-By Abhijeet Shrivastava
Background
This post concerns Bechu Kurian Thomas, J.’s recent judgment as a part of the Kerala High Court’s (“HC”) Single Bench in District Collector v. District Legal Service Authority (22.12.2020). The decision involved a temporal question over the scope of the provisions of Section 357A of the Code of Criminal Procedure, 1973 (“CrPC”). Before proceeding to this question and its analysis, however, recalling the Section’s history is important.
Section 357A was introduced by an amendment to the CrPC enacted in 2009 to create a ‘victim compensation’ scheme, where the State was obligated to compensate victims of crimes who suffered injury thereto and required rehabilitation. Section 357A(1) required the State and Central Governments to co-ordinate for maintaining funds for such compensation. The amendment gained effect from 31-12-2009.
Although Section 357(1)(b) empowered courts to order compensation by a convicted accused to the victims in certain situations, there are various situations uncovered therein. For one, the compensation awarded under Section 357 may not be ‘adequate’ to rehabilitate the victims. Second, the accused may be acquitted or discharged, thus disabling courts from ordering such compensation. Third, often, the offenders may never be identified. As Meharia and Mohan explain, Section 357A’s provisions were meant to account for these lacunae which had hitherto left such victims hapless. Indeed, they were preceded by the Law Commission of India’s 154th Report, which had recommended the additions of such provisions.
The positive obligation on the State to compensate victims were traced by the report on three main counts [see Chapter XV, p. 57, (¶1-3)]. First, it recognized the growing doctrine of ‘victimology’, which regards the protection of victims as sacrosanct to criminal justice. This meant that the State carried a ‘humanitarian’ and compassionate responsibility to compensate such victims. Second, since the State is obligated to prevent crimes, it becomes responsible to compensate victims for its failures to fulfil this obligation. Third, such compensation was a matter of social justice, since the absence of compensation would result in poverty, unemployment, and similar issues which would harm both the victims and society at large.
Having considered this backdrop, the question that arose before Thomas, J. was whether these provisions have a ‘retrospective’ character (¶1). Put differently, would State compensation envisaged in Section 357A be due if crimes were committed prior to 31-12-2009? In his judgment, Thomas, J. has answered this question in the affirmative. In this post, I shall evaluate the reasonings in his judgment, arguing that it largely exemplifies the qualities of what Ronald Dworkin had described as a ‘best view’ interpretation of the law.
The ‘Best View’ Outlined
‘Hard’ cases, Dworkin wrote, consider questions of law that are not settled definitively by any rule or binding previous decisions. Given this, multiple interpretations of the law are possible. Here, neither the 2009 amendment, nor any Supreme Court decision, or any decision by the Kerala HC provides guidance specifically on whether it has retrospective effect (¶23). Thus, Thomas, J. was faced with a ‘hard’ case.
In such cases, Dworkin posits that courts must uphold the best possible ‘constructive’ view of the law. This has two facets. First, courts must identify the principled threads of such provisions, past practices of their system (precedents, for instance), and the system’s overarching moral aims. Terming this ‘Fit’, he writes that any interpretation must be made within these constraints. Second, having ‘constructed’ Fit, courts must provide the maximal possible effect to such principles (or practices). To maximize their effect is to put the law in in its ‘best light’.
Dissecting Thomas, J.’s Judgment
At the outset, Thomas, J. took note of the general interpretative rule that procedural laws are retrospective, while substantive laws are prospective (¶24). Section 357A provides for a remedy (a right) and a corresponding obligation (duty) on the State to facilitate victim compensation. Of course, even before this Section’s enactment, the Supreme Court had on various occasions acknowledged that such compensation derives naturally from the right to life under Article 21 of India’s Constitution (¶12, 9 & 22). Yet, it was in Section 357A that a specific avenue was provided for its facilitation, with statutory recognition. Thus, he held that Section 357A was indeed a substantive law (¶25-26).
Nonetheless, as the Supreme Court has held on many occasions, substantive laws can be interpreted retroactively if such constructions arise by ‘necessary’ implication. Accordingly, Thomas, J.’s opinion realized that the above general interpretative rule does not apply in case of ‘welfare’ or ‘beneficial’ laws, which confer remedies in view of social justice (¶27). His opinion accords great weight to the history and intent of Section 357A as outlined earlier in recognizing its aims at furthering social justice. In fact, affirming the Law Commission’s works, he sources the principles behind victim compensation to Article 38, Article 41, and Article 51A of the Constitution (¶16). When read together, these Articles make securing social and economic justice the State’s goals, make it bound to ensure the right to public assistance in case of ‘disablement’, and make it a fundamental duty to develop compassion.
