GENDER BIASED LAWS IN THE FEMINIST INDIA

The Concept of Compensatory Justice

Introduction

Compensation is the remuneration awarded to an employee in exchange for their services or individual contributions to your business. The contributions can be their time, knowledge, skills, abilities and commitment to your company or a project.

In simpler words, compensation is the money received by an employee from an employer as a salary or Types of Compensation
Compensation doesn’t mean only paycheck, although that’s part of it. Compensation comprises of a number of different elements that may be cash and non-cash payments.

Here’s a list of some of the most common and commonly overlooked types of compensation:

  • Base pay (hourly or salary wages)
  • Commissions
  • Overtime Pay, shift differentials and longevity pay
  • Bonus
  • Profit Sharing distributions
  • Merit Pay or recognition
  • Incentive plan or achievement award
  • Tip income
  • Benefits including Dental, insurance, medical, vacation, leaves, retirement, etc.
  • Stock options
  • Travel/Meal/Housing Allowance
  • Child care and tuition assistance
  • Gym memberships and free lunches
  • Employee assistance programs that provide counseling, legal advice, and other services.
  • Health and wellness benefits
  • Other non-cash benefits

Thus, the term Compensation means amend for the loss sustained. Compensation is anything given to make things equivalent, a thing given to make amends for loss, recompense, remuneration or bay. It is counter balancing of the victim’s sufferings and loss that result from victimization. The rationale or basis for compensation may be the following three perspective:

  1. As an additional type of social insurance
  2. As an welfare measure another facet of the Government/Public assistance of the Unprivileged.
  3. A way of meeting an overlooked governmental obligation to all citizens.

Compensation to victims is a recognised principle of law being enforced through the ordinary civil courts. Under the law of torts the victims can claim compensation for the injury to the person or property suffered by them. It is taking decades for the victims to get a decree for damages or compensation through civil courts, which is resulting in so much hardship to them. The emergence of compensatory jurisprudence in the light of human rights philosophy is a positive signal indicating that the judiciary has undertaken the task of protecting the right to life and personal liberty of all the people irrespective of the absence of any express constitutional provision and of judicial precedents.

Article 32 of the Constitution of India confers power on the Supreme Court to issue direction or order or writ, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III of the Constitution. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III is guaranteed, that is to say, the right to move the Supreme Court under Article 32 for the enforcement of any of the rights conferred by Part III of the Constitution is itself a fundamental right.

The approach of redressing the wrong by award of monetary compensation against the State for its failure to protect the fundamental right of the citizen has been adopted by the courts of Ireland, which has a written Constitution, guaranteeing fundamental rights, but which also like the Indian Constitution contains no provision of remedy of compensation for the infringement of those rights. That has, however, not prevented the courts in Ireland from developing remedies, including the award of damages, not only against individuals guilty of infringement, but also against the State itself. The modern states which are described welfare states have realized the importance of the subject compensation to the victims of crime and are accordingly taping up several victim compensation programmes, as part of their General welfare. Various countries have taken up the scheme of payment of compensation to victim of crime.

Compensatory justice under Indian law

Justice requires that a person who has suffered must be compensated. Basically the accused is responsible for the harm caused to the victim. We have five statutes, under which compensation may be awarded to the victims of crime.

  • The fatal Accident Act, 1855
  • The motor Vehicles Act, 1988
  • The Criminal Procedure Code, 1973
  • The Constitutional Remedies for Human Rights Violation
  • The Probation of Offenders Act, 1958.

The law makers made provisions in the Criminal Procedure Code, 1973 under Section 357(3) to enable the Courts to award any amount of compensation to the victims of a crime. Not only this, the lower courts were asked and advised to exercise the power of awarding compensation to the victims of offences in such a liberal way that the victims may not have to rush to the civil courts

The emergence of compensatory jurisprudence in the light of human rights philosophy is a positive signal indicating that the judiciary has undertaken the task of protecting the right to life and personal liberty of all the people irrespective of the absence of any express constitutional provision and of judicial precedents.

