"ASSESSING THE VIABILITY OF VICTIM IMPACT REPORTS IN THE INDIAN LEGAL SYSTEM" BY - INSIA ARORA
"ASSESSING THE VIABILITY OF
VICTIM IMPACT REPORTS IN THE INDIAN LEGAL SYSTEM"
AUTHORED BY - INSIA ARORA
INTRODUCTION
In any society, the pursuit of
justice is intrinsically tied to the protection and well-being of its citizens.
An integral aspect of this pursuit lies in acknowledging the profound impact of
criminal acts on victims and their families. In recent years, a growing
emphasis on victim rights and restorative justice has sparked interest in
introducing Victim Impact Reports (VIRs) as a means to ensure the voice of
victims is heard within the legal system. This legal research paper delves into
the feasibility and acceptability of implementing VIRs within the context of
the Indian legal system.
Victim Impact Reports, also known as
Victim Impact Statements (VIS) or Victim Impact Assessments, are written or
oral accounts provided by victims or their representatives to convey the
physical, emotional, and financial consequences of the crime they have endured.
The primary aim of VIRs is to provide judges and other stakeholders with a
comprehensive understanding of the aftermath of the crime on the victim's life,
thereby influencing sentencing decisions and promoting a more victim-centric
approach in the criminal justice process.
Despite the potential benefits of
VIRs in terms of empowering victims and fostering restorative justice, the
introduction of such a system raises several pertinent questions. The
feasibility of implementing VIRs necessitates a comprehensive evaluation of
existing legal frameworks, potential challenges, and the necessary safeguards
to protect the privacy and well-being of victims. Moreover, the acceptability
of VIRs depends on public perception, the readiness of legal practitioners, and
the level of support from stakeholders within the justice system.
This paper seeks to shed light on the
intricacies surrounding the implementation of VIRs in India. By examining the
potential benefits and challenges, this research aims to offer valuable
suggestions for the effective and equitable incorporation of VIRs within the
Indian legal system.
Furthermore, exploring the broader
implications of VIRs on victim support mechanisms, the role of the judiciary,
and the overall dynamics of the criminal justice process will be imperative. In
doing so, we can envision a more comprehensive understanding of the impact of
VIRs on the pursuit of justice and the reparation of victims.
In conclusion, this legal research
paper embarks on a journey to assess the viability and public perception of
introducing Victim Impact Reports in India. By evaluating the legal, practical,
and societal aspects, we aim to provide informed recommendations for enhancing
victim-centricity within the Indian legal system and fostering a more
compassionate and equitable approach to justice. Ultimately, the successful
integration of VIRs can significantly contribute to a more just and inclusive
society, where the voices of victims are not only acknowledged but also
embraced as a cornerstone of the justice-seeking process.
The rights of victims, and indeed victimology,
is an evolving jurisprudence. It must find fulfillment not by giving more pain
to the offender but by lessening the loss of a victim.[1]
Krishna Iyer J. said that it is a weakness of our jurisprudence that the
victims of the crime do not attract the attention of the law.[2] It
needs no citations or studies to know and understand the fundamental connection
that the harms caused to the victims of crimes are not just symbolic harm to
the social order; it is substantive harms. Victims of crime suffered immense
economic, emotional, physical, and mental trauma or agony. They often lost
their human rights to life and liberty with dignity. The offenders of crimes
are the violators of the constitutional and human rights of the victims.
However, the question is whether only offenders of crimes violate such rights
of the victims? In most of the criminal justice system globally, two types of
victims' rights have been very well recognized. These are the right to
participate in criminal proceedings and the right to be compensated for harms
or injury suffered. The State being the custodian of all fundamental rights is
duty-bound to protect the victims' rights. Therefore, in the welfare state,
where the State fails in preventing the crimes or falls in preserving the constitutional
and legal rights of the victims should not be categorized as a "secondary
violator" of the rights of victims? In this regard, there may be several
arguments and approaches from both sides; however, the undeniable truth is that
if justice is not done to the victim of the crime, criminal justice will look
hollow.
Recently, on 27 November 2020, the
High Court of Delhi at New Delhi, India passed a landmark judgment in Karan vs.
