Compensation for victims of acid Attack

Compensation for victims of acid Attack

By: Anu Priya

Indian criminal Law focus on rehabilitation theory on the prospect of accused and also provide legal aid to convicts[1] but the one who suffers by the act of unscrupulous person are somehow left behind. Those victims who face the plight of acid attack and wailing for justice are overlooked by the legal system. Imprisonment of the accused is not justiciable enough to restore the victim vegetative state nor it is compensatory enough for their medical expenses. Disfigurement results in unemployment and brings the burden of heavy legal expenses and this imperils hope of justice. For impoverished people, it is treacherous nightmare. Acid Scars will remain with her entire life[2]. Acid Survivors Foundation India reported 106 attacks in 2012, 122 in 2013, and 309 in 2014 and the figure rose to 500 in 2015[3] and still we have many unreported cases of acid attack, especially from a rural area. In many cases, it results in the death of a victim, in India, it is mostly found that cases are unreported due to poverty, fear of offender, social fear, delayed justice, corruption, ignorance by authority, etc.

Victims are treated as they are the one who is responsible for the offence. Here vindictive approach of imprisonment is completely hollow from the inside. Only the hybrid Model of both adhesion procedure and compensation Model can bring life in dead justice. It is impossible to restore what acid victim lost but the law can at least look for their survival, and fair justice without the fear of exploitation by accusing or others. Acid attack not only injures her from the outside but it is more about inner boke-down, hopelessness, loneliness self-inferiority, social hatred and fear, not everyone is capable to take a stand and create action. The victim and their dependents both suffer this great loss. Even though she survives, she becomes subject to divorce if married, rejection of being married, false sympathy, broken relation, unemployment, non-acceptance by society, shattered dreams and ambition many more.

Definition of victim

Here comes the concept of victimology. The term victimology was 1st coined by a French Lawyer Benjamin Mendelsohn in 1947 which is derived from 2 different terms victima which is a Latin word and logos is a Greek word, it etymologically means a study of crime from the point of the victim[4]. A victim is a person who, individually or collectively, have suffered mental, emotional, physical, economic or substantial suffering of Fundamental rights, through the act or omission of other people who are a violation of criminal law[5]. In Indian criminal law, a victim is defined as “a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir.”[6]

Acid attack victim not only consists acid victim or survivor but also includes their dependants, those are husband, father, mother, grandparents, unmarried daughter and minor children of the victim.[7]

Acid Attack offences recognized in India penal Code

After the 226th Law Commission report, sec 326-A and 326-B is added in the IPC[8] which deals with Voluntarily causing grievous hurt by the use of acid, etc. and sec326-B deals with voluntarily throwing or attempting to throw acid.

Sec 326-A. whoever with the intention or with knowledge injure any person in any form by acid shall be imprisoned for a minimum of 10 years which may extend to life imprisonment including a just and reasonable fine to meet the medical expenses. Sec 326-B. whoever throws or attempt to throw or administer acid to any person with an intention to injure that person in any form by acid shall be imprisoned for a minimum of 5 years and which may extend to 7 years including a fine.

Compensation Provision for Victims of Acid Attack

UN Declaration recognised 4 major components of rights of victim of crime

  1. Access to justice and fair treatment
  2. Restitution
  3. Compensation
  4. Assistance[9]

In case of Halbutt‟s Plasticine Ltd. v. Wayne Tank and Pump Co. Ltd

“Each and every case depends on its own facts. It being remembered, first, that the purpose of the award of damages is to restore the plaintiff to his position before the loss occurred or damage caused and secondly, that the plaintiff must act reasonably to mitigate his loss.”[10]

In 2009 sec 357-A in Cr. PC was inserted which deals with the victim compensation scheme which will be prepared by both state and centre government for rehabilitation of the victim or his dependents who have suffered loss or injury. On the recommendation of the court, the quantum of compensation shall be decided by the district or state legal service authority. Whereas sec 357-B. specifically dealing with additional compensation to acid and rape victim in addition to it sec 357-C. grants free and immediate medical treatment to acid and rape victims.