The renaissance of the doctrine of natural rights in the form of human rights across the globe is a great development in the jurisprudential field in the contemporary era. A host of international covenants on human rights and the concern for effective implementation of them are radical and revolutionary steps towards the guarantee of liberty, equality and justice.

India recognised these rights under Part III of the Constitution providing remedies for enforcement of such rights.

Article 32(1) provides for the right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights. The Supreme Court under Article 32(2) is free to devise any procedure for the enforcement of fundamental right and it has the power to issue any process necessary in a given case. In view of this constitutional provision, the Supreme Court may even give remedial assistance, which may include compensation in appropriate cases.

A question regarding the awarding of monetary compensation through writ jurisdiction was first raised before the Supreme Court in Khatri (II) v. State of Bihar (1981).
In this case, Bhagwati, J. observed:

Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty.

In Sant Bir v. State of Bihar (1982) the question of compensating the victim of the lawlessness of the State was left open.

In Veena Sethi v. State of Bihar (1982) also the Court observed that the question would still remain to be considered whether the petitioners are entitled to compensation from the State Government for the contravention of the right guaranteed under Article 21 of the Constitution.

In the light of the views expressed by the Court in the above cases it can be said that the Court had shown its concern for the protection of right to life and liberty against the lawlessness of the State but did not actually grant any compensation to the victims.

Development of Compensatory jurisprudence by Supreme Court of India

Compensation to victims is a recognised principle of law being enforced through the ordinary civil courts. Under the law of torts the victims can claim compensation for the injury to the person or property suffered by them. It is taking decades for the victims to get a decree for damages or compensation through civil courts, which is resulting in so much hardship to them. The emergence of compensatory jurisprudence in the light of human rights philosophy is a positive signal indicating that the judiciary has undertaken the task of protecting the right to life and personal liberty of all the people irrespective of the absence of any express constitutional provision and of judicial precedents.

Article 32 of the Constitution of India confers power on the Supreme Court to issue direction or order or writ, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III of the Constitution. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III is guaranteed, that is to say, the right to move the Supreme Court under Article 32 for the enforcement of any of the rights conferred by Part III of the Constitution is itself a fundamental right.

The approach of redressing the wrong by award of monetary compensation against the State for its failure to protect the fundamental right of the citizen has been adopted by the courts of Ireland, which has a written Constitution, guaranteeing fundamental rights, but which also like the Indian Constitution contains no provision of remedy of compensation for the infringement of those rights. That has, however, not prevented the courts in Ireland from developing remedies, including the award of damages, not only against individuals guilty of infringement, but also against the State itself.

Article 32(1) provides for the right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights. The Supreme Court under Article 32(2) is free to devise any procedure for the enforcement of fundamental right and it has the power to issue any process necessary in a given case. In view of this constitutional provision, the Supreme Court may even give remedial assistance, which may include compensation in appropriate cases.

The idea of compensation:

The Idea of Compensation to victim of crime particularly to the crime victims by the state is gaining much importance. Though this idea is an age old one, its development on more scientific lines and also as a branch of criminology has begun since a few decades ago. The modern states which are described welfare states have realized the importance of the subject compensation to the victims of crime and are accordingly taping up several victim compensation programmes, as part of their General welfare. Various countries have taken up the scheme of payment of compensation to victim of crime.

The term Compensation means amend for the loss sustained. Compensation is anything given to make things equivalent, a thing given to make amends for loss, recompense, remuneration or bay. It is counter balancing of the victim’s sufferings and loss that result from victimization. The rationale or basis for compensation may be the following three perspective:

  1. As an additional type of social insurance
  2. As an welfare measure another facet of the Government/Public assistance of the Unprivileged.
  3. A way of meeting an overlooked governmental obligation to all citizens.

The penologist recognized that adequate compensation to the victims from the accused or alternatively from the state is objective of the science of victimology which is gaining ground and deserves attention.

In India there is no comprehensive legislation or statutory scheme providing for compensation to victims of crime. In some European countries provisions are made for payment of compensation to the victims of crime in the course of criminal proceedings. Justice requires that a person who has suffered must be compensated. Basically the accused is responsible for the harm caused to the victim. We have five statutes, under which compensation may be awarded to the victims of crime.

