THE VICTIM AND CRIMINAL JUSTICE SYSTEM IN INDIA
The Author of this blog is Dr. Gazal Gupta, Associate Professor & Associate Dean, School of Law, Galgotias University, U.P.
Interaction
with the criminal justice system of the country is the most dejected and bitter
experiences of victims of crime. Many a times victims of crime do not report
their ordeal to the police or the investigative agencies. The reason behind the
silence of not calling the police or not complaining or lodging the FIR is the
element of suspicion, distrust and the apathetic attitude of the police
administration towards victims of crime. Some victims fear that the police may
not take their matter seriously and will ignore their issues. Others are of the
opinion that if once an entry made in the criminal justice system it is very
tough to take a step back, even if a victim wants to. The main reason for such
a mind set is that the victims feel insecure and unsafe once the criminal
justice mechanism gets into motion. There are not enough laws and procedures in
the criminal justice administration to protect the victims and witnesses of
crime in the country. The stress towards victims rights which though given by the
law goes in vain when it comes to actually provided and bringing them to
practice. The first agency to whom the victim comes into contact is the police
and they being in uniforms do not win the confidence and victims are scared to
communicate with them and stay away as hiding from an offender or a criminal.
Apart from that, proper legal assistance is also not easily available to the
victims of crime especially those who belong to the poor and downtrodden
class.
The
jurisprudence of victim’s rights or victim’s justice perspective has gained
importance in the recent past. Basically, a victim sets the criminal justice
administration into motion, but once the action is taken by the victim of
crime, he/ she gets neglected or is set aside, and the State comes into play on
behalf of the victims. The Indian judiciary has played a very significant and
emphatic role in the development of our criminal justice system. Though the
Indian judiciary has made a lot of efforts in the area of human rights by
promoting several rights through their judgments, yet there is one field which
has been touched by the judiciary but nevertheless explored widely. That
particular area is the rights of victims of crime.
Personal
safety, especially security of life, liberty and property, is of great
importance to any individual. Peace keeping and maintenance of law and order is
extremely essential in any society, for the human beings to live peacefully and
amicably in any society without any fear of damage to the property or injury to
their lives. This possible in states where there is effective and strong
implementation of the penal laws. Therefore, the chief objective of the
criminal law is to protect and safeguard the public of the state by all means
and to maintain peace and order in the society.[1]
Thus, the criminal law consists of both the
substantive as well as the procedural law. The previous one defines the
offences and prescribes punishments for the same while the latter one,
administers the substantive law carrying the due process of law. In the absence
of the procedural criminal law, the substantive law does not hold any value and
is mere a piece of paper, because the enforcement force behind the substantive
law is the procedural criminal law of the country which brings the plea of a
victim to the adjudicatory body. The procedural law defines the process to be
carried out for the administration of criminal justice. The Indian criminal
justice system is governed overall by four laws:
1. The
Constitution of India, 1950
2. The
Indian Penal Code, 1860
3. The
Code of Criminal Procedure of India, 1973
4. The
Indian Evidence Act, 1872
The
object of the criminal justice administration is to secure the rights and
privileges of people against the deliberate interruption of offenders who
encroach the essential tenets and controls of the general public and of the
state. The criminal equity frame work is basically an instrument of social
control: society thinks of some practices so perilous and dangerous that it
either entirely controls their event or outlaws them outright. It is the task
of the justice providing agencies to keep these practices by catching,
arresting and rebuffing transgressors or preventing their future incidences. In
spite of the fact that society keeps up different types of social control, for
example, the family, school, religion, culture, ethics; they are intended to
manage morals in the society rather than maintain law and order and prevention
of crime. It is only the criminal justice administration that apprehends,
detain and punish the criminals and offenders.[2]
The
victim of criminal offence is overlooked many times and gets forgotten in the
criminal justice system. The consideration has essentially and dependably been
on the guilty party and the offence and not on the victim of crime. By the
beginning of the twentieth century, it can be seen that the position of crime
victim in the criminal justice system was insignificant. They played a role
mainly in reporting the crime to the police administration and there was
negligible legislative and government provision for compensation. The victim of
crime held a place of almost utter negligence for years but they have now been
acknowledged as a person worthy of consideration across the world.[3]
International
and National Perspective
The
First International Symposia on Victimology centered, for the first time,
particularly on victims, in Israel in 1973 and along these promoted the
foundation of the World Society of Victimology in 1979. The European Convention
on the Compensation of Victims of Violent Crimes was embraced by the Council of
Europe in 1983, the proposal on the position of the victims inside the
structure of criminal law and system in 1985, and the suggestion on help to
victims and the counteractive action of exploitation and victimization in 1987.
