VICTIM PARTICIPATION IN CRIMINAL JUSTICE SYSTEM: STATUS QUO AND THE WAY FORWARD By: DEBALINA ROY
VICTIM PARTICIPATION IN CRIMINAL JUSTICE SYSTEM: STATUS QUO AND THE
WAY FORWARD
Authored By: DEBALINA
ROY
Third Year,
BA. LL. B (H),
Xavier Law
School
XIM University
Abstract
“For too
long, the victims of crime have been the forgotten persons of our criminal
justice system. Rarely do we give victims the help they need or the attention
they deserve. Yet the protection of our citizens – to guard them from becoming
victims – is the primary purpose of our penal laws. Thus, each new victim
personally represents an instance in which our system has failed to prevent
crime. Lack of concern for victims compounds that failure.”
-
President Ronald W. Reagan
Reporting a crime is the first step
in the victim’s path towards justice through the criminal justice system.
However, very often, victims choose not to report the crime. Thus, they never
come into contact with the criminal justice system and the criminal walks free.
As a result, the purpose of justice is defeated. Victims play an important role
in the criminal justice system. Hence, it is imperative that they actively
participate in the criminal justice process. With the rise of restorative
justice, victims now have a far larger role to play in the criminal process.
However, because victim participation in sentencing decisions undermines
traditions and established patterns within criminal courts, these rights can
face opposition in their implementation. Victim participation, on the other
hand, can become an acceptable practise and a tool to integrate restorative
justice aspects into adversarial court systems when legal cultures change and
the victim is increasingly seen as a genuine party in criminal proceedings.
This research paper attempts to
examine the role of the victim in the criminal justice system and how it
assists in securing justice for the victims. The historical development of the
role of crime victims in common-law criminal justice systems, with a particular
focus on the Indian criminal justice system, has been explicated. The Code of
Criminal Procedure, 1973 (CrPC) confers certain important participatory rights
on the victims, which have been explicated in the research paper. There appears
to be a gap between certain rights of the victim and their implementation,
which the researcher enquires into. The researcher emphasizes that the criminal
justice system must act in a victim-sensitive way. Emerging innovative
approaches and mechanisms for integrating victims into processes have been
examined. The research paper concludes by discussing the ramifications of
criminal justice policies for victims of crime.
Keywords: victim,
criminal justice, victim participation, victim rights, criminal process, justice
Since the
dawn of mankind, crime has existed in every age and is an inevitability of
human society. Every crime results in the creation of a “victim,” whether
directly or indirectly. As a result of this interdependence, there cannot be a
victimless crime. Crime primarily consists of two elements: criminal (crime
perpetrator) and victim (sufferer). In human communities, the victim’s
position, significance, and visibility have taken many different forms. The
victim of crime once held a prominent place in the administration of the
criminal justice system. But over time, victims have changed to become nothing
more than witnesses in the criminal proceedings. Victims were an entirely
ignored species in terms of research up until the idea of an evolutionary
science that would later become known as “Victimology,” a branch of
criminology, was developed. With the emergence of this new discipline known as
victimology, the victim—who was once disregarded as an element of the
crime—came back into the spotlight.
In ancient
times. crime began to be viewed as an offence against the state, rather than
victim only, As the community’s guardian, the State began to defend the
aggrieved person in the criminal case against the offender. Then, some
principles in favour of the accused person have been emerged in order to ensure
that they are not reduced to the status of a lower human being as a result of
criminal accusations. The principles of natural justice, fairness and equity
have conferred upon the accused certain rights such as right to be presumed
innocent, until his guilt is proven, reasonable right to be heard, right to
representation, right to bail, among other important inherent rights.
In the
sphere of the rights of crime victims, the evolving rights in favour of the
accused induced a lag. There was unquestionably a requirement for a similar
rights-based structure for the victims. Yet, there is disagreement on how far
such rights should be provided, how they should be structured, and when they
should start to be recognised. The criminal justice system is profoundly
lopsided in favour of the accused and his rights, which creates an imbalance
when it comes to ensure that victims of crime for whom justice is sought, are
given due rights in the process. While ensuring the rights of the accused are
essential for the sake of upholding the principles of fairness, equity and
dignity, it must be done without denying the victims their due rights.
Who
is a victim?
Section 2 (wa) of the Code of
Criminal Procedure (CrPC), 1973, inserted by the Code of Criminal Procedure
(Amendment) Act, 2009, defines the term “victim”. According to Section 2 (wa)
of CrPC, “a victim means a person who has suffered any loss or injury caused
by reason of the act or omission for which the accused person has been charged
and the expression victim includes his or her guardian or legal heir.” Only
individuals who fall within the legal description of “victim” are entitled to
legal rights of participation in a criminal proceeding.
