- Legal Provisions Regarding Victims’ Rights
ICC statute defines victim as “natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the ICC”[1]. Articles 1 and 2 of the UN General Assembly Declaration of the Basic Principles of Justice for Victims and Abuse of Power provide for the definition of the term ‘victims of crime’. UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power has recognised four major components of the rights of victims of crime, which are access to justice and fair treatment[2], restitution[3], compensation[4] and assistance.[5] The Europe Recommendation on the Position of the Victim in the Framework of Criminal Law and Procedure, 1985 and Statement of Victims’ Rights in the Process of Criminal Justice also works on the same principles. The Council of Europe Recommendations on Assistance to Crime Victims, 2006 has following elements assistance, role of the public services, victim support services, information, rights to effective access to other remedies, state compensation, insurance, protection, mediation, raising public awareness of the effects of crime and so on. ICC statute also provides for restitution, compensation and reparation directly against the convicted person.[6]
Section 2(wa) of CrPC[7] defines victim as “a Person one who suffered directly or indirectly if he/she is being threatened physical, emotional or pecuniary harm as a consequence of the commission of a crime.” It is true that a victim of a crime sets the criminal justice mechanism in motion.[8] According to section, 154(1) of CrPC a victim is supposed to give the information to the police officer in charge whenever his rights have been violated.[9] If such police officer refuses to act upon such information, the victim can write to the Superintendent of Police.[10] After failing these mechanisms, the victim can approach the Magistrate who will direct the investigation to be conducted.[11] Section 24(8) of CrPC[12] provides that a victim may move the government to appoint a special prosecutor for a given case. In India, the right of a victim of crime to restitution has not yet gained statutory recognition. Section 545 and 546 of the CrPC provides right of a victim to receive compensation but it is available only when a substantive sentence of fine was imposed and was limited to the amount of the fine actually realised. Section 250 of CrPC[13] authorizes magistrates to direct complainants or informants to pay compensation to people accused by them without reasonable cause. Again, Section 358 of CrPC[14] empowers the court to order a person to pay compensation to another person for causing a police officer to arrest such other person wrongfully. Finally, the section 357(3) of CrPC permits the grant of compensation even where the accused is not sentenced to fine. Section 357-A was introduced in the CrPC in order to provide compensation at the time of sentencing to the victims of the crime which is Rs. 25,000 for bodily injury not resulting in death and Rs. 1,00,00 in case of death.[15] Right to compensation is also recognised in UDHR[16] and International covenant on civil and political Rights.[17]
Victims’ rights are human rights. victims are person with rights and privileges. The UDHR provides for a number of rights, which can be viewed from the victims perspective. Victims also have right to recognition as persons before law.[18]
- Critical Analysis, Comments & Suggestions
The rights of victims are always in danger in India. If the accused is some powerful and wealthy person, he may threaten the victim and the witnesses not to testify against him or he may hire some big shot lawyer to destroy the case of victim.[19] The position of victims of rape, sexual abuse or harassment etc. is out casted as if they have committed the crime. The other vulnerable group is a child victim who does not even have the knowledge what to when there rights have violated. Further the Indian Constitution deals with various rights for the protection of the accused like right to speedy trial but nowhere in the Constitution the plight of victims is addressed.[20] However, Fundamental Rights and Directive Principles of State Policy of the Constitution of India had laid down the foundation for a new social order in which justice, social and economic, would flower in the national life of the country.[21] Article 41, which has relevance to victimology in a wider perspective, mandates, inter alia, that the state shall make effective provision for “securing public assistance in cases of disablement and in other cases of undeserved want”.[22] Further, the guarantee against unjustified deprivation of life and liberty[23] has in it elements obligating the state to compensate victims of criminal violence.[24]
The position under the American Criminal Justice System is quite different under that the system victims are given few rights such as right to be informed, present and heard within the criminal justice system. Steps have been taken in respect of participatory rights of victims of crime and delivery of services to crime victims.[25]
The appointment of the Vohra Committee was the very first attempt towards reforming the Criminal Justice System in India. Vohra Committee report (1993) made an observation on the criminalisation of politics and of the nexus among criminals, politicians and bureaucrats in India. In 2000, the government formed a panel headed by Justice V.S. Malimath to suggest reform in the century-old criminal justice system. The Malimath Committee known as committee on Reforms of Criminal Justice System submitted its report in 2003 with 158 recommendations but these were never implemented. The Committee felt that the existing system “weighed in favour of the accused and did not adequately focus on justice to the victims of crime.” The committee recommended for a holistic “justice” to victims of crime by allowing them, as a matter of right, in criminal proceedings as well to seek compensation for the loss or injury. The first thing which the committee observed was that the victims do not get the protection and the representation which they deserve in a proper criminal proceedings which consequently resulted in the misconduct and distortions in the criminal justice administration. With this general observation, the committee reviewed the position of victims and also highlighted how Supreme Court and High Court in India have evolved the practice of awarding the monetary remedies.
