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AN ANALYSIS OF ROLE OF THE STATE IN THE ADMINISTRATION OF JUSTICE WITH SPECIAL REFERENCE TO JUSTICE TO VICTIMS OF CRIME
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AN ANALYSIS OF ROLE OF THE STATE IN
THE ADMINISTRATION OF JUSTICE WITH SPECIAL REFERENCE TO JUSTICE TO VICTIMS OF
CRIME
AUTHORED BY - DR. RAJENDRAKUMAR
HITTANAGI
Abstract:
The State, community and parties to
crime have prominent role to play in the administration of criminal justice
system. Hitherto the criminal justice system was more concerned with punishing
the offender. Fortunately, the focus is shifting towards meeting the needs of
victims of crime also. A state, community and an offender are all having an
obligation to fulfill the loss suffered by a victim of crime. Roles of State
and community in ensuring justice to victims of crime have to be properly
analyzed. Theme of this paper is to explore as to how state and community have
to use their potential to ensure justice to victim of crime. Family group
conferencing is one method that has been tried in some western countries to
realize justice for victim of crime. India has been experimenting with
community based dispute settlement mechanism which makes sure that the demands
of victim are met and the feeling of victim of being ignored is minimized to
certain extent. This paper attempts to critically analyze role the state and
community can play in ensuring justice to victims of crime in India.
Key words: criminal justice system, victim of crime, State, Community,
compensation
I. Introduction:
From the dawn of civilization to the
present day, legal systems have been experimenting in refining the justice
delivery system to make it more easily accessible, prompt and effective.[1] The institutions of nyaya panchayat, guild courts and
people’s courts are some of their manifestations in the past.[2] Even institution of family has
played a vital role in ensuring justice to the parties affected by the crime.
In India, the “top down” model of justice administration through modernized
techniques does not yield satisfactory result was realized in the post internal
emergency period with the experience of gross human rights violations by the
system itself because of delay, formalism, expenses, and lack of communitarian
participation.[3] In reaction to this state of
affairs, Art.39-A was incorporated into Part-IV of the Constitution of India
for promoting equal justice for all. Rights of the parties affected by the
crime got streamlined as a feature of justice delivery system. Some attempts
were made for strengthening the rights of victims of crime. As a mechanism of
rendering to each person his or her due, a system had to evolve just and fair
procedure to protect life, personal liberty and other interests. In spite of
its best efforts, legal system could not mould litigation as a satisfactory
method of resolving the disputes nor has its search for appropriate model
reached final destination.[4]
All legal systems must have the goal
of promoting justice to victims. This goal is the other side of the criminal
justice system’s spectrum because every crime has simultaneously the offender/s
and victim/s. Balance of justice can ill-afford to ignore any of the sides. The
very genesis of criminal law is traceable to a set of principles that primarily
aimed at compensating the victim. A duty had been prescribed upon wrongdoers to
compensate the victims of offences against property in addition to undergoing a
process of purification under ancient Indian Law. The Muslim Law also
recognizes the rights of victims to participate in criminal trial and exercise his
option of punishment or compensation. This is another historical factor that
evinces the significant role of the victim in the process of administration of
justice.
