ROLE OF JUDICIARY IN PROTECTING VICTIMS’ RIGHTS IN INDIA (By-Sushmita Pankaj)
The Indian Judiciary has
so far played a greater role in protecting the rights of victims in criminal
justice system. It tried to fill the gaps where the law is inadequate or found
wanting in protecting the interests of the victims. The important contribution
of the apex court which we can’t ignore is the compensatory jurisprudence that
it evolved, to give compensation to victims of crime or dependents of victim. The
evolution of compensatory jurisprudence is the classical example of judicial
activism where the Court gives compensation for the violation of fundamental
rights including the violation of basic human rights. No doubt that the courts
in India have realised the role of victim in the criminal justice system and
addressed his concern. But it has laid more thrust in awarding the compensation
using its constitutional jurisdiction than recognising other rights like right
of participation, right oppose bail to the accused etc. Though the compensation
is an effective remedy as it gives much needed monetary relief to the victims,
yet it cannot be a sole remedy for the victims who suffer more emotional injury
than physical injuries. The brief review of the existing legal frame wok in
relation to rights of victims of crime reveals that expect in the area of
providing compensation, very little has been done either statutorily or through
schemes to address the entire range of problems faced by victims of crime.
There is a need to take the fresh look at the position in which the victim of a
crime is placed in our criminal justice system. The Indian legal regime has
failed to protect victim’s rights in two fundamental ways: failing to enact
suitable laws and failing to implement both the letter and spirit of the law.
It is suggested that the
victims should guaranteed a right to get information about the developments of
the case at every stage. Suitable amendment is to be made to Code of Criminal
Procedure to insert a provision requiring the court to issue notice to the
victim informing about the stages and dates of trial. It is suggested to
provide legal aid and assistance to the victim in the same way the accused has
been provided. The victim should be provided an opportunity to be heard before
granting bail to the accused. The court while granting bail to the accused
shall satisfy that the safety of the victim shall not be affected by the
accused. Victim should be allowed to participate in the negotiations during
plea bargaining cases. It is suggested to provide the victim an opportunity to
be heard before prosecution decides to withdraw the prosecution. Further, the
victims shall have right to challenge the withdrawal of prosecution at the
trial stage itself.
The Criminal Law
Amendment Act, 2008 requires all the states to create victim compensation fund
in order to pay compensation to the victims. When accused fails to pay fine or
compensation, he is required normally to undergo imprisonment for additional
period. In reality there are many cases of default for variety of reasons. This
results in denial of compensation to the victims. Therefore, it is suggested
that in such cases the state has to pay the compensation to the victim and
there after recover the same from the accused by attaching his property.