Advancements in Compensatory Jurisprudence in India

For decades, India’s criminal justice system was almost entirely offender-centric – the trial was between the state and the accused, and the actual victim of the crime sat on the sidelines. No comprehensive legislation existed to ensure that a person who suffered due to someone else’s crime would receive any meaningful financial relief. That picture has changed significantly over the past few decades, driven by key Law Commission reports, judicial activism, and legislative amendments. The story of compensatory jurisprudence in India is essentially the story of how victims gradually moved from the margins to the centre of criminal justice thinking.

What is compensatory jurisprudence? 🔗

Compensatory jurisprudence is a branch of legal thinking that prioritises making the victim whole – financially and otherwise – rather than focusing exclusively on punishing the offender. It recognises that justice is not complete when the accused is convicted and sentenced; justice also requires that the person who bore the actual harm of the crime is acknowledged and compensated. In India, this idea has evolved through a combination of statutory provisions, Law Commission recommendations, committee reports, and Supreme Court decisions.

The statutory foundation: Section 357 of the CrPC 🔗

The most foundational provision in India’s compensatory framework is Section 357 of the Code of Criminal Procedure, 1973. This provision empowers courts to direct that compensation be paid to a victim out of the fine imposed on the convicted accused. It covers situations where the sentence includes a fine, and importantly, subsection (3) extends this power even to cases where the sentence does not include any fine at all.

Section 357 was itself an improvement over the older Code of 1898, which allowed compensation only when a fine was imposed and only to the extent of the fine realised. The 1973 CrPC dropped the word “substantial” from the earlier provision and introduced new sub-sections, significantly expanding who could claim compensation – ranging from persons who suffered loss or injury from the offence, to individuals entitled to damages under the Fatal Accidents Act, and even victims of property offences like theft or cheating.

Limitations of Section 357 🔗

Despite its forward-looking design, Section 357 had a critical limitation: it applied only upon conviction. If the accused was acquitted, discharged, or could not be traced, the victim had no statutory remedy under this provision. Courts also had discretion in awarding compensation, which meant that compensation was frequently not ordered at all, particularly in lower courts. The inability to trace the offender or an unsuccessful trial – circumstances entirely beyond the victim’s control – effectively shut the door on compensation.

The Law Commission’s role in shaping the framework 🔗

The Law Commission of India has been instrumental in pushing for a more structured and victim-friendly compensation framework. The 42nd Report of the Law Commission (1971) was the first major step in this direction, recommending that courts be required to actively consider compensation in every case involving personal injury or loss. It also drew on international comparisons – examining the compensation patterns in France, Germany, and the former Soviet Union, which categorised compensation as payable by the state, by the offender through fines, and as a direct duty of the offender to repair the harm caused.

The 42nd Report’s contribution was primarily conceptual: it nudged Indian lawmakers to think about victim compensation not as a favour but as a structured legal entitlement. Subsequent Law Commission reports – the 142nd, 144th, 146th, 152nd, 154th, and 156th – progressively built on this foundation, each adding greater emphasis to the concept of compensation for victims. Crucially, the 154th Report (1996) specifically recommended that a victim-oriented perspective be introduced into the CrPC and that the state bear an obligation to compensate victims when the offender could not.

The Malimath Committee and the turning point 🔗

Perhaps the most significant push for victim-centric reform came from the Committee on Reforms of Criminal Justice System, 2003, popularly known as the Malimath Committee, chaired by Justice V.S. Malimath, former Chief Justice of the Karnataka and Kerala High Courts. Constituted in 2000 by the Ministry of Home Affairs and submitting its report in 2003, the committee made 158 recommendations aimed at overhauling India’s criminal justice framework.

The Malimath Committee was blunt in its assessment: the existing system weighed in favour of the accused and did not adequately focus on justice to victims of crime. Its recommendations on victim compensation were wide-ranging:

• Victim compensation should be treated as a state obligation in all serious crimes, irrespective of whether the offender is apprehended, convicted, or acquitted.
• A dedicated Victim Compensation Fund should be created and administered by the Legal Services Authority.
• Victims should have the right to participate in criminal proceedings, including serious offences, and be represented by an advocate at state cost.
• Legal representatives of deceased victims should have the right to be heard as a party in serious offence cases.
• If compensation awarded is inadequate, victims should have the right to appeal that determination.

The Malimath Committee directly led to Section 357A of the CrPC, which was introduced through the 2008 amendment and came into force in December 2009. This was a landmark shift.

