)any disability suffered by the child as a result of the offence
(xi) financial condition of the child against whom the offence has been committed
so as to determine his need for rehabilitation
xii)any other factor that the special court may consider to be relevant.
Sub-section 3 of section 357 Criminal Procedure Code is a new provision and
provides for payment of compensation by the accused to a person who has suffered any
loss or injury even in a case where fine does not form part of the sentence imposed by a
Court. The compensation is payable for any loss or injury whether physical or pecuniary
and the Court shall have due regard to the nature of injury, the manner of inflicting the
same, the capacity of the accused to pay and other relevant factors.