This presentation examines the feasibility of setting up a Tribunal to pay compensation to victims of sex crimes. The scope of extending this solace is unavailable under the existing constitutional scheme.

1. MATTER OF SETTING UP OF
A TRIBUNAL TO PAY
COMPENSATION TO CHILD
VICTIMS of sexual
abuse

2. A PRESENTATION BY
Maj Gen Nilendra Kumar
Director

3. NOTE
This presentation has not gone into the issue of need of
such a Tribunal. It has confined only to the question
whether it‟s setting up would be feasible without going
through rigmarole of a constitutional amendment and
reliance to the statutory inventory.

4. COMPENSATION
In Black‟s Law Dictionary, in the context, means
the payment of damages or any other act that a
court orders to be done by a person who has caused
injury to the another. In theory, compensation
makes the injured person whole.

5. INJURY
Injury has not been defined in any of the laws
concerning children.
It‟s dictionary meaning is „the violation of the other
legal rights, for which the laws provide a remedy‟

6. TYPES OF INJURY
O Advertising
O Accidental
O Bodily
O Civil
O Compensable
O Continual
O Continuing
O Direct
O In fact (as opposed to
conjectural or hypothetical)
O Irreparable
O Malicious
O Pecuniary
O Permanent
O Personal
O Public Injury
O Reparable
O Scheduled
O Serious bodily injury
O Temporary
O Legal

7. Damages
In Black‟s Law Dictionary, it is understood as
any means of or relating to monetary
compensation for loss or injury to a person or
property.

8. RELIEF: MEANING
In Black‟s Law Dictionary, it is the redress or
benefit, especially equitable in nature.
Aid or assistance given to those in need,
especially financial aid provided by the State;
Such as injunction or specific performance that a
party asks of the Court.

9. RESTITUTION
In the context, in Black‟s Law Dictionary, it means any
compensation for loss, especially full or partial
compensation paid by a criminal to a victim, not awarded in
a civil trial for tort, but ordered as part of a criminal
sentence or as a condition of probation.

10. ISSUES EXAMINED
1. Is setting up of a tribunal possible in the
constitution?
2. Would the tribunal be empowered to award
compensation before the culpability of
wrongdoer is determined?
3. Assuming, payment of compensation is
directed to be paid by the proposed tribunal,
then who would pay?
4. Is there any model by way of existing body
to emulate?

11. OTHER MAJOR ISSUES
1. Presumption of innocence is to be factored
lest an award of compensation may appear
to prejudge.
2. No specific entry of child protection is
available in VII Schedule.
By implication, whose responsibility would be to
abide by the orders to pay the compensation?

12. PART XIV (A) OF THE CONSTITUTION
REGARDING THE TRIBUNALS
O Article 323 A- Administrative Tribunals
O Article 323 B- Tribunals for other matters

13. Article 323 A
323 A- Administrative Tribunals
Parliament may, by law, provide for the adjudication
or trial by administrative tribunals of disputes and
complaints with respect to recruitment and condition
of service of persons appointed to public services and
posts in connection with the affairs of the Union or of
any State or of any local or other authority within the
territory of India or under the control of the
Government of India or of any corporation owned or
controlled by the Government.

14. ARTICLE 323 B
323 B- Tribunals for other matters
The appropriate Legislature may by law, provide
for the adjudication or trial by tribunals of any
disputes, complaints, or offences with respect to all
or any of the matters specified in clause (2) with
respect to which such Legislature has power to
make laws.

15. Illustration of some of the purposes
of clause (2)
O Tax
O Foreign Exchange etc.
O Labour disputes
O Land reforms
O Sealing on Urban property
O Elections to Parliament or Legislature
O Food stuff
O Rent
O Offences against laws in respect of above matters

16. The matter that can be dealt by other tribunals are
enumerated therein. Hence, provision of a tribunal can
only be envisaged for the purposes indicated.

