“Victims should come first”.
-Maria Julia Hernandez
The sequence of criminal law is highly absorbing and requires an unravelling space of myriad fact with a vibe on the society,the state,the criminal and the victim. The context of study of the normative rules of the perspective theory needs a depth study with an equation of understanding of appropriate action of the states in India as well as certain states abroad. Crime degrades the social fabric and every victim of the crime suffers to which we, as a society apprehends to punish the criminal but the momentum of the justice call must be more than the punishment. I.e. it must seek to heal the wounds of the vehement victim who has been torn apart emotionally, physically, financially by the blaze of the crime against him.This is often quoted as difficult but must be undertaken as essential goal. Essential because we are living in a society that guarantees equality of justice to all the people. If the government has done nothing for the victims till date it is because the society has been trying to reduce the criminal rate rather than expanding the effort on reducing the victimisation.The reason for the same can be traced on as the combination of ideological or psychological motives or through combination of both which has tended to blame the victim of violence nearly as much as that of the criminal. But the latent fact remains that we have started to understand the reasoning of the theory so there is a huge need of renewal of emphasis as well as enhanced sensitivity to understand the rights of the victim.
As we all know the world is full of crime and criminals, tragedy and violence.Crime is a social phenomenon no society whether primitive or modern or developing or developed had been left free from its clutches.More than 50 years ago Justice Benjamin N. Cardozo of US Supreme Court said that-
“Justice, though due to accused, is due to accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.”
Victimology as an academic term contains two elements: One is the Latin word “Victima” which means victim, the other is Greek word “Logos” which means system of knowledge or science and a discipline.
At present, a crime victim or the complainant is the only witness for the prosecution. Whereas on the contrary the accused has been loaded with rights but the victim doesn’t have any resort to rights during the criminal proceedings. It is also seen in many of the cases that in order to get the case registered at the police station the dependence on the mercy of the concerned Police officers sometimes gives the room to vengeance by the victim for the crime committed against him. Despite plentiful and sufficiency of constitutional provisions, our criminal justice system in India seems to impose a mindless permissiveness towards the accused and the convicted criminal with the corollary of subordination to the rights of the victim, and it appears that all intents and purposes they are overlooked.The Code of Criminal Procedure, 1973 has recognized the principle of victim compensation. Section 250 authorizes magistrates to direct complainants or informants to pay compensation to people accused by them without reasonable cause. Again Section 358 empowers the court to order a person to pay compensation to another person for causing a police officer to arrest such other person wrongfully. Finally, Section 357 enables the court imposing a sentence in a criminal proceeding to grant compensation to the victim and order the payment of costs of the prosecution. However, this is on the discretion of the sentencing court and is to be paid out of the fi ne recovered.
Victim offender study was the central focus of early pioneers in the field of victimology ,like Hans Von Hentig, he explained the concepts of “victim vulnerability” and “victim culpability” and also explained there is no more concepts supporting victims.
The declaration of Basic Principles of justice for victims of crime and abuses of power (UN general assembly,1985) as it provided that the basic framework which has been vociferously been debated and accepted by many developed nation which unfortunately is still not oriented in the Indian Police.Even today in Indian Evidence Act section 25 says no confession made before the police shall be proved as against a person accused of any offence. But rather the Police and government pursue a policy to sensitizing the police for better treatment to victims. The Handbook says that “Victims have a valid interest in the prosecution of the case and should be involved at all stages of the proceedings” but rather we have a huge way to go to realize it.
When we couture the Indian culture of criminal justice there are certain recommendations which calls for reforms in the justice to improve the conditions of victims
“Indeed, history is nothing more than a tableau of crimes and misfortunes.”
- Affirmative action of the higher Judiciary: Restitution to victims despite the absence of any special legislation to render justice in India the honourable Supreme Court has taken stern actions to protect rights of the victims and abuse of power .Restorative theory has been adopted by the court and compensation has been provided.( Sukhdev Singh vs.State of Punjab (1982 SCC (Cr) 467), Balrajvs . State ofU .P . (1994 SCC (Cr) 823), Giani Ram vs . State of Haryana (AIR 1995 SC 2452), Baldev Singh vs . State of Punjab (AIR 1996 SC 372).)