The term “victim” would include the
guardian or legal heir of the person affected by the crime. Nonetheless, it is
typically used to refer to the individual whose suffering is a direct or
imminent effect of the crime. In a 2022 judgement, the Karnataka High Court held
that the term “victim” includes the victim’s legal heirs, who would have the
locus and be entitled to carry on the criminal case before the police filed a
chargesheet in the event of the victim’s death, in accordance with Section 2
(wa) of CrPC[1]. Justice
M Nagaprasanna stated:
“A genuine victim is to be permitted to
come on record and the definition of ‘victim’ as found in Section 2(wa) of the
CrPC cannot be rendered a restrictive meaning and has to be liberally
construed...The cause (complaint filed by deceased person) continues and the
legal heir who has stepped in into the shoes of the complainant is entitled to
agitate the cause brought up by the complainant[2].”
Courts frequently hesitate to allow
the term “victim” to be used during a trial, regardless of guilt or innocence.
This reluctance is caused by a worry that the phrase “victim” indisputably
declares that a crime has been committed; as a result, its usage is
unfavourable and infringes on the accused’s constitutional right to a fair
trial. It is appropriate to use the word “victim” during court proceedings
since it aptly defines a victim’s legal involvement in the case. Courts must
allow the term “victim” to be used in order to recognise a victim’s
distinguished and significant place in the criminal justice system and to carry
out the intent of victims’ rights laws.
If a victim is incapable of speaking
for themselves, the following people may exercise their legal rights on their
behalf:
1) A victim’s spouse
2) Any person having custody of the
victim
3) A victim’s common law partner and had
lived with them for at least a year prior to the victim’s death
4) Any relative of the victim[3]
The above category of persons has been
recognized to be within the ambit of the term “victim” under Indian criminal
justice system by virtue of Section 2 (wa) of the CrPC.
Emergence
Of The Role Of Crime Victims In Common-Law Criminal Justice Systems
Under common law, the criminal
justice system gave precedence to crime victims. Private prosecution, conducted
by crime victims, has been practised since the Middle Ages. Instead of victim
compensation from the state, the main emphasis of ancient law was on
restitution from the perpetrator to the victim. Victims were not merely given a
right to participate actively in the criminal justice system; rather, it was
their obligation. During the eighteenth century, the victim was often
responsible for prosecution. This involved the victim in all phases of the
criminal justice system, including bringing the case, selecting the charge,
obtaining witnesses, and participating in the court procedures. Victims also
had the absolute right to intervene in court regarding the sentence if they
thought it was unfair or likely to result in a royal pardon.
In ancient Hindu law, compensation
for the victim or the “spiritual” and material satisfaction of the sufferer was
prioritised over the punishment of the criminal. It has been discovered that
India has acknowledged compensation or reparation as a form of punishment from
ancient times. The awarding of compensation was seen as a royal right in
pre-Sutra Hindu law. According to Manu law, the perpetrator must compensate the
victim for their injuries, as well as cover any associated medical costs, and
satisfy the owner of any property that was harmed. The aggrieved party would
get compensation in addition to the punishment, not in lieu of it. In ancient
India, it was believed that the King had a responsibility to compensate the
victim of a crime. Consequently, it may be claimed that in ancient Hindu law,
the victim was given centre stage, and both the perpetrator and the King were
responsible for compensating and satisfying the victim.
Through the 19th century, private prosecution
was typical in the United States[4].
So, it is clear that the position of victims in the criminal justice system was
quite low by the turn of the twentieth century. Obviously, victims had a part
in informing the police about crimes, and there were some modest legal
provisions for recompense. But they were neither entitled to compensation nor
were they involved in the criminal investigation. In 1973, in Linda R. S. v.
Richard D.[5],
the United States Supreme Court observed that:
“In American jurisprudence at least,
a private citizen lacks a judicially cognizable interest in the prosecution or
non-prosecution of another.”
The nineteenth-century movement for
penal change contemplated reviving compensation and reparation. Jeremy Bentham
supported the return of compensation, contending that “satisfaction” should be
paid out of the offender’s property; however, if the criminal lacks property,
it should be paid out of the public coffers because it is a public good. Until
the end of World War II, criminal law and criminologists seldom ever took into
account the victim’s involvement in the wrongdoing, victim’s impression of the
criminal justice system, or victim’s entitlement to compensation. Frederick
Wertham, an American psychiatrist, in 1949, proposed for ‘a science of
victimology’ that would focus on the sociology of the victim. His
contemporaries Hans Von Hentig and Benjamin Mendelsohn’s work on victims from
the late 1940s is now largely considered as the foundational text for victim
studies and the beginnings of victimology, which examines the crime from the
victim’s stance. In the late 1970s, a powerful victims’ rights movement took
hold, leading to changes in both state and federal statutes and regulations as
well as state and federal constitutions. Reintegrating crime victims into the juvenile and criminal
justice systems so they can actively participate in making offenders
accountable for the harms and expenses victims have suffered as a result of the
crime and make them accountable for their actions was given priority by these
legislations.
The Warren Court Revolution in
American law, which established novel rights favouring the accused and added to
the inequality with crime victims’ rights, is where the history of the
campaigns for crime victims’ rights is traced. The campaign culminated in the
creation of the President’s Task Force on Victims of Crime[6],
whose report stated that the criminal justice system has lost a fundamental
balance. The victims of crime have been converted into a group oppressively
burdened by a system created to protect them. This oppression needs to stop. As
a result, the US Congress branch approved the Crime Victims’ Rights Act, 2004[7],
with the broad objective of protecting the “right of victims to participate
in the system” and the “right to be treated with dignity and respect”.
