Authors Information

Name: Abhimanyu Singh

Author's position: Students (4th year at Rajiv Gandhi National University of Law)
E-mail: abhimanyurgnul@gmail.com
Postal Address: ZP-12 krishna Nagar, Bharatpur, Rajasthan, 321001.
Phone No. 9041997141

COMMENT ON CONTEMPORARY ISSUE OF RAPE

VICTIM COMPENSATION- THE MALAISE OF RAPE AND THE QUEST FOR

JUSTICE

WORD COUNT OF ESSAY: 2478 (including title, excluding bibliography)

ABSTRACT
Rape is considered to be the most heinous of crimes, a malaise on our society and a reflection of
the depravity of ideas and perversity of thoughts which have flooded our world today. Apart from
the famous Dhananjoy Chatterjee case, punishment for rape has generally been in the guise of
imprisonment or fines. The immense psychological scars and trauma faced by rape victims seem
to indicate that the recent system of punishment as under Section 376 of the Indian Penal Code is
grossly insufficient when compared with the seriousness of the crime.
The Article shall focus on a system of compensation as a means of providing justice for victims
of rape, the legal precedents which have outlined these attempts and the social awakening which
the Government and social organizations have taken in this regard. The problems associated with
the idea of compensation, including the difficulty of proving the offence, the public nature of
disbursement of such compensation and the technical and statutory difficulties of giving
compensation shall be discussed at length, keeping in mind the right of women to live with
dignity, as held under Article 21 of the Indian Constitution. In relying on the various precedents,
the Authors seek to provide for an equitable solution to the convoluted processes and social
problems, such as a violation of right to privacy which arise with regard to compensation.
Keywords: Compensation, Section 376, Indian Penal Code, Precedents, Prevention of Atrocities
Act, Privacy, Rape.

INTRODUCTION

The concept of restorative justice, in the guise of compensation is not a new idea in Indian
jurisprudence and has found support in varied legislations 1. The idea behind compensation for
rape lies in two important factors, namely being the tangible financial costs and the immense
emotional and psychological impact, which this rarest of rare crime causes. The Supreme
Court, in the case of Delhi Domestic Working Womens Forum Vs. Union of India and others 2
stated that as under Article 38(1) of the Constitution, it was necessary to set up criminal
Injuries compensation Board, as rape victims besides incur considerable financial loss and in
some cases are too traumatized to continue in employment, other than the mental anguish they
invariably suffer. Though the ideals envisaged by providing compensation is in interest of
furthering the justice, its actual implementation and the social problems which arise due to the
award of compensation make the whole exercise a tricky and cumbersome process.
Compensation, a system of retribution for a number of offences such as trafficking and human
rights violations faces a unique set of problems when confronted with the stigma of rape, an
offence which does not even take into account the past record of the accused, due to the
grotesque nature of the crime. The initiatives taken by the Indian Government, starting with a
proposal to set up a Criminal Injuries Compensation Board and the plethora of judgments in
which our Judiciary have had an opportunity to look into the modalities and practicalities of
providing compensation have helped in opening a window for possible justice for rape victims,
1 Criminal Injuries Compensation Board, ; The Chariman, Railway Board vs Mrs. Chandrima Das,
(2000) 2 SCC 2065
2 1995 SCC 1(14)

yet, there remains a number of constitutional and social challenges which have to be dealt with
in order to provide a workable system of compensation for rape. This holds immense
importance, especially in India due to the eight-fold increase in rape case from 19713.
RAPE- MEANING AND SCOPE FOR COMPENSATION
Rape has been defined as an invasion of a woman's body in which her private, personal inner
space is violated4. The act of rape denies woman autonomy by abridging her right to determine
when, with whom, and how she will allow an individual to enter her zone of body privacy 5. As
per the Indian Penal Code, Rape has been held to be A male has sexual intercourse with a
female not his wife ... and compels her to submit by force or by threat of force or has
substantially impaired her power to appraise or control her conduct by administering without
her knowledge drugs and when the female are unconscious [or she] is less than 10 years old.
In fact under International law6, the sexual penetration, however slight: of the vagina or anus
of the victim by the penis of the perpetrator or any other object used by the perpetrator, is
considered sufficient for rape, highlighting the liberal approach of the International community
to the crime and need to provide mechanism of punishments for the offence of rape. However
in the case of Smt. Sudesh Jhaku vs K.C.J. And Others7, the Court has failed to furthered this
3 From the year (1971) the National Crime Record Bureau began collecting data on rape cases,
4 AIR 1991 SCC 207
5 Right to Privacy is a fundamental right under Article 21 of the Indian Constitution. Kharak Singh vs
State of Uttar Pradesh 1963 AIR 1295, R.Rajagopal vs State of Tamil Nadu 1995 AIR 264
6 Prosecutor vs Anto Furundzija, Cse NO-IT-95-17/ 1-T, December 1998 Trial Chamber II (Judges
Mumba [Presiding], Cassese and May
7 1998 CriLJ 2428

