The case for compensation to rape victims


A person commits a crime when the pleasure is more than the cost, which they pay in punishment, or they would not do it.[1] Whenever a crime is committed, it creates three victims on three counts, the society, the primary victim and the dependent of the victim. The society, as in the State, deploys statutes such as Penal Code, 1860[2] (IPC) and Code of Criminal Procedure, 1973[3] (CrPC) to punish the offenders. However, the actual victim who suffers loss because of the crime, has little to no say in the prosecution, as the victims are left to the mercy of investigators and the public prosecutors. The society gets its vengeance fulfilled through “deterrence,” by punishing the offenders, and making an announcement that such actions would not be tolerated; and the victims get what is termed as justice. This article would be dealing particularly with the offence of rape, to make a case for compensation to victims, all through a speedy trial with proper safeguards for both the accused and the victim.

 Why is victim compensation important?

The Criminal Justice System includes three broad fields of study: Criminology (the scientific study of crime), Penology (the study of penal actions consequent to the crime) and Victimology (a comparatively newer branch which centers around the measures such as compensation, rehabilitation, and justice to the victim). The victim is a forgotten party, as the historical evolution of the system, from private vengeance to State administered justice, has resulted in a criminal justice process in which the victims play only a secondary role.[4] The modern day emergence of the idea of compensation for victims of crime commenced only in the 1950s when it was pressed by the British Magistrate and social reformer, Margery Fry.[5] It further took concrete shape when the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power was unanimously adopted by the General Assembly on 11-11-1985,  Clause 8 of which deals with compensation to the victims of the crime.

 Articles 41[6] and 51-A[7] of the Indian Constitution lay down the duty of the State to secure “the right to public assistance in cases of disablement and in other cases of undeserved want” and to “have compassion for living creatures” and “to develop humanism” respectively. Justice Krishna Iyer, in Maru Ram v. Union of India,[8] said that victimology, a burgeoning branch of humane criminal justice, must find fulfilment, not through barbarity but by compulsory recoupment by the wrongdoer of the damage inflicted not by giving more pain to the offender but by lessening the loss of the forlorn.[9]

In 2003, the Justice Malimath Committee observed that, “victims of crime are important players in criminal justice administration both as complainant/informant and as witness for the police/prosecution. Despite the system being heavily dependent on the victim, criminal justice has been concerned with the offender and his interests almost subordinating or disregarding the interest of the victim. In civil law systems generally, the victims enjoyed better status than in Administration of Criminal Justice.”[10] In Ankush Shivaji Gaikwad v. State of Maharashtra,[11] it has been observed that: “The object and purpose of the provision is to enable the Court to direct the State to pay compensation to the victim where the compensation under Section 357[12] was not adequate or where the case ended in acquittal or discharge and the victim was required to be rehabilitated. Under this provision, even if the accused is not tried but the victim needs to be rehabilitated, the victim may request the State or District Legal Services Authority to award him/her compensation.”

I. Victim compensation regime

The Law Commission of India observed that, “We have a fairly comprehensive provision for payment of compensation to the injured party under Section 545 of the Criminal Procedure Code, 1898. It is regrettable that our courts do not exercise their statutory powers under this section as freely and as liberally as could be desired. The section has, no doubt, its limitations. Its application depends, in the first instance, on whether the court considers a substantial fine as proper punishment for the offence. In the most serious cases, the court may think that a heavy fine in addition to imprisonment for a long term is not justifiable, especially when the public prosecutor ignores the plight of the victim of the offence and does not press for compensation on his behalf.”[13] Later, taking note of the insensitive attitude of subordinate courts, the Supreme Court in Hari Singh v. Sukhbir Singh,[14] while directing the courts to exercise their powers liberally, observed that Section 357 is an important provision but the courts have seldom invoked it, perhaps due to the ignorance of the object of it.

Thereafter, the debate gained momentum and Section 357-A CrPC was inserted into the CrPC, which provides the State to frame a Victim Compensation Scheme. Compensation shall be paid to the victim depending on the facts and circumstances of the case as per such scheme. Enquiry has to be held by the State Legal Services Authority or the District Legal Services Authority, as the case may be. The law as it stands today, has provisions relating to compensation of victims such as Sections 357, 357-A, 357-B, 357-C, 358 and 359 of CrPC[15]. There is one more provision in Section 250 CrPC, 1973[16], wherein if the prosecution is launched based on false accusation, and ultimately after trial, if the person is acquitted and if the trial court finds that false case is foisted, then, the compensation is to be levied on the complainant under Section 250 CrPC. In such matters, the alleged accused is the victim of the illegal prosecution. Because of the guilt of the complainant/State, the accused has suffered. Even FIR attaches a stigma in certain cases. Therefore, if an accusation is made without unreasonable cause and if the court feels that a false case is launched, then the court may impose compensation under Section 250 CrPC.