In Does v. United States[8],
the question of whether crime victims have participation rights under the Crime
Victims’ Rights Act prior to the filing of formal charges came up. The US
Supreme Court gave an affirmative response and remarked “the victims to be
kept updated about the developments taking place in the criminal process, and
that same does not begin with filing of formal charges but even during criminal
investigation[9]” -
The Crime Victims’ Rights Act of 2004
goes a step further by giving victims a real say in the criminal justice system
as it listed certain rights to victims in federal criminal prosecutions such as
the right to reasonable protection against the accused, right to notification,
right to be present at any such public court proceedings, right to a fair
hearing, reasonable right to consult with the government’s attorney, right to
restitution, right to legal actions without unjustified delays and the right to
be treated fairly and to have one’s privacy and dignity respected.
In recent years, there has been a
new, dual movement wherein efforts to personalise criminals and support
rehabilitative methods over punitive ones are matched by efforts to personalise
victims and their growing influence on criminal justice procedures. Under this
new regime, and neither party’s rights are dependent on the other’s being
restricted. Both criminals and their victims often travel the same road. The
notion of restorative justice, which has gained popularity since the late
1970s, emphasised victim-offender mediation while downplaying the role of the
state in the legal process.
Evolution
Of Victims’ Rights And Scope of Victim Participation
“Why in
history has everyone always focused on the guy with the big stick, the hero,
the activist, to the neglect of the poor slob who is at the end of the stick,
the victim, the passivist –or maybe, the poor slob (in bandages) isn’t all that
much of a passivist victim –maybe he asked for it?”
-
Hans von Hentig
The above statement
depicts how the criminal event and the person who violated the law were given
lopsided attention in the past. The fundamentals of criminal law, the
requirements for criminalization, and the rights of the accused have concerned
legal theorists and practitioners of the law for millennia. The criminal was
always their point of departure rather than the victim of the crime. Only
relatively recently, in the 1940s, did academics begin to show an interest in
crime victims and their place in the legal system. Benjamin Mendelsohn coined
the term “victimology” in 1947 which refers to the scientific study of crime
victims. Victimology is defined as:
“The
scientific study of the extent, nature, and causes of criminal victimization,
its consequences for the persons involved and the reactions hereto by society,
in particular the police and the criminal justice system as well as voluntary
workers and professional helpers.”
Victims are
now granted a variety of rights that were once largely overlooked by the
criminal justice system. The main goal of victim's rights is to improve victim
privacy, protection, and protection. The right to compensation, notification of
court appearances, notification of rights, and the right to submit victim
impact statements, right to attend court and sentencing hearings, to
restitution, to dignity and respect, to protection, to speedy trial, are some
typical fundamental rights available to crime victims. Other rights may include
the right to be reasonably heard at criminal proceedings involving release,
plea or sentencing, to confer with the public prosecutor in the case, to be
free from unreasonable delay, etc. These rights together form victims’ right to
participate in the criminal justice system with the object to secure justice
for themselves. Some of the rights of victims that are instrumental in their
participation in thr criminal justice system are discussed below:
Right to
Notification: A victim must have the right to reasonable notice of all public
hearings at which the accused and the prosecutor are entitled to appear, as
well as the right to attend any hearings on parole or other post-conviction
release. A victim must be given the right to request a hearing in any event
when a victim’s rights are in question.
Right to
Protection: Victims have the right to request that the court keep their
identity private and that their security and privacy are taken into account.
They also have the right to protection from intimidation and retaliation.
Right to a
Speedy Trial: Victims of crime must have the right to a speedy disposition or
trial. The Court must consider the interests of the victim in ruling on motions
for continuance. There must be provision for speedy disposal of trials in cases
involving elderly, minor or disabled victims.
Rights
related to Evidence: Any items taken from victims as evidence may be given back
to them at their request.
Right to
Compensation and Restitution: Victims have the right to seek compensation from
the criminal or from government compensation programmes for medical expenses
related to physical or emotional damage brought on by the crime, repair and
replacement costs related to property offences, and opportunity costs of time
lost, assessed in lost income.
Right to
Participation and Consultation: The Victim Impact Statement (VIS), which is
submitted at the time of sentencing, is the most common method by which victims
participate. The victim is given the chance to address the court during VIS and
elaborate on the socioeconomic, psychological, and physical impacts of the
offence on the victim. It may be submitted by direct victims of the crime or by
individuals who were harmed vicariously. A VIS permits the victims' suffering
and experience to be recognised in the criminal justice system and grants them the
ability to be heard in court.
Private
prosecution is a good tool for protecting victims and preventing subsequent
abuse by the criminal justice system because it is difficult for the
prosecution to always secure the correct verdict. There should be a legal
mechanism to require the investigative authorities to provide the injured party
with the essential details relevant to the case when a private prosecution is
used.