Need of introduction of sec 357A, 357B and 357 C

Later Cr. PC only consist of 357 which was unsatisfactory and incomplete to deal with increased offences. The major flaws of sec 357 which alone does not meet fair justice were

  1. It works only on successful conviction- This section function only when the accused is identified, prosecuted and convicted. It does not accommodate cases where guilt is not proved or closure and summary report are filed by police, disclosing the commission of the offence, but that such an offence has not been committed by the accused who is sought to be prosecuted, or that the accused has not yet been identified.[11]
  2. Further, this provision completely shifts the burden of payment of compensation on the accused which lead to inappropriate compensation, as the quantum of compensation decides upon the income and financial position of the accused.[12]
  3. This section doesn’t incorporate the liability of the state to restore the state of the victim.
  4. Section 357, doesn’t recognize mandatory situations of interim relief, emergency, and time limit for payment of compensation, if the victim needs emergency financial support for treatment or other stuff there were no provisions for that, even after fighting the long run accuse proved to be guilty, he will be exempted from paying compensation till the appeal period expires or disposed of.
  5. In case of acid attack and rape, it takes years to investigate and recognize accuse and afterwards more years to prove the offence, till then no relief was available for the victims. This steals the rights of the victim and lets them leave justice in the midway.
  6. Moreover, if accuse never recognized, she’ll be left with nothing just suffering.

Major changes brought after Nipun Saxena vs. UOI[13]

  1. The Supreme Court of India recommended the National Legal Service Authority to prepare a scheme for victim compensation for sexual offences and acid attacks which may consist of 4 to 5 member and the learned amicus as well as the learned solicitor general and The Chairperson or the nominee of the Chairperson of the National Commission for Women[14]
  2. In the case of the child supreme court may Suo moto or on application grant interim compensation to meet the immediate need of the child and for rehabilitation.[15]
  3. The special court after taking into account all the relevant factors which include[16]
    1. Type, gravity and severity of the abuse
    2. Medical expenses
    3. Loss of educational or employment opportunity
    4. Whether the abuse took place over a period of time
    5. Decease suffered or disability
    6. Other condition which SALSA and DALSA may consider just and reasonable.

Special court may award compensation to victim which shall be paid by state government under victim scheme or others.

Changes in compensation after NALSA scheme

Name of the scheme NALSA “Compensation Scheme for women Victims/Survivors of Sexual Assault/other Crimes -2018”

This scheme implemented in Oct 2018 which brought significant changes in the procedure, eligibility, quantum and scope of compensation. After continuous meeting organised by the committee, they opt to frame separate chapter and sub-scheme for victim compensation.

SALSA and DALSA shall in all deserving cases and all acid attack case Suo moto or after preliminary verification provide interim relief as required expeditiously and in no case beyond 60 days of claim.[17]

In case of acid attack deciding authority shall be the Criminal Injury Compensation Board as directed by Hon’ble Supreme Court in Laxmi vs. Union of India[18] which includes Ld. District & Sessions Judge, DM, SP, Civil Surgeon/CMO of the district. [19] The scheme provides a minimum compensation of Rs 7 lakhs in case of disfigurement of the face and a maximum of Rs 8 lakhs. In acid attack cases, if the injury was more than 50 per cent, a minimum compensation of Rs 5 lakhs would be given, while the maximum would be Rs 8 lakhs.[20]

Current Scenario

The practical implementation is still lacking behind, a recent report by the chairperson of NCW Rekha Sharma in November 2020, records that acid attack victims have not been paid compensation in 799 out of 1,273 cases across the country which will be discussed by NCW in e-meeting with nodal officers and representatives of the 24 States and Union Territories.[21] Even through several amendment, planning, scheme, one thing we can’t change is societal treatment, judgement and their approach toward victim which create huge lacuna in implementation, and for this no one else is responsible other than us, and this can only be changed with changed mind-set of every individual. Stand for them stand for yourself, skills should prevail on disfigured or injured face, they are worthy of employment and normal human treatment, that they are, they are not the one to blame for offence.

Conclusion

After the case of Laxmi vs. UOI, the Supreme court ban the sale of acid, but laws regulating its illegal purchase were still not sufficient and even states ignore to make its effective implementation. This ignorance retains cruelty and offences of the acid attack were remain unaffected, gradually Nipun Saxena case grant some relief to the victim, but relief is unreachable to more than half of the victims. This cruelty needs attention, people ignore it as a common offence. India rank 133rd out of 167 countries in Women, Peace and Security Index. In another survey held by 548 experts for the 5 most dangerous places for women, India ranked even lower than Afghanistan and Saudi Arabia. If not now, then when we will awake. Law itself is not enough this should compile with active implementation and awareness.