Section 357 of the CrPC is an amalgamation of Sections 545 and 546 of the erstwhile Code of Criminal Procedure, 1898, which was based on the recommendations of the Law Commission of India.[17] The Supreme Court in Palaniappa Gounder v. State of T.N.,[18] observed that an order for compensation can be passed under Section 357(1)(c) only when a Court imposes a sentence of fine or a sentence of which fine forms a part. With the insertion of Sections 357-A[19] and 357-B,[20] the horizons of the victim compensation regime stood broadened. Before this amendment, it was the duty of the accused to compensate the victim after the conclusion of the trial, but the State had no duty to pay compensation whatsoever.[21] The victim compensation scheme is retrospective in nature, if a crime was committed before the scheme was implemented, the victim still cannot be denied compensation if it deserves the compensation. A victim is granted compensation under Section 357-A because the fundamental right to life is violated, and denial or delay of compensation would “continue such violation and perpetrate gross inhumanity on the victim in question.”[22]

In Ashwani Gupta v. Govt. of India,[23] the Delhi High Court held that mere punishment of the offender cannot give much solace to the family of the victim. Since the civil action for damages is a long drawn/cumbersome judicial process, the compensation of Section 357 would be a useful and effective remedy. In Rattan Singh v. State of Punjab,[24] Krishna Iyer J., held that it is a weakness of our jurisprudence that the victims of the crime do not attract the attention of law. The law in many jurisdictions particularly in continental countries recognises two types of rights of victims of crime, firstly, the victim’s right to participate in criminal proceedings and secondly, the right to seek and receive compensation from the criminal court for injuries.

A three-Judge Bench of the Delhi High Court in Karan v. State NCT of Delhi,[25] reiterated that there exists a mandatory duty on the Court to apply its mind to the question of victim compensation under Section 357 of the CrPC in every criminal case. The court is duty-bound to provide reasons, in every criminal case, based upon which it has exercised its discretion in awarding or refusing the compensation. While observing that the quantum of the compensation is to be determined by the courts, based on factors such as the gravity of the offence, severity of mental and physical harm/injury suffered by the victim, damage/losses suffered by the victims and the capacity of the accused to pay, the court laid down the following steps to be followed:

  1. Post-conviction of the accused, the trial court shall direct the accused to file particulars of his income and assets through an affidavit accompanied with supporting documents within 10 days. After the conviction of the accused, the State shall file an affidavit disclosing the expenses incurred on the prosecution within 30 days.
  2. On receiving the accused’s affidavit, the trial court shall send the copy of the judgment and the affidavit to the Delhi State Legal Services Authority (DSLSA). The DSLSA shall then conduct a summary inquiry to compute the loss suffered by the victim and the paying capacity of the accused. It shall submit the victim impact report along with its recommendations within 30 days. The DSLSA may request the assistance of the concerned SDM, SHO and/or the prosecution in this exercise.
  3. The trial court shall then consider the victim impact report, considering the factors enumerated above, hear the parties involved including the victim(s) and accordingly award compensation to the victim(s) and cost of the prosecution to the State if the accused has the capacity to pay. The court shall direct the accused to deposit the compensation with DSLSA whereupon DSLSA shall disburse the amount to the victims according to their scheme.
  4. If the accused does not have the capacity to pay the compensation or the compensation awarded against the accused is not adequate for rehabilitation of the victim, the court shall invoke Section 357-A CrPC to recommend the case to the Delhi State Legal Services Authority for award of compensation from the victim compensation fund under the Delhi, Victims Compensation Scheme, 2018.
  5. In matters of appeal or revision where Section 357 has not been complied with, the public prosecutor shall file an application seeking court’s direction for enforcing this procedure in accordance with Section 357(4) of the CrPC.

Compensation for offences against women

 Rape is one of the most heinous crimes against mankind, as no other crime in itself includes all the costs i.e. transaction cost + social cost + psychological cost.[26] In Bodhisattwa Gautam v. Subhra Chakraborty,[27] the Supreme Court reiterated that:

“Rape is not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim’s most cherished of the fundamental rights, namely, the right to life contained in Article 21[28].”

The Criminal Law (Amendment) Act, 2013[29] was enacted to address the inadequacy in law relating to sexual offences against women and children, which led to the creation of the Nirbhaya Fund. The Central Government also set up the Central Victim Compensation Fund Scheme vide the notification dated 14-10-2015, by the Ministry of Home Affairs.[30] However, last year, it was reported that only 36 per cent of the Nirbhaya Fund had been utilised in the past seven years, which speaks in volumes of the enforcement backdrops apropos India’s bureaucracy.[31] Moreover, 99 per cent of the minor rape victims of sexual assault remained without any compensation.[32]

The Supreme Court in Nipun Saxena v. Union of India,[33] deemed it appropriate for National Legal Services Authority (NALSA) to set up a Committee to prepare Model Rules for Victim Compensation for sexual offences and acid attacks. Thereafter, the Committee finalised the Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes — 2018.[34] As per the scheme, a victim of gang rape would get a minimum compensation of Rs 5 lakhs and up to a maximum of Rs 10 lakhs. Similarly, in case of rape and unnatural sexual assault, the victim would get a minimum of Rs 4 lakhs and a maximum of Rs 7 lakhs. The victims of acid attacks, in case of disfigurement of face, would get a minimum compensation of Rs 7 lakhs, while the upper limit would be Rs 8 lakhs. The court then accepted the said scheme to be applicable across India, which remains the law of the land.[35]


