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RIGHTS OF VICTIMS UNDER THE INDIAN CRIMINAL JUSTICE SYSTEM
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RIGHTS OF VICTIMS UNDER THE INDIAN
CRIMINAL JUSTICE SYSTEM
AUTHORED BY - ARYA S NAIR
Student
Government Law College, Ernakulam
ABSTRACT
Victims have few legal rights to be
informed, present and heard within the criminal justice system. Victims do not
have to be notified of court proceedings or of the arrest or release of the
defendant. The victim of the crime sets
the criminal justice in motion by giving information to the police which is
expected to reduce in writing. The position of victims who happen to be women
or children has not merited the attention it deserves in the procedural statute.
The support, protection, information, practical needs, reparation of the
victims shall be recognized in the criminal justice system. The penal
philosophy of India has accepted the concepts of prevention of crime and
treatment and rehabilitation of criminals which have been reinterated by
various judgements of Supreme court. Victims have less rights under Indian
criminal justice system because the state undertakes the full responsibility to
prosecute and punish the criminals by treating the victims as mere witnesses.
INTRODUCTION
The
drafters of the United Nations Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power have tried to give the widest scope in the
definition of the term victim to give it a larger coverage. They have defined a
victim as, “persons who, individually or collectively, have suffered harm,
including physical or mental injury, emotional suffering, economic loss or
substantial impairment of their fundamental rights, through acts or omissions
that are in violation of criminal laws operative within the Member States,
including those laws proscribing criminal abuse of power”. This has made it
possible to include not just the main victim who has suffered the trauma of the
crime first-hand but also extends to people who have suffered vicariously
through the main victim, to also be included in the definition of a crime
victim.[1]
By reading
the title, a question arises in our minds: Who is a victim? Generally, people
believe a victim is a person who has been harmed physically. But it is not
entirely true.
A victim
is a person who has been harmed physically and mentally. As per Section 2 (a)
of the Code of Criminal Procedure 1973, a victim is a person who has
suffered any loss or injury caused because of the act or omission for which the
accused person has been charged. [2]
PROVISIONS FOR VICTIMS IN INDIAN
CRIMINAL LAWS
After years of debates and
discussions some of the provisions of international community of 1985 were
recognized when the UN Declaration was adopted by the General Assembly. In India,
The Protection of Human Rights Act, 1993 defines “Human Rights” as, “Human
Rights” means the rights relating to life, liberty, equality and dignity of the
individual guaranteed by the constitution or embodied in the International
Covenants and enforceable by Courts in India.”[3]
Taking into consideration the
pathetic condition of the crime victims, ascertainment of their human rights
has become the need of the day. India is a frontrunner in advancing the cause
of human rights but when it comes to human rights of victims of crime, the
picture appears to be very bleak with victims.[4]
In general, a victim's rights can be
classified in to following classes;
1.
Right
to be treated with self-respect
2.
Right
to be treated with self-respect
3.
Right
to be present
4.
Right
to be heard
5.
Right
to rational protection from terrorization and injury
6.
Right
to restitution
7.
Right
to information
8.
Right
to compensation especially for crimes of violent nature
9.
Right
to speedy proceedings
10.
Rights
to privacy[5]
In our Indian criminal justice
system, a victim suffers everyday as the crime is committed against him/her and
also because he/she has to undergo a lot of manipulation of the existing
system. Whereas, the person who is found guilty is sheltered, nursed, lighted,
and entertained in prison for which the state gives the expenditure from the
taxes that the victims of crime are not provided with.[6]
Justice V. R Krishna Iyer in Rattan
Singh v. State of Punjab [7]correctly
said that:
It is a weakness of our jurisprudence that victim of crime and the distress of the dependents of the victim do not attract the attention of law. However, the reimbursement for victims is still the disappearing opinion of our criminal law. This shows the deficiency in our system, which must be rectified by the legislature.
It is a weakness of our jurisprudence that victim of crime and the distress of the dependents of the victim do not attract the attention of law. However, the reimbursement for victims is still the disappearing opinion of our criminal law. This shows the deficiency in our system, which must be rectified by the legislature.
INTERNATIONAL HUMAN RIGHTS NORMS IN
INDIA:
Article 51 of the Indian
Constitution imposes an obligation upon the State to promote respect for
International law and treaty obligations.