State NCT of Delhi[3] in
favour of the most unfortunates forgotten people in the criminal justice
administration system. The victims of crime!. In this judgment, the High Court
took cognizance of victims' plight concerning the criminal injuries
compensation. The Court showed its concerns over non-enforcement of the
victims' compensation provision provided under the criminal Procedure Code.
The Court was emphatic about the need
to protect the rights of victims of crime. Therefore, the Court has
categorically recognized compensation (pecuniary) to the victims of crime as
protecting their rights. It further emphasized that victims and their families
(secondary or tertiary victims) need may not be the same; it is bound to be
extensive and varied. Therefore, the Court believed that although the monetary
compensation to the victims of crime cannot reconcile their losses which they
suffered, it could be of some solace to them.[4]
The Criminal code of India provides
provisions for the victim compensation in Chapter XXVII of Criminal Procedure
Code (CrPC). However, the same has seldomly been applied by the concerned
Courts. The Court's discretionary powers in the chapter stated above are
related to the quantum of compensation to victims of crime only; therefore,
considering the said discretion for hearing on compensation is a misconceived notion.
The victim compensation provisions are mandatory.
In the backdrop above, the Delhi High
Court directed the Trial Courts to exercise their powers under Section 357(3),
CrPC, for awarding compensation. The High Court further directed the DSLSA to
submit a Victim Impact Report (VIR) with their recommendations in the
prescribed format provided in the judgment to the Trial Court, who thereof,
after considering the same, has to determine the compensation amount. The
purpose of VIR is to weigh the impact of crime on the victim. Its other
objective is to assess the accused's capacity for quantifying and awarding
compensation to the victim. From the standpoint of victimology, the main aim
and object behind formulating such a resolutory process are to deliver complete
and adequate justice to the victims.
Indian judiciary has always been the
guardian-protector of the constitutional and fundamental rights of the people.
By formulating a method concerning the victim, compensation is a progressive
step and can be considered part and parcel of judicial activism. The judiciary
has put the wheel of justice in motion. However, the strength of the spikes of
the wheel is yet to be checked. It has to pass the rule of enforceability. The
present paper has tried to explore the difficulties in its practical
implementation and further explore the viability of the Victim Impact Report-
Delhi Model (VIR-D) at the pan India level.
At this juncture, it is pertinent to
note that the VIP and the Victim Impact Statement or Assessment (VIS) are not
the same. However, they share the same contextual approach; that is, they
assess the impact of harm or loss caused to the victim due to crime committed
by the convict. However, they are distinct from each other based on their
scope, purposiveness, and procedure application. The Victim Impact Statement or
Assessment (VIS) is the old player of the field of victimology. The VIS is a
document of a victim's expression to the Court about how the crime has affected
or has been affecting him or her. This document is taken into account while
considering the sentencing of the convict.
In comparison, the VIR is a report
prepared by a third-party agency after conducting a summary inquiry. It is to
decide victim compensation. For the present paper, a limited part of VIS, which
is relevant for comparative studies, has been considered. In addition, the
present paper has tried to explore the suitability of the mode and procedure
provided in the judgment for awarding compensation.
VICTIM IMPACT REPORT VS. VICTIM IMPACT
STATEMENT
Victim Impact Report is already
mentioned earlier. On the cost of repetition, VIR is the report to be prepared
by a third person based on information provided to it. It consists of three
parts. First, the description of harm caused to the victim(s) due to commission
of a crime by the convict, second, the paying capacity of the convict, and
third, the recommendation regarding compensation component by the Third person.
The report is to be submitted in Court where the Court considers it for
granting compensation to the victims. However, the Court has to determine the
amount of compensation based on the material placed on the court record by the
parties and the argument advanced. Thus, the VIR is, at best, called an informative
document regarding the compensation amount in the position mentioned above.
A victim Impact Statement is a
statement of the harm, losses, injuries, or damages suffered by the victim(s)
regarding their perception and expressions of the emotional, physical,
psychological, or economic harm they suffered due to the commission of a crime.