Section 357A: the state steps in 🔗

Section 357A introduced the concept of rehabilitative compensation funded by the state – not dependent on the accused’s ability to pay or even on the accused being identified. It mandated that every State Government, in coordination with the Central Government, prepare and operate a Victim Compensation Scheme. Compensation under this scheme became available in four scenarios: conviction, acquittal, discharge, and even where the offender is never traced or identified.

The District Legal Services Authority (DLSA) or State Legal Services Authority (SLSA) is responsible for deciding the quantum of compensation within two months of receiving a court recommendation or a direct application from the victim. Additionally, Sections 357B and 357C, inserted in 2013, went further – Section 357B ensured that state compensation was in addition to (not a substitute for) fines payable to victims of acid attacks and gang rape under the IPC, while Section 357C mandated that all hospitals – public or private – provide free first-aid and medical treatment to victims of specified sexual offences and immediately inform the police.

The Central Victim Compensation Fund (CVCF) 🔗

To address the disparity in compensation amounts across states, the Central Government established the Central Victim Compensation Fund (CVCF) Scheme on October 14, 2015. The CVCF was designed to support and supplement state-level victim compensation schemes, specifically covering victims of rape, acid attacks, human trafficking, and women killed or injured in cross-border firing. The scheme was a direct response to the reality that state-level schemes varied wildly in their generosity and coverage.

The judiciary’s contribution to compensatory jurisprudence 🔗

Courts have not merely applied statutory provisions – they have actively shaped the evolution of compensatory jurisprudence through their decisions. The Supreme Court, in Rattan Singh v. State of Punjab (1980), observed that victims are among the worst sufferers in the crime scenario and should not be left without redress once punishment has been imposed on the offender. In Bodhisattwa Gautam v. Subhra Chakraborty, the Supreme Court took the unusual step of ordering interim compensation to a rape victim even during the pendency of the criminal case.

Courts have also read victim compensation into Article 21 of the Constitution – the right to life and personal liberty – holding that the state’s failure to protect a citizen and compensate them for the resulting harm can amount to a constitutional violation. This judicial philosophy has significantly expanded the scope of compensatory jurisprudence beyond what the statutes alone would suggest. Courts have held that there is a mandatory duty on the court to apply its mind to victim compensation in every criminal case, and reasons must be recorded whenever compensation is refused – not just when it is awarded.

The BNSS, 2023: the latest legislative development 🔗

With the enactment of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced the CrPC, the victim compensation framework has been carried forward and reinforced. Section 396 of the BNSS corresponds to the old Section 357A of the CrPC and preserves the scheme for state-funded victim compensation. Section 395 mirrors Section 357 CrPC by empowering courts to order accused persons to pay compensation directly. Section 396 is seen as providing a clearer mandate to State Governments to institutionalise compensation schemes and ensure interim relief – addressing some of the ambiguity and inconsistent implementation that characterised the old provision.

Ongoing challenges and the road ahead 🔗

Despite significant progress, compensatory jurisprudence in India continues to face real implementation gaps. There is no uniform national legislation exclusively dedicated to victim compensation – states operate their own schemes with widely differing compensation amounts. For instance, compensation for similar crimes can range from ₹25,000 in one state to ₹10 lakh or more in another. Administrative delays in processing claims through DLSAs, inadequate awareness among victims about their rights, and a continuing focus on monetary compensation to the exclusion of rehabilitation services remain persistent concerns.

Countries like Canada, Australia, England, New Zealand, and the United States have dedicated victim compensation legislation with structured and transparent frameworks. India’s trajectory clearly points in that direction – but the absence of a single, comprehensive statute means that the development of compensatory jurisprudence here remains a work in progress, stitched together from statutory provisions, commission reports, judicial pronouncements, and state-level schemes rather than a coherent legislative framework.

What do you think? Given that India still lacks a single comprehensive victim compensation legislation, should Parliament enact a standalone Victim Compensation Act – and if so, what key features should it include to address the current gaps? And considering that the Malimath Committee’s 158 recommendations were submitted in 2003 but largely went unimplemented for years, what does that say about the pace at which criminal justice reform actually translates from recommendation to practice in India?

References

1. https://www.lexology.com/library/detail.aspx?g=6a02687b-b95a-498f-91ce-a0053747e0c7
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12. https://juriscentre.com/2025/04/14/victim-compensation/