Regarding
treaty obligations, India has acceded to the International Covenant on Civil
and Political Rights (ICCPR), 1966 on 10th April 1979. India has signed the
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW), 1979 on 30th July 1980 and ratified it on 9th July 1993. India has
acceded to the Convention on the Rights of the Child (CRC), 1989 on 11th
December 1992. India has ratified the International Convention on Elimination
of All Forms of Racial Discrimination (ICERD), 1965 on 3rd December 1968. India
has signed the Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment, 1984 on 14th October 1997.
Regarding
India’s status in relation to ICCPR, it was observed by the Supreme Court in
D.K. Basu case[8]
India
is a signatory to ICCPR, 1966. It has a binding effect on India because of its
being a ratifying State. To give effect to the provisions of ICCPR, an
ordinance was promulgated that resulted into the Protection of Human Rights
Act, 1993 of late, the reference to International Covenants being made by
Indian Judiciary can frequently be found in various judgments.[9]
VICTIMS’ HUMAN RIGHTS IN HUMAN
RIGHTS ACT, 1993
The
Protection of Human Rights Act, 1993 (No. 10 of 1994) not only defines ‘human
rights’ but prescribes for the constitution of Human Rights Commission, Human
Rights Courts or the Special Courts and Special Investigation Teams to look in
to the cases of alleged violation of human rights. The Human Rights Commission
may give its recommendations or may take any other action as it may deem fit
for the protection of human rights[10].
The
Protection of Human Rights Act, 1993 (No. 10 of 1994) defines “Human Rights” as
the rights that relate with life, liberty, equality and dignity of the
individual as either guaranteed by the Constitution of India or the rights as
embodied in the International Covenants that are enforceable in India.[11]
As
far as rights guaranteed by the Constitution of India are concerned, Part III
of Constitution of India guarantees certain rights as fundamental rights and
rovides a protection mechanism for the same in case of their violation in the
form of Article 32 and 226.[12]
In
case of international covenants, the Human Rights Act says that to find out
rights embodied in International covenants, a reference has to be made to the
International covenant on civil and political rights and the international
covenant on economic, social and cultural rights as adopted by the general
assembly of United Nations on 16th December 1966. Adding to this list the
Protection of Human Rights (Amendment) Act, 2006 provides for insertion of any
other covenant or convention that has been adopted by the General Assembly of
the United Nations and has been specified by the central Government through
notification.[13]
The
Human Rights Act provides that a victim can approach the Human Rights
Commission or the Commission itself can take steps to inquire suo moto or it
can inquire on the direction or order issued by any court in case there is
a. Violation
of Human Rights or an abetment thereof,
b. Or there is
a negligence on part of a public servant to prevent such violation.
Most of the
time we see how the main attention of the State and its functionaries is to
punish the accused and in doing so the interests and rights of the victim get
ignored. To ensure that justice is properly dispensed the United Nations
General assembly adopted the Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power which recognised 4 major rights for victims
of a crime. These rights are:
1. Access to
justice and fair treatment
2. Restitution
3. Compensation
4. Assistance
Access to justice and fair treatment
Looking at the
provisions of law, one can easily make out that criminal justice is more tilted
towards ensuring the protection of the accused. The main attention of the State
is to hear him out and if his guilt is proved then take all measures to ensure
that he does not go unpunished. We can find various provisions like section 56
and section 76 of CrPC that make it mandatory for the accused to be presented
before a judicial magistrate within 24 hours of arrest without any delay shield
the accused from unnecessary harassment. However, concerning the victim, the
rights are not well codified under the Indian criminal justice system. [14]
Despite the tilt
towards the accused, there are still provisions granting rights on the victim
which help in eliminating further victimization. Section 439 provides that
before granting bail to the accused the victim has to be informed unless for
cogent reasons court thinks it would not be practicable to inform him.
Furthermore, by the virtue of section 439(2), the victim can also appeal
against the bail granted to the accused. This provision ensures that the
accused is not eased out without the knowledge of the victim. When a crime
happens, it is treated not just as a crime against the individual but as a
crime against society. Therefore, State is the prosecutor in such cases and a
Public Prosecutor or an Assistant Public Prosecutor is in charge of the case.