Before Malimath Committee, various Law Commission reports also appeared. The 41st Report of the Law Commission of India was submitted in 1969, this report discussed section 545 of the CrPC extensively. On the basis of this report the Government of India introduced the Code of Criminal Procedure Bill, 1970 which aimed at revising section 545 and reintroducing it in the form of section 357 as it reads today. The 154th Law Commission Report on the code of Criminal Procedure devoted an entire chapter to “Victimology” in which the growing emphasis on victim’s rights was discussed.[26]
The first landmark judgment where compensation to the victim ordered by the Madras High Court was Palaniappa Gounder v. State of Tamil Nadu.[27] In the case of Sarwan Singh v. State of Punjab[28], the Supreme Court laid down the points to be taken into account while imposing fine or compensation. The Court observed that while awarding compensation, it is necessary for the court to decide whether the case is fit enough to award compensation. If the case is found fit for compensation, then the capacity of the accused to pay the fixed amount has to be determined.
The case of Hari Krishnan and the State of Haryana v. Sukhbir Singh and others[29] is the most important case after Sarwan Singh where the court repeated its firm understanding once again and held that the power under Section 357 Criminal Procedure Code is a measure of responding appropriately to crime as well as reconciling the victim with the offender. The Supreme Court in Mangilal v. State of Madhya Pradesh[30], held that the power of the court to award compensation to the victims under Section 357 is not ancillary to other sentences but in addition thereto. In Ankush Shiwaji Gaikwad v. The state of Maharashtra[31], the Supreme Court had held that, taking into consideration the legislative intention of the provisions relating to victim compensation; it seemed that this power was conferred on the court to reassure the victim that he is not a forgotten party in the criminal justice system. Regarding victims of acid attack, under Sec 357A, in Laxmi v. Union of India[32] , the Supreme Court, had held that, a uniform compensation of Rs 3 lakhs must be paid by all states and union territories to the victims. Of which 1 lakh should be paid immediately within 15 days and remaining 2 lakhs should be within 2 months as expeditiously as possible. The apex court even stated that compensation must be provided to the victim irrespective of the outcome of the prosecution. In the landmark case of Suresh v. State of Haryana[33], laid down following directions that it is the duty of the court on taking cognizance of a criminal offence and award of the compensation can be interim.
One of the first cases were the rights of women victim were recognised was Delhi Domestic Working Women’s Forum v. Union of India[34], this case laid down certain important parameters such as legal assistance to be given to the victim, she should informed about her right to representation. Laws regarding female and child victims in India were never really considered an important part. Earlier the law failed to address the needs of the victim to be treated with dignity and also there was no scheme to recognise the rehabilitative needs of the victim of rape. It is only after the Delhi Gang Rape Case Criminal Law (Amendment) Act, 2013 was passed which introduced amendments to the Indian Penal Code, Indian evidence Ac and Code of Criminal Procedure. Certain changes has been introduced in the CrPC and Evidence Act, like the process of recording the statement of the victim has been made more victim friendly and easy but the two critical changes are first, the “character of the victim” is now rendered totally irrelevant, and second there is now a presumption of “no consent” in a case where sexual intercourse is proved and the victim states in the court that she did not consent.
