Compensation to Hidden Victims
Rashmi Yesudas – Associate, Dispute Resolution Practice
“Compensating Hidden Victims” refers to a crucial yet often overlooked aspect of our criminal justice system. While we may celebrate justice being served when an accused is convicted, there are numerous individuals who remain unseen, but affected by the outcome. They are the family of the incarcerated, particularly their innocent minor children, life partners, and elderly parents. The children’s education may be affected, and their societal treatment, especially in a country like India, remains uncertain due to the stigma associated with having an incarcerated parent. On the other end the victim’s family members also suffer. The victims are not adequately compensated or in most cases where compensation is awarded the same does not reach the victim. Unfortunately, there is currently no legislation specifically addressing the needs of these forgotten victims. However, some judicial rulings have offered protections for the rights of minor children in such circumstances. A project named “PATTAM” was started with an objective to empower convict prisoners on the eve of their release for reintegration into society as productive citizens.
Scenario in India
Whether Court should consider welfare of children while convicting their parents?
The Hon’ble Madras High Court in State vs Dandayutham and others [1], held that considering the facts that first accused has three girl children, and taking into consideration of the peculiar facts and circumstances of the case, and considering the age of the wife of the accused and age of the three minor children/girl children being aged 14, 13, and 7 years respectively, I am of the view that in this case, a direction is also to be given to the Secretary to the Government, Social Welfare & Women Empower Department, Government of Tamilnadu to consider the case of the wife, three minor children of the convict for State Assistance to ensure continuance of the education and nutrition of the children and to ensure the livelihood of the wife.
However, considering the trauma undergone by the victim in the above referred judgment compensation has been awarded by the Hon’ble Court to the victim.
The Hon’ble Gujarat High Court in Malabhai Bharatbhai Bhuriya vs. State of Gujarat & another [2] held that the state should support the family of a prisoner, because the imprisonment had caused them ‘untold misery and deprivation without any fault on their part’. The Hon’ble Court held as follows:
Young children and wife of the applicant might be suffering untold misery and deprivation, without any fault on their own part. The Ld. APP was requested to take instructions from the Welfare Officer from the jail as to what help can be extended to the family of the convict. It was submitted on instructions of the Social Welfare Officers appointed in Central Jail at Ahmedabad and Vadodara that as a part of welfare of the prisoner, his family could be helped as far as possible through the local Social Defence Officers, appointed at almost all district places. It was further submitted that the family of the prisoner may be entitled to various social security and welfare schemes launched by the Government, particularly for ensuring education and nutrition of the young children. However, it was necessary to inform and request the Social Defence Officers concerned in the respective districts to locate the family of the prisoner and see to it that the family members are provided with the benefits of such schemes as far as they are eligible and entitled to the benefit of such social welfare measures. (emphasis supplied)
The Prison Directorate of West Bengal along with NALSA do provide support to the families and children of prisoners in the community. Such as educational assistance, social security like building up homes for those who do not have any shelter. Those adult children are trained according to their talent and inclinations for professions of their choice. In case of a school going child the State of West Bengal will help to pay for fees. As well as the West Bengal Prison Directorate also encourages schools and institutions to allocate a part of their funding for the welfare and advancement of children of prisoners. [3]
HIDDEN VICTIMS OF CRIME
The wives and children of inmates are the main victims of crime. The absence of the imprisoned father from the home and the loss of his earnings usually results in financial hardship for the family. [4] Being separated from a parent in jail causes significant trauma to children. Children with incarcerated parents have a much higher risk of aggression and antisocial behaviour, suspension and expulsion from school, depression and anxiety, substance abuse and suicide, and even incarceration themselves.
People who commit crimes should be held accountable, but the statistics paint a clear picture about the crippling impact of the criminal justice system, which is why we need to rethink the consequences of incarceration . As we face obstacles along the way, we should think about the human faces suffering behind these statistics, which too often are the faces of children.
The fact that a large number of women prisoners are with children (or have children in prisons), means that this category of deprived children suffers from social isolation and absence of healthy interaction. Those separated from their imprisoned mothers and fathers have different problems. Their problems are largely hidden and are the uncalculated costs of imprisonment.[5]
The National Plan of Action 2005 as well as the Juvenile Justice (Care and Protection) Act had recognized their need for care and protection”. India has yet to ratify the UN Rules for the Treatment of Women Prisoners, which lays down guidelines for the treatment of children of women prisoners.[6]
PATTAM- an initiative to rediscover themselves (first time offenders)
PATTAM, Personality, Attitude, Transformation, Therapeutic, Assistance, Management, is a programinitiated in 2015, initially in the District of Chennai. In Tamil, ‘Pattam’ means ‘kite’. A special logo was designed showing a kite in flight, amidst dark clouds, guided by a string signifying the journey of inmates after release, with the tag line ‘Free to Soar’.
The program was launched as a pilot project at the Sub Jail, Saidapet. In order to ensure complete segregation of young, petty, first-time offenders during their stay in prison, a direction was issued by the Hon’ble Madras High Court, to the concerned metropolitan magistrates in Chennai, to remand them only to the sub-jail at Saidapet. With the cooperation of the Prison department, the sub jail at Saidapet was made exclusive for young, petty, first-time offenders and infrastructure was provided for regular contact with classes. Life skills through sports were introduced as part of this program. Facilities like a library, psychologist/counsellors, and corporate trainers were provided.
Through this program, for the first time, the interaction between the three pillars of the criminal justice system mainly the Police, the Prison authorities, and the Judiciary was facilitated.[7] From October 2021 to December 2022 the number of youngsters who benefitted from PATTAM were 5140. The same is introduced in all 8 Central Prisons in Tamilnadu. In 2021 it was introduced in the Observation Homes at Kellys (Chennai) and Vellore.
