One of the options being actively discussed these days proposes setting up of a tribunal to provide relief to the child victims of abuse and culpable neglect. This presentation is an attempt to articulate feasibility of its constitution and benefits therefrom. Comments and suggestions are welcome.

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

2. A PRESENTATION
BY
MAJ GEN NILENDRA KUMAR

3. NOTE
 This presentation has not gone into the
issue of need for 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
payment of damages or any other act that a court
orders to be done by a person who has caused injury
to 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
others’ legal rights, for which the laws
provide a remedy.

6. TYPES OF INJURIES
 Accidental
 Advertising
 Bodily
 Civil
 Compensable
 Continual
 Continuing
 Direct
 In fact (as opposed to
conjectural or
hypothetical)
 Irreparable
 Malicious
 Pecuniary
 Permanent
 Personal
 Public Injury
 Reparable
 Scheduled
 Serious bodily injury
 Temporary
 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.
1. Aid or assistance given to those in need, esp.,
financial aid provided by the State;
2. Such as an injunction or specific performance that
a party asks of a Court.

9. RESTITUTION
 In the context, in Black’s Law Dictionary, it
means any compensation for loss, esp. 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 a tribunal permissible under 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 VIIth Schedule. By implication, whose
responsibility would be to abide by the orders to
pay the compensation?

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

13. ARTICLE 323A
 323A. Administrative tribunals.- Parliament may,
by law, provide for the adjudication or trial by
administrative tribunals of disputes and
complaints with respect to recruitment and
conditions 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.  323B. 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)
 Tax
 Foreign Exchange etc.
 Labour dispute
 Land reforms
 Sealing on Urban Property
 Elections to Parliament or Legislature
 Food stuff
 Rent
 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. JJA, 2016 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 CHILDREN THAT
HAVE NO PROVISIONS CONCERNING
COMPENSATION
1. The Child Labor (Prohibition and
Regulation) Act, 2016.
2. Prohibition of Child Marriage Act, 2006.
3. Right of Children to Free and Compulsory
Education Act, 2009.

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

20. COMPENSATION WHERE ENVISAGED
1. Custodial death by higher judiciary under Art. 32 or 226.
2. Rape victims under Art. 142 incase of Delhi Domestic
Working Women; (1995) 1 SCC 14.
3. Relief compensation against the State based on 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 D.K. Basu v.
State of West Bengal; (1997) 1 SCC 416.
4. Directed by the Supreme Court to child labour victims in
MC Mehta V. State of Tamil Nadu, (1996) 6 SCC 756.

21. 4. Relief to Sikh families by Delhi High Court in Bhajan Kaur
v. Delhi Administration; (1996) AIHC 5644 (Delhi).
5. Under Motor Vehicles Act, 1988; Section 166 read with
Section 168. Paid by the insurer, or owner or driver or all
of them.
6. Under Motor Vehicles Act, see Section 161, in hit and run
cases by the General Insurance Corporation of India.

22. PURPOSE
Protection of
Human Rights Act,
1993
Commissions for
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 better
protection of
human rights.
For the
constitution of a
National
Commissions,
State
Commissions,
Children Courts for
providing speedy
trial of offences
against children or
of violation of
child rights.
For establishment
of NGT for
effective disposal
of cases relating to
EP & conservation
of forests 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 a court.
2. As part of a fine or sentence, of which fine may or may
not form a part.

24. PROTECTION OF 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 or 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
iii. Recommend 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 an 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
Schedule I;
2. For restitution of property damaged;
3. For restitution of the environment for such area or
areas;
as the Tribunal may think fit.

29. THE BIOLOGICAL 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 injuries
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. Compensation
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
from its
victim
compensatio
n fund
3 Internal committee or local
committee
Sec 15 of the Sexual
Harassment of
Women at Workplace
Act, 2013
Yes Aggrieved
Woman
Deducted
from the
salary or
wages of the
respondent
On failure, to be
recovered as arrears
of land revenue.
4 NCPCR/SCPCR Sec 15(3) of
Commission for
Protection of Child
Rights Act, 2005.
Only
recommend
ation to 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
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.
Questions-
 What amount?
 By Whom?
 Who to pay?
 At what stage?

32. 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.

33. COMPENSATION ISSUES
1. Which court or body will pay?
2. What if there are multiple laws involved?
3. On its own, or on application?
4. From whom (who will pay)?
5. For what all injuries or abuses?
6. What amount?
7. At what stage?
8. Under which law?

34. OTHER QUESTIONS
Would the victim, or NOK have a right to
appeal;
 A) if declined, or
 B) Inadequate
And, the accused?

35. COUNTER VIEW AND OBSTACLES
“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

36. 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.

37. 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?