In case the victim wants to engage any pleader then he can do so. Such a leader
has to act under the direction of the Public Prosecutor or the Assistant Public
Prosecutor. Section 154 of the Code prescribes the procedure for lodging the
first information report (F.I.R). As per this section, the victim can either
give information relating to the commission of the cognizable offence in
writing or orally to the officer in charge of the police station who shall then
reduce it to writing. In case the officer in charge of the police station
refuses to take down the information then the victim can the substance of such
information to the Superintendent of Police who can either conduct the
investigation himself or ask any of his subordinates to do the same. It has
been a much-debated question whether lodging FIR is mandatory or if there is
discretion upon the officer in charge of the police station. This issue has
been resolved in the case of Lalita Kumari v Government of U. P[15].
where it was held that section 154 of the Code is a mandatory provision and in
case a person comes with the information of a cognizable offence then the
officer in charge of the police station is bound to register the FIR. This
mandatory nature of the provision ensures that it is easy and swift access to
justice for the victim, judicial oversight and it also reduces the chances of
manipulation in criminal cases.
Even in cases of plea
bargaining, the opinion of the victim in granting it is considered. Plea
bargaining is basically a negotiation between the accused and the prosecution
for a lesser punishment. The outcome of plea bargaining is based on mutual
satisfaction and it may even involve payment by the accused to the victim for
the expenses he had incurred. This provision is based on fairness.
Compensation/restitution
It has been a topic of
much debate and discussion whether the baton of the justice givers ends at the
final result of the case, i.e., merely punishing the wrongdoer or does it
extends to ensuring that the aggrieved party is rehabilitated. Rehabilitation
of the victim becomes even more essential in certain grave crimes like rape
etc. and without providing a proper mechanism for rehabilitation the whole
criminal justice system would fall shallow. The true idea of justice can only
be achieved when there are not just punitive measures for the wrong-doer but
also providing rehabilitative measures for the ones who fall prey to such
wrongful acts. The fines and other punishments are given to the accused
by the court are punitive measures. The criminal courts have to deal with the
punitive part and punish the offender for his wrongful acts, whereas, the civil
court has to get the victim compensated by the accused. Along with the punitive
measure, the criminal court may also allow compensation to the crime victim
that can be done without causing any disturbance to the civil and criminal
process and would also save time, money and efforts. The provision related to
compensation is encapsulated under section 357 of CrPC. However, compensation
under this section can only be provided if the accused has been convicted and
sentenced. While deciding the compensation the court will look into both
physical and financial loss caused to the accused. If the court orders a
sentence of fine or any other sentence of which a fine is a part then the
maximum compensation that can be given, as per section 357(1) is the maximum
fine that can be imposed as compensation as to be given out of the fine so
imposed. Furthermore, section 357(3) can be construed liberally as it allows
compensation only in cases where a fine is not imposed. The object of sub-clause
3 of section 357 is to allow compensation in those cases where fine does not
form a part of the punishment given.[16]
There are several case
laws where the courts have ordered compensation to the victim in case the State
or its functionaries were unable to protect the life, liberty or dignity of
such a victim. The provision for victim compensation was introduced in CrPC in
2009 by adding section 357A which mandated the State Government to coordinate
with the Central Government and prepare a scheme fund for victim compensation.
It provides that where the trial court feels that the compensation awarded or
in those cases where the accused has been discharged or acquitted then
compensation can be awarded to the victim for his rehabilitation. Clause 2 of
section 357A provides that the where the court makes a recommendation for
compensation the State Legal Services Authority (hereinafter SLSA) or the
District Legal Services Authority (hereinafter DLSA) has to decide the quantum
of punishment that has to be given. There can even be cases where the offender
cannot be identified. In such cases, the Code provides relief to the victim or
his dependents who can make write an application for such compensation from
SLSA or DLSA who shall then conduct an enquiry within 2 months and if satisfied
award adequate compensation.[17]
The court has time and
again held that section 357 regarding compensation should be construed
liberally and the court should record its reason for allowing or not allowing
the same. [18]
Right to Information
General information of
interest to victims should be provided by the criminal justice system. It
includes information on the right to attend a proceeding, submit a victim
impact statement, sue the offender for money damages in the civil justice
system, file for a protection order, and collect witness fees for their
testimony, among others. The victim should be informed of various proceedings
in the criminal justice process such as the arrest of the accused, bail release
and related proceedings, dismissal of charges, negotiated pleas, sentencing
hearings, parole release and related proceedings etc. [19]
Right to the
Expeditious Return of Personal Property
Sometimes, a victim of
a crime may suffer the loss of property. This loss can either be due to theft
or the seizure of property by the police. Generally, the property seized is
returned to its rightful owner when it is no longer required as evidence in
criminal prosecution. Some states have attempted to impose specific time
requirements for the return of property so that the victim is not deprived of
his property for a long time.[20]
Right to a Speedy Trial
This right is provided
by many jurisdictions to crime victims. Moreover, some specific cases are given
priority as compared to others due to their facts and circumstances by several
jurisdictions. Such priority cases can be cases involving children or
vulnerable elderly victims.[21]
Right to Privacy
Furthermore, many
victims back down from seeking justice because of the fear of harassment or
retaliation from their known ones and offenders. Victims have the right to
protect their privacy such as name, address, phone number etc. In addition,
particular communications, such as conversations between husband-wife,
doctor-patient, attorney-client etc. are safeguarded from judicial disclosure[22].