Benefits
Of Victim Participation
Providing
victims with a right to participate can assist prevent “secondary
victimisation” and may even aid in the victim’s rehabilitation. Participation
can aid in a victim’s rehabilitation in a number of ways. For instance, the act
of testifying itself might be therapeutic. In having a witness attest that their
abuse did occur, that it was horrific, and that it was not their fault, victims
may find meaning in being heard. The victims’ experiences are validated through
this truth-telling process, allowing them to recover. For instance, taking part
in the prosecution may help victims regain control of their life and make sure
that their opinions are heard, respected, and understood. By giving the victim
a sense of agency and capacity to act that the original abuse drained,
participation might also restore his dignity.
A
fundamental corollary of victims’ rights to seek restitution is their right to
participate. The victim’s participation is necessary to ensure that information
pertinent to the award of compensation is revealed because the prosecutor’s
interest is solely in obtaining a conviction. Participation is crucial because
it aids in the potential legal need to give victims with a remedy and has the
added advantage of advancing the process of reconciliation in areas where human
rights violation has occurred. Victim participation may result in a more
successful prosecution. The most knowledge about their own victimisation is
likely to be held by victims, therefore they possess the ability to give the
Court pertinent and crucial facts about the crimes. The ability should not be
muzzled by the challenge of adding their opinions into the process.
Victim Participatory Rights In
India:
The Status Quo
Professor of Criminology and author,
Ian Edwards has defined ‘participation’ with respect of victim rights as – “it
may be perceived as stemming from the broader concept of citizenship, and may
include being in control, having a say, being listened to, or being treated
with dignity and respect.” The victims’ procedural rights within the
criminal prosecution are an element of their participatory rights. A nation’s
criminal justice system must operate efficiently for the State to uphold the
Rule of Law. Any nation’s capacity for a robust criminal justice system serves
as a yardstick for its level of governance. Even with the current shortcomings
of India’s criminal justice system, providing justice to crime victims is one
area that needs legislative reform as well as stringent administrative action.
Justice V.S. Malimath’s Committee on
“Reforms of the Criminal Justice System” has enunciated on the subject of
“Justice to Victims” and made valuable recommendations about victim
participatory rights. Fairness, due process, and recognition are the three
elements of victim participation rights.
Fairness: The criminal justice system is
unfair to victims because it prioritises the public interest over their needs.
Hence, victim participation rights are fundamental to striking a balance
between the rights of victims and accused. Their greater involvement is
therefore required by the fairness principle throughout the entire trial, not
just at the sentence phase.
Due Process: The “due process” justification
places a strong emphasis on the victims' inherent rights to “life, liberty, and
property” and calls for some protection for victims during the due process
phase. The right to life or liberty of a victim of a violent crime has been
violated due to the commission of the crime. The government utilises victims as
witnesses, thus even while the due process provision is a check on governmental
power, victims can nevertheless assert a private interest in how a criminal
case turns out. According to this viewpoint, victims should receive procedural
due process from the government and the courts.
Recognition: If the victims believe the criminal
justice system has treated them unfairly, their situation must be acknowledged.
It would significantly improve social welfare by enticing crime victims to file
complaints and report offences. Yet not just at the time of sentence, but
throughout the entire process, it is necessary to respect the victims’
dignity.
In India, the accused and the
prosecution play the major roles in the criminal justice system, with the judge
acting as a referee. Only when providing evidence is the victim required to
take part in the criminal process. However, the Code of Criminal Procedure,
1973 (CrPC) provides certain significant victim participation rights, such as:
1. Section 154(2): The right of the
victim to send the first information report by post to the address of the
Superintendent of Police if the officer in charge of the police station refuses
to record it.
2. Section 190: The right to go directly
to the Magistrate who has the authority to take cognizance.
3. Section 156(3): Under this Section, Magistrate
is conferred the authority to order an investigation in response to such a
request made under Section 190. The victim has the choice to bring a complaint
to the attention of the Judicial Magistrate, who is competent to do so.
In Bhagwant
Singh v. Commissioner of Police[10],
the apex court ruled that the police report is forwarded to the magistrate
having jurisdiction in the matter when the police investigation is complete,
and that the victim must be consulted if the magistrate declines to file charges.
4. Section 157(2): This section mandates
the police officer to inform the informant or victim if he decides to halt
further investigation.
5. Section 173(2)(ii): This section
imposes a mandate that the informant or victim receive the contents of the police
report that was first sent to the Magistrate at the conclusion of the inquiry.
6. Sections 225, 302, 303: Each crime is
prosecuted by a Public Prosecutor; the victim may retain an attorney of his
choosing and that attorney may submit written arguments once the case’s
evidence has been concluded.
7. Section 372: If the victim is of the
view that the punishment awarded is insufficient, the accused is found not
guilty, or the victim believes the compensation to be insufficient, the victim
has the legal right to appeal the court’s decision.
8. Sections 357, 357A, and 359:
Provisions for victim compensation.
Scope
Of Victim Participation In The Indian Criminal Justice System
In India, the criminal justice system
primarily focuses on criminals, whether that is through their conviction, care,
reformation, or rehabilitation. Currently, it appears that the sole goal of the
criminal justice system is to determine an accused person’s guilt or innocence.
