Justice Leila Seth Fellowship


Compensate Child Victims of Sex Abuse for State Failure

by Maansi Verma – March 2022

A teenage girl (‘X’) and her family were attacked by a group of people in her locality on multiple occasions, during which time the child was sexually assaulted as well. Her family had called the police every time they were physically attacked but the police took no action and the attacks continued. Two months after the last incident of sexual assault, the police finally registered an FIR invoking several sections of the Indian Penal Code and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). 

The Special Courts which are designated to try offences under POCSO are also empowered to order interim compensation for child victims of sexual abuse while the case goes on. For interim compensation, an application can be filed on behalf of the child before the Court, or the Court can award compensation on its own. The lawyer assigned to provide legal aid to the family of ‘X’ stated that she didn’t file the application for interim compensation because according to her, the Court does not entertain compensation applications in cases where less heinous offences are alleged such as sexual assault under Section 8 of POCSO, unless the complainant is able to establish specific financial needs. The Court’s hesitation in awarding interim compensation is extremely problematic and also widespread. In 2019, a study by the Supreme Court Registrar found that in 99 per cent of POCSO cases considered, child victims did not receive any interim compensation from the government. 

In this article I condemn this hesitation in awarding interim compensation, arguing that courts must view it as a way to hold the state accountable for its failure to address vulnerabilities of child victims and to prevent further victimisation. 

Why should compensation be awarded in child sex abuse cases?

When observing the case described above, it seems that the Court’s hesitation may stem from a perception that the offence is not grave. Section 8 of POCSO which was applied in the case makes ‘sexual assault’ punishable. Sexual assault includes acts involving touching private parts of the child or any sexual act without penetration. It is punishable with imprisonment between three and five years. Sexual assault is one of the six sexual offences made punishable under POCSO. Any of the sexual acts criminalised under POCSO, irrespective of the nature of the activity involved or quantum of punishment and depending on the circumstances, could have lasting social, psychological and/or financial impact on a child victim, making each offence as grave as the other.

Section 33(8) of the POCSO Act empowers the Special Court ‘in appropriate cases’ to direct payment of compensation to a child victim for any ‘physical or mental trauma’ suffered by the child or for ‘immediate rehabilitation’ of the child. Though it is a power that a Court may exercise on a case by case basis, where the facts of a case reveal the need for compensation, the Court’s hesitation in directing it goes against the spirit of the law. This section is also to be read with the Rules formulated under the Act. Rule 9 of POCSO Rules, 2020 lists several ‘relevant factors’ which should be considered by a Court before granting interim compensation for ‘relief or rehabilitation’ of the child. These factors range from gravity of the offence to expenditure likely to be incurred on medical treatment, to loss of education or employment opportunities for the child because of the abuse, to severe consequences like disability, pregnancy or transmission of any sexual disease as a result of the abuse. The Court can also consider the financial condition of the child and has been permitted the discretion to consider any other relevant factor as well.

Thus, while several factors have been laid down, the Court’s power to grant compensation is not limited to these factors alone and it must approach the question of compensation holistically.

State’s failure to protect fundamental rights of children
In the case of ‘X’, the police’s failure to intervene in a timely manner on the family’s initial complaints contributed to her continued victimisation. Perhaps, timely police intervention could have prevented the subsequent incidents of sexual assault. The failure of the state, through the police, to fulfil its responsibility of protecting the children from exploitation, as provided in Article 39(f) of the Constitution, is relevant for awarding interim compensation. In Bijoy v. State of West Bengal,[1] the Calcutta High Court observed that compensation from the State in cases of child sexual abuse is in the nature of reparation to the victim of crime on State’s ‘failure to discharge its sovereign duty to protect and preserve sanctity and safety of the individual from the ravages of such crime.’ In the case of ‘X’, therefore, though the offence may not seem grave to the court, the state’s failure to prevent it and protect the child is grave.

In Bodhisattwa v. Ms. Subhra Chakraborty,[2] the Supreme Court held rape to not only be a crime against basic human rights but also violative of the victim’s ‘most cherished right, namely, right to life which includes right to live with human dignity contained in Article 21 of the Constitution.’ The state’s failure to prevent violation of fundamental rights of its citizens has been held to be an important factor to award compensation by the Supreme Court in numerous cases. In Rudul Shah vs. State of Bihar,[3] it was held that one of the ways in which compliance with the mandate of Article 21 can be ensured is by compelling the violators to pay monetary compensation. The Court noted that ‘administrative sclerosis leading to infringement of rights, cannot be corrected by any other method.’