This programme gives an opportunity to rediscover themselves, which has been effectively implemented following a circular from the Madras High court, directing courts to not to remand first-time offenders in the age group of 18 to 24 with habitual offenders. Those addicted to drugs are provided therapy and medical care.[8]
Compensation to victims
When discussing hidden victims of crime, the compensation schemes cannot be forgotten. ‘Victims’ are not only the person who has suffer injury/harm directly, but in some cases also include the near and dear ones of the victims. Compensation to such victims may also be ordered by the Court for the material and non-material damages. Our Constitution and Criminal procedure code contains the provisions relating to compensation for the victims of crime. When a court pronounces a verdict, wherein an accused is proven guilty the court order may also stipulate a fine of any denomination and such part of fine is paid to the victims. Whenever a court orders the victim to be compensated then it is the duty of the District Legal Service Authority and State Legal Service Authority as the case may be to decide the quantum of compensation to be awarded.
In certain cases when the offender is not traced or identified, but the victim is identified and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for an award of compensation.
The Central Victim Compensation Fund Scheme, 2015 formulates the guidelines which decide the procedure to apply for the compensation. Every state has their own guidelines which decide the procedure.[9]
Orphans of Justice in search of the best interests of the child when a parent is imprisoned [10]
Throughout the world millions of children are affected by having a parent in prison. The negative effects of parental imprisonment have led to measures which try to address this issue, notably in the African Charter on the Rights and Welfare of the Child, which states that “a non-custodial sentence will always be first considered when sentencing … mothers”. The UN draft Guidelines for the Alternative Care of Children highlight the importance of stability in care and maintaining safe and continuous attachment to primary carers.
Failure to uphold the child’s best interests could result in the concept of justice becoming confused and the children made orphans of justice.
Support for Children (Impact of Parental Imprisonment) (Scotland) Bill (a proposal) (11)
Interestingly, Scotland has proposed a Bill for ensuring the welfare and well-being of the offender’s children. The objective of the Proposed Bill, simply put, is: “Children have different needs to adults, they are more vulnerable, less developed and most of all in need of protection. In our society, prisoners are marginalised; their spouses and adult friends isolated and hidden; while their children – to all intents and purposes – are invisible.”
Significantly, ‘collateral convicts’, ‘forgotten families’, ‘invisible victims’, and ‘invisible children’ are just some of the terms used to describe children affected by parental imprisonment. These children are largely a hidden group in Scottish society.
The United Nations Convention on the Rights of the Child (1989) (UNCRC) should be enshrined and reflected in the proposed Support for Children (Impact of Parental Imprisonment) Bill. Articles 2 and 3 of the UNCRC are of particular relevance, Article 2 states “No child should be discriminated against because of the situation or status of their parents” while Article 3 provides that the best interests of the child must be a primary consideration: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. [12]
Conclusion
“The reason we don’t know is we simply don’t count them, and the reason we don’t count them is because they are invisible”. [13]
In punishing criminals, society is also punishing their families. Efforts should be made to bring up a proposal such enactments or guidelines to support and protect these “forgotten victims”, so that children of incarcerated parents get good education and grow up with societal values and lower probability of future criminality. We should strive to reduce the number of hidden victims while ensuring that justice is being served. The necessity has arisen for establishing a regulatory body to thoroughly assess whether the compensation granted to victims or their families is indeed reaching them. Just as PATTAM projects exemplify, we must introduce more robust and widespread initiatives to empower victims and their families to lead lives filled with dignity, rather than being trapped in trauma or the aftermath of crime.
References
[1] MANU/TN/1021/2023
[2] (2012) 1 GLH 818
[3] Submission by HAQ: Centre for Child Rights India. Submission to the Committee on the Rights of the Child for the day of General Discussions on “Children of Imprisoned Parents” 30 September 2011 at Palias Des Nations in Geneva, Switzerland HAQ-Submisssion CRC-GD on Children of prisoners (ohchr.org) accessed on 23.03.2024
[4] L J Bakker; B A Morris; L M Janus, NCJ Number 46070 Journal Social Work Volume:23 Issue:2. Dated (march 1978) Pages 23 Issue: 2 Dated: (March 1978) Pages: 143-148 ‘Hidden Victims of crime’ Hidden victims of crime | Social Work | Oxford Academic (oup.com) accessed on 24.03.2024
[5] Alan Cohen, Chief Executive of Child Poverty Action Lab, Column for The Dallas Morning News. http://www.childpovertyactionlab.org/resources accessed on 25.03.2024.
[6] Ibid
[7] PRISM- Prisoners Rights Intervention Support Missions, PATTAM – Prism Trust accessed on 18.04.2024.
[8] When prison department helps to develop one’s personality-Shanmughasundaram J uploaded on May 9, 2019
http://timesofindia.indiatimes.com/articleshow/69242302.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst Accessed on 18.04.2024
[9] Compensation of victim of crime in India posted on March 9, 2017 by ipleaders https://blog.ipleaders.in/compensation -vicitm-crim-india/ accessed on 21.04.2024
[10] Orphans of Justice In search of the best interests of the child when a parent is imprisoned: A Legal Analysis Jean Tomkin Orphans of Justice – In search of the best interests of the child when a parent is imprisoned: A Legal Analysis | QUNO accessed on 24.03.2024
[11] The Scottish Parliament- Proposed Support for Children (Impact of Parental Imprisonment) Proposed Support for Children (Impact of Parental Imprisonment) (Scotland) Bill – Parliamentary Business : Scottish Parliament accessed on 25.03.2024
[12] Ibid
[13] Supra 8