notion by stating that Rape must conform to the widely accepted defintion of sexual
intercourse under Common Law, which was confined only to penile-vaginal penetration and
has failed in passing over a wonderful opportunity in dealing with the scope and meaning of
the term.
The phenomenon of compensation, for rape victims has been a recent development, which has
been developed by Indian Courts. In Delhi Domestic Working Womens Forum vs UOI8, the
Supreme Court laid down broad guidelines to deal with rape cases, such as a constitution of a
Criminal Injuries Compensation Board for awarding compensation to the victim for financial
loss, loss of employment, suffering as a result of rape, while in the case of Chandrima Das9,
The Court recognized the right of a foreign national to live with dignity under Article 21 of the
Constitution which applies to non-citizens as well, thus helping confirm the wide amplitude of
the Right10. The State, whose obligation encompasses protecting the lives of every person and
includes the right to live with dignity,11 cannot ignore the crime of Rape, a gross violation of
the Right enshrined in this Article. The Court upheld the decision of the Kolkata High Court
awarding the victim compensation of a sum of ten lakhs and held the Union Government
vicariously to pay damages for the heinous act by the Railway employees, once again showing
its ability to expand the contours of justice and a rare sensitivity to the oppressed social classes
of women. Therefore, the Courts have used the weapon of compensation as a means of
8 Note 2
9 Note 1
10 Maneka Gandhi vs Union of India, AIR 1978 SC 597
11 Francis Coralie Mullins Vs Union of India, 1981 AIR 746

providing monetary succor to the victims and have sought to impose the responsibility to
prevent these offences on the State, once again highlighting the seriousness of the offence.
OBSTACLES AND CONSIDERATIONS
The Supreme law of our land, the Constitution of India extrapolates the requirement of a
number of rights which are to be fundamentally guaranteed for women such as their right to
equality12, prohibhition of discrimination13 and most importantly their right to security and
dignity, which comes within the purview of Article 21. The Beijing CEDAW conference, when
read in light of the Jolly George Verghese14 case acts as an important source of law in
protecting these inalienable rights. There are however inconsistencies and incongruities in the
application of these rights. The whole process of compensation has often been used as vehicle
for publicity and a tactic of vote bank politics, highlighted by CM of U P, Mayawati , who had
ordered the money to be delivered by the Director General of Police in person. He was also
asked to take a helicopter and fly to various places for the purpose. The inherent right to
dignity of women is stripped away from her, as these public methods of compensation result
in her alienation from the societal set up. The right to privacy, which envisions the only
possible restriction to be that of the modesty and honour of a woman would take a sever
beating if the manner of compensation be carried out in such a manner. The true irony behind
this is the fact that though proceedings for Rape are carried out in camera, the help given is
done in a grandiose and public manner.
12 Article 14, Indian Constitution
13 Article 15(4), Indian Constitution
14 AIR 1980 SC 470

The website of the Department of Social Justice and Empowerment, Govt of Gujarat, lays
down that for outraging the modesty of a woman under section 3(1) (11) the Government pays
a compensation of Rs 50,000, but in case the accused marries the rape victim, the assistance
of Rs 50,000 is disbursed in the joint names of the couple. This provision is a complete
travestry of justice, as the propensity for abuse increases manifold with men taking advantage
of this provision to marry the girls whose virginity they have stripped, by marrying them due
to societal pressures and claiming that they have given them a new lease of life. This acts in
direct contravention with the proposed deterrent effect that monetary compensation was to
bring about and the principle of strict interpretation would result in furthering the interests of
the wrongdoers, a baffling anomaly in the law. It may also lead to an increase in rape cases, as
the perpetrators may not mind paying a sum of money when compared with more stringent
punishments which used to be given.
Under the Prevention of Atrocities Act 1989 for Tribal and dalit victims of rape, they were
required to produce a certificate of their tribal/dalit status for receiving a compensation of Rs
25,000. The compensation is paid if the victim belongs to either a Scheduled Caste or a
Scheduled Tribe and the rapist does not, and does not specify what happens if the woman is
from a Scheduled Tribe and the man is from a Scheduled Caste or vice versa. It further lays
down different standards for dalit women and other women, a clear violation of the doctrine of
reasonable classification15, and serves to create disparity and caste based problems in the
society. The provisions are arbitrary and unjustifiable, thus a violation of Article 14 as the

