Justice lies in rehabilitative laws
The mandate of the Constitution to secure social justice to have-nots must not be illusive and must be promoted. Rehabilitation to rape victims in true spirit with financial support is a yearning cry
An innocent girl child suffers rape. That’s shocking and revolting. Angry reactions emerge. The aftermath of the incident is that the victim will have to face a complicated mountain of worries, problems and difficulties, sans solutions.
Heartless indifferent attitudes of public authorities with sheer apathy will create misery and intolerable grief for the unfortunate victim. Moreover, a rehabilitative law is far away to heal compounded and multiplied obstacles.
Lamenting the plight of rape victims, in Delhi Domestic Working Women’s Forum vs Union of India & others, the Supreme Court, in 1994, noted that a major shift in “penelogical thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims of conventional punishment.”
While propounding the thought requiring courts to consider the making of a compensation order, the Supreme Court indicated broad parametres in assisting the victims of rape and felt that schemes will have to be evolved to wipe out the tears of such unfortunate victims and for implementation of which necessary steps should be taken.
In 2014, the apex court, in Re vs Indian Woman Says Gang-Raped, held that the obligation of the State does not extinguish on payment of compensation, as rehabilitation of the victim is also of paramount importance.
The statutory provision:
Section 357A was inserted in the Code of Criminal Procedure 1973, vide the Code of Criminal Procedure (Amendment) Act, 2008, which provides for compensation to victims of crime. This has thus made it mandatory that every State Government, in coordination with the Union 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 a crime and who require rehabilitation.
The salient features of this mandatory provision enjoin that the State Legal Services Authority shall decide the quantum of compensation to be awarded under the scheme of the concerned State Government.
Various States have framed individual schemes of compensation which ranges from one lakh rupees to Rs 10 lakh. However, there has been no uniformity. While some of them exist only on paper, there are also a few that have not even been funded by the respective State Governments.
The factual position:
Provisions in the law exist to ameliorate the plight of an unfortunate victim of rape. But the actual relief is very far away. The schemes of State Governments, even if notified, are unknown to the people and its actual benefits are not accessible to those victims who may actually need it.
The laudable shift of thinking, as advocated by the Supreme Court, to make payment of compensation or to provide rehabilitative aid, thus remains illusory. What adds to the woes of the rape victim further is the slow pace of working of the criminal justice system for trying the offender for various crimes.
Thus, the traumatised sufferer has neither the means nor the resources for the process to end but to wait for the court to conclude that aid, assistance or compensation be finally awarded upon conclusion of the case for awarding of punishment to the offender. A speedy, friendly and victim sensitive central legislation on rehabilitation is thus the need of the hour.
Courts to the rescue:
In the situation as it exists today, the Supreme Court, in 1993, in its erudite expression in Nilabati Behera vs State of Orissa, held that the Supreme Court and High Courts being the protectors of the civil liberties of the citizens, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its writ jurisdiction under Articles 32 and 226 of the Indian Constitution.
The Supreme Court clearly recognised the need for award of compensation in writ jurisdiction for contravention of human rights and fundamental freedoms, thereby provided the much-needed succour to unfortunate victims who cannot reach out to justice under conventional legal systems.
Further, in 2012, in Dr Mehmood Nayyar Azam vs State of Chhattisgarh and others, the apex court, in another salutary view, observed that when the court moulds the relief by granting “compensation” in writ proceedings for enforcement or protection of fundamental rights, “it does so under the public law by way of penalising the wrong doer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the Fundamental rights of the citizens.”
The Supreme Court further stated that “the payment of compensation in such cases is not to be understood as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by and order of making monetary amends under the public law for the wrong done due to breach of public duty by not protecting the fundamental rights of the citizen.”
Thus, our constitutional courts perform a yeoman service to the underprivileged sections of society in culling out the much-needed relief whenever needed and for which the courts act even suo moto to those in dire need.
The end and the future:
Rape is a heinous crime for which we need swift trial and stringent punishment. Simultaneously, compensation awarded to the victim may be programmed to be rehabilitative or tailored to suit the need of the victim and the child so born. In the furtherance of the progressive view and the thinking propounded by the Supreme Court, such crutches of financial aid neither compound or condone the offence.
The mandate of the Indian Constitution to secure social justice to have-nots must not be illusive and must be promoted. Laws which provide this must be implemented with vigour. Rehabilitation in the true spirit with financial support is a yearning cry. Compensating rape victims is the obligation of the Government and not a charity.
(The writer is an alumni of the School of Oriental and African Studies, London, and practices at the High Court)
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