Victim's Rights under Indian Penal Code
The Indian Penal Code
is applicable to all Indian citizens who commit crimes within the Indian
Territory. It is a list of offences and its punishment. The Code describes
offence as an act or omission punishable by law. One of the major advantage to
victims protection was received by the Criminal Law Amendment Act, 2013 since,
for the first time, it had introduced a number of new crimes for protection of
women against acid attacks (Sec. 326A20 and 326B21), sexual harassment (Sec.
345A), voyeurism (Sec. 345C) and stalking (Sec. 345D) and it also widened the
scope of definition of rape (Sec. 375) in IPC.[23]
The two significant
remedies of criminal justice system are compensation and restitution which now,
have become civil remedies during the modern period. This invited the attention
of various jurists to analyze the problems of victims from a different
perspective to improve their position and bring them on equivalence with the
accused.[24]
Victim's Rights under Code Of Criminal
Procedure
Indian criminal law in
a broad sense includes both the substantive criminal law and the procedural
criminal law. Here, the Substantive criminal law describes offences and
punishments for each of those offences, whereas the procedural criminal law
manages the substantive law. In any circumstance where the procedural criminal
law is absent, the substantive criminal law would be considered as almost
worthless.[25]
The basis of the
process that consists plea bargaining are found in Section 206(1) and 206(3) of
the CrPC. Plea Bargaining as a concept was introduced by The Law Commission of
India in its 142nd, 154th and 177th reports. In these reports, the Committee
advocated that the concept of plea-bargaining should be introduced into the
Indian criminal justice system to enable the past resolution of criminal cases
and lessen the burden on the courts.[26]
The victim is
represented by the Public Prosecutor who is appointed by the state. A proviso
has been added to Section 24(8) which allows the victim to choose an advocate
of his choice for assisting the public prosecutor according to the amendment of
2008.However the Code identifies few rights that favor the victims but they are
not as operative as those of rights of accused. For example, the code grants a
right to victim to choose his own private lawyer but the authority given to
that lawyer is limited to appoint where he can only submit the written
arguments after the evidence is recorded and only after the court permits.[27]
a)
Rights Of Victims During Filing FIR;
The police,
being the primary authority play an important since they are the first
authority to examine the case from a victim's perspective. Regrettably, in
India the victims are still provided with the treatment as mentioned in the
United Nation Handbook on Justice for Victims. The police, despite of being the
primary authority to investigate into the case, are totally unaware of the
international developments in areas such as victimology and well treatment that
should be given to the victims.[28]
Negative
and ill treatment by police themselves will form a wrong perception of Indian
criminal justice system in the eyes of victims because as stated by United
Nation Declaration, treatment with compassion and respect for their dignity is
no doubt found missing at this stage. Section 25 of the Indian Evidence Act, No
confession made to a police officer shall be proved as against a person accused
of any offence, is not taken seriously and the government and the police
department end up following the policy of sanitizing the police to a better
treatment of victims.[29]
b)
Rights Of Victims During Judgement
In a
criminal case, after the judgment is pronounced, the victim's role in that case
ceases to exist. But the victim should be offered with some rights after the
judgement in order to ensure complete justice.
Compensation to victim;
while pronouncing the
judgement, the victim should be given the right to get compensation. According
to section 357(3) of the Code of Criminal Procedure, the court has the right to
grant compensation for any loss or injury suffered by the victim, even in cases
where fine was not levied upon on the accused.
The Supreme Court of
India in Harikishan & State of Haryana v. Sukhbir Singh[30] observed
that courts in India rarely make use of section 357 of CrPC to grant
compensation to victims of crime. Keeping in mind the recommendations given by
the Malimath Committee and the Law Commission, the legislature inserted a
provision in section 372 of the Code through the Amendment Act of 2008 to
provide victims their right of appeal.