Even though the victim of a crime has experienced harm in different forms,
their function in the current criminal justice system is limited to that of a
witness for the prosecution. Giving the victim of crime a clearly defined
status under the law and to render the system victim-oriented is urgently
needed. The victim’s intent to see the criminal punished cannot be disregarded
or entirely overridden in favour of the State’s social control. Neither at the
time a charge is being framed nor while an order of discharge is being passed,
the victim’s opinions are not even asked for, much less taken into account.
Even if the case results in a conviction, the State will defend the trial
court’s decision in any appeals that are filed challenging the conviction and
punishment. In order to prevent the victim of a crime from becoming resentful
and possibly developing a desire to use the law to his own advantage in order
to exact retribution, it is imperative that the victims of crime be given a key
role in the criminal justice system. While the Supreme Court voiced its concern
for the situation of the victims of crime in P. Ramchandra Rao v. State of
Karnataka[11]
by stating that:
“If left
without a remedy might resort to taking revenge by unlawful means resulting in
further increase in the crimes and criminals”
Currently,
there are primarily two systems for administering criminal justice: adversarial
and inquisitorial. Adversarial common law is the system used in India to
administer the criminal justice system. Here, the accused is assumed to be
innocent, and it is the responsibility of the prosecution to establish the
accused's guilt beyond a reasonable doubt. Also, the accused has the “right of
silence,” thus he is not required to respond to the questions. Truth is meant
to surface from the conflicting accounts of the facts that the prosecution and
defence submit before an impartial judge in an adversarial system. The judge
serves as a referee and makes the determination of whether the prosecution has
established an accused’s guilt beyond a reasonable doubt. From the perspective
of the victim, the system appears to be fair and justified, but it is severely
biased in the accused’s’ favour with disregard to the plight and rights of the
victims or their plight.
It is
critical to guarantee that victims play an active part during investigation and
trial in order to respond to their interests more effectively. The issue with
the current legal system is that once an investigation begins, the victim plays
a very small part. When conducting investigations, police officers frequently
move too slowly, missing opportunities to obtain important evidence and
increasing the risk of corruption. On the other hand, investigations involving
prominent and well-connected people as victims are typically handled quickly.
Since the State is solely responsible for conducting the prosecution, the
victim's involvement is limited to serving as a “prosecution witness” during
the duration of the trial.
Global
Perspective on Victim Participation in Criminal Proceedings
The adoption of the UN Declaration
of Basic Principles of Justice for Victims of Crime and Abuse of Power by
the General Assembly of the United Nations at its 96th Plenary on November 29,
1985, marked a significant international acknowledgment of the necessity of
establishing norms and minimum requirements in national and international legal
systems for the rights of crime victims. In accordance with the United Nations
Declaration’s Articles 4 and 6 (b), it is essential that victims receive
compassionate care, are respected for who they are, and receive support in
their efforts to take part in the criminal justice system.
According to the UN Declaration,
victims of crime have a right to four main safeguards:
i.
Access to justice and fair treatment: This right involves the ability to quickly seek
redress, access to the legal system, right to be apprised of the victim’s
rights, appropriate support during the legal process, and protection of the
victim’s safety and privacy.
ii.
Restitution: Restitution
for crimes committed by public servants or other agents, should be provided to
the victims by the State. This right would include restoration of property or
compensation for harm or loss.
iii.
Compensation: When
the compensation from the offender is insufficient, the state should offer
financial compensation, at the very least in cases of serious crimes that
result in bodily injury and for which national funds should be established.
iv.
Rehabilitation: Through governmental, non-profit, and community-based channels, victims
should receive the essential aid in terms of material goods, medical care,
psychological care, and social services. Those working in law enforcement,
justice, health care, and social services should be trained in this area.
In Albania, victims of petty offences
are instrumental in the prosecution process. The victim alone decides whether
to file a criminal complaint. The aggrieved person has the right to bring a
case before the court and prosecute the accused themselves. According to the
Albanian Code of Criminal Procedure, only victims of petty offences may use
this procedure, which falls under the umbrella of private prosecution. Serious
crimes continue to be under the purview of the State, who is responsible for
carrying out the prosecution. The victim may file an appeal with the court if
they are dissatisfied with the State’s decision not to press charges.
Private accessory prosecution, an
exclusive German criminal procedure, is an effective procedure in ensuring the
active participation of the victim in criminal proceedings. The victim gets
numerous opportunities to influence decisions made throughout the criminal
investigation thanks to this system. As a co-prosecutor, the victim’s opinions
and concerns about this method are well taken into account from the beginning
of the prosecution process. The prosecutor also provides legal counsel to the
victim, and upon request, a lawyer may be brought in to help.
The preamble to the Rome Statute of
the International Criminal Court (ICC) emphasizes on victims and their
suffering, which depicts that it prioritizes the interests of the victims of
crime. The Rome Statute grants victims considerable participation rights in
cases before the ICC. The right to express one’s opinions on matters affecting
their own interests, the admissibility of a case, and the choice to permit an
inquiry has been granted to victims. Many nations with a civil law system allow
victims to participate in legal processes as a third party or “subsidiary
prosecutor.” In these nations, the victim or the victim’s legal representative
has the right to request investigative measures, analyse the prosecution’s case
against the defendant, make declarations, present evidence, question witnesses
cross-examination, and deliver closing remarks. International criminal
processes, which have primarily been based on the adversarial system, have not
provided victims with the same rights, despite this widespread practise in
nations with civil law. One of the most significant features of the Rome
Statute is the victims’ right to take part in trials before the International
Criminal Court.