17. Juvenile Justice (Care and Protection)
Act, 2015 does not have any clause
empowering award of compensation by-
1. Juvenile Justice Board
2. Child Welfare Committee
3. Children‟s Court
4. Any Other Court

18. Other laws relating to the children
that have no provisions concerning
compensation
1. Prohibition of Child Marriage Act, 2006.
2. The Child Labour (Prohibition and Regulation) Act,2016.
3. Right of Children to Free and Compulsory Education Act, 2009.

19. Other Way Out?
Other existing legal regimes that provide for
payment of compensation.

20. COMPENSATION WHERE ENVISAGED
 Custodial death by higher judiciary under Art. 32 or
226.
 Rape victims under Art. 142 in case of Delhi Domestic
Working Women; (1995) 1 SCC 14
 Relief compensation against the State based on the
principle of “Strict Liability”. The objective is to apply
balm to the wounds and not to punish the transgressor
or the offender which must be left to the criminal court
in DK Basu v. State of West Bengal; (1997) 1 SCC 416.
 Directed by the Supreme Court to child labour victims
in MC Mehta V. State of Tamil Nadu,(1996) 6 SCC
756.
Contd/---

21.  Relief to sick families by Delhi High Court in Bhajan
Kumar V. Delhi Administrative; (1996) AIHC 5644
(Delhi).
 Under Motor Vehicles Act, 1988; Section 166 read with
Section 168. Paid by the insurer, or owner or driver or
all of them.
 Under Motor Vehicles Act, see Section 161, in hit and
run cases by the General Insurance Corporation of
India.

22. PURPOSE OF LEGISLATIONS
Protection of
Human Rights
Act, 1993
Commissions for
the Protection of
Child Rights, 2005
National Green
Tribunal Act, 2010
Motor
Vehicles Act,
1988
For the
constitution of
NHRC, SHRC
IN states.
Human Rights
Court for the
protection of
human rights.
For the constitution
of National
Commission, State
Commissions,
Children Courts for
providing speedy
trial of offences
against children or of
violation of child
rights
For the establishment
of NGT for effective
disposal of cases
relating to
Environment
protection and
conservation of forest
and other natural
resources including
No, but see
Chapter XII

23. 2008 AMENDMENT TO CrPC SECTION
357
Extracts Clause (3)
When a Court imposes a sentence, of which fine does not form a part,
the Court may, when passing judgment, order the accused person to pay,
by way of compensation, such amount as may be specified in the order
to the person who has suffered any loss or injury by reason of the act for
which the accused person has been so sentenced.
Comments:
1. Imposed by court.
2. As part of a fine or sentence, of which the fine may or may not
form a part

24. PROTECTIONOF CHILDREN FROM
SEXUAL OFFENCES ACT, 2012
Section 33 (8)-
“In appropriate cases, the Special Court may, in addition to the punishment,
direct payment of such compensation as may be prescribed to the child for
any physical or mental trauma caused to him od for immediate
rehabilitation of such child.”
Above compensation is to awarded in accordance with Rule 7 of the 2012
Rules.
It is to be paid by the State Government from the Victims Compensation
Fund.

25. Commissions for Protection of Child Rights
Act, 2005
Section 15:Steps after inquiry
Recommended to the concerned Government or
authority for the grant of such interim relief to the
victim or the members of his family as the Commission
may consider necessary.

26. PROTECTION OF WOMEN FROM DOMESTIC
VIOLENCE ACT, 2005
Section 22 provides for compensation orders as under:
“In addition to other reliefs as may be granted under this Act, the
Magistrate may on application being made by the aggrieved person,
pass an order directing the respondent to pay compensation and
damages for the injuries, including mental torture and emotional
distress, caused by the acts of domestic violence committed by that
respondent.”
The text implies that the order for compensation would be taken up
only when the guilt of the respondent has been established.