Author Anu Priya is studying law at Kalinga University

[1] The Code of Criminal Procedure,1973 Sec. 304,

[2] Union of India Laxmi v. Union of India, 2014 4 SCC 427

[3] NALSA (Legal Services to victims of acid attacks) Scheme, 2016 http://kelsa.gov.in/downloads/victimsofacidattacks.pdf

[4] Dadhich, Harshita, Victim Compensation Scheme an analytical study of reformative measures in Indian criminal law, para 1.2 (2020), Sodhganga@INFLIBNET, http://hdl.handle.net/10603/315592

[5] United Nation General Assembly adopted a declaration of the Basic Principles of Justice for the victims for crime and Abuse of Power in 1985

[6] The Code of Criminal Procedure, 1973 sec. 2(wa) inserted by the code of criminal procedure (Amendment) Act, 2008

[7]Final VC scheme, https://wcd.nic.in/sites/default/files/Final%20VC%20Sheme_0.pdf ( last visited April 28, 2021). ), NALSA official site, https://nalsa.gov.in/services/victim-compensation/nalsa-s-compensation-scheme-for-women-victims-survivors-of-sexual-assault-other-crimes—2018 (last visited May 01,2021)

[8]Ins. by Act 13 of 2013, S.5 (w.r.e.f.3-2-2013)

[9] United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. Res. 40/34, U.N. Doc.A /RES/40/34 (Dec. 11, 1985)

[10] Halbutt’s Plasticine Ltd. v. Wayne Tank and Pump Co. Ltd, (1970) 1 All ER 225 at 240

[11] Manupatra http://docs.manupatra.in/newsline/articles/Upload/6F5E12E5-2A56-49A9-BF1B-CBE1DF4F8726.2-F__criminal.pdf ( last visited April 30, 2021)

[12] Manupatra http://docs.manupatra.in/newsline/articles/Upload/6F5E12E5-2A56-49A9-BF1B-CBE1DF4F8726.2-F__criminal.pdf ( last visited April 30, 2021)

[13] Nipun Saxena Vs. Union of India W.P. (C) No. 565/2012

[14]Final VC scheme, https://wcd.nic.in/sites/default/files/Final%20VC%20Sheme_0.pdf ( last visited May 01, 2021), NALSA official site, https://nalsa.gov.in/services/victim-compensation/nalsa-s-compensation-scheme-for-women-victims-survivors-of-sexual-assault-other-crimes—2018 (last visited May 01,2021)

[15] Indian kanoon, Nipun Saxena Vs. Union of India W.P. (C) No. 565/2012, para 7 clause 1, https://indiankanoon.org/doc/165140902/

[16] Indian kanoon, Nipun Saxena Vs. Union of India W.P. (C) No. 565/2012, para 3 (clause i-xii), https://indiankanoon.org/doc/165140902/

[17] The Code of Criminal Procedure,1973 Sec. 357A (5), Ins. By Act 5 of 2009, sec.28 (w.e.f.31-12-2009)

[18] W.P. CRML 129/2006 order dated 10.04.2015

[19] NALSA official site, NALSA’s compensation scheme, page 4, explanation clause  https://nalsa.gov.in/services/victim-compensation/nalsa-s-compensation-scheme-for-women-victims-survivors-of-sexual-assault-other-crimes—2018 (last visited May 01, 2021

[20]Devika Sharma, NALSA’s compensation scheme for victims of sexual assault and acid attack to embed “Child victims”: SC, The SCC Online Blog (May 01, 2021, 4:56 PM), https://www.scconline.com/blog/post/2018/07/26/nalsas-compensation-scheme-for-victims-of-sexual-assault-and-acid-attack-to-embed-child-victims-sc/

[21]The HINDU  https://www.thehindu.com/news/national/compensation-not-paid-to-acid-attack-victims-in-799-out-of-1273-cases-national-commission-for-women/article33153865.ece (last visited May 01, 2021)

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