Mechanisms
For Victim Empowerment
The Criminal Procedure Code
(Amendment) Act, 2008, amended the long-debated subject of victim compensation
schemes. In addition to the victim compensation scheme, it has enabled victims
to choose an advocate of their choice, with the court’s leave, to evaluate the
prosecution in accordance with Section 24. If the court permits, this lawyer
will also be entitled to make distinct arguments, interview witnesses, and
produce evidence. Aside from that, the victim may seek an appeal against the
accused’s acquittal, conviction for a lesser offence, or the imposition of an
insufficient sentence as per Section 372. These provisions have given victims a
legitimate place in the criminal justice system.
To make sure that victims are fairly
rewarded, almost every state in the nation has established victim compensation
schemes. The word “substantial” in the Law Commission of India’s 41st Report,
which excluded the cases of recovery of nominal costs, was the first to
identify the relevance of compensability. It is interesting to note that the
Victim Compensation schemes vary from state to state in India, based on the
category of the crime.
The Indian government has recently
passed a number of steps to advance victim justice, but their implementation at
the local level has always been questioned because of procedural
irregularities. Among the noteworthy programmes are the Central Schemes for Assistance
to Victims of Terrorist and Intergroup Violence, the Scheme for Relief and
Rehabilitation of Rape Victims, and others[12].
The Supreme Court in the landmark
case of Domestic Working Women’s Forum v. Union of India[13]
urged the National Commission
for Women to develop a “system so as to wipe out the tears of unfortunate
victims of rape.” The Supreme Court observed that “in light of the
Directive Principles contained in Article 38(1) of the Constitution, it was
necessary to establish a Criminal Injuries Compensation Board, because rape
victims frequently incur substantial financial loss and, in some cases, are too
traumatised to continue working.” The apex court further ordered that
compensation for victims be granted by the court upon conviction of the
perpetrator, as well as by the Criminal Injuries Compensation Board whether or
not a conviction has occurred. This historic case has provided certain
guidelines and called for assistance and rehabilitation to rape victims in the
various forms.
Evolving the philosophy of
restorative justice, the Supreme Court in State of Gujarat v. Honourable
High Court of Gujarat[14]
directed that “prisoners be paid equitable wages for the work done by them,
that every prisoner be paid wages for the work done by him, and that the state
make law requiring a portion of the wages earned by prisoners to be paid as
compensation to deserving victims of the offence.” This is a huge step
forward in offering restorative justice to crime victims. The Protection of
Human Rights Act of 1993 (as amended in 2006) introduced a new mechanism for
addressing violations of human rights at the national/state level. Victims and
their families may be awarded instant compensation by human rights commissions.
Impediments
to Victim Participation in Criminal Proceedings
Given the
negative consequences of crime victimization, one would assume that victims
will encounter compassion and respect wherever they go. Unexpectedly, the exact
reverse is true. Several victims are held accountable for what occurred, their
characters and features are disparaged, and it is frequently thought that they
“got what they deserved.” The widespread conviction that a just world exists
may be the underlying mechanism producing this unfavourable reaction to crime
victimization. People typically believe that good things happen to good people
and bad things happen to evil people. But, the victimisation of innocent
individuals puts this “justice motive” in jeopardy and produces misery.
Attributing guilt to a victim of a crime, demeaning this person’s character, or
psychologically separating oneself from this person are all methods for
restoring faith in a just world. A victim’s suffering is justified by claiming
that they are to blame. The issue is that criminal justice authorities may
(subconsciously) be led by this idea in addition to the common people who share
this deluded belief in a just world. Further, there seems to be a concern that
granting victim rights have the potential of imposing a burden on the already
overburdened criminal justice system.
Section 301
of CrPC acts as an obstruction of the right of the victim with respect to a
lawyer of his or her choice conducting prosecution. The overall purpose of
enacting Section 301 appears to be to ensure that when the State takes on a
case, the complainant's or victim’s rights are placed second to the State’s,
and that the victim's attorney has no right to audience unless specifically
granted by the Public Prosecutor representing the State. Regardless of the
Public Prosecutor's arguments or his approval in this regard, he may submit
written arguments to the Court with the permission of the Court. The Supreme
Court ruled in Thakur Ram & Ors. v. State of Bihar[15]
that a private party has no locus standi in a case that has moved forward
based on a police report. It further stated that, with a few notable
exceptions, in criminal cases, the aggrieved party is usually the State, which
is in charge of protecting the social interests of the entire community. As a
result, it is imperative for the State to take all necessary actions to hold
whoever violated the community’s social interests accountable. In Shiv Kumar
v. Hukam Chand[16],
the Supreme Court observed that it is obvious from the Code’s overall structure
that only the Public Prosecutor is authorised to prosecute cases in Sessions
Courts. The legislature reminds the State that its policies must rigorously
follow fairness and equity in an accused person’s Sessions Court trial. The
rationale behind Section 301 of CrPC appears to be that If given complete
discretion, a private attorney would concentrate on securing a conviction even
if the case did not warrant one. To avoid that, he is compelled to rigorously
follow the Public Prosecutor’s directives in his duty. To upheld the principles
enshrined in Article 21 and so as to ensure a fair trial, the provisions of
Section 301 has been framed. It is believed that in the greater good of society
that the prosecution be handled by a neutral party like the Public Prosecutor.
