ROLE OF VICTIMS IN INDIAN CRIMINAL JUSTICE SYSTEM AND LEGISLATIVE MEASURES TAKEN

THIS ARTICLE WAS WRITTEN BY GAZAL TALWAR  A STUDENT OF SYMBIOSIS LAW SCHOOL, PUNE WHO IS CURRENTLY PURSUING L.L.M IN CRIMINAL AND SECURITY LAWS. 

“Just as medicine treats all patients and all diseases, just as criminology concerns itself with all criminals and all forms of crime, so victimology must concern itself with all victims and all aspects of victimity in which society takes an interest.                                                                                                               

                                                                                                                                                          -Mendelson B. (1976)[1]

The criminal justice system throughout the world is planned with the State being at the center-stage. Indian criminal justice system is no exception to this practice. Law and order is considered as the primary duty of the state. With its primary duty, state fosters peace and prosperity, maintains the rule of law and order and provides access to justice to all. Every citizen, in a welfare state, is expected to have his or her basic human rights. Whenever these rights are violated either in form of socio-economic backwardness, historical discriminations or violations of civil, political and economic rights, state’s judicial system provides adequate mechanism for redressal of such violations. Sometimes, human right violations go to the root of societal functioning and cause the law and order problem. Whenever a citizen is harmed, injured or even killed as a result of crime, he/ she are often termed as “victim”. Though, there is a inbuilt mechanism to initiate criminal proceeding against such an offender, however such victim may himself seeks justice by setting the criminal justice system in motion, either by his complaint or by informing the police about the same.

Crime affects the individual victims and their families, majorly causing financial losses to the victims. The impact of crime on the victims and their families ranges from serious physical and psychological injuries to mild disturbances. [2]  Such an act needs to be promptly redressed by providing them easy access to justice. Though the victims of crime have generally found support and assistance from their family, tribe or community, they have, by and large, remained “forgotten person” in the criminal justice administration system. It is only in recent decades that the impact of the victimization on crime affected persons drew attention of criminal law jurisdictions around the world and they were convinced that the victims needed to be treated with compassion and their dignity and fundamental rights must be protected and preserved.

 “Victimology” may be defined as the scientific study of victimization, including the relationships between victims and offenders, the interactions between victims and the criminal justice system; that is, the police and the courts, and correctional officials. It also includes connections between victims and other social groups and institutions, such as the media, businesses and social movements. However, the term victimology is not restricted to the study of crime-victims alone but it may extend to other forms of human rights violations that are not necessarily crimes.

Victimology has now emerged as a branch of criminology dealing exclusively with the victims of crime who need to be treated with compassion and rendered compensation and assistance under the criminal justice system. While criminology is concerned mainly with the causation of crime, victimology is concerned with the study as to why people fall as a victim to crime and how they can be helped and assisted against abuse of power or criminal acts of offenders through access to criminal justice system. The study also outlines the steps to be taken to prevent victimization against crimes and provide legal remedies to the victims of crime.

The term ‘victim’ in general parlance refers to all those who experience injury, loss or hardship due to any cause and one of such causes may be crime. Therefore, victimology may be defined as the study of people who experience injury or hardship due to any cause. Such injury or harm may be physical, psychological, emotional or financial. It therefore, follows that ‘victim of crime’ is the person who has suffered at the hands of perpetrator of crime.

Oxford English dictionary defines the “victim” as “a person harmed, injured or killed as a result of crime, accident, etc.”  The word ‘victim’ primarily indicates ‘suffering’. The idea of victim through international conventions is also wide in its amplitude and in this regard UN General Assembly Declaration may be quoted[3] which gives an extensive definition of the phrase’ victim’ as a person who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violations of criminal laws operative within member states, including those laws proscribing criminal abuse of power’.[4]

Regarding the Indian Criminal Justice system, The Code of Criminal Procedure, 1973 has been deficient in defining ‘victim’. Even idea of victimization is also left to academicians and nothing substantial is reflected either in the substantive law or procedural safeguards.  Section 2(wa) of the Code of Criminal Procedure[5] defines ‘victim’ as ‘a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression ‘victim’ includes his or her guardin or legal heir.’ The definition as adopted at UN has been discussed in the 154th Report of the Law Commission, but the legislation has not adopted the said definition and has given a restricted meaning to the word ‘victim’ as the word ‘victim’ means only a person, who has suffered any loss or injury caused by the reason of the act or omission of the offender and victim includes his guardian or legal heir. Assuming the meaning of the word’ injury’ used in the definition is either wide enough to encompass all kind of legal injuries or at least will stick with the definition given in IPC, the definition files the gap and does provide quite adequate information.

