Victimology

VICTIMS IN INDIAN CRIMINAL JUSTICE SYSTEM The victims had many rights in ancient period whether in India or in Europe and they used to play a crucial role in legal system. During the Muslim period, victims also enjoyed significant rights and most of the Mugal Emperors tried their level best to impart the justice to victims but in counterpart, victims lost their power with the emergence of the state in Europe. The plight of victims in ‘Adversarial System’ became worse and they became forgotten people except their minor role in criminal justice system. Thus, reparation aspect became subordinate, and punitive role of the State became a dominate factor in the administration of criminal justice. The victim was finally neglected and left to his own fate and has been reduced to the level of a piece of evidence, who had to co-operate with the prosecuting agency, knowing fully well that he has nothing to gain except suffering and harassment. It was believed that the claim of the victim was sufficiently satisfied by the conviction and sentencing of the offender. This assumption is neither fair nor just. Justice demands that when society and the State are resorting to every possible measure of correction and rehabilitation of criminals, equal concern must be shown for the victims by at least providing compensation to them for the loss, agony, physical and mental torture, they suffer.[1] However, India is still far behind in the development of victim’s rights and their role in present legal justice system. They are still treated as if they are responsible for own fate. In contrast to it, our Apex Court has interpreted the provision of Article 21 liberally and provided many basic rights to the accused[2]. In case the accused is found guilty he is punished and kept in prison with object of reforming him. Courts have from time to time directed the state authorities to provide all necessary facilities and ensure that human rights of criminals are not violated[3]. However, criminal law, which reflects the social ambitions and norms of society and punishes perpetrators thereof, hardly takes any notice of the byproduct of crime, its victim. The guilty man lodged, fed, clothed, and entertained in a model cell at the expense of the state. And the victim, instead of being looked after, is contributing towards the care of prisoners during their stay in prison. Perhaps the criminal judicial system is arbitrary and operates to the disadvantage of victim[4]. Former Honorable Justice Krishna Iyer aptly highlighted the apathy of law to a victim of crime, and observed, “It is a weakness of our jurisprudence that victims of crime and the distress of dependents of the victim do not attract the attention of law. In fact, the victim reparation is still the vanishing point of our criminal law. This is the deficiency in the system, which must be rectified by the legislature[5].” Under the penal laws of India, in the process of trial for an offence, the focus always remains on the accused with insistence on all concerned to give him fullest opportunity to defend himself against the charge. In the existing procedure of the court, hardly any attention is paid towards the plight and right of the victim and witnesses on whose evidence the efficacy of trial and the verdict of court depends. The apathy towards the rights of victim and very little or no participation given to him in the course of trial, coupled with frequent occurrence of witnesses turning hostile under compulsions e.g. intimidation, coercion or allurement deflects the course of justice, invariably resulting in acquittals. The victims are thus left to suffer physically, mentally and financially under the crime committed against them. But in recent times, among the many reforms canvassed for improving the criminal justice is one that advocates a victim –orientation to criminal justice administration. Victim oriented includes greater respect and consideration towards victims and their rights in investigation and prosecution process, provisions for greater choices to victims in trial and disposition of the accused, and a scheme of reparation/compensation particularly for victims of violent crimes[6]. Though there are some provisions under the Indian Constitution[7] and some sections[8] in the Code of Criminal Procedure, 1973 to protect the rights of the victims and for providing compensation, the criminal courts at the lower level in India have ignored those provisions for a long time and not utilized them during their sentencing processes. But it is heartening to observe that several judgments in both the High Courts and the Supreme Court in the last two decades or so have come to the rescue of victims of not only traditional crimes where the offender is another citizen but also in cases where the victimization has been caused by the instrumentalities of the state itself.[9] In addition to the existing provisions under the Indian criminal laws, a considerable importance was given in the Report of the Committee on Reforms of Criminal Justice System, headed by Justice V. S. Malimath on the need to provide justice to victims of crime. “Historically speaking, Criminal Justice System seems to exist to protect the power, the privilege and the values of the elite sections in society. The way crimes are defined and the system is administered demonstrate that there is an element of truth in the above perception even in modern times. However, over the years the dominant function of criminal justice is projected to be protecting all citizens from harm to either their person or property, the assumption being that it is the primary duty of a State under rule of law. The State does this by depriving individuals of the power to take law into their own hands and using its power to satisfy the sense of revenge through appropriate sanctions. The State (and society), it was argued, is itself the victim when a citizen commits a crime and thereby questions its norms and authority. In the process of this transformation of torts to crimes, the focus of attention of the system shifted from the real victim who suffered the injury (as a result of the failure of the State) to the offender and how he is dealt with by the State. Criminal justice came to comprehend all about crime, the criminal, the way he is dealt with, the process of proving his guilt and the ultimate punishment given to him. The civil law was supposed to take care of the monetary and other losses suffered by the victim. Victims were marginalized and the State stood forth as the victim to prosecute and punish the accused.[10] In pursuance of the Malimath Committee Report, the Ministry of Home Affairs of the Government of India, prepared the criminal law (Amendment) Bill, 2003. However, this bill has not seen the day of light till now[11]. But the Code of Criminal Procedure (Amendment) Act, 2009 has many brought changes in code. First time the definition of victim has been incorporated in Section 2 of Code. It has also provided other legal rights in form of compensation to victim and right of appeal by the victim. ----------------------- [1] K.D.Gaur, Justice to Victims of Crime: A Human Rights Approach, In Dr.Vibhute.K.I (ed), Criminal Justice-- A Human Rights Perspective of the Criminal Justice Process in India, Eastern Book Company Lucknow, 2004, p.351sd . [2] D.K.Basu V. State of West Bengal, (1997) 1 SCC 416 : 1997 SCC (Cri) 92. [3] The rights of accused granted by the Constitution are: right to equality and equal protection of laws; right against ex post facto operation of law; protection against double-jeopardy; protection against self-incrimination; right to have freedom from unwanted arrest; right to legal defence; right to have public hearing and speedy trial; right related to pre-trial detention and matters incidental thereto, and right to approach higher judicial authority by way of appeal, etc. Chapter 3rd Fundamental Rights, Constitution of India. [4] Supra Note.1 p.1, Cited at 350 [5] Rattan Singh V. State of Punjab, (1979) 4 SCC 719 [6] Id. Madhava Menon, N.R. (2004) Victim Compensation Law and Criminal Justice: A Plea for a Victim-Orientation in Criminal Justice, pp. 362-369 [7] Under Constituion of India Articles 21, 41 & 51A. [8] Sections 250, 257 & 258 of Code of Criminal Procedure, 1973. [9] Chairman, Railway Board v. Chandrima Das (2000 Cri. L.J. 1473 SC), Krishnan and the State of Haryana v.Sukbhir Singh and others (AIR 1988 SC 2127) & Bhim Singh V. State of J&K, (1985)4 SCC 677: 1986 SCC (Cri)47. [10] Justice V. S. Malimath, Committee on Reforms of Criminal Justice System, (Government of India, Ministry of Home Affairs) March. 2003. [11] Bill No.LX of 2003. Introduced in the Rajya Sabha on August 22, 2003.