However, in the process, the victim’s right to fairness and equity are being
hindered. Thus, there is dire need of a provision that aims to upheld the
victim’s rights and participation in the criminal proceedings.
Section 302
of CrPC has a somewhat liberal approach in respect of upholding the victim’s
attorney’s role in the proceedings. In J. K. International v. State (NCT of
Delhi)[17],
the Supreme Court observed, citing Section 302 of the Code of Criminal
Procedure, 1973, that the scope of any other private person wanting to take
part in the prosecution is still greater when the trial is held before a
Magistrate’s Court. The Supreme Court also stated in its explanation of Section
302 of the Code of Criminal Procedure of 1973: “The private individual who
is entitled to conduct prosecution in the Magistrate’s Court might employ an
Attorney to perform the necessary in Court on his behalf.” It further
clarifies the idea that anyone who feels wronged by an offence committed
against them or someone they care about can go before the magistrate and ask
for authorization to bring charges. However, the right conferred in Section 302
is not applicable to trial in a Sessions Court. Thus, the power given is
limited in scope. In Amir Hamza Shaikh v. State of Maharashtra[18],
the Supreme Court clarified that even though the Magistrate is not required to
grant permission at the mere asking, the victim has a right to support the
Court in a trial before the Magistrate.
Opinions,
Suggestions And Reforms Envisaged
The
evaluation of the extent of victim engagement in the Indian criminal justice
system makes it abundantly evident that there is a major absence of any
legislation or statute conferring victim rights or ensuring their participation
in the criminal proceedings. Even if certain rights exist, there is a gap in
their implementation. Both before, during and after the trial, the rights of
the crime victims should be upheld.
The
following rights must be given legitimacy through statutory authority and must
be implemented effectively so as to ensure that victims’ rights are upheld and
their participation is observed:
Choice of prosecution: When the case is being framed,
the police officer must be obligated to make sure the victim is heard. Victims
should be given the reasonable opportunity to voice their opinions and
grievances throughout the investigation stage by filing a complaint.
Right to consultation: At the time the offender is
sentenced and while parole decisions are being made, the victim must be
consulted. The victim must be consulted at the sentencing stage in order to
determine the amount of compensation and to give a Victim Impact Statement (VIS)
that might affect the severity of the punishment. Crime causes the most
suffering for its victims. It is crucial to provide them the opportunity to
express their suffering and worries through a Victim Impact Statement (VIS) and
Victim Impact Evidence (VIE).
Right to contest the police report’s findings: The victim's right to get the
police report under Section 173(2)(ii) of the CrPC should be coupled with the
victim's right to contest the report's findings in front of a higher-ranking
police official.
Notification to the victims at the investigation stage as
well as trial stage: The
victims must be given the right to information about the case status, including
the reasons why the culprits have not been found yet, the stage of the
investigation or trial, the reasons the trial has been postponed, the specifics
of the evidence the prosecution will use, and the victims’ right to appropriate
access to the police report. As a result, a responsibility is created. on the
investigating agency to keep the victim in loop.
Bail decisions: While deciding whether to release the accused on bail, the
victims must be given fair regard. When the bail request is brought before a
court, that is the period when victims can voice their opinions.
Right to Information: The Right to Information Act, 2005 allows the victim to
request information regarding the investigation or trial.
Right to participate in the criminal justice system:
Victims must be conferred the right to appear in court and call
attention to the police’s failure to question witnesses or their ignorance of
important pieces of evidence. The victim’s advocate must be permitted to
cross-examine the defence witness and ask questions of the prosecution
witnesses.
In addition
to the above rights, statutory backing must be given to the procedure of victim
participation in criminal proceedings in the following basic aspects:
Through the
course of the process of criminal justice, victims’ opinions and concerns
should be heard and properly addressed by the appropriate authorities. Victims
should be encouraged in their endeavours to participate in the criminal justice
system and treated with compassion and respect for their dignity. When the
State decides not to prosecute, one of the choices can be private prosecution.
Precautions must be taken to prevent the misuse of private prosecution.
However, the provision for private prosecution must be made. The prosecution
should take into account, among other things, the opinions of the victims while
deciding whether to appeal. It is crucial that victims obtain prompt
compensation for sustained as a result of the crime through the criminal court
system when it comes to compensation and restitution for victims.
The
following initiatives will pave the way for enhanced victim participation and
victim empowerment:
Victim-Offender Mediation Programs: There may be certain victims who
would want to have face to face meetings with their offenders. To facilitate
such a dialogue in a structured environment, Victim-Offender Mediation Programs
should be introduced. Mediation in criminal law is a diversion from
prosecution.