It symbolizes the victim's active participation in the criminal justice system
as it allows the victim to share thoughts and feelings which will otherwise not
allowed at trials. In addition, it gives a chance to place on the court record
the impact of harm from the victim's perspective in a subjective manner. Thus,
one of the rights of the victim is to participate in criminal proceedings. The
same has also been emphasized upon by the Apex Court wherein the Court was
pragmatic about the necessity of the Victim Impact Statement to incorporate in
sentencing policy. The victim's involvement in proceedings further gives a
sense of satisfaction with the justice process and creating an avenue for
psychological healing and restoration. There are disadvantages also attached
with the VIS; that is, it can be misused by the victims using it as a weapon of
revenge or retaliation.[5]
Sharing VIS is a voluntary act on the victim's part, which means, if the victim
does not want to participate, he or she will not be forced to share the
statement. However, if the victim chooses to share the Victim Impact Statement,
then the offender may have the opportunity to cross-examine the victim in a
given case. In various countries such as the USA, Canada, Australia, Malaysia,
and South Africa, the Victim Impact Statement is part of sentencing policy and
is also consider for awarding compensation in some countries such as in the
USA; the VIS is being used for both the sentencing of the convict as well as
for compensating the victim.[6]
Analysis of the Victim Impact Statement is beyond the scope of this paper;
however, the mentioning of the same in brief is to understand its basic
connotes and to show the difference between the scope, nature, and purpose of
the Victim Impact Report from the Victim Impact Statement.
The question is whether VIR and VIS
can be substituted for each other? If yes, which one is better to opt for?
In general, the Victim Impact Report
is pro-restorative whereas, Victim Impact Statement is pro-retributive.
However, both deal with a similar fundamental point: the inquiry or analysis of
the impact of the harm caused to the victim due to the commission of a crime.
So, it can be comfortably supposed that they can be a substitute for each
other. Now the question remains which one could be better?[7]
ISSUES THAT MAY ARISE IN IMPLEMENTING
THE VIR-D MODEL INCLUDES
1. Adverse effect on Speedy justice.
The author understands that in applying the procedure in terms of the Karan
Case[8].
as described above, all the stakeholders of the justice administration system
have to face specific fundamental difficulties such as-
a. delay in passing judgment on
sentence is a highly probable outcome of the waiting period of at least 60
(sixty) days, ideally in every conviction case. It is assumed that all the
parties would act within the time frame prescribed.
b. However, in the absence of
empirical data, let's keep in mind the external factors that would adversely
influence the time frame, such as the availability of competent and authorized
human resources in time, general pendency of cases in Trial Courts, and working
culture of legal professionals and the courts. For instance, the delay in
submitting the convict's affidavit beyond ten days or delay in filing of
prosecution’s affidavit beyond 30 days cannot be ruled out even assumingly that
the delay was caused due to some just and plausible reasons.
c. Similarly, there is no time
prescribed for sending relevant records by the trial Court to the DSLSA. The
prescribed rule says "immediately" after receiving the affidavit from
the convict. The word "immediately" must not be construed as before
hands; it must be just and within a reasonable time or without unnecessary
delay.
d. Delay in mandatory inquiry,
recommendation, preparation of VIR, and submission of the same by the DSLSA
beyond 30 days from the date of receiving all the documents from all concerns
cannot be ruled out, especially when the Authority has to depend on persons of
different departments who are not directly in their control or supervision.
Also, there is no time frame or mandatory rules prescribed for the assistance
in inquiry within 30 days.
e. Also, there is no timeframe
prescribed for deciding the compensation by the Trial Court after receiving the
VIR from DSLSA.
Thus, the likelihood of delay in
delivering justice to the satisfaction of all the stakeholders cannot be ruled
out.
