RIGHTS OF VICTIMS IN THE INDIAN CRIMINAL JUSTICE SYSTEM by Shreya Singhi

INTRODUCTION

Until the 1970s, the criminal justice system all over the world practically did not recognise one of two parties involved in a criminal act[1]. The traditional systems relied on the family and tribespeople of the victim to provide aid, assistance and reliefto the victims of aggression. This informal social network, the offender and the entire social group as a whole was expected to collectively deal with and aid in the recovery and rehabilitation of the victim.[2]

The increasing complexity of society and the reluctance of victims to criminally prosecute offenders compelled the States of many countries assume the responsibility of prosecuting the accused. Certain behaviours of criminals were perceived not offences as against individuals, but against the collective of individuals, the Society at large.[3] The onus was, therefore, on the State to investigate the offence, prosecute the accused, and decide and enforce the sentence of the convict. The State is presumed to represent the victim in criminal proceedings so that the victim was not required to actively participate in the prosecution of the offender. Eventually, the criminal justice system had “forgotten” the victim, owing to the practical absence of the victim from the adjudicative process. An inordinate amount of attention was given to providing the defendant with every opportunity to prove his/her innocence or present a defence to avoid State-imposed sanctions such that the victim was almost entirely excluded.

A BRIEF HISTORY OF VICTIMOLOGY

Several criminologists and sociologists like Hans Von Hentig, Benjamin Mendelsohn, and Marvin Wolfgang[4] have since taken up the study of “victimology” to understand the victim’s experience and problems and to develop a more integrative criminal justice system and judicial administration that ensures comprehensive justice.

These studies of the plight of victims and theories of victimization have led to a fundamental re-evaluation of the position of the victim in judicial administration. Margery Fry in the 1950s called for protection shelters for battered women and reconciling the victim and the offender[5]. New Zealand in 1963 adopted the first State compensation scheme for victims of violent crimes. The First International Symposia on Victimology focussed, for the first time, specifically on victims in Israel in 1973 and subsequently led to the establishment of the World Society of Victimology in 1979. The European Convention on the Compensation of Victims of Violent Crimes was adopted by the Council of Europe in 1983, the recommendation on the position of the victim within the framework of criminal law and procedure in 1985, and therecommendation on assistance to victims and the prevention of victimization in 1987. The United Nations adopted the Basic Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power was adopted in 1985.[6] The international community thus, made valiant efforts to recognize and legitimize the rights of victims at the grandest of platforms.

THE UN DECLARATION

The UN Declaration recognized four basic rights of victims[7], namely,

  • Access to free and fair treatment- Judicial and administrative mechanisms that are responsive to the victims; victims be treated with respect and compassion and are given their right to redressal; the judicial and administrative processes be representative of the victims and that they are informed of their rights and roles in the fair process; and to avoid unnecessary delays in providing relief;
  • Restitution- the victims and their families must be entitled to fair restitution for expenses incurred because of victimization; return of property harmed;
  • Compensation- the State must pay fair compensation to the victims and their families if such compensation is not fully available from the offender for significant bodily injury or mental incapacitation, and
  • Assistance- the victims must be informed of the assistance mechanisms in place; the police, health, and other officials must be sensitized to the needs and problems of the victims, and assistance programs through governmental or voluntary means be provided to the victims.

COMMITTEE ON REFORMS OF CRIMINAL JUSTICE SYSTEM

Victims from vulnerable classes or cultural backgrounds or a particular gender, like minorities, migrants, victims of sexual violence and civilian victims of war as well as refugees are often made subjects of a second level of victimization. This is called secondary victimization, or in some cases, institutionalised victimization. At times, it may amount to insensitive and inappropriate treatment and marginalization of victims of aggression by the judicial mechanism, the police, prosecutors, and judicial officials. Secondary victimization may occur because of the inability of the judicial officials and institutions to integrate the perspective of the victim and balance it with the rights of the accused.