VICTIMS’
RIGHT TO JUSTICE IN INDIA:
CONSTITUTIONAL
PROVISIONS
1. VICTIMS’ RIGHT TO
PROTECTION:
Article 21 relates with
the Human Rights of every person and thus has an equal Application for
protection to an accused as well as the victim of a crime. To safeguard the
human rights of every person is the duty of the State. It was emphasized by the
Constitution Bench of Supreme Court that[31],
“The said Article in its broad application not only takes within its fold
enforcement of the rights of an accused but also the rights of the victim In
certain situations even a witness to the crime may seek for and shall be granted
protection by the State.”
Article 39-A directs the State to provides for such conditions that the
operation of the Legal system promotes justice, on a basis of equal
opportunity.
2. VICTIMS’ RIGHT TO
ACCESS TO JUSTICE
Emphasizing the status of victim in Sonalal soni v. State of Chhattisgarh
[32]case,
court referred to the victim friendly steps being taken by the legislature and
judiciary in that direction
3. VICTIMS’ RIGHT TO FAIR
INVESTIGATION
Hon’ble Supreme Court has given wider interpretation to Article 21 by
recognizing right to fair trial including right to fair investigation as part
of right to life and liberty. Explaining the essentials of a fair trial Court
made it clear that, “Prompt registration of a case by a competent police
officer followed by swift investigation resulting in a quick final report are
all concomitants of a fair trial. To be fair to the victim, fair to the accused
and fair to the society at large are the constitutional obligations of the
police. If there is any deviance, it is likely to result in failure of
justice.”[33]
4. VICTIMS’ RIGHT TO
CONSTITUTIONAL REMEDIES
Article 226 entrusts the same power in every High Court in the Country to
issue appropriate directions, orders or writs in case of violation of
fundamental rights so as to ensure victim justice.[34]
CONCLUSION
It is important to
remember that no country's good criminal justice system can afford to ignore
the rights and plights of crime victims. With an ever-increasing number of
crimes, it is critical that the system gives equal weight to the rights of both
the accused and the victims in order to ensure equality and justice.
The victimology
movement, which has recently gained traction in several parts of the world,
advocates for making victims an integral part of the criminal justice system,
which can be accomplished by providing victims with equal opportunities to be
heard at various stages of the criminal justice process, ensuring that they
receive proper justice. On that basis, it is said that India's current criminal
justice system requires an administration that is more sympathetic to the
predicament of victims and extends victim rights protection.
[1]Madhavi Raje,” Victim’s rights under the Indian
criminal law system”, https://blog.ipleaders.in/victims-rights-under-the-indian-criminal-law-system.
[2] Megha Singal, “Rights of Victims
in India”, https://lawbhoomi.com/rights-of-victims-in-india/
[3] Ravi Kumar Tyagi,” Victims Human Rights In India:
Constitutional References”, https://ignited.in/a/57881
[4] Ibid
[5] ibid
[6] Yukta K, “Rights of Victims in
Indian Criminal Justice System”, https://www.legalserviceindia.com/legal/article-5591-rights-of-victims-in-indian-criminal-justice-system.html#:~:text=Right%20to%20rational%20protection%20from,for%20crimes%20of%20violent%20nature.
[7] 1980 AIR 84 1980 SCR (1) 846 1979
SCC (4) 719
[8] (1997 (1) SCC 416)
[9] Supra at 3
[10] ibid
[11] ibid
[12] ibid
[13] Supra at 3
[14]Rachit Garg , “Victim’s rights under the
Indian criminal law system”,
https://blog.ipleaders.in/victims-rights-under-the-indian-criminal-law-system/#Access_to_justice_and_fair_treatment
[15] (2014) 2 SCC 1.
[16] Supra at 14
[17] ibid
[18] ibid
[19] Megha Singal, “Rights of Victims in India”, Law Bhoomi,
https://lawbhoomi.com/rights-of-victims-in-india/
[20] ibid
[21] ibid
[22] Supra at 19
[23] Yukta K, “Rights of Victims in
Indian Criminal Justice System” Legal services India ,
https://www.legalserviceindia.com/legal/article-5591-rights-of-victims-in-indian-criminal-justice-system.html
[24] ibid
[25] Supra at 23
[26] ibid
[27] ibid
[28] Supra at 23
[29] ibid
[30] 1988 AIR 2127 1988 SC
[31] Ravi Kumar Tyagi, “Victims
Human Rights In India: Constitutional References”, Ignited Minds , https://ignited.in/a/57881
[32] 2005 SCC on Line Chh 132.
[33] Supra at 31
[34] ibid
Article Information
RIGHTS OF VICTIMS UNDER THE INDIAN CRIMINAL JUSTICE SYSTEM
Authors: ARYA S NAIR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/23
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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