  • The fatal Accident Act, 1855
  • The motor Vehicles Act, 1988
  • The Criminal Procedure Code, 1973
  • The Constitutional Remedies for Human Rights Violation
  • The Probation of Offenders Act, 1958.

Compensation under criminal law:

The theory of compensation in criminal law is mainly about compensation to the victim of a crime. A victim to a crime is one who has suffered any loss because of some act or omission of the accused. The victim not only suffers physical injuries but also psychological and financial hardships too. The plight of a victim is only made worse by lengthy hearings and tedious proceedings of courts and improper conduct of the police. The victim is literally traumatised again in the process of seeking justice for the first injury. The legal heirs/guardians of the victim too come in the same definition.

The law makers made provisions in the Criminal Procedure Code, 1973 under Section 357(3) to enable the Courts to award any amount of compensation to the victims of a crime. Not only this, the lower courts were asked and advised to exercise the power of awarding compensation to the victims of offences in such a liberal way that the victims may not have to rush to the civil courts.

Article 32 and the Remedy of Compensation:

Compensation to victims is a recognised principle of law being enforced through the ordinary civil courts. Under the law of torts the victims can claim compensation for the injury to the person or property suffered by them. It is taking decades for the victims to get a decree for damages or compensation through civil courts, which is resulting in so much hardship to them.

The emergence of compensatory jurisprudence in the light of human rights philosophy is a positive signal indicating that the judiciary has undertaken the task of protecting the right to life and personal liberty of all the people irrespective of the absence of any express constitutional provision and of judicial precedents.

The renaissance of the doctrine of natural rights in the form of human rights across the globe is a great development in the jurisprudential field in the contemporary era. A host of international covenants on human rights and the concern for effective implementation of them are radical and revolutionary steps towards the guarantee of liberty, equality and justice. Though the concept is new, the content is not and these rights have been recognised since ages and have become part of the constitutional mechanism of several countries. India recognised these rights under Part III of the Constitution providing remedies for enforcement of such rights.

Article 32(1) provides for the right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights. The Supreme Court under Article 32(2) is free to devise any procedure for the enforcement of fundamental right and it has the power to issue any process necessary in a given case. In view of this constitutional provision, the Supreme Court may even give remedial assistance, which may include compensation in appropriate cases.

A question regarding the awarding of monetary compensation through writ jurisdiction was first raised before the Supreme Court in Khatri (II) v. State of Bihar (1981).
In this case, Bhagwati, J. observed:
Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty.

In Sant Bir v. State of Bihar (1982) the question of compensating the victim of the lawlessness of the State was left open.

In Veena Sethi v. State of Bihar (1982) also the Court observed that the question would still remain to be considered whether the petitioners are entitled to compensation from the State Government for the contravention of the right guaranteed under Article 21 of the Constitution.

In the light of the views expressed by the Court in the above cases it can be said that the Court had shown its concern for the protection of right to life and liberty against the lawlessness of the State but did not actually grant any compensation to the victims.

The seed of compensation for the infraction of the rights implicit in Article 21 was first sowed in Khatri, Sant Bir and Veena Sethi, which sprouted with such a vigorous growth that it finally enabled the Court to hold that the State is liable to pay compensation.

This dynamic move of the Supreme Court resulted in the emergence of compensatory jurisprudence for the violation of right to personal liberty through Rudul Shah The Supreme Court of India in Rudul Shah v. State of Bihar (1983) brought about a revolutionary breakthrough in human rights jurisprudence by granting monetary compensation to an unfortunate victim of State lawlessness on the part of the Bihar Government for keeping him in illegal detention for over 14 years after his acquittal of a murder charge.