While considering the problem of penology the court should not overlook the plight of victimology. Considering the victim compensation scheme under CrPC, along with the NALSA guidelines, it appears that a court must order the specified amount of compensation for the victims of rape.  It is submitted that the idea of a victim compensation scheme under the CrPC is complete and ideal on principle, however, the courts have been assigned the greater duty to pass orders for compensation, based on the facts and circumstances of a particular case. Once the order for compensation has been passed, the duty shifts onto the bureaucracy, for grant of compensation to victims.

The author is a student of BA LLB (Hons.) course at Jamia Millia Islamia, Delhi.

[1] David. D. Friedman, Law’s Order:  What Economics has to with Law and why it Matters (Princeton University Press, 2000) 223, in Manika Kamthan, Rape and Compensation: An Economic Analysis of the Criminal Law on Rape in India, NALSAR Law Review, 2013 7(1) 38, 43 <>

[2] <>.

[3] <>.

[4] A.S. Raineri, Re-Integrating the Victim into the Sentencing Process: Victim Impact Statements as an Element of Offender Disposition, QUT LJ 1995 (11) 79, Dipa Dube, Victim Compensation Schemes in India: An Analysis, International Journal of Criminal Justice Sciences, 2018 13(2) 339, 340, <>.

[5] Ibid.

[6] <>.

[7] <>.

[8] (1981) 1 SCC 107

[9] In several cases, the Supreme Court has held that compensation is an integral aspect of right to life (Bhim Singh v. State of J&K, (1985) 4 SCC 677; Jacob George v. State of Kerala, (1994) 3 SCC 430; Manju Bhatia v. New Delhi Municipal Council, (1997) 6 SCC 370; Paschim Banga Khet Mazdoor Samity v. State of W.B., (1996) 4 SCC 37; People’s Union for Democratic Rights v. Police Commr., (1989) 4 SCC 730; People’s Union for Democratic Rights v. State of Bihar, (1987) 1 SCC 265

[10] Justice Malimath Committee on Reforms of Criminal Justice System (Ministry of Home Affairs, New Delhi, 2003) Para 6.9.1, <>.

[11]  (2013) 6 SCC 770

[12] <>.

[13] Law Commission of India, Code of Criminal Procedure, 1898 (Law Commission No. 42, 1971) para 3.17.

[14] (1988) 4 SCC 551; also followed in Roy Fernandes v. State of Goa, (2012) 3 SCC 221: AIR 2012 Cri LJ 1542; R. Mohan v. A.K. Vijaya Kumar, (2012) 8 SCC 721: 2012 Cri LJ 3953

[15] <>.

[16] <>.

[17] Law Commission of India, Code of Criminal Procedure, 1898 (Law Commission No. 41, 1969).

[18] (1977) 2 SCC 634

[19] Ins. vide CrPC (Amendment) Act, 2008 (5 of 2009), S. 28 (w.e.f. 31-12-2009). The insertion of this section is to provide for the State Government to prepare, in coordination with the Government, a victim compensation scheme.

[20] Ins. vide Criminal Law (Amendment) Act, 2013 (13 of 2013), S. 23 (w.e.f. 3.2.2013) <>.

[21] State of M.P. v. Mangu, 1995 SCC OnLine MP 89. The court said that, “The criminal court exercising jurisdiction under S. 357 of the Code cannot mulct the State with the liability to pay compensation to the victim either temporarily or otherwise. The statute does not enable the court to direct the State to pay compensation in the first instance and subsequently recover it from the accused.”

[22] Serina Mondal v. State of W.B., 2018 SCC OnLine Cal 4238

[23] 2005 SCC OnLine Del 20 : (2005) 117 DLT 112

[24] (1979) 4 SCC 719

[25] 2020 SCC OnLine Del 775

[26] Manika Kamthan, Rape and Compensation: An Economic Analysis of the Criminal Law on Rape in India, NALSAR Law Review, 2013 7(1) 38, 41 <> last accessed 12-4-2021.

[27] (1996) 1 SCC 490

[28] <>.

[29] <>.

[30] Central Victim Compensation Fund Scheme Guidelines, Ministry of Home Affairs, 2015, <> last accessed 30-4-2021.

[31] Fatima Khan, Only 36% of Nirbhaya Fund Used Since 2013, Panel Tells House Hours Before Convicts’ Hanging (The Print, 20-3-2020) <> last accessed 25-3-2021.

[32] CNN-News18, No Compensation for 99% Minor Rape Victims: SC Fumes Over National Survey (, 15-11-2019) <> last accessed 25-3-2019.

[33] 2017 SCC OnLine SC 1776

[34] NALSA, Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes — 2018, <—2018> last accessed 14-4-2021.

[35] Nipun Saxena v. Union of India, 2018 SCC OnLine SC 2439

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