Once convicted of raping a minor, the accused must also pay economically for his crime and the Supreme Court must lay down the guidelines on the quantum of fine to be levied
~By Justice Sreedhar Rao
Every crime is a tort, but every tort need not be a crime. The remedy in tort provides for a civil action for compensation. In crime, the offender is prosecuted to suffer the penalty of imprisonment with a fine. In the 18th and 19th century, the common law enabled the master, under whose employment a minor child/woman is seduced, to sue the offender for compensation for tort of seduction. In the course of time, the master’s right to sue was withdrawn, the father was enabled in law to sue for compensation for seduction. In the quaint common law jurisprudence, patriarchal in nature, did not recognize the woman to have an independent legal right.
Curiously, there is one Indian case law in Navakoti Daniel vs Ingilal Mariyamma in the Madras High Court, where Daniel breached the promise to marry minor, Mariyamma, and also had sexual intercourse with her after betrothal. The court granted compensation for breach of promise to marry, but denied compensation for tort of seduction based on the archaic common law principle that the seduced cannot maintain an action by herself and only the parent alone can sue for seduction.
Interestingly, there is a reference to this in the judgment of the Allahabad High Court which approves the right of the seduced to seek compensation for seduction in her own right. With the passage of time in common law, the modern and rationale society phased out the quaint concept of tort of seduction to claim damages.
It is unfortunate that crime in India is subsidized and the benefit given to the accused. The judicial attitude is very lenient in not imposing and recovering the expenses incurred for investigation and trial, much less, the victim’s compensation.
The rape of minors and infants has appallingly assumed a degrading and a dangerous trend in society in recent years which was unthinkable some decades ago. The Indian Penal Code makes different grades of rape severely punishable with different slabs of incarceration with unlimited fine as a punishment. The Code of Criminal Procedure 1973 (CrPC) envisages a provision under Section 357 for payment of compensation to the victim from amount of the fine levied and payable by the accused. The progressive provision under Section 357 was not fully exploited legally to impose heavy fines considering the financial capacity and assets of the accused to pay a substantial compensation to the victim, in particular the victim of rape. The Courts have acted niggardly in not imposing heavy fines and granting adequate compensation to victims.
It is unfortunate that crime in India is subsidized and the benefit given to the accused. The state incurs substantial expenses out of the public exchequer for investigation, adjudication and for correctional services. The judicial attitude is very lenient in not imposing and recovering the heavy fine amount for reimbursement of the expenses incurred for investigation and trial of the accused, much less, the victim’s compensation which is often totally ignored.
It should be the judicial policy that an accused on conviction should be imposed heavy fine proportionate to his solvency with a provision for adequate compensation to the victim from out of the assets of the accused. It is only when the accused is not affluent that the state should come to the aid of the victim to grant necessary compensation.
In the case of a victim of a gangrape, the IPC provides that the entire fine amount levied should be paid to the victim as compensation in addition to payment of compensation by the state. As a welfare measure, Section 357A is incorporated in the CrPC to pay compensation to the victim/dependent from the state funds and such compensation payable to be assessed by the District Legal Services Authority (DLSA) keeping in view the economic conditions of the victim irrespective of whether the accused is acquitted or discharged.
The rape of minors and infants has appallingly assumed a degrading and a dangerous trend in society in recent years which was unthinkable some decades ago.
The instance of a rape of a 10-year-old minor girl in Chandigarh resulting in pregnancy and delivery of a child is a shameful blot on the society. There is a similar incident of 13-year-old minor girl in Kerala becoming pregnant and delivering a child. A slew of writ petitions have been filed before the Supreme Court by lawyer Indira Jaising, seeking compensation of Rs 10 lakh to the victim of rape in Chandigarh and also seeking direction to the National Commission for Women (NCW) to set up a criminal injuries compensation board as directed by the Supreme Court in the Delhi Domestic Working Womens’ Forum case and to call for the data as to how many states have implemented the provisions of Section 357A of CrPC.
Although the said writ petitions are in a way deviant from the prescribed legal process in seeking compensation directly from the Supreme Court, the role of the State Legal Services Authority would commence to assess and pay compensation to the victim upon the conclusion of the trial. There is no provision to pay interim compensation to the victim where the allegation of rape is irrefutably a conclusive inference as in the case of a victim of rape in Chandigarh.
The writ petition in question is an appropriate opportunity for the Supreme Court to lay down the guidelines as to the quantum of fine to be levied on the accused proportionate to his solvency to punish the offender economically and for payment of interim compensation to the victim to meet the immediate needs for rehabilitation and child care, where the accusation leads to irrefutable and conclusive inference of rape. However, in order to thriftily use the state funds, the final assessment of quantum of compensation has to be left to be decided by the state legal authority on a case-to-case basis which would be the proper authority under law to do the needed exercise which would obviate the discontent of discrimination in payment of victim compensation.
—The writer is former acting chief justice
of the Karnataka and Gauhati High Court