15 Ramana Dayaram Shetty vs The International Airport Authority, 1979 AIR 1628

propounded by the ratio in E.P.Royappa vs State of Tamilnadu16, which emphatically states that
arbitrariness is the antithesis of equality.
The difficulties in proving rape can be gleaned from the narrow and pedantic interpretation of
the provisions as under the Indian Penal Code and with regard to the ratio propounded in the
recent Sakshi17 judgment which states that rape is defined in India as intentional, unlawful
sexual intercourse with a woman without her consent. This definition does not take into
account a number of other aspects such as Sodomy or anal sex, which comes under the
ambiguous provision 377 of the Indian Penal Code. The operative part of the contentions
raised by the petitioner gives the correct view, in the view of the author which states that
There has been for some time a growing body of feminist legal theory and jurisprudence
which has clearly established rape as an experience of humiliation, degradation and violation
rather than an outdated notion of penile/vaginal penetration. Restricting an understanding of
rape reaffirms the view that rapists treat rape as sex and not violence and thereby condone
such behavior. Thus, in light of the extremely limited chances of proving rape, the
encouragement given by the terms of the aforesaid statute would provide further motivation to
indulge in these activities.
Recourse can be taken to International statutes and decisions such as the ratio propounded in
the Furundzija and under certain provisions of the Declaration on the elimination of Violence
against Women18, which gives an extended and purposive interpretation of the term rape. The

16 AIR 1974 SC 555

17 AIR 2004 SC 3566
18 20th December 1993, A/RES/48/104

Delaware Statute19, which defines sexual intercourse as "[a]ny act of physical union of the
genitalia or anus of [one] person with the mouth, anus or genitalia of another person. It occurs
upon any penetration, however slight." is one which has been successfully followed in many
jurisdictions. The problems in attempting to implement these decisions comes in the form of
the dualist theory towards acceptance of international treaties or conventions in India, which
means that the Parliament must ratify and incorporate the law and as with any controversial
legislation, this will take a long time. It is surprising that, India which has 21,000 complaints,
with eighty percent cases not reported and which considers itself to be the model of chastity
would hesitate in implementing and bringing about liberal laws for conviction of rape.
The attitude of the Judges play a very important rule in the question of compensation and this
is one aspect where the Indian judiciary must introspect into the mindset of their clique. The
ideas propounded include the notion that rape is impossible without consent a contradiction
of the very essence of rape and the highly ludicrous idea of marrying the rapist. This
contributes to the low number of cases reported, the primary obstacle behind the failure of
compensation for victims.

Conclusion
Compensation for rape, in light of the current societal prejudices and short sighted legislations
remains a mirage in the desert for thousands of women in the society. An unwillingness to probe
into the problems faced by the women, the inability to grasp the changing contours of rape and
the benefits of financial loss when compared with stringent punishment are factors which are
afflicting the concept of victim compensation. The theory of criminal law, being that the victims
19 Section 767

must not go unpunished would not come to fruition if the current laws and victim compensation
are to go hand in hand. There is an urgent requirement for setting up of a national commission or
a monitoring committee which would deal with these problems in a meaningful manner.
Furthermore, there are a number of non-legal ways of helping women such as setting up of
counseling centers which would help in achieving the overall objective of a society where
women need not fear for their virginity and sanity at every conceivable moment. Victim
compensation is an idea which has great benefits, but as of now an idea incompatible with the
mindset of the society and a norm which has very high chances of being abused.
BIBLIOGRAPHY

1.) The Chariman, Railway Board vs Mrs. Chandrima Das,(2000) 2 SCC 2065

2.) Delhi Domestic Working Womens Forum Vs. Union of India and other, 1995 SCC 1(14)
3.) Kharak Singh vs State of Uttar Pradesh 1963 AIR 1295
4.) R.Rajagopal vs State of Tamil Nadu 1995 AIR 264
5.) Smt. Sudesh Jhaku vs K.C.J. And Others, 1998 CriLJ 2428
6.) Maneka Gandhi vs Union of India, AIR 1978 SC 597
7.) Francis Coralie Mullins Vs Union of India, 1981 AIR 746
8.) E.P.Royappa vs State of Tamilnadu, AIR 1974 SC 555
9.) Ramana Dayaram Shetty vs The International Airport Authority, 1979 AIR 1628
10.) Sakshi vs Union of India, AIR 2004 SC 3566

11.) Indian Penal Code, 1860

12.) The Constitution of India, Arvind Dattar
13.) Prevention of Atrocities Act, 1989
14.) Department of Social Justice and Empowerment, Govt of Gujarat.
15.) CEDAW declaration, Beijing conference, 2001.

DECLARATION
______________________________________________________________________________

I am here with declaring that the Article entitled VICTIM COMPENSATION- THE MALAISE

OF RAPE AND THE QUEST FOR JUSTICE is my original contribution. The work has been
submitted only to this Journal of Academy of Juridical Studies (JAJS) has not been previously
published or submitted elsewhere for publication. I hereby authorize you to edit, and make
necessary changes in the Article to make it suitable for publication.

Signature of the Author

_____________________

Address of the author:

------