- Justice for Rape Victim: Guidelines for Victim Assistance In Bodhisattwa Gautamvs .SubhraChakraborty (AIR 1996 SC 922), 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.) It is necessary, having regard to the Directive Principles contained under Art. 38 (1) of the Constitution of India, 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; Compensation for victims shall be awarded by the Court on conviction of the offender and by the Criminal Injuries Compensation Board
- State Compensation for Victims of Abuse of Power As early as 1983, the Supreme Court recognized the need for state compensation in cases of abuse of power by the State machinery. In the landmark case of RudulSahvs . State of Bihar (AIR 1983 SC 1086), the Supreme Court ordered the Government of Bihar to pay to RudulSah a further sum of Rs.30,000 as compensation, which according to the court was of a “palliative nature”, in addition to a sum of Rs.5,000, in a case of illegal incarceration of the victim for long years. Similarly in Saheli , a Women ’ s Resources Centre through Mrs . NaliniBhanotvs . Commissioner of Police , Delhi Police (AIR 1990 SC 513), the Court awarded a sum of Rs.75, 000 as state compensation to the victim’s mother, holding that the victim died due to beating by the police. In another landmark case of D .K .Basuvs . State of West Bengal (AIR 1997 SC 610), the Supreme Court held that state compensation is mandatory in cases of abuse of power and said that “To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience”.
Also there are various recommendations that have been made by various committees which say that:
- The Law commission of 1996 said tin its report that the state should provide for the assistance to the victims out of their own funds where there is an acquittal or where the offender is not traceable, but the victim is identified and also where the offence is proved.
- Justice Malimath Committee has made many recommendations for improving the conditions of the victim
- Also the National commission that review the working of the constitution has advocated a victim orientation to criminal justice administration with greater respect and consideration towards victim and their rights in the investigative processes.
Also there has been recent trend to take care of special category of victims which sparks as follows
- The protection of Women from domestic violence act 2005 is a major achievement in this regard after a long struggle .A police officer or a magistrate who has received a complaint of domestic violence has duty mandatory to inform the victim of her right to obtain a protection order and other services where in default by the accused results in imprisonment of 1 year with Rs. 20,000 or both.
- Prevention of child abuse and victim protection empowering the child is to prevent them from abuse and victimisation.Therefore in reference to Unnikrishnan case education has been made compulsory to children to make them aware of their rights.
- The National Commission for protection of the children is one of the bold step made to understand the rights of the child.
- Prevention of Caste-Based Victimization and Protection for Victims: The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 this is an act to prevent atrocities against the members of the Scheduled Castes and Scheduled Tribes. Under this Act, compensation to victims is mandatory, besides several other reliefs depending on the type of atrocity. The victims are entitled to receive the compensation.
Therefore there are many other reforms or suggestions that can be made for proceeding coming years are that “ignorance unlimited is the real cause for the individuals becoming the victims of the criminal justice system” hence, calls for a huge mass campaigns is necessary for criminology, victimology. Also there must be huge spin head of Compensation, Restitution and Reparation policy to them and the compensation process must be with conformation of social value. There is also need dire need of comprehensive legal code for victim, then only the embarking step of justice in altruistic form be obtained.Also the natural sequence of rendering justice can be obtained by considerate and sympathetic treatment by the police, hospitals, prosecution and courts with prompt restitution.
The victimisation is the relation between the victim and the offender and victimology is the science of study of victimisation. There are various countries in which the programme of victimisation is running well and it leaves no room of any temporizing the victim or witness. The concept of victimology in practise is not found in our country and we should take a strong note to codify the theory of victimology to give a proper structure to the omnipresent criminal justice system in India with a fugitive appraisal to the approach to the doyen concept of Victimisation.
‘Need for a Paradigm Shift in the Justice System’ by MurugessanSrinivasan, Jane EYRE MATHEW.