kerala high court

Kerala High Court: In a petition challenging order for grant of compensation to victims of ‘sexual harassment’ passed by Special Court on the ground that the same was not included as an injury in the Schedule to Kerala Victim Compensation Scheme, 2017, Dr. Justice Kauser Edappagath, J. held that victims of sexual harassment were entitled to compensation while explaining the details of why and how compensation for victims was introduced.

A question related to entitlement of compensation for victims of sexual harassment under Kerala Victim Compensation Scheme, 2017 (2021 Amendment), which the Court regarded as one of ‘seminal importance’ was considered in the instant matter.

The Special Court for Trial of Offences Relating to Atrocities Against Women and Children, passed two orders directing the District Legal Services Authority to pay interim compensation to the victims for offence under Section 11, read with Section 12 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), and other offences under the Penal Code, 1860 (‘IPC’). The Special Court granted compensation of Rs 50,000 to each victim.

The Kerala Legal Services Authority and District Legal Services Authority are statutory authorities entrusted with power to give compensation to victims in accordance with the Victim Compensation Scheme under Section 357A of CrPC and Section 33(8) of POCSO Act. The two authorities challenged the compensation orders passed by the Special Court on the ground that Schedule of the Kerala Victim Compensation Scheme, 2017 did not include offence of ‘sexual harassment’ as an injury, therefore, the victims were not eligible for compensation.

The Court highlighted that Section 357A was a facet of victimology inserted by Code of Criminal Procedure (Amendment) Act, 2008 on Law Commission’s recommendation obliging the State Government to coordinate with the Central Government and prepare a scheme for providing compensation to victim or his/her dependent who suffered loss or injury because of any crime and require rehabilitation. The Court regarded the same to be a laudable legislative effort to apply criminal jurisprudence horizontally after Court’s observations in Hari Singh v. Sukhbir Singh, (1988) 4 SCC 551, since there was no comprehensive legislation or a well-designed statutory scheme in India allowing the victim to seek compensation from the perpetrator or the State prior to the said amendment.

Introduction of Provision for Compensation

The Court explained that “While compensation awarded under Section 357of CrPC is based on principles of tortious liability in private law and is dependent on the economic capabilities of the accused, the scope and ambit of compensation awarded to victims under a scheme formulated under Section 357A of CrPC is founded on the constitutional duty to provide just compensation to victims of crime for loss of life, limb and/or properties in the public law domain.”

According to the Court, Section 357A (1) mandates the State Government to frame a scheme and Section 357A (2) casts a duty on the Legal Service Authorities to decide the quantum of compensation to be awarded to the victim.

In addition, the Court uncovered that the POCSO Act was enacted with a primary objective to protect children against sexual abuse, when a specific provision was included empowering Special Courts under Section 33(8) of POCSO Act to direct payment of compensation along with punishment for physical or mental trauma caused to the victim, or for immediate rehabilitation. The Court further perused Section 2(g), 45 and 45(2)(c) of POCSO Act and also Rule 9 of POCSO Rules 2020 and concluded that the Special Court was competent to award interim or final compensation or both, on its own or after application by or on behalf of the victim, payable by State government to ensure immediate and speedy relief.

The Kerala Victim Compensation Scheme was introduced by the State Government in 2014 through Government Order dated 24-02-2014 with Schedule contemplating 20 different types of injuries, which was superseded by 2017 Scheme published on 5-11-2017 increasing the number of injuries to 22. The same was further amended to include ‘Compensation Scheme for Women Victims/Survivors of Sexual Assault/Other Crimes’ and applicability to ‘Women Victim of Crimes’. The said provision was not gender neutral but women specific excluding minor victims under POCSO Act so that minor victims can seek compensation only under Chapter I of the Victim Compensation Scheme, 2017 as per amendment in 2021 and Chapter II applied to women victims but expressly excluded minor victims.

The Court scrutinized the definition of ‘sexual assault’ and expressed that the same has to be construed as sexual offence against a victim, including sexual harassment. The Court expressed that the petitioners’ claim that sexual harassment was not included as an injury for compensation purposes could not sustain for POCSO Act being a gender-neutral legislation which operated in the best interest and well-being of the child.

The Court said that “The duty of the Special Court is not only the protection of children from sexual offences and to convict the accused where the accused is found guilty, but also to grant compensation,” It further clarified that a beneficial legislation/scheme could not distinguish between victims of crimes. It further added that the power of Special Court was not restricted to the terms of the Victim Compensation Fund but empowered the Court to award a reasonable and just amount to provide support to the child, and the Legal Services Authorities could not contend that the victims of sexual harassment were excluded from its scope ineligible for compensation.

The Court referred to Nipun Saxena v. Union of India, 2017 SCC OnLine SC 1776; Nipun Saxena v. Union of India, (2019) 13 SCC 715 regarding compensation to victims of crimes under POCSO Act and Abhishek K.A. v. State of Kerala, 2020 SCC OnLine Ker 3790 regarding improvement in provisions of POCSO Act and observed that despite the two decisions, no compensation scheme was specifically framed by the State for minor victims under POCSO Act, and that the State was obligated to formulate a comprehensive victim compensation scheme specifically for the victims of sexual offences under POCSO Act.

The Court directed that “Till the framing of such a comprehensive scheme or making amendments to the existing scheme as stated above, the NALSA Scheme, 2018 shall act as a guideline to the Special Court to award compensation to child victims of sexual offences under the POCSO Act as directed in Nipun Saxena (supra).”

[Kerala State Legal Services Authority v. State of Kerala, 2023 SCC OnLine Ker 5688, decided on 1-08-2023]

Judgment by: Justice Dr. Justice Kauser Edappagath

Advocates who appeared in this case :

For Petitioners: Advocate Roshen D. Alexander, Advocate Tina Alex Thomas, Advocate Harimohan, Advocate Kochurani James;

For Respondents: Additional Public Prosecutor P. Narayanan;

Amicus Curiae: Advocate K.K. Dheerendrakrishnan.

Buy Protection of Children from Sexual Offences Act, 2012   HERE

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