Constitutional perspective of Compensatory Jurisprudence

Aug 29, 2020

The emergence of compensatory jurisprudence is a progressive sign indicating that the judiciary has assumed the duty to protect the right of life and the personal right of all persons, irrespective of the non-appearance of any rapid constitutional provision and judicial precedents.

The Supreme Court of India adopted compensatory jurisprudence by reference to the powers mentioned in Article 32 of the India Constitution, which have taken a great interest in recent times in view of the rise of political instability incidents, police lawlessness, custodial torture, illegal detentions, etc. The victims could claim compensation in the torts law for injury to a person or property that have been harmed. But sadly, it can take the victims decades to get the damages or compensation order through the courts, resulting in a lot of suffering.

Article 32 of the Indian Constitution deals with the power of the SC to impose a way or order or written order that may be appropriate for any of the rights referred to in Part III of the Constitution, including writings in the form of habeas corpus, prohibition, mandamus, quo-warranto and certiorari; The right of the SC to exercise, in accordance with Article 32, any rights dealt with in Part III of the Constitution itself is a fundamental right.

Article 32 of the Constitution of Indian  (1949)

Remedies for the protection of the rights given in this part 

  1. The right to move to the Supreme Court by an appropriate procedure for the enforcement of the rights conferred by this Part shall be guaranteed.
  2. The Supreme Court shall have the authority to issue directions or orders or  including writs in the essence of habeas corpus, mandamus, injunction, quo warrant and certiorari, as necessary, for the exercise of each of the rights granted by this Section.
  3. Without prejudice to the powers conferred on the Supreme Court by subsection (1 ) and ( 2), Parliament may, by law, empower any other court to exercise, within the local limits of its jurisdiction, all or any of the powers exercised by the Supreme Court under subsection (2).

The right granted under this Article shall not be suspended unless the Constitution provides otherwise

The victims of crime will be compensated generally in compliance with five statutes

  • Fatal Accident Act, 1855
  • Criminal Procedure Code, 1973
  • Probation of Offenders Act, 1958
  • The Motor Vehicle Act, 1988.
  • The Constitutional Remedies for Human Rights Violation

The legal structure for compensation for victims of crime can be defined in three major laws, namely as

Section 357 

 It provides that if the offender is sentenced to a penalty of which the fine is part, a certain amount of the fine may be applied to the recovery of any loss of property suffered by the victim.

Section 357-A

Every State Government shall, in consultation with the Central Government, draw up a scheme to provide funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and need rehabilitation.


It provides that the court ordering the release of an offender pursuant to section 3 or section 4, that, if it considers it necessary, issue at the same time another order requiring the offender to pay-

  1. Such compensation as the court finds appropriate for loss of injury caused to a person by committing the offence.
  2. Such proceedings cost as the court deems reasonable.



Victim of crime in the criminal justice system is still a "Forgotten Man." The need for the hour is a paradigm shift in the justice system. There should be a change of thinking and focus from criminal justice to victim justice, but victim justice is seen as complementary and non-contradictory to criminal justice.Do you think there is a need for change in the justice system?