The Criminal Law (Amendment Ordinance), 2018 amends the IPC, 1860 to increase the minimum punishment for rape of women from seven to ten years. It also says that rape of women and minor children is an offence under the Indian Penal Code (IPC), 1860, and the Protection of Children from Sexual Offences (POCSO) Act, 2012.
Despite all these amendments mentioned above some inadequacies still exist in the present criminal justice system regarding the protection of the victims. Example being the limited role of the victim in the criminal proceeding. There is still a long way to go to provide adequate remedies to a victim.
Some of the suggestions to provide assistance to a victim could be through the way of facilitating access to services that already exists, police officer should become more responsible and should take the case of the victim seriously and a victims support unit should be located in the police department, preferably at the sub-divisional level to co-ordinate matters relating to crime victims.
For balancing, a law should be
introduced in India to make all the sexual offences gender neutral. In July
2019, a bill was proposed which says that the words “any man” or “ any women”
in the provisions relating to sexual offences should be changed to “any
person”. Because every human being needs to be protected because anyone can be
a victim of sexual offences.
[1] Rule 85(a) of the International Criminal Court Rules of Procedure and Evidence.
[2] Clauses 4 and 5, General Assembly Resolution 40/34, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.
[3] Clause 11, General Assembly Resolution 40/34, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.
[4] Clause 12, General Assembly Resolution 40/34, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.
[5] Clause 14, General Assembly Resolution 40/34, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.
[6] Article 75(1), International Criminal Court Rules of Procedure and Evidence.
[7] Section 2(wa), Criminal Procedure Code, 1973.
[8] S. Muralidhan, Rights of Victims in the Indian Criminal Justice System, National Human Rights Commission (2004).
[9] Section 154(1), Criminal Procedure Code, 1973.
[10] Section 154(3), Criminal Procedure Code, 1973.
[11] Section 190, Criminal Procedure Code, 1973.
[12] Section 24(8), Criminal Procedure Code, 1973.
[13] Section 250, Criminal Procedure Code, 1973.
[14] Section 358, Criminal Procedure Code, 1973.
[15] Law Commission of India, 152nd Report on Custodial Crimes (1994).
[16] Article 8, Universal Declaration on Human Rights.
[17] Article 2 Clause 3, International Covenant on Civil and Political Rights.
[18] Joanne, Wemmers, “ Victims Rights are Human Rights: The Importance of Recognizing Victims as Person”, Directory of Open Access Journals (DOAJ)
[19] Anusree A., Right to Compensation of victims of Crime in India: Need for a Comprehensive Legislation (2016).
[20] Kritika Singh, Asocial-Legal Study of Victims Rights in India with Special Reference to Victims Human Rights, Vol. 1 Issue 1, Droit Penale: Indian Law Journal on Crime and Criminology (2016).
[21] Article 38, Constitution of India.
[22] M. Srinivasan, Victims and the Criminal Justice System in India: Need for a Paradigm Shift in the JUstic System (June 2007).
[23] Article 21, Constitution of India.
[24] Supra note 22.
[25] Marinescu, Liviu Mihail, “Judicial aspects concerning the victim in the American justice system”, (DOAJ).
[26] Vibha Mohan, Revisting Victim Compensation in India (2006).
[27] Palaniappa Gounder v. State of Tamil Nadu, AIR 1977 SC 1323
[28] Sarwan Singh v. State of Punjab, AIR 1978 SC 1525.
[29] Hari Krishnan and the State of Haryana v. Sukhbir Singh and others, AIR 1988 SC 2127.
[30] Mangilal v. State of Madhya Pradesh, AIR 2004 SC 1280.
[31] Ankush Shiwaji Gaikwad v. The state of Maharashtra, AIR 2013 SC 2454.
[32] Laxmi v. UOI, (2014) 4 SCC 427.
[33] Suresh v. State of Haryana, 2015 Cri LJ 661.
[34] Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14.
This article is written by Niharika Tanwar.
Disclaimer: This article is an original submission of the Author. Lex Insight does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns. This article is a part of the 1st National Essay Competition, 2019.