The preceding considerations and principles identified by Thomas, J. amount to ‘Fit’, since they constitute the principles behind Section 357A and the moral practices of the Indian legal system. Interestingly, Thomas, J. notes as his duty in answering the question of retroactivity as requiring him to provide the “most complete remedy” possible (¶28) – which is undeniably a recognition of Dworkin’s ‘best light’ requirement, even if unconsciously. Given all this, I contend that a retroactive application of its provisions would be the ‘best view’ of Section 357A, and therefore, one that Thomas, J. was bound to uphold. As he recognizes (¶30), if it is possible to interpret its provisions as extending their benefits to prior crimes, such an interpretation must be preferred.
However, it is at this juncture that his conclusion requires technical attention. Although Thomas, J. indeed holds that victims are entitled to compensation for crimes committed before 31-12-2009, he refuses to categorize this as a ‘retrospective’ application of Section 357A (¶36). For this, he relies on the decision in Master Ladies Tailors Organisation v. Minister of Labour and National Service [(1950) 2 All ER 525], where it was noted as follows: “the fact that a prospective benefit is in certain cases to be measured by or depends on antecedent facts does not necessarily make the provision retrospective” (p. 527). This extract was thereafter quoted with approval by the Supreme Court in Sree Bank Ltd. v. Sarkar Dutt (1965). Based on this authority, he held that merely because applying Section 357A may require accounting for an ‘antecedent’ fact (prior crime) does not make it retroactive (¶31) – thus making the presumption against retroactivity immaterial.
This portion of Thomas, J.’s judgment could have benefited from better clarity. If his interpretation is not retroactive at all, then it is curious why he felt the need to explore the ‘necessary’ implication route to begin with – since the question of whether retroactive application is necessitated would not have arisen. Indeed, this concern applies equally to the Supreme Court’s view in Sree Bank Ltd., since it fails to distinguish between the two separate inquiries: one, whether a law is retroactive at all based on the Master Ladies Tailors standard, and if it is, then second, whether such retroactivity is justified. This is since right after quoting said standard, the court wrote that legislative intent in relation to the concerned provision must have been to give it “full retrospective effect”.
To reiterate, this conflates two separate questions – the first of whether a law is retroactive by definition, and the second of whether retroactivity, if any, is justified by ‘necessary’ implication. With respect, a clearer approach in such cases could be as follows, using this hard case as an illustration: first, interpreting Section 357A to account for antecedent facts does not make it retrospective, thus avoiding the presumption against retroactivity to begin with. Second, as an ‘alternative’, even if such an interpretation is definitionally retrospective, such retrospectivity is justified by the ‘necessary’ implication exception in order to provide the maximal effect to its principles, or in other words, to see the law in its ‘best light’. This structure would better accord with ‘Fit’ requirement for appreciating the principle approved in Master Ladies Tailors, and thereafter in Sree Bank Ltd. While the result remains the same, it is achieved with greater coherence.
Concluding Thoughts
Despite the technical discrepancy outlined above as regards Thomas J.’s view on retroactivity, his decision and reasonings are to be lauded for heeding India’s moral practices by ensuring justice to victims in need of State compensation. Apart from the resonance of his views with Dworkin’s ‘best view’ interpretations as outlined in this post; his judgment has one last facet reminiscent of Dworkin’s thoughts that merits mention. The State had argued that a retroactive application of Section 357A would have financial implications that would crumble its economic planning and would thus be unjust (¶6).
Such arguments, which relate to the logistical or resource-oriented concerns of implementing rights could be called arguments of ‘policy’, whereas Thomas, J. has upheld arguments of ‘principles’. That is indeed what Dworkin describes as the duty of judges, for the State must not (generally) be allowed to evade securing rights it is obligated to respect merely for preserving some policy consideration.
Thomas, J. also observes, “…this Court cannot be oblivious of the trauma and travails such victims have undergone…The agonizing face of the victims looms large upon this Court while considering the question raised for decision…” (¶29). Thus, one only hopes to find more judicial opinions akin to Thomas, J.’s in advancing criminal justice, and equally importantly, in humanizing its administration.
[The author is a third-year B.A., LL.B. (Hons.) law student at Jindal Global Law School.]