Coming to the role of victims in the Indian Criminal Justice System, we should understand the nature of the system. In India, though the criminal justice system is elaborate and expensive, it aims almost entirely to protect the accused but not the accuser/victim. The adoption by the General Assembly of the United Nations at its 96th plenary on 29 November 1985 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power constituted an important recognition of the need to set norms and minimum standards in international law for the protection of victims of crime. The U.N. declaration recognized four major components of the rights of victims of crime i.e. access to justice and fair treatment, restitution, compensation and lastly assistance. The legislation concerning victims’ rights are still insufficient and not in harmony with this declaration. However, the provisions enshrined in Indian Judicial System are supplemented by judicial decisions which take form of laws. The various provisions of Indian Legal system are a step in the direction of upliftment of victim rights.

Initially, the criminal justice system in India focused on punishment as part of the crime without much attention on the suffering of victims of crime. The rights of prisoners were protected even after their conviction whereas little concern was shown for the rights of the victim of crime. However, with the emergence of public interest litigation the higher courts attention was drawn to this lacunae in the existing criminal justice system by social activists, and the courts started granting compensatory relief to victims of crime, but a comprehensive legislation on this aspect of criminal justice system was still awaited.

Concern was expressed for the plight of the victims of crime by Justice V. R. Krishna Iyer when he commented:

                           “The criminal law in India is not victim oriented and the suffering of the victim, often immeasurable is entirely overlooked in misplaced sympathy for the criminal. Though our modern criminal law is designed to punish as well as reform the criminals, yet it overlooks the by-product of crime i.e. the victims”[6]

The concept of victim and victimology has changed dramatically in the last decade with respect to Criminal Procedure Code. The idea is to change the attitude towards recognizing the role of victims in the criminal justice system. Now, the victim is not only treated as someone who initiated machinery of criminal justice system but also the one who has substantial interest in it. The philosophy about the role of victim in criminal justice system has changed from being ‘informer’ or ‘ complainant’ to that of someone who has fundamental interest in the case and thereby connects to the ‘rule of law’. Denial of any role to victim is not only denial of justice to the victim but would tantamount to negate rule of law, the fundamental of democracy and constitutionalism.

The various provisions of Indian legal system are taking steps in the direction of uplifting the rights of the victim.  Under Constitution of India there are  several provisions which directly or indirectly recognize the rights of victim and also provide for the fundamental policy for protecting and promoting the victim’s right. The provisions in the Preamble, Part III and Part IV of the Constitution are relevant in this regard. The noble principle ‘brotherhood’ pledged in the preamble is the first to begin with the idea of protecting rights of victim. Compensation, restitution or rehabilitation is core to achieve such an ideal state of society where victim may find himself in having confidence and support of other members of the society and getting a change of his or her being rehabilitated.

The principle enshrined under Article 14 of the Constitution[7] insures ‘equal protection of laws’ that demands care and protection of victim by and within the code of Criminal Procedure Code which till now may have tendency to protecting rights of offenders only. Fundamental right to life and personal liberty, enshrined in Article 21 of the constitution is wide enough to include greater protection to the victims of crime and, as it insures human dignity to all, it must recognize rights of victim by providing them better care and protection.[8]

The Directive Principles of State Policy enshrined under Part IV provides for basic policies for the social and economic betterment and development of individual as well as groups and thereby provides ‘foundation for a new social order’ in which justice, social and economic, would flower in the national life of the country. [9] It insures that the state shall make effective provision for securing public assistance in cases of disablement and in other cases of undeserved want.”[10]  This provision has great visions to victimology, in a wider perspective, as it mandates that public assistance must be provided to such vulnerable sections of society. In fact, crime victims and other victimized people fall into the domain of Article 41[11]. Another set of provision is Article 51-A[12] which provides a fundamental duty to every citizen of India to protect and improve the natural environment…and to have compassion for living creatures” and “to develop humanism”.

In Nirmal Singh Kahilon v. State of Punjab,[13] the Hon’ble Apex Court observed that the right to fair investigation and trial is applicable to the accused as well as the victim and such a right to a victim is provided under Article 21 of the Constitution of India. Therefore a victim of a crime is equally entitled to a fair investigation.

Under Criminal Procedure Code of 1973, the rights and protection of victims are available under these provisions like Sections 154(2)[14], 160[15], 190[16], 406[17] and 439[18]. The Criminal Procedure Code still runs short in providing the victims their due. On many stand the code has been proved to be insufficient in its provisions to fulfill the victim needs. The perception of that suffering segment of humanity is that the Criminal Justice System is callously impersonal, its components are at sixes and sevens, it has no functional accountability and is caters only to its own minions. This is an indictment of the system by the common man. What happens to the victim if he survives an offence and reports his victimization to the Police? His misery restarts. He is faced among other things with insults at the hands of the people including the police officers and lawyers and loss of earnings, and if the victim happens to be a woman, her lot is much worse.