2. Significance of Victim Impact
Report. It appears that the Victim Impact Report is the least significant
document for the consideration of awarding victim compensation under Section
357 CrPC by the Court for the reasons that-.
a. As it appears, the Trial Court has
to determine the amount of compensation based on material provided and argument
advanced by the parties. Therefore, the VIR is relevant for consideration of
harms caused and payable capacity of the convict. However, the acceptance of
the recommendation of the DSLSA is not mandatory. Therefore, it can be
comfortably presumed that all the arguments qua the compensation to be awarded
shall remain open before the Trial Court even after the whole exercise done by
DSLSA as described above.
b. Another example, if the DSLSA
finds that the convict is not capable of paying, then there is no question of
giving recommendations.
c. Also, if the trial court also
finds the exact status of the accused, the Court has to invoke Section 357A of
CrPC. In that case, the matter shall again send back to the DSLSA. Moreover, it
is pertinent to note that the victim's compensation scheme under this provision
is limited to certain heinous crimes. It does not cover victims of all the
crimes, such as it does not cover loss/damages suffered by the victim due to
offence against property.
d. Inquiry under objection: In the
case where Section 357A is invoked, a different process is to be followed
because, in that case, the compensation is not to be paid by the convict to the
victim; therefore, the convict has no role to play. The compensation is to be
paid by DSLSA from the fund created for this purpose. However, in compensation
under Section 357(3) CrPC, the convict has to compensate the victim from his or
her funds. Thus, there is a high possibility of challenging the inquiry or VIR
before the Court of law by the convict on various grounds, such as refuting the
harm and its impact claimed therein, lack of fairness in inquiry, or report
based on incorrect information facts.
3. Lack of fairness. It appears that
there is no sanction attached to the victim's version of harm in the Victim
Impact Report. Therefore, it would depict a lack of fairness towards the convict
who is directed to compensate the victim without himself getting the chance to
cross-examine the victim in that regard.
4. No substantive benefits shall be
achieved. The process prescribed appears to be complexed in nature,
time-consuming, expensive, needs enormous human resources, and the Victim
Impact Report is not very effective.
5. Other factors. Such as monitoring
all the cases by DSLSA until they attain finality. In other words, until the
parties exhaust all the remedies up to the Apex Court. It will divert the
sources, funds, and resources of the legal cell authority from their other
necessary and practical tasks; or
Issues related to other statutory
provisions may also crop up, for instance, issues related to the right to
appeal, revisions, effect on limitation periods, the multiplicity of
litigations (such as two appeals may be preferred first against the judgment of
conviction and another later against the verdict on sentence), bail, jail, or
parole.
6. It is analyzed that besides other
complexity, the voluntariness of victim participation is missing in VIR- Delhi
Model (emphasized) because it is made a mandatory process in all conviction
cases.
7. It is a complex, expensive, and
time-consuming affair, especially keeping in mind the population of India. for
instance, in the year 2019, the total cases of conviction in Delhi were in
17,57430 Cases under IPC and 6356 Cases under Special laws. If we consider 365
days as working, even then, the ratio of cases that undergo the VIR-D process
will be 48 cases under IPC alone per day. One has to keep in mind the other
factors, such as the strength of population ratio per police personal, cases
per judicial officer, and infrastructure. The total convictions tally for all
over India is 8,37,075 cases in IPC and 13,78,322 Cases under Special laws.[9]
The points above are illustrative.
The ground reality could be explained and interpreted from the empirical data
in this regard. In the absence of empirical data, the Author hypotheses the
issues, analyze the same and tried to interpret the prescribed rules based on
known legal parameters of the criminal justice delivery system. In a nutshell,
for the actual practicability and suitability of the process, the specified
mode and the formulation of the victim Impact report need modification. The
same in the present form may not be viable enough to secure and ensure complete
justice to any of the stakeholders.
CONCLUSION
Retribution is one of the goals of
sentencing policy, and restoration is one of the goals of compensating policy.
Thus, to impart confidence to society in the criminal justice system, both
goals should be given equal importance. The steps taken by the judiciary are
commendable. However, the mechanism designed for enforceability is appeared to
be more promising on paper from its practicality standpoints. Its needs
extensive modification or alterations. Therefore, implementing the Victim
Impact Report Delhi (VIR-Delhi Model) should be deferred for the time being,
and extensive empirical and legal research should be carried out in a
time-bound manner to get fruitful results in the future. Also, till the coming
of an effective process, the Trial Courts can be directed to issue notice to
the victim to the effect that if the victim desires, they may participate in
the proceedings and share their Impact Statement (VIS) orally or in writing
before it.
