Article 21 and Victim Compensation Scheme- Case Analysis of Serina Mondal Judgement

Serina Mondal alias Piyada v. State of West Bengal and Ors.

• Citation: 2018 SCC OnLine Cal 4238
• Writ Petition No.: 4517 (w) of 2018
• Decided on: June 25, 2018
• Decided before: Rajasekhar Mantha, J., High Court of Calcutta

FACTS OF THE CASE

• This case is a Writ Petition filed before the Hon’ble High Court of Calcutta. The petitioner herein this case has been a victim of trafficking who was sold to a brothel for the purpose of commercial sexual exploitation (which is an offence under sec.370 of I.P.C.) who was identified, traced, and brought back from Maharashtra to West Bengal.
• Proceedings were lodged against the four accused of which two of them were arrested and the remaining two were absconding. The victim given that she had experienced severe mental agony, filed an application for victim compensation under Sec.4 of the West Bengal Victim Compensation Scheme, 2017 that was formulated as a scheme to give effect to the amendment made to the Criminal Procedure Code, 1973 to bring in Sec.357A in 2009 before the DLSA.
• The DLSA rejected her application for which she preferred an appeal before the SLSA who also rejected her appeal reiterating the order of the DLSA stating the two grounds of rejection under Sec.4 (c) being: (a) the accused not being traced or identified and (b) trial not having been commenced, which forms an essential requirement to entitle the petitioner for availing the victim compensation under Sec.357A and hence this writ petition lies before the Hon’ble High Court of Calcutta.

ISSUES

• Whether the petitioner is entitled to victim compensation under Sec.357A of the Criminal Procedure Code, 1973 for the purpose of rehabilitation.
• Whether the requirements under Sec.4(c) of the West Bengal Victim Compensation, 2017 are needed to be satisfied for entitlement of compensation under the 2017 scheme.

RULES APPLICABLE

• Section 357 of the Criminal Procedure Code, 1973 is a provision that provides for compensation to the victims of crimes. Section 357 establishes a general compensation provision that applies to all cases other than those provided under sec.357A & 357B.
• Section 357A of Criminal Procedure Code, 1973 was added to the Code via amendment act of 2009 which aims to enable the State Government in harmonization with the Central Government to formulate a “victim compensation scheme” for the purpose of providing compensation to the victim or their dependents who have suffered loss or injury as a result of the crime.
• Section 357A (4) of Criminal Procedure Code, 1973 provides that when the offender is not found or identified, but the victim is, and there is no trial, the victim or his dependents may file a claim for compensation with the State or the District Legal Services Authority.
• Section 4 of the West Bengal Compensation Scheme, 2017 was framed in light of giving effect to Section 357A of the Criminal Procedure Code, 1973 that lays down the eligibility for seeking compensation in cases of victims of acid attacks, sexual offences, and human trafficking.
• Section 4 (c) of the West Bengal Compensation Scheme, 2017 states that if the offender is not traced or recognized, but the victim is, and in the absence of a trial, the victim or his dependent may seek compensation under section 357A.

ARGUMENTS ON BEHALF OF PETITIONER

• The Petitioner’s lawyer contended that a bare reading of Sec.357A and Sec.4 of the West Bengal Victim Compensation Scheme, 2017 implies the clear objective and purpose behind enacting such a victim compensation scheme primarily to compensate the victim for the purpose of rehabilitation. The victim compensation aims at providing compensation for rehabilitation during the pendency of the trial, prior to its commencement, or upon the end conclusion of a trial. The District Legal Services Authority (DLSA) and State Legal Services Authority (SLSA) had failed to construe the above-mentioned provision in favor of the victim by rejecting her application on two grounds which doesn’t sustain before welfare legislation or scheme. Drawing dots between Sec.357A and Sec.4 of the 2017 scheme, it is evident that the victim herself in case the accused has not been identified or traced and the trial has not commenced can make an application seeking victim compensation for rehabilitation purposes.
• The petitioner’s lawyer has also tried to bring forth the argument of legislative policy/objective of the enactment of such a scheme giving effect to Sec.357A of the Criminal Procedure Code, 1973. Enunciating the objectives, the petitioner’s lawyer argued that it is evident in general that a victim more particularly women of sexual violent crimes, trafficking for sexual exploitation needs urgent attention alongside physical and mental rehabilitation and the speed with which an inquiry or trial is commenced has no bearing on the rehabilitation that results from the scheme’s nature and Sec.357A. If these conditions supersede the overall welfare aspect of the victim which is the primary intent of the legislation and the scheme, then it clearly violates the victim’s fundamental rights under Article 21 where compensation is paid under the mechanism developed in pursuance of Sec.357A. Denying to recompensate to a victim would result in a terrible inhumane action against the victim.
• The petitioner’s lawyer also put forth the case of Piyali Dutta v. State of West Bengal ^[1]wherein the objective and purpose of the 2017 scheme was discussed as an argument substantiating  that Sec.357A indirectly enforces the DPSP under Article 38 enshrined in PART-IV of the Constitution of India which obligates the state to render social justice to its citizens. The right to receive just compensation as a victim of a crime, regardless of the outcome of criminal procedures resulting from the crime, can be read into Article 21 of the Indian Constitution, which guarantees the right to life which also entails within its ambit the right to live in dignity.