The state’s assumption of
responsibility to control crimes, and modernization’s increased focus on reform
of prisons and prisoner and comforts to the accused, relegated the position of
victim into insignificance and vanishing point of criminal law.[5] One should ask question whether the
responsibility of the State ends merely by registering a case, conducting
investigation and initiating prosecution and whether apart from taking these
steps, the State has further responsibility to the victim.[6] The State is under an obligation to
provide not only compensation but also rehabilitation to victims or their
family members irrespective of the fact that whether the state or its
functionaries are guilty of any wrong. Irrespective of the result of criminal
prosecution victim needs to be compensated in addition to the concept of
compensating the victim by way of public law remedy in writ jurisdiction. In view of this felt need, a provision is
made in Cr.PC, now in Bharatiya Nagarik
Suraksha Sanhita 2023, for the payment of compensation to victims. Sec. 395
and 396 of BNSS, 2023 deal with the payment of compensation and victim
compensation scheme respectively. Courts
have observed to the effect that interim compensation ought to be given at the
earliest in any proceedings. In ancient societies, it was standard practice to
require an offender to reimburse the victim or his family for any loss caused
by the offense. The primary purpose of such restitution was not to compensate
the victim, but to protect the offender from violent retaliation by the victim
or the community. It was a means by which the offender could buy back the peace
he had broken.[7]
There is a paradigm shift in the
approach of judiciary towards victims of crimes who were held entitled to
reparation, restitution or compensation for loss or injury suffered by them.
This shift from retribution to restitution began in the mid 1960s and gained
momentum in the decades that followed.
The 154th Law Commission Report
devoted an entire chapter to 'Victimology' in which the growing emphasis on
victim's rights in criminal trials was discussed extensively. Increasingly the
attention of criminologists, penologists and reformers of criminal justice
system has been directed to victimology, control of victimization and
protection of victims of crimes.[8]
The principles of victimology have
foundations in Indian constitutional jurisprudence. Article 41 of the
Constitution of India mandates, inter alia, that the State shall make effective
provisions for "securing the right to public assistance in cases of
disablement and in other cases of undeserved want." So also Article 51A
makes it a fundamental duty of every Indian citizen, inter alia 'to have
compassion for living creatures' and to 'develop humanism'. If emphatically
interpreted and imaginatively expanded these provisions can form the
constitutional underpinnings for victimology.[9]
The question is whether the plenitude
of the power vested in the Courts under Section 357 & 357-A of Cr.PC,
notwithstanding, the Courts can simply ignore the provisions or neglect the
exercise of a power that is primarily meant to be exercised for the benefit of
the victims of crimes that are so often committed though less frequently
punished by the Courts. In other words, whether Courts have a duty to advert to
the question of awarding compensation to the victim and record reasons while
granting or refusing relief to them?[10] This power is conferred to take
steps to reassure the victim that he or she is not forgotten in the criminal
justice system. It is a well designed measure of responding appropriately to
crime as well of reconciling the victim with the offender. It is, to some
extent, a constructive approach to crimes.
It is imperative to educate the
investigating agency as well as the trial Judges about the need to provide
access to justice to victims of crime, to collect evidence about financial
status of the accused. It is also imperative to create mechanisms for
rehabilitation measures by way of medical and financial aid to the victims. The
remedy in civil law of torts against the injury caused by the accused is
grossly inadequate and illusory.
Sympathizing with the plight of
victims under Criminal Justice administration and taking advantage of the
obligation to do complete justice under the Indian Constitution in defense of
human rights, the Supreme Court and High Courts in India have of late evolved
the practice of awarding compensatory remedies not only in terms of money but
also in terms of other appropriate reliefs and remedies. Medical justice for
the Bhagalpur blinded victims, rehabilitative justice to the communal violence
victims and compensatory justice to the Union Carbide victims are examples of
this liberal package of reliefs and remedies forged by the apex Court. The
decisions in Nilabati Behera v. State of Orissa[11] and in Chairman, Railway Board v.
Chandrima Das[12] are illustrative of this trend of
using Constitutional jurisdiction to do justice to victims of crime.
Substantial monetary compensations awarded have been against the
instrumentalities of the state for failure to protect the rights of the victim.
These decisions have clearly
acknowledged the need for compensating victims of violent crimes irrespective
of the fact whether offenders are apprehended or punished. The principle
invoked is the obligation of the state to protect basic rights and to deliver
justice to victims of crimes fairly and quickly.