The United Nations Basic Declaration of Basic Principles of Justice for Victims
of Crime and Abuse of Power was embraced in 1985. The global community
accordingly, tried valiant endeavours to perceive and legitimise the rights and
privileges of the victims of crime at the grandest of platforms.[4]
The United Nations Declaration of Basic
Principles of Justice for Victim of Crime and Abuse of Power, 1985 defined
‘victim’ under Article 1 as:
1. “Victims
mean persons 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
violation of criminal laws operative with Member States, including those laws
prescribing criminal abuse of power.
2. A
person may be considered a victim, under this Declaration, regardless of
whether the perpetrator is identified, apprehended, prosecuted or convicted and
regardless of the familial relationship between the perpetrator and the victim.
The term ‘victim also includes, where appropriate, the immediate family or
dependents of the direct victim and persons who have suffered harm in
intervening to assist victims in distress or to prevent victimization.”[5]
According to Quinney: “The victim is a conception of
reality as well as an object of events. All parties involved in sequence of
actions construct the reality of the situation. And in the larger social
contracts, we all engage in common sense construction of the crime, the
criminal, and the victims” The Code of Criminal Procedure (Amendment) Act,
2008, added clause ‘wa’ to the principal Code which says, “victim” means “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 guardian or legal heir”.[6]
Therefore, a victim is a person who has suffered some sort of loss or injury
caused by the act or omission of the accused person.
Human rights are of the paramount consideration in the
administration of the criminal justice. India is a signatory to the Universal Declaration
of Human Rights, 1948 and has also ratified the two covenants i.e., The International
Covenant for Civil and Political Rights and The International Covenant for
Economic, Social and Cultural Rights. The Constitution of India, 1950
guarantees human rights under Part III, i.e., Fundamental Rights. The Directive
Principles of State Policy provides for the guidelines as to effectively
implement the fundamental rights. The decisions of the Supreme Court have given
strength to the provisions of the Constitution through its wide interpretation
of various Articles enshrined in the Constitution under Fundamental rights
specially Article 21.
Judicial activism has brought a wider concept of human
rights and legal rights as a mark of respect to fair justice. Under Article 21
Supreme Court has announced many judgments which have expanded the meaning of
right to live and personal liberty. Article 21 has been interpreted in sense of
right against torture, cruel or inhuman treatment or punishment, right to bail,
right to speedy trial, free legal services, right against solitary confinement,
immunity from indignity in custodial institutions, right to privacy, rights of
under trials, right to fair wages etc. Right to damages, or right to
compensation is another form of judicial activism to interpret article 21 where
it has been provided to victims of custodial deaths/ violence, victims of
crimes, be it rape, murder, riots or other kinds of crimes. The Apex Court has
not only widely interpreted Article 21 but Article 32 has also been given wide
interpretation. There are innumerable cases coming under article 32 which are
related to compensation or damages to the victims of crime, victims of state
irregularities or violence by state.
The provision of legal aid is there in the Constitution
of India itself which clearly lays down under Article 39-A that, “The State
shall secure that the operation of the legal system promotes justice, on a
basis of equal opportunity, and shall, in particular, provide free legal aid,
by suitable legislation or schemes or in any other way, to ensure that
opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities.”[7]
Despite this Article, and provisions of the Code of Criminal Procedure, 1973
like Section 304 which lies down:-
“Legal aid to accused at State expense in
certain cases –
(1) Where,
in a trial before the Court of Session, the accused is not represented by a
pleader, and where it appears to the Court that the accused has not sufficient
means to engage a pleader; the Court shall assign a pleader for his defence at
the expense of the State.
(2) The
High Court may, with the previous approval of the State Government, make rules
providing for – (a) the mode of selecting pleaders for defence under
subsection(1); (b) the facilities to be allowed to such pleaders by the Courts;
(c) the fees payable to such pleaders by the Government, and generally, for
carrying out the purposes of sub-section (1).
(3) The
State Government may, by notification, direct that as from such date as may be
specified in the notification, the provisions of sub-sections (1) and (2) shall
apply in relation to any class of trials before other courts in the State as
they apply in relation to trials before Courts of Sessions.”[8]
Across the globe, victims of crime are protected,
assisted, restituted and compensated by appropriate laws. But in India the
victims of crime play only an insignificant role in the criminal justice
process. The Criminal Law, law enforcement agencies, court procedures and the
administration of criminal justice are almost exclusively focused upon the
offender. When an offence is reported to the law enforcing authorities, they
look for an offender. They arrest an offender or a suspected offender. The law
enforcing authorities investigate victim only as means of finding the offender
and securing criminal prosecution against him/her. The offender is held for
court action and brought to trial; the victim is a witness for the state
against the offender. The convicted offender may be sentenced to fine or
imprisonment or placed on probation of good conduct, or he may be pardoned by
the state. In the whole episode, the victim is kept aside and left at his/her
own fortune without proper remedies. Criminal Law seems to be concerned mainly
to make an offender to pay his debt to society. Perhaps it is more important to
make him pay his debts to those whom he has injured.