Compliance Programs: Through training, workshops, etc., victim rights compliance
programmes aim to inform the general public and criminal justice organisations
about victims' rights. They have a formal complaint process and receive
complaints from victims when their rights are violated.
Victim Rights Clinics: In order to aid in the
enforcement of victims' rights by giving victims free legal representation in
court, Victim Rights Clinics must be established. The clinics may be run by
advocates, lawyers, law students, social activists and so on.
It is
essential to understand that simply granting victims’ rights is not sufficient.
Victim’ rights must be supported by a modus operandi to ensure that the
organisations and people in charge of notifying victims of their rights.
Government discretion to deny rights, lack of a procedure to enforce the
rights, and appellate court discretion to deny review are some of the hindrances
for victims to fully exercise their rights. It is vital that victims receive a
locus to defend their rights in the event of violation of victim rights.
Conclusion
In
contemporary societies, the state now has the exclusive right to imprison criminals
in the interest of the community as well as the duty to safeguard its citizens
from crime. The state, however, disclaims all liability for victim injuries.
Retribution has a minor role in how the criminal justice system is now run, yet
its significance cannot be denied. Even now, the primary motivation behind
criminal law is the feeling of righteous outrage. Except for infrequent
initiatives, there is still a trend to transfer the issue of restitution or
compensation farther and more outside of the criminal justice system, likely
out of a wish to keep the victim out of it. The argument demonstrates
unequivocally that the victim is not regarded as an essential participant in
the criminal justice system. Almost no legal system completely considers the victim’s
participation in the criminal proceedings. Where there is state compensation,
which is a rare occurrence, the system either is not completely successful or
does not work at all. While the state is thought to be responsible for criminal
punishment, the wrong or damage done to the victim as a result of the crime is
almost considered to be a private problem. As the State bans him from enforcing
the law on his own, the victim of today is unable to seek redress on his own.
Changes in
socio-economic situations may play a key role in the solution to the problem.
Despite the fact that the nineteenth century saw significant advancements and
changes in criminal law, laissez-faire doctrines predominated and prevented
governments from implementing social welfare programmes, particularly those
that benefited crime victims. Restitution and compensation schemes as a social
welfare measure now dominate the legislative platforms of governments in the
majority of affluent nations where partial or full responsibility for social
fatalities is now recognised.
Nonetheless,
it is noteworthy that the victim of crime has now come to light and is
recognised as a person deserving of attention in countries all over the world
after residing in a position of virtually complete obscurity for generations.
In the
Indian criminal justice system, the rights of the accused are given paramount
importance, upholding the principles of natural justice, fairness, etc.
enshrined in the Constitutional, However, in doing so, the rights of the
victims are grossly overlooked. It is an established fact that a crime affects
the entire society and hence, the State takes the onus to ensure that justice
is done. It must not be forgotten that as a result of a crime, it is the victim
who suffers the most, in various spheres of his or her life. It is only fair
and just that the victim has a say in the criminal proceeding of a crime that
has been committed against him. Justice is primarily sought for the victim,
isn’t it? The Code of Criminal Procedure needs to be amended imminently in
order to make it considerably more supportive of the victim’s participation
rights. In order to give victim participation rights a suitable place in the
criminal process, an effort must be made to achieve the right balance.
References
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[1] Plumber, Mustafa, 'Victim' U/S
2(wa) CrPC Includes Legal Heirs Who May Continue Criminal Case If Victim Dies:
Karnataka High Court, Live Law, (Nov. 14, 2022), https://www.livelaw.in/news-updates/victim-us-2wa-crpc-includes-legal-heirs-who-may-take-over-criminal-complaint-where-victim-dies-karnatakahigh-court-214037.
[2] Scania Commercial Vehicles India
Pvt. Ltd v. State of Karnataka, 2022 LiveLaw (Kar) 457.
[3] Ibid.
[4] U.S. Department of Justice, Fundamentals
of Victims' Rights: A Brief History of Crime Victims' Rights in the United
States, (Nov. 11, 2011), https://www.ojp.gov/ncjrs/virtual-library/abstracts/fundamentals-victims-rights-brief-history-crime-victims-rights.
[5] Linda R. S. v. Richard D., 410
U.S. 614.
[6] Office for Victims of Crime, Final
Report of the President's Task Force on Victims of Crime, https://ovc.ojp.gov/library/publications/final-report-presidents-task-force-victims-crime.
[8] Does v. United States, 817 F.
Supp. 2d 1337.
[10] Bhagwant Singh v. Commissioner of
Police, 985 AIR 1285, 1985 SCR (3) 942.
[11] P. Ramachandra Rao v. State of
Karnataka, JT 2002 (4) SC 92.
[12] Satyabhama School of Law
Department of Legal Studies, Penology & Victimology, https://sist.sathyabama.ac.in/sist_coursematerial/uploads/SAL1053.pdf.
[13] Domestic Working Women’s Forum v.
Union of India, 1995 SCC (1) 14, JT 1994 (7) 183.
[16] Shiv Kumar v. Hukam Chand,
(1999) 7 SCC 467.
[17] J. K. International Vs. State (NCT
of Delhi), (2001) 3 SCC 462.