Similarly, the concerned Court can
direct the accused or convict to file an affidavit of asset and income or
declaration that he or she is insolvent with relevant details. Thereafter,
before awarding compensation, the Court may make inquiries in such cases where
it deemed to do so. The factors for considering the impact of harm mentioned in
the VIR-D shall be work as a guideline for the Court to determine the quantum
of compensation.
To conclude, the feasibility and
acceptability of Victim Impact Reports (VIRs) in India have been thoroughly
examined in this legal research paper. The analysis reveals that introducing
VIRs in the Indian legal system holds considerable potential to enhance
victim-centricity and provide a deeper understanding of the impact of crimes on
victims and their families. While the concept aligns with principles of
restorative justice and victim rights, its successful implementation requires careful
consideration of various challenges.
1. Legal Framework: To pave the way for VIRs in India,
it is crucial to enact comprehensive legislation outlining the purpose, scope,
and guidelines for VIR submission. The law should ensure that VIRs are
admissible in court proceedings and hold a significant weight in sentencing
decisions.
2. Training and Sensitization: Judges, lawyers, and law enforcement
personnel should receive specialized training on handling VIRs to understand
the nuances of victim trauma and ensure empathetic consideration during legal
proceedings. Sensitization programs can promote a victim-centric approach
within the justice system.
3. Privacy and Safety Measures: Given the sensitivity of VIRs, robust
measures should be put in place to protect the privacy and safety of victims
and their families. Anonymity options and restricted access to VIRs must be
implemented to prevent any potential harm.
4. Support Mechanisms: Implementing VIRs should be
accompanied by strengthening victim support mechanisms. Providing counseling
services, legal aid, and rehabilitation resources to victims is essential to
ensure their well-being throughout the legal process.
5. Public Awareness Campaigns: Conducting public awareness campaigns
on the importance and benefits of VIRs can help overcome potential resistance
and skepticism. Educating the public about the positive impact of VIRs on
victims' lives can garner support for the initiative.
6. Pilot Programs: Before full-scale implementation,
conducting pilot programs in select regions can help assess the effectiveness
of VIRs, identify challenges, and make necessary adjustments based on
real-world experiences.
7. Interagency Collaboration: Collaborative efforts between
various agencies, such as law enforcement, social services, and the judiciary,
are vital to ensure a seamless integration of VIRs into the legal system and to
provide holistic support to victims.
8. Research and Evaluation: Continuous research and evaluation
of the implementation of VIRs will provide valuable insights for refinement and
improvement. Regular assessments can help identify potential biases and ensure
the integrity of the VIR process.
In conclusion, the introduction of
Victim Impact Reports in India can be a transformative step towards a more
victim-centric legal system. With careful planning, collaboration, and public
awareness, VIRs can become an essential tool to address the needs and rights of
victims, promoting a fair and compassionate justice system in the country.
[1] Maru
Ram v. Union of India, (1981) 1 SCC 107
[2] Rattan
Singh v. the State of Punjab, (1979) 4 SCC 719
[3] Karan
vs. State NCT of Delhi, Delhi High Court, dated 27.11.2020 in Crl. A. No.352 of
2020
[4] Ibid.
[5] Ismail,
S., 2021. Victim Impact Statement In Criminal Sentencing: Success Or Setback
For The Criminal Justice Process?. [online] Available at: <https://www.researchgate.net/publication/322405791>
[Accessed 4 August 2023].
[6]VICTIM
IMPACT STATEMENTS: KNOW YOUR RIGHTS. [online] Available at:
<https://www.justice.gov/sites/default/files/usaowdla/legacy/2013/02/27/vns_Victim%20Impact%20Statements%20Know%20Your%20Rights.pdf>
[Accessed 4 August 2023].
[7] Sarita
K. Sharma, Feasibility and Acceptability of Victim Impact Report (Delhi Vir
Model) in India – An Analysis, 3 (4) IJLSI Page 358 - 371 (2021), DOI:
https://doij.org/10.10000/IJLSI.11899
[8] Karan
vs. State NCT of Delhi, Delhi High Court, dated 27.11.2020 in Crl. A. No.352 of
2020
[9] Crime
in India 2019. [online] Available at:
<https://ncrb.gov.in/sites/default/files/CII%202019% 20Volume%201.pdf>
[Accessed 4 August 2023].