According to V. R. Krishna Iyer,
J.“It is a weakness of our jurisprudence that the victims of crime, and the
distress of the dependants of the prisoner, do not attract the attention of the
law. Indeed, victim reparation is still the vanishing point of our criminal
law”.[13] D. P. Wadhwa, J. observed that in
our efforts to look after and protect the human rights of the convict we cannot
forget the victim or his family in case of his death or who is otherwise
incapacitated to earn his livelihood because of criminal act of the convict.
The victim is certainly entitled to reparation, restitution and safeguards of
his rights. Criminal justice would look hollow if justice is not done to the
victim of the crime. A victim of crime cannot be a ‘forgotten person’ in the
criminal justice system. It is he who has suffered the most. His family is
ruined particularly in case of death and other bodily injury. This is apart
from the factors like loss of reputation, humiliation, etc... An honour which
is lost or life which is snuffed out cannot be recompensed but then monetary
compensation will at least provide some solace.[14]
As against these developments, two
integrated factors that try to help in restoring the right balance by focusing
on justice to victims are human rights approach and post-modernist search for
traditional solution. The important factors that are guiding the growth of the
law in this sphere are International human rights instruments, legislative and
judicial contributions and reports of Law Commission and Committees. According
to P. Ishwar Bhat, the extent of development in this sphere falls short of the
social expectations, and thus disappointing the justice-demanding minds.[15]
II. Scheme for victim protection:
As per the UN Declaration of the
Basic Principles of Justice for the Victims of Crime and Abuse of Power, 1985
the term “victim” includes any person who, individually or collectively, has
suffered harm, including physical or mental injury, emotional suffering,
economic loss or substantial impairment of his Fundamental Rights, through acts
or omissions that are in violation of criminal laws. It is very much essential
to render justice to victims of crime which consists in recognition and
protection of their several rights. They are entitled to the mechanisms of
justice and prompt redress for the harm suffered; right to information about
such mechanisms; right to treatment and assistance; right to fair restitution
by the offender; and in the alternative, right to be compensated by the state.[16] Under the Constitution of India
support to victim oriented reforms got crystallized by extending the logic that
procedure established by law under Article 21 should be just, fair and
reasonable, and should result in protection of dignified life and personal
liberty not only of the accused persons but also of the victims of offences and
wrongful acts. The justifications for victim-orientation are several: (i) victim is the unfortunate recipient of
harm, loss or injury, especially when crimes arise from deep-seated economic
dissatisfaction and social maladjustment;(ii) state has the responsibility of
protecting the life, limb and property of the subjects, and its failure should
be made good by a compensatory system;(iii) victim needs protection against
retaliation by the accused; and (iv) his role in helping investigation and
prosecution is crucial, and to be used with adequate opportunity for
participation, and should not be an object of harassment and privacy
encroachment.[17] There has been only a belated realization
about the need to equip the legal system with sufficient victim-orientation.
The relevant legislative provisions, human right principle, Law Commission
report and Justice V. S. Malimath Committee report have oriented towards
rendering justice to victims.