Provisions in Criminal Law
In recent times, among the many reforms framed for
improving the criminal justice system is the one that advocates a
victim-orientation to criminal justice administration. Victim-orientation
incorporates more prominent regard and thought towards victims and their rights
in the investigative and prosecution process, provisions for greater choices to
victims in trial and disposition of the accused, and a scheme of
reparation/compensation particularly for victims of violent crimes. Though
there are some provisions under the Indian Constitution and some sections of
the Code of Criminal Procedure, 2973 to protect the rights of the victims and
for providing compensation, the criminal courts at the lower level in India
have ignored those provisions for a long time and not utilized them during
their sentencing processes.
When it comes to the proceedings of the courts the
victims of crime often go helpless and defenceless due to which the prosecution
is also not in a position and are helpless to provide justice to them. These
results in the justice delayed and denied though there are provisions in law to
help such victims of crime. Under Section 357 of The Code of Criminal Procedure,
1973 court is empowered to impose a sentence of fine or a sentence of which
fine forms a part, in its discretion, ordering the payment of compensation out
of the fine recovered, to a person for any loss or injury caused to him/her by
the offence, along with the sentence of imprisonment including a sentence of
death. The trial court is authorised under section 357(1) of Cr.P.C to impose
fines, to direct that the fine recovered be paid as compensation to the victim
of the crime. Where fine is not imposed as part of conviction by the court it
may further direct the accused to pay compensation to the victim though such
provisions are provided in the penal laws the lower courts do not frequently
resort to these. In addition to the conviction the court may order the payment
of compensation to the victim who has suffered by the action of the accused but
this power is not an ancillary to other sentences and is in addition thereto.
But due to ignorance or inconsideration towards the victims of crime such
practises are rarely invoked by criminal judicial system. It was a step forward
in the direction of justice delivering system by giving the victims of crimes
their one basic right of compensation, which the court has the power to restore
or rehabilitate the victim through compensation and to reassure that he/she is
not forgotten or left behind in the process of getting fair justice.
Through the judicial activism the higher judiciary in
India has taken a step forward in the direction of victim justice movement. In
the case of State of Punjab v. Gurmit Singh[9]
Ahmadi J. observed,
“A prosecutrix of a sex offence cannot be put
on par with an accomplice. She is in fact a victim of the crime. The Evidence
Act nowhere says that her evidence cannot be accepted unless it is corroborated
in material particulars. She is undoubtedly a competent witness under section
118 and her evidence must receive the same weight as is attached to an injured
in cases of physical violence. The same degree of care and caution must attach
in the evaluation of her evidence as in the case of an injured complainant or
witness and no more. What is necessary is that the court must be alive to and
conscious of the fact that it is dealing with the evidence of a person who is
interested in the outcome of the charge levelled by her. If the court keeps
this in mind and feels satisfied that it can act on the evidence of the
prosecutrix, there is no rule of law or practice incorporated in the Evidence
Act similar to illustration (b) to section 114 which requires it to look for
corroboration.
If
for some reason the court is hesitant to place implicit reliance on the
testimony of the prosecutrix it may look for evidence which may lend assurance
to her testimony short of corroboration required in the case of an accomplice.
The nature of evidence required to lend assurance to the testimony of the
prosecutrix must necessarily depend on the facts and circumstances of each
case. But if a prosecutrix is an adult and of full understanding the court is
entitled to base a conviction of her evidence unless the same is shown to be
infirm and not trustworthy. If the totality of the circumstances appearing on
the record of the case disclose that the prosecutrix does not have a strong
motive to falsely involve the person charged, the court should ordinarily have
no hesitation in accepting her evidence.”
In 2004, The Supreme Court concerning over the plight of
the victims of child sexual abuse gave certain guidelines with regard to their
physical and mental wellbeing. Since, such abuse has a tormenting and horrible
effect on the child, the court was very much empathetic towards the issue.[10]
In Thekkamalai v. State of Tamil Nadu[11],
the victim, raped by a police officer, approached the court through a writ
petition for the payment of fair and reasonable amount of compensation. During
the pendency of the case the accused was convicted and sentenced to ten years imprisonment.
The Madras High Court directed,
“Rape
is a crime not only against the person of a woman; it is a crime against the
entire society. It destroys the entire psychology of a woman and pushes her
into deep emotional crisis. Rape is therefore the most hated crime. It is a
crime against basic human tights and is violative of the victims most cherished
right, namely, right to life which includes right to live with human dignity
contained in Article 21. We find considerable substance in the submissions of
learned counsel for the appellant. Where a heinous crime of rape committed by
the police personnel, who are public functionaries, the matter clearly relates
to the violation of basic human rights as well as Fundamental right guaranteed
under Article 21 of the Constitution and the victim would be entitled to a fair
and reasonable compensation. It is resorted that the concerned Sub Inspector
was convicted by the trial court under Sections 366, 376(2)(a)(i), 384 and 342
of I.P.C. and sentenced to suffer rigorous imprisonment for ten years and to
pay fine amount.