In this case the SC held that Article 21, which guarantees the right to life and liberty will be denuded of its significant content if the power of this court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured is to mulct its violators in the payment of monetary compensation.
On September 1, the High Court (HC) of Allahabad passed an order declaring that Dr Kafeel Khan had been wrongly detained by the Uttar Pradesh government, under the National Security Act of 1980. The 42-page order of the court makes for damning reading. It points out that Khan was deprived of the material on the basis of which he could have made representations against his detention; on substance, Khan’s 23-minute speech in Aligarh on December 12, 2019, which formed the basis of his detention, had been misrepresented by the police; taken as a whole, the speech was in support of national unity and peace, instead of seeking to undermine public order or create disunity. Furthermore, Khan had been detained on February 13, 2020 — a good two months after the speech — thus implying that there was, at best, a tenuous connection between his intention and any genuine apprehension that he would cause public disorder. As the HC judgment makes clear, the State had no case that justified keeping Khan in preventive detention, and depriving him of his liberty. In fact, the circumstances — Khan was served a preventive detention order immediately after he had been granted bail in another case — strongly suggest that this was vindictive State action. While the eventual judgment setting him at liberty is, therefore, to be welcomed, it is important to remember that at the time of his release, Khan had spent months in jail, all under the stated goal of “preventing” future crime, and without a trial.

In this respect, however, Khan’s case is not unique or isolated. Earlier this year, the Jammu and Kashmir HC found that many detention orders that had been issued after the effective nullification of Article 370 on August 5, 2019, had no merit at all, and deserved to be quashed. Once again, these orders came after the detainees had already spent many months in prison.

On multiple occasions, governments have attempted to circumvent judicial orders, as well as the formal expiry of detention periods, by slapping fresh charges on troublesome individuals, in order to keep them in jail. The problem is not restricted to preventive detention: The Indian justice system is notoriously slow, and on more than one occasion in recent years, individuals accused in terror attacks have been released after 11, 14 — or even 23 — years in prison, with, at the time of the final hearings, the State’s case falling apart.
This raises an important issue of justice: If individuals have been deprived of months and years of their life for no justifiable reason at all, restitution of some sort must be provided. While lost time cannot be returned, and harassment cannot be undone, at the very least, compensation can mitigate some of the harm caused.

This is not only a question of justice, but also a question of deterrence: A part of the reason why the State feels comfortable with incarcerating people for long periods without any justification is that it is a costless exercise. Therefore, it is important to have rules for stringent compensation in cases such as Khan’s — and others — where courts find that detention or imprisonment has been entirely unjustified. Unfortunately, in 2014, when this issue was raised before the Supreme Court (SC), in the context of people who had spent many years in jail upon false accusations of a terror attack, SC rejected arguments for compensation, on the basis that it would set a wrong precedent.

This, it is submitted with respect, is an incorrect view that must be urgently reconsidered. Not only is compensation for wrongful imprisonment a matter of justice, but it is also the first step on the road to holding a powerful State — that regularly abuses vaguely-worded preventive detention laws and the slow-moving justice system — to account.

Conclusion

We come to the conclusion that compensation is not only required but is in fact a very important aspect of even criminal law and the courts should not use this sparingly but a little liberally. Of course they should be careful of not awarding too high a compensation and hence should be careful.

The government should take into consideration the suggestions of the Supreme Court and set up Compensation Boards to help the victims with financial issues. Promoting victim friendly jurisprudence and building a responsive and remedial system is the need of hour. Therefore, the constitutionalisation of the victim compensation scheme could upheld the sanctity of the scheme and rejuvenate the commitment of the government to uphold the rights and security of the victim of crime.

References

blog.checkmark.com (Last visited on 17th of December, 2020)
legalserviceindia.com (Development of Compensatory jurisprudence by Supreme Court of India by Nishka Prajapati.)
India needs a law to compensate the wrongly-imprisoned on Hindustan times (Updated: Sep 07, 2020, 19:42 IST) by Gautam Bhatia a Delhi-based advocate.
EVALUATING A NEED OF CONSTITUTIONALISATION OF VICTIM’S RIGHT TO COMPENSATION by Dr. D. Rangaswamy (Published in Articles section of www.manupatra.com).

AUTHOR

(Rahil Amin Mir is pursuing law at Central University of Kashmir)