II.1 Judicial Response to protection of victim’s interest: As per the direction of the Supreme
Court in Delhi Domestic Working Women’s
Forum v. Union of India[18]the National Commission for Women
formulated a scheme for compensating the rape victims. In Hari Singh v. Sukhbir Singh[19] the apex court directed all the
courts to exercise the power to grant compensation to victims of crime
liberally so as to meet the ends of justice in a better way. This power of
court is not ancillary to other sentences but it is in addition there to. The
Supreme Court in Revada Sasikala v. State of A.P.[20] awarded a compensation of Rs. 3
lakhs to a victim of acid attack in addition to the sentence awarded and
penalty imposed upon the convict. In Tekan
v. State of M.P.[21] the Supreme Court fixed Rs.8000/- as
monthly compensation payable by the State throughout life time of rape victim
who was blind girl raped with a false promise of marriage and pregnancy
occurring from the same. The Karnataka High Court directed the DLSA to award a
compensation of Rs. 3lakhs to a minor girl who was victim of rape and who could
not terminate pregnancy at 31st week.[22]
Victim’s right to participate in
criminal proceedings has been recognized in various decisions. In Mallikarjun Kodagali v. State of Karnataka[23] the apex court observed “The rights
of victims of crime is a subject that has, unfortunately, only drawn sporadic
attention of Parliament, the judiciary and civil society. Yet, it has made
great progress over the years. It is our evolving and developing jurisprudence
that has made this possible. But we still have a long way to go to bring the
rights of victims of crime to the centre stage and to recognize them as human
rights and an important component of social justice and the rule of law.”[24] Justice Malimath Committee recommended for
change in the law so as to provide for victim’s right to implead as a party to
the criminal proceeding where the offence is punishable with imprisonment for
seven years or more. The 221st Report
of the Law Commission of India suggested in 2009 to insert a provision in the
CrPC providing an opportunity to the victim to file an appeal in case of
acquittal, low quantum of punishment or inadequate compensation. A provision to
this effect was added to section 372 of CrPC in 2009. Now Section 413 of BNSS
2023 governs the matter. In this regard, there is a need to take shift from a
purely adversarial system to a mix of accusatorial and inquisitorial system of
administration of justice.[25]It is pertinent to note the
observations made by the Supreme Court in Zahira
Sheikh (Best Bakery) case:
“… in a criminal case the fate of the
proceedings cannot always be left entirely in the hands of the parties, crimes
being public wrongs in breach and violation of public rights and duties, which
affect the whole community as a community and harmful to the society in
general. The concept of fair trial entails familiar triangulation of interests
of the accused, the victim and the society and it is the community that acts
through the State and prosecuting agencies. Interests of society are not be
treated completely with disdain and as persona non grata.”[26]
III.
Restorative
Justice
Restorative Justice is one form of
social justice. Restorative justice is a humanistic form of settling disputes
that strives to reconcile the needs of victims and offenders with the needs of
the community.[27] It focuses on repairing the harm of
the injury. Two models of restorative justice used particularly in situations
involving youths and their families are victim-offender mediation and family
group conferencing. Throughout history, local families and communities and
traditional cultures have developed ways of managing conflict and of bringing
an offender to accountability to the community.[28] These forms of righting wrongs were
ritualized but based on communication among members of the community and
families of both parties. These forms of justice were found in all cultures.[29] In the Navajo tradition, for
example, peacemaking is a form of communal response to help people who have
been harmed by another.[30] Restorative justice suggests that
the most important fact about crime is that it causes harm to individuals,
their families and communities.[31] The most salient question thus
becomes “How can we best repair that harm?” not, “How can we punish crime?”
Instead of focusing on a past wrong, what is needed is a form of justice that
helps orient offenders toward the present and future state of affairs, toward
membership in the community rather than removal from it. What is needed is a
three pronged system of justice; justice for the individual offender, the
victim, and the community.
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.
In Bodhisattwa Gautam v. Subhra
Chakraborty[32] the apex 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. The 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 as follows:
1.
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 counselling or medical assistance from
other agencies;
2.
Legal
assistance at the police station while she is being questioned;
3.
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;
4. A list of Advocates willing to act in these cases should be kept at the police station for victims who need a lawyer;
4. A list of Advocates willing to act in these cases should be kept at the police station for victims who need a lawyer;
4.
The
Advocate shall be appointed by the Court, in order to ensure that victims are
questioned without undue delay;
5.
In
all rape trials, anonymity of the victims must be maintained;
7. 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.
7. 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.
IV.
Indian
families:
The family system in India is playing
its role in ensuring justice to the victims of offence and wrongful acts. Some
of the experiences the authors wish to share in this article which may help in
bringing some improvements in the legal system.