Socio-economic conditions make children vulnerable
A 2018 study of POCSO cases across five states of India found that in most cases the child victims were from lower socio-economic sections of society. The World Health Organization also identifies that a child with low levels of education, living in a poor community with high population density and low social cohesion is vulnerable to multiple forms of violence. Additionally, WHO notes that societies with inadequate social protection or policies which perpetuate economic, gender and social inequalities contribute to violence against children. This can also be seen as a state failure for which it must recompense. 

The POCSO Rules provide for the financial condition of the child victim to be considered for award of compensation to aid in the victim’s rehabilitation. The purpose of such rehabilitation is not to enrich the victim but to provide them with some form of social protection which could prevent further vulnerability. For instance, my experience of working on POCSO cases with iProbono shows that in several instances, once the Court orders interim compensation, it is found that the child doesn’t possess the necessary identification documents and doesn’t even have a bank account to receive the compensation. It is unfortunate that had it not been for the sexual abuse the state would perhaps have remained ignorant of the deprivations of those children. And it will likely remain ignorant about those children who do not report their abuse. When Courts order interim compensation and the state pays, it discharges its obligation as a welfare state to ensure access to basic necessities of life for children.

Victimisation through the criminal justice process
Section 357 of the Code of Criminal Procedure (CrPC) empowers courts to direct payment of compensation to a victim of a crime from the fine that may be imposed on the person found guilty of that crime. This provision was found insufficient to deal with cases where the accused is not found guilty or no one is arrested or the amount of fine was negligible or the accused was not in a position to even pay the fine. All these issues were discussed in the Law Commission’s 154th Report (1996) on reforms in criminal procedure which discussed concerns related to ‘victimology’ and explored reforms needed in the criminal justice system to protect rights of the victims. It was specifically recommended that the state should accept the principle of providing assistance to victims from its own funds.

In 2003, another expert Committee under Dr. Justice V.S. Malimath was established to look at criminal justice reforms, which also deliberated on the rights of victims in detail. It found that Section 357 of CrPC was a ‘token provision’, and otherwise the victim had no rights. The victim also couldn’t participate in the process. If the police doesn’t conduct the investigation properly or the state doesn’t follow up with the trial diligently leading to the acquittal of an accused, the victim may have no recourse and be victimised again. Specifically, on victims of sexual abuse and rape, it was recognised that rehabilitation is needed to ‘prevent secondary victimisation and provide hope in the justice system.’ Following these interventions, in 2009, Section 357A was inserted in the CrPC to direct state governments to set up Victim Compensation Funds in their respective states to provide compensation to victims on direction of courts.

Thus, interim compensation which may be ordered by a Special Court and paid by the state through its compensation fund, is in acknowledgement of the harsh realities and vagaries of the criminal justice system, interaction with which could cause further victimisation of the child.

Court’s must overcome their hesitation in awarding compensation

In Ankush Shivaji Gaikwad vs. State of Maharashtra,[4] the Supreme Court highlighted that while the power to grant compensation is discretionary, given the intent behind conferring it on the courts, a duty is placed on the courts to apply their mind to the question of compensation in every criminal case to ‘reassure the victim that he or she is not forgotten in the criminal justice system.’ The Supreme Court further held that for proper application of mind the courts must consider relevant material to arrive at a conclusion on the question of compensation.

When interim compensation under POCSO is granted during pendency of the trial, the courts can look at material available in the FIR, the recorded statement of the child, the medico-legal documents, and the chargesheet if available. Recently, some Special Courts have initiated a good practice of requiring support persons who are assigned to child victims of sex abuse by the Child Welfare Committee, to submit periodic status reports with notes on financial, psychological, and other conditions of the child which can help a court apply their mind to the question of interim compensation.[5]

The courts of justice must thoroughly consider every case of child sexual abuse on the question of interim compensation in a comprehensive manner. It would be a continued failure of the state and of the judiciary in upholding their constitutional responsibilities if the power to award compensation is not exercised where warranted. 

[1] MANU / WB / 0140 / 2017
[2] (1996) 1 SCC 490
[3] AIR 1983 SCC 1086
[4] MANU / SC / 0461 / 2013
[5] It is also important to mention that in several cases of child sex abuse in which iProbono has helped provide legal representation to the child victim, Special Courts have given progressive orders on interim compensation. It is hoped that other Courts will also adopt a more child and victim-friendly approach on the question of interim compensation.