The rights of the victims are also protected under various legislations like Section 4 of SC and ST (Prevention of Atrocities) Act, 1989 that provides that in case of failure by a public servant to willfully neglect to act upon the complaint of member of Scheduled Caste and Tribes is punishable offence under this section. Under this act, compensation to victims is mandatory, besides several other reliefs depending on the type of atrocity. The victims are entitled to receive monetary compensation ranging from Rs. 25,000 to Rs. 200,000 depending upon the gravity of the offence. Section 9 of Evidence Act 1872  states that after filing complaint and taking cognizance of the case by the Magistrate, the victim there after does not participate in the investigation except by being called to confirm the identity of the accused or the material objects, if any, recovered during the course of investigation. Section 12(1) and 13(1) of the Legal Services Authorities Act, 1987  entitles every person “who has to file or defend a case” to legal services. A victim of crime has a right to legal assistance at every stage of the case subject to the fulfillment of the means test and the ‘prima facie case’ criteria.[19] Section 195-A of Indian Penal Code  makes  the threatening or inducing of any person to give false evidence a cognizable and non-bailable offence punishable with imprisonment for seven company years or fine or both. This response of government is not only ad hoc but also inadequate as it fails to address the whole range of issues raised by victims of crime. The Protection of Women from Domestic Violence Act, 2005  is considered as a  major achievement of the women’s movement towards protection of domestic violence victims after a struggle of 16 years. It aims to provide for more effective protection of the rights of women guaranteed under the Constitution. The definition of domestic violence is wide enough to include physical, sexual, verbal and emotional abuse. The unique feature of the Act is that it prohibits using or enjoying by virtue of the domestic relationship, including access to the shared household”. A police officer, protection officer or a magistrate who has received a complaint of domestic violence has a mandatory duty to inform the victim of her right to obtain a protection order or an order of monetary relief, a custody order, a residence order, a compensation order or more than one such order and the availability of the services of service providers, protection officers, and the right to free legal services under this Act. A violation of the protection order by the respondent is an offence which can result in imprisonment for one year or a fine up to Rs. 20,000 or both. If the protection officer refuses to discharge his duties, he shall be punished with imprisonment for one year or with a fine of Rs. 20,000 rupees or with both.

Despite the absence of any special legislation to render justice to victims in India, the Supreme Court has taken a proactive role and resorted to affirmative action to protect the rights of victims of crime and abuse of power. The court has adopted the concept of restorative justice and awarded compensation or restitution or enhanced the amount of compensation to victims, beginning from the 1980s as seen in the cases of Sukhdev Singh vs. State of Punjab[20] , Balraj vs . State of U. P.[21]; Giani Ram vs. State of Haryana [22] .

In Bodhisattwa Gautam vs . Subhra Chakraborty[23] the Supreme Court held that if the court trying an offence of rape has jurisdiction to award compensation at the final stage, the Court also has the right to award interim compensation. The court, having satisfied the prima facie culpability of the accused, ordered him to pay a sum of Rs.1000 every month to the victim as interim compensation along with arrears of compensation from the date of the complaint.

It is a landmark case in which the Supreme Court issued a set of guidelines to help indigenous rape victims who cannot afford legal, medical and psychological services, in accordance with the Principles of UN Declaration of Justice for Victims of Crime and Abuse of Power, 1985:

(i) The complainants of sexual assault cases should be provided with a victim’s Advocate who is well acquainted with the CJS to explain to the victim the proceedings, and to assist her in the police station and in Court and to guide her as to how to avail of psychological counseling or medical assistance from other agencies;

(ii) Legal assistance at the police station while she is being questioned;

(iii) The police should be under a duty to inform the victim of her right to representation before any questions are asked of her and the police report should state that the victim was so informed;

(iv) A list of Advocates willing to act in these cases should be kept at the police station for victims who need a lawyer;

(v) The Advocate shall be appointed by the Court, in order to ensure that victims are questioned without undue delay;

(vi) In all rape trials, anonymity of the victims must be maintained;

(vii) It is necessary to set up a Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatized to continue in employment;

(viii) Compensation for victims shall be awarded by the Court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of childbirth if this occurred as a result of the rape.