27. SEXUAL HARASSMENT OF WOMEN AT
WORKPLACE (PREVENTION PROHIBITION AND
REDRESSAL) ACT, 2013
Compensation is also envisaged under Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal)
Act, 2013
Section 15: To be determined by the Internal Committee or
the Local Committee.

28. RELIEF AND PAYMENT OF COMPENSATION UNDER
NATIONAL GREEN TRIBUNAL ACT, 2010: SECTION 15
Provides for relief, compensation and restitution:
1. To the victims of pollution and other environmental
damages arising under the enactments specified in the
Schedule I;
2. For the restitution of property damaged;
3. For the restitution of the environment for such area or
areas;
4. As the Tribunal may think fit.

29. BIOLOGIAL DIVERSITY ACT,2002:
SCHEDULE I
1. The Water (Prevention and Control of
Pollution) Act, 1974
2. The Water (Prevention and Control of
Pollution) Cess Act, 1977
3. The Forest (Conservation) Act, 1980
4. The Air (Prevention and Control of Pollution)
Act, 1981
5. The Environment Protection Act, 1991

30. Sr.
No
COURT/BODY STATUTE
APPLICABLE
IF
BINDING
PAID TO PAID BY REMARKS
1 Magistrate-
a) For injury
b) Mental torture
c) Emotional
distress
Section 22 of the
PWD Act, 2005
Yes, only for
acts of
domestic
violence
Aggrieved
person
Respondent On application
made-
i. Compensati
on
ii. Damages
2 Special Court-
a) Interim, after
registration of
FIR
b) Final, after
conviction
Section 33(8) of
the POCSO
Act,2012, read
with Rule 7. In
appropriate case
only-
a) On its own
b) On
application
Yes, to be
paid within
30 days by
the State
Government
Child
victims
State
Government
for its victim
compensation
fund
3 International
committee or local
committee
Section 15 of the
Sexual
Harassment of
Women at
Workplace Act,
2013
Yes Aggrieved
Woman
Deducted for
the salary or
wages of the
respondent
On failure, to be
recovered ass
arrears of land
revenue.
4 NCPCR/SCCPRC Section 15(3) of
Commission for
Protection of
Child Rights Act,
2005
Only
recommendat
ion of the
government
concerned
Victim or
member of
the family of
the victim
Concerned
government or
authority
Only interim relief

31. A FEW EXAMPLES TO DECIDE HOW THE
MATTER OF COMPENSATION WOULD BE
TAKEN UP
1. A girl, aged 14, was married while she was 12. Later, she was trafficked,
gang raped, and used to supply narcotics when she was apprehended.
One newspaper revealed her identity.
2. A boy, aged 15, was kidnapped from Baramula by militants, and was
used for six months as a stone pelter. He was then made to work at a
factory and became a victim of organ transplant. The doctor was
apprehended.
The same questions arose. Questions-
 What amount?
 By Whom?
 Who to pay?
 At what stage?

32. COMPENSATION ISSUES
O Which court or body will pay?
O What if there are multiple laws involved?
O On its own or on application?
O For what all injuries and abuses?
O What amount?
O At what stage?
O Under which law?

33. OTHER QUESTIONS
Would the victim or, Next of Kin have the right
to appeal;
A. If declined, or
B. Inadequate
And, the accused?

34. COUNTER VIEW AND OBSTICLES
“The rationale behind constituting tribunals as
substitute to Civil Courts and High Courts ought
to be revisited, especially when the Government
has made a provision that appeals from the
decision of such a tribunal shall lie before the
Supreme Court.”
-Gujarat Urja Vikas Nigam Ltd. v. Essar Power
(2016) 9 SCC 103

35. Hence an effort to set up a Tribunal to award
compensation to child victims of abuse or neglect
may need a constitutional amendment together with
other Legislative actions.

36. CONCLUSION
It is for consideration that either a campaign is
planned striving for creation of a tribunal, or it
would be prudent to go for better enforcement
and management of existing laws?

37. THANK YOU