The
trial court also directed the accused to pay Rs. 2,00,000/- and Rs. 50,000/- as
compensation to Lakshmi and Thekkamalai respectively. In the appeal filed by
the Sub Inspector of Police, the conviction under Sections 366 and
376(2)(a)(i)of I.P.C. as well as the payment of Rs. 2,00,000/- as compensation
to the victim Lakshmi was confirmed by this Court. It appears that the amount
of compensation has not been paid by the accused, who is presently behind the
bars.
In
our opinion, the ends of justice would be served if the amount of compensation
is enhanced from Rs. 75,000/- to Rs.5,00,000/-. It is brought to our notice
that pursuant to the order passed by the learned single Judge a sum of Rs. 85,000/-
(Rs. 75,000/- towards interim compensation and Rs. 10,000/- towards
rehabilitative measures) has already been paid to the victims Lakshmi and her
husband Thekkamalai. We, therefore, direct the State Government to pay the
balance amount of Rs. 4,15,00/- (Rupees Four Lakhs Fifteen Thousand only), with
simple interest at the rate of six (6) percent per annum from the date of the
order of the learned single Judge till date of payment, within a period of
eight weeks from today. Out of the total amount i.e. Rs. 4,15,000/- plus
interest accrued on the said amount, a sum of Rs. 5,00,000/- (Rupees Five Lakhs
only) shall be invested in the name of Lakshmi in a fixed deposit, initially
for a period of three years, with Tamil Nadu Power Finance Corporation and she would
be entitled to receive the interest accrues
on such deposit once in three months. The remaining amount shall be
released to the appellant and his wife Lakshmi jointly. State is at liberty to
take steps to recover the amount of compensation so paid to the victims from
the concerned delinquent police personnel by taking appropriate steps in
accordance with law.”
In Hari Shankar v. Sukhbir Singh,[12]
the Supreme Court directed the trial court should exercise the power of
awarding compensation to the victims of the crime under Section 357(3) of the
Cr.P.C. liberally, so as to meet the ends of justice in a better way. In
Mangilal v. State of M.P[13]
the Supreme Court dealt with the scope of Section 357 (3) of Cr.P.C in detail.
The court observed,
“The
power of the court to award compensation to the victims under Section 357 is
not ancillary to other sentences but is in addition thereto. Section 357 (1)
deals with a situation when a court imposes a fine or a sentence (including
sentence of death) of which fine also forms a part. It confers discretion on
the court to order as to how the whole or any part of fine recovered is to be
applied. If no fine is imposed, Section 357 (1) has no application. The basic
difference between sub-section (1) and (3) of Section 357 is that in the former
case, the imposition of fine is the basic and essential requirement; while in
the latter even the absence thereof empowers the court to direct payment of
compensation. Such power is available to be exercised by an appellate court or by
the High Court or Court of Sessions when exercising revisional powers”.
In Ratan Singh v. State of Punjab[14]
the Court said, “It is a weakness of our jurisprudence the victims of the
crime, and the distress of the dependents of the prisoner, do not attract the
attention of the law. Indeed, victim reparation is still the vanishing point of
our criminal law!”
Conclusion
[1] P.S.A. Pillai, Criminal Law 1 (Lexis, Nexis, Butterworths, New Delhi, 6th edn., 2006).
[2] Mohd
Abdul Karim and Mohd Erum Parvez Khan, “Right to Compensation of Victim Crime,
Victimization and Victomology in Bangladesh Perespective” 22(7) IOSR Journal of
Humanities and Social Science 81(2017), http://www.iosrjournals.org. ( last viewed
09-02-2020)
[3] “Analysis
of the Concept of Victimology under the Indian Legal System”, https://www.magzter.com (last viewed 09-02-2020)
[4] Pamela Davies, Peter Francies and Chris Greer (et al) Victims, Crime and Society: An Introduction 83-84 (Sage Publications, 2nd edn., 2017)
[5] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985.
[6]Section 2 (wa) Code of Criminal Procedure (Amendment) Act, 2008 at 35.
[7] The Constitution of India, 1950 at 22.
[8] The Code of Criminal Procedure, 1973 at 172.
[9] 1996 SCC (2) 384.
[10] Sakshi v. Union of India Supp (2) SCR 723.
[11] 2006 WLR 13 (DB).
[12] AIR 1988 SC 2127.
[13] 2004 (1) SCALE 42.
[14] 1976 SCC (4) 719.
A very well researched article. Victim compensation should not only be monetary but should also include rehabilitation of the victim.
ReplyDelete