It has been witnessed that there are challenges that are being faced in India which demands more attention in today’s time. Following are the challenges that are being faced:

1. There is no separate law for the crime victims yet. There are provisions in much legislation but for the whole sole purpose that includes only victims still there is no law. But continuous efforts are being put forward to enact a national law.
2. The problem of corruption can also be seen in the sphere of Indian Criminal Justice System where corruption of public officials has worn the entire health of the society and therefore in return the people in all sections of the population are victimized. Many steps have been taken to reduce the level of corruption and accumulations of illegal wealth have been taken up by the Government.
3. There have been times where serious efforts have been put forward to change the traditional submissive and victimized role of women have been taken up by NGOs and the Government. One such effort is the consistent struggle and active efforts by women’s organizations to get more political power for women in the form of representation in the Parliament, state legislatures and local bodies through a 33% reservation of seats for women in these bodies. Women have already succeeded in getting representation in local self-government but the struggle continues to get reservations for women in Parliament and state legislatures.
4. Making primary education a fundamental right under the Constitution is a leaping step to empower children as education is the tool for development. The implementation of this right will have a bearing on other kinds of victimization such as child labor.
5. Major and toughest challenge to overcome is implementation. Transparency and honesty among the politicians who make policies and the commitment of government officials who are charged with the responsibility for implementation are the big challenge. Whereas the situation of victims has not been satisfactory in India, developed countries, including the United Kingdom, have gone far ahead to render victim justice, but the expectations and aspirations of victims remain high even in those countries which do not match the accomplishments made elsewhere. For example, The UK enacted the Criminal Injuries Compensation Act in 1995. During the long proceedings of investigation and trial, victims are not kept informed or provided with a sense of security. Very often, victims are expected to appear in courts for cases, which are adjourned even without their notice, or they are subjected to unnecessarily stressful courtroom experiences. The agencies meant to help victims do not always understand and respond effectively to their needs. This revelation has made the UK recommend some measures to balance its system of justice. Hence, victim justice has not been achieved in full even in countries where lots of developments have been made. We have to pursue the matter vigorously with the governments and with civil society to realize the basic provisions envisioned in the UN Declaration of victims in the majority of developing countries.

In the current decade of victimological research, there is a substantial interest in the study of impact of crime on victims and ways to assist them. Assistance to victims of crime is of great significance because victims have suffered irreparable damages and harm as a result of crime. The problems of crime victims and the impact of crime on them is varied and complex. Therefore, the agencies of the criminal justice system should be receptive to the needs of the victims of crime and address their issues sincerely and empathetically. The Government of India and the State Governments should enact exclusive legislations for victims of crime, as the existing provisions in the criminal laws are not sufficient. A ray of hope is the recommendations of the Committee on Reforms of Criminal Justice System headed by Justice V. S. Malimath. Hence, the Government of India may have to take efforts to implement the recommendations of the Committee on Reforms of Criminal Justice System. There should also be a change in the focus from criminal justice to victim justice, but victim justice should be perceived as complementary and not contradictory to criminal justice.

The struggle by victims to gain their formal rights within the criminal justice system continues on many fronts. As the analysis presented above states that the obstacles that the victims encounter have arise from many sources. Resistance from the victim’s ostensible allies within the criminal justice system tends to be low profile, and take the form of foot- dragging, cooptation and objections on pragmatic grounds.

[1] B. Mendelson, “Victimology and Contemporary Society’s Trends” Victimology 1 (1976), pp. 8-28

[2] Measures for Crime Victims in the Indian Criminal Justice System by Kumaravelu Chockalingam.

[3] Articles 1 and 2, United Nations General Assembly Declaration of Basic Principles of Justice for Victim and abuse of Power adopted in November 1985.

[4] Id. Article 1

[5] Added by The Code of Criminal Procedure (Amendment) Act, 2008

[6] V. R. Krishna Iyer: Access to Justice- A case of Basic change (1991) p.14

[7] Equality before law

[8] Hussainara Khatoon v. State of Bihar AIR 1979 SC 1360; Joginder Singh v. State of Uttar Pradesh, 1994 AIR 1349

[9] Article 38 of Constitution of India

[10] Article 41 of Constitution of India

[11] Right to work, to education and to public assistance in certain cases

[12] Fundamental duties

[13] (2009) 1 SCC 441

[14] Information in cognizable cases- A copy of the information as recorded shall be given forthwith, free of cost, to the informant

[15] Section 160- Police officer’s power to require attendance of witness

[16] Cognizance of offences by Magistrates

[17] Power of Supreme Court to transfer cases and appeals

[18] Section 439- Special powers of High Court or Court of Session regarding bail

[19] Under section 12(1) (b) every victim of trafficking in human beings or beggar; under section 12(1)(e) every person under circumstances of undeserved want such as a “victim of mass disaster, ethnic violence, caste atrocity..” is entitled to free legal services irrespective of the means test but subject to the prima facie case test.

[20] 1982 SCC (Cr) 467

[21] 1994 SCC (Cr) 823

[22] AIR 1995 SC 2452

[23] AIR 1996 SC 922