One incident involving theft of
golden ornament:
The author himself came across one
theft incident in one family. A married woman allowed her own sister’s son to
stay with her family for education purpose. All the family members showed love
and affection on that boy. But unfortunately that boy was not interested in
pursuing his education. That boy was in the company of bad friends. The boy
decided to discontinue his education and while leaving the home of his
relatives, he committed the theft of golden ornaments when no other member of
the family was present. It was a shocking incident for that family. They did
not lodge police complaint against that boy. They took this issue with the
family members of that boy. The family members of both the parties sat together
and decided to allow that boy to continue his education. But that boy did not
participate in any family functions and he started avoiding the members of his
relative families. The family members of both parties succeeded in making that
boy to realize the consequences of his offence. The members of family of that
boy were asked to make good the loss suffered to the relative family. This
incident brings home the fact that punishment is not the only solution in the
form of justice to the victims of the offence and wrongful acts. The punishment
would have removed that boy from the community. Even the members of victims’
family were not interested in sending that boy to the prison which would have
spoiled the life of that boy. This incident shows that if the culture of the
family is good, it can bring youth on the right path which is very much
required for preserving the health of community and the Nation.
V. Conclusion:
A restorative family justice model
can help in healing victims and helping offenders to repair the damage they
have done. In terms of its ability to incorporate native rituals in healing
meetings and in inclusion of religious concepts those are culturally specific
to the participants, this model has special appeal for the people. The
perceived need is for a new system of restorative justice based on social and
economic justice and on concern and respect for all victims and victimizers, a
new system based on remedies and restoration rather than on prison punishment
and victim neglect, a new system rooted in the concept of a caring community...
[where] power and equality of all social primary goods—liberty, opportunity,
income, wealth, and the bases of self-respect—are institutionally structured
and distributed to all members of the community and where the spirit of
reconciliation prevails.[33]
[1] P.Ishwar Bhat, Law and Social
Transformation (Lucknow, Esatern Book Company, 2009) at p.820
[2] Id.
[3] Id.
[4] Id.
[5] Id. at 846.
[6] Suresh and Anr v. State of
Haryana Criminal Appeal No.420 of 2012 at. 9
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] (1993) 2 SCC 746.
[12] AIR 2000 SC 988
[13] Rattan Singh v. State of
Punjab,(1979) 4SCC 719
[14] State of Gujarat v. Hon’ble High Court of Gujarat,(1998) 7SCC 392
[15] P. Ishwar Bhat, Op-cit., at p.846.
[16] UN Resolution Number 40/34
November 1985. Principles 4to 8.
[17] P.Ishwar Bhat, op.cit., at 847.
[18] (1995) 1 SCC 14.
[19] (1988) 4SCC 551
[20] (2017) 4 SCC 546
[21] (2016) 4 SCC 461
[22] L v. State of Karnataka,
2019 SCC Online Kar 3520.
[23] (2019) 2 SCC 752
[24] P.Ishwar Bhat, Law and Social
Transformation (Lucknow, Esatern Book Company, 2022) at p.855.
[25] Ibid. at p.856.
[26] Ibid. at p.857.
[27] Katherine Van Wormer,
Restorative Justice: A Model for Social Work Practice with Families in Vol.84
No.03 Families in Society, at 441.
[28] Id.
[29] Id.
[30] Dennis Sullivan and Larry Tifft , Restorative
Justice: Healing the Foundations of Our Everyday Lives, Monsey, NY: Willow Tree
Press, 2001.
[31] Gordon Bazemore, Community
Justice, and a Vision of Collective Efficacy: The Case of Restorative
Conferencing in Criminal Justice, 2000.
[32] AIR
1996 SC 922
Article Information
AN ANALYSIS OF ROLE OF THE STATE IN THE ADMINISTRATION OF JUSTICE WITH SPECIAL REFERENCE TO JUSTICE TO VICTIMS OF CRIME
Authors: DR. RAJENDRAKUMAR HITTANAGI
- Journal IJLRA
- ISSN 2582-6433
- Published 2025/03/04
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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