Right to restitution for victims of crime

Synopsis: The Delhi High Court has secured the right to restitution for victims of crime, in a landmark judgment in Karan v. State N.C.T. of Delhi.  

Why this judgment is important 

• Restitution involves ordering the accused to compensate victims of crime for their losses.  
• Section 357 of the CrPC allows courts to order the accused to pay “compensation” to the victim but it was hardly followed. SC also observed in many cases that Section 357 must be used liberally. 
• In 2013, Ankush Shivaji Gaikwad v. State of Maharashtra, the SC made it mandatory for lower courts to record reasons for passing, or not passing, orders relating to the use of Section 357. 
• Still, lower courts are largely failed in implementation, mainly due to practical constraints faced by them. 

What were the constraints found by lower courts while applying section 357? 

• First, Language of section 357: courts were limited by the language of Section 357. For instance, the language of Section 357 does not differentiate between restitution and compensation.  

• Restitution includes return made by the offender while compensation is paid by the state. Unless this difference is statutorily recognised, opacity is bound to continue.  

• Second, no uniform head: the courts were restricted by the absence of a uniform head under which compensation could be granted.  
• Third, no mechanism for calculating paying capacity: the absence of a uniform mechanism to calculate the paying capacity of the accused as well as determining the impact of the crime on the victim prevented courts from granting compensation under the section. 
• Fourth, no guidelines:  the absence of sentencing guidelines blocked the application of the section.  

What is the significance of Delhi High Court’s verdict? 

The significance of the Karan verdict lies in the Delhi High Court’s use of the Victim Impact Report (VIR) to determine the quantum of compensation. The Court’s version of VIR is loosely based on the concept of Victim Impact Statements (VIS), but with some differences. 

• VIS is an instrument of victim participation, which effectively allows victims to inform the court in their own words as to how the crime impacted them.  
• The VIS’s format comprises the description of physical injury, emotional harm, or the damage or loss to property as a result of the offence. 
• VIS provides victims with the opportunity to directly address the court and works towards their concerns being heard and addressed by the court.  
• It makes the offender realise the impact of the crime on the victim. It also works to aid the court in determining the amount of the sentence and fine. 

The Delhi HCs conception of VIR differs from a traditional VIS:  

• Firstly, the primary purpose of the VIR in the Court’s idea is to act as an aid to determine the amount of compensation to the victim in combination with the paying capacity of the accused.  
• Secondly, the VIR will not be directly made by the victim before the court but will be filed by the Delhi State Legal Services Authority (DLSA), which shall conduct a summary inquiry to establish the impact of the crime upon the victim. 
• Third, the DLSA shall submit a report that estimates the paying capacity of the accused as well as the impact on the victim, after a conviction.  
• Fourth, the courts will have to pass an order of compensation based on this. The scheme is binding on all lower courts in Delhi that deal with criminal cases. 

Way forward 

• Moreover, VIR/VIS should not remain limited to calculating restitution; it must be used in the sentencing process. The courts should come forward to adopt VIR/VIS as one of the best practices in the interest of justice to victims of crime.