The Ministry of Home Affairs formed a Committee under the Chairmanship of Justice Malimath to scrutinize the Criminal justice system in India and suggest reforms to the same. The Report discussed, at length the loss of faith of the people in the justice system. The Committee observed that the victims were deprived of their legal rights and did not have a significant role in the criminal proceedings leading to a system that did not value the loss or inconvenience caused to the victim. Talking about faith in the Justice System, the Committee observed:

“……. People by and large have lost confidence in the Criminal Justice System …. Victims feel ignored and are crying for attention and justice …. there is need for developing a cohesive system, in which, all parts work in co-ordination to achieve the common goal.”[8]

The Report recognized two types of rights given to victims in jurisdictions around the world, namely, participation in criminal proceedings and the right to compensation for the damage and interim relief.[9]

The Report rued the minimum role of the victim in the trial procedure of the country and suggested that the victim’srole be more active like in the European system. It suggested that the victim should be allowed to assist in the investigation and examination of the accused to ensure fair proceedings to both parties. It further suggested that the victims be given the right to prefer an appeal against an adverse order decision of a trial court and that the right of representation by lawyer given to the defendant must also be extended to victims.

The Committee observed that the focus of attention of the system had shifted from the “real victim who suffered the injury to the offender and how he is dealt with by the State”[10]. The victims had the right to be compensated for the injury suffered only if the State had been able to prove the culpability of the offender and was punished with a death, prison sentence or fine.

CONCLUSION

The Indian Constitution and the Criminal laws in India promote the principle of victim compensation. The provisions under Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) provide for social, economic, and political justice and assistance in cases of “disablement and other cases of undeserved want”[11]. Similar provisions call for everyone to “develop humanism”[12] and guarantees a right to life and liberty[13] obligating the State to compensate victims in cases of criminal violence[14].

Criminal Law similarly provides for victim compensation[15] and provides a certain amount of discretion to the victim in deciding bail of the accused[16]. However, unlike some other countries of the world, India lacks direct legislation for the protection of victims. The dominant role of the State, indifference of police and judicial officials, and insufficient protection of victims has resulted in alienation of the victims from the judicial process.

In India, victims of crime, especially sexual violence, suffer irreparable damage and injury as a result of the crime. The impact of such crime is complex and varied and requires a sympathetic and receptive justice system in order to provide them with the required aid and assistance. The recommendations made by the Committee headed by Justice Malimath throw sufficient light on the path that the current justice system must take to make it more inclusive of the perspectives of all parties without prejudice to any one.

[1]ShlomoGioraShoham, Paul Knepper, Martin Kett, International Handbook of Victimology, 27

[2] UNODCCP,Handbook on Justice for Victims(New York, 1999)

[3]UNODCCP, Handbook on Justice for Victims(New York, 1999)

[4]Marvin F. Wolfgang, Victim Precipitated Criminal Homicide, 48 Journal of Criminal law and Criminology (1957)

[5]UNODCCP, Handbook on Justice for Victims(New York, 1999)

[6]S. Muralidharan, Rights of Victims in the Indian Criminal Justice System, National Human Rights Commission Journal, available at http://www.ielrc.org/content/a0402.pdf , last seen on 31/01/2017.

[7]U.N. General Assembly, Basic Principles of justice for Victims of Crime and Abuse of Power,A/RES/40/34 (29/11/1985)

[8]Ministry of Home Affairs, Government of India, Committee on Reforms of Criminal Justice System, 75

[9]Ministry of Home Affairs, Government of India, Committee on Reforms of Criminal Justice System, 76

[10]Ministry of Home Affairs, Government of India, Committee on Reforms of Criminal Justice System, 77

[11] Art. 41, the Constitution of India.

[12] Art. 51A, the Constitution of India

[13] Art. 21. The Constitution of India.

[14]Murugesan Srinivasan & Jane Eyre Mathew, Victims and the Criminal Justice System in India: Need for a Paradigm Shift in the Justice System.

[15] S. 357, The Code of Criminal Procedure, 1973.

[16]S. 439(2), The Code of Criminal Procedure, 1973.

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