ARGUMENTS ON BEHALF OF RESPONDENT

• The respondent argued that as far as Clause 4(c) of the West Bengal Victim Compensation Scheme, 2017, is concerned, two conditions should conjunctively be fulfilled. The victim could only claim compensation if the offender had not been traced or recognized but the victim had been identified and no trial had taken place. For the survivor to be eligible for compensation, both "no identification of the accused" and "no trial" were required as pre-requisites conditions to be fulfilled to entitle the writ petitioner for compensation under Sec.357A read with the West Bengal Victim Compensation Scheme, 2017.

JUDGEMENT

The Hon’ble High Court of Calcutta held that the West Bengal Victim Compensation Scheme, 2017 was formulated to provide urgent and immediate attention to victims of violent crimes, particularly women, as well as physical and mental rehabilitation in consonance to Sec.357A. The Court held that such rehabilitation would not be contingent on the speed with which the investigation or trial proceeded, and that denial of the compensation would continue to deprive the victim of her constitutional right guaranteed under Article 21 of the Constitution of India. Further, the Court went on to state that denying compensation to the victim would be a kind of callous inhumanity, which is against to the purpose of Sec.357A of the Criminal Procedure Code, 1973 and the West Bengal Victim Compensation Scheme, 20017 and ordered the State Legal Services Authority (SLSA) to assess the compensation payable and hand over the same to the petitioner within a period of 10 days from the date of the communication of the court order.

ANALYSIS

Human Trafficking is a criminal offence recognized under Sec.370 of the Indian Penal Code, 1860. A person committing the offence of trafficking is punishable with rigorous imprisonment for a term not less than 7 years which might extend to 10 years and fine. The sexually assaulted sex trafficking victims endure irreversible psychological damage and mental trauma which they have to continuously battle against the social stigma surrounding the society. The case analyzed substantially highlights how significant is the victim's compensation is for the rehabilitation purpose for a victim. Merely denying or depriving the victim from seeking compensation on grounds of the accused not being identified or trial been not commenced is a sheer violation of the victim’s right to seek compensation which was fundamentally the primary objective behind the insertion of Sec.357A as a result of the 154^thLaw Commission Report through the amendment act of 2009 that led to the state governments to formulate policy for victim compensation.

In Ashwini Gupta v. Govt. of India, the Delhi HC stated that merely punishing the accused cannot restore the dignity and solace of the victim’s family, compensation provided under Sec.357 would be an effective remedy. ^[2]In Karan v. NCT of Delhi, the Delhi HC reiterated that it is a mandatory duty cast upon the Courts to apply its reasonable mind when it comes to the questioning of victim compensation under Sec.357 of CrPc. ^[3] The Supreme Court in the Nipun Saxena case found it appropriate for the National Legal Services Authority to set up a committee to prepare model rules for victim compensation and acid attacks^[4].

In 2011, India ratified the United Nations Convention Against Transnational Organized Crimes of 2000, as well as its Protocol to Prevent, Suppress, and Punish Person Trafficking^[5]. The Ministry of Women and Child Development established a committee to study the viability of comprehensive legislation on trafficking in 2015, in response to the Supreme Court’s decision in Prajwala vs. Union of India. ^[6]In 2018, the Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill, 2018 was introduced in Lok Sabha by Ms. Maneka Gandhi, which addresses the prevention, rescue, and rehabilitation of people who have been trafficked. Although it was passed in Lok Sabha, the same never were tabulated before the Rajya Sabha. In 2021, a new Anti-trafficking Bill, 2021 draft was released by the Ministry of Women and Child Development which broadens and widens the objective of the 2018 Bill but the same wait for its new dawn.

CONCLUSION & SUGGESTIONS

Sec.357A was added to the Code to address the lacuna in Sec.357 by focusing upon the objective of rehabilitating the victims of grave nature. This provision was added with the intention that the amount imposed should be adequately effective to meet the physical and mental rehabilitation of the victim. Considering how important it is for the victims to be provided with adequate victim compensation, following are the two suggestions that I would recommend for the government to look into:

1. The Central Government should in consensus with the State Government formulate a uniform victim compensation scheme policy since many state schemes fail to provide adequate compensation to meet the ultimate objective of Sec357A.

2. The Anti-trafficking Bill, 2021 should be effectively enacted and put in force.

[1]Piyali Dutta v. State of West Bengal, W. P. 26174(W) of 2014.

[2] Ashwini Gupta v. Govt. of India, 2005 SCC OnLine Del 20 : (2005) 117 DLT 112.

[3] Karan v. NCT of Delhi,  2020 SCC OnLine Del 775.

[4] Nipun Saxena v. Union of India, 2018 SCC OnLine SC 2439.

[5] United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, 2000, (https://www.ohchr.org/en/professionalinterest/pages/protocoltraffickinginpersons.aspx).

[6]Prajwala vs. Union of India, Writ Petition (C) 56 of 2004.