Victim in Criminal Justice System & Role of Judiciary
VICTIM- THE FORGOTTEN MAN IN THE CRIMINAL JUSTICE: ROLE OF JUDICIARY IN PROTECTING THE RIGHTS OF VICTIMS OF CRIME
AUTHOR : PRANAV KUMAR KAUSHAL
INTRODUCTION
“People by large have lost confidence in the criminal justice system. Victim feels ignored and is crying for the attention of justice.”
Crime is not only the violation of the code of criminal laws but it is something that harm to the victims and their families including economic loss, mental, physical, psychological and emotional pain and sufferings. The impact of crime on the victims and their families ranges from serious injuries to mild disturbances. At present the code of criminal procedure and even the highest document of the country i.e. The Constitution provides several rights to the accused but apart from that victim has no right or interest to protect in the criminal proceedings. The criminal justice system of India is not victim oriented rather it is an offender oriented criminal justice system where the sufferings of the victim are totally overlooked and remains unsatisfactory from the point of view of the victims. The framework of the criminal justice system in India has been largely oblivious to constitute true vindication to the victim. Blotchy investigation, poor efforts on the part of prosecution, lack of infrastructure to accommodate and support are the systematic failures which in turn affects the quality of justice offered to the victim. It is obvious that under the circumstances victim is virtually a forgotten man in the criminal justice system.
The criminal justice administration throughout the world seems to be guided by the universal principles of the rights of the accused and this right of accused is secured at all costs while the criminal courts determine the liabilities of him. This is the reason why the entire criminal jurisprudence has been dedicated and has been enacted with the changing social attitude towards the crime and criminals. When any crime take place the accused for the offence is apprehended, charged, tried, convicted or acquitted and sometimes released on probation or on parole. In all such cases we hear more from the counsels of the accused to rely on the reformative theory of crime if the accused is found guilty. The entire criminal jurisprudence is more concerned in defending the rights of the accused than inflicting punishment. In the entire process the plight and struggle of the victim of crime goes unnoticed. With regard to the plight of victim in the criminal justice system Justice Krishna Iyer righty puts, “Tears shed for the accused are traditional and trendy but has the law none for the victims of crime, the unknown martyr?” Justice Benjamin Cardozo in Snyder v Massachusetts observed that, “Justice though due to the accused, is due to accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true. Even then crime victims are not treated fairly. Somewhere along the way the system began to serve lawyers, judge and accused treating the victim with institutionalised disinterest.”
The purpose of the criminal justice system is to protect the rights of the individual and society against the intentional invasion by criminals who violate the basic norms of the society. In welfare state, protection is sought to be achieved and ensured by punishing the accused of crime in accordance with law. To ensure that the innocent person must not be victimised, the accused person has granted with certain rights to defend himself and prove his innocence before he is condemned. This ideal is elevated to the constitutional level guarantee by enshrining and considering them to be the fundamental right of the accused.
Criminal law is a reflection of social rules and regulation practiced in the civilised society. It is designed not only to inflict punishment to the criminals but also has the task for reforming it. In a criminal trial there must be at least two active participants i.e. one the offender or perpetrator for whom the entire machinery become vigilant throughout and the other is the victim of crime –forgotten man of the criminal justice system. It is paradoxical that the accused of the offence will be fed, clothed and shall be provided with all the basic amenities at the cost of state exchequer but no due attention will be given to the victim of crime. With regard to the situation of victim in the criminal justice system the apex court rightly pointed that, “It is a weakness of our jurisprudence that victims of crime and the distress of the dependent of the victim do not attract 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.”
It was believed that the ultimate claim of victim would be satisfied by inflicting punishment on the offender. The fair justice demands that when the society and the state authorities are making every possible measure of rehabilitation and correction to the criminal, equal concern must be shown for the victims by providing compensation and restitution for the loss, agony, physical and mental torture they suffer. Realising the gravity of problem with regard to the victims of crime being ignored as a forgotten man in every criminal justice system it was in the year 1985 that the United Nations General Assembly adopted “Declaration of the Basic Principles of Justice for the victims of Crime and Abuse of Power”. The Declaration envisages adhering recognition of victim’s right to information, treatment, restitution and compensation. Declaration further to ensure that the victims are not neglected by the society gives a comprehensive definition of victim which states victim as, “includes any person who individually or collectively has suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of his fundamental rights through acts or omission that are in violation of criminal laws operative within member states, including those laws prescribing criminal abuse of power.”
The Declaration recognised the four major components of rights of crime victims-
- ACCESS TO JUSTICE AND FAIR TREATMENT
- RESTITUTION
- COMPENSATION
- ASSISTANCE
PROBLEM
The real problem begins when victim of crime is made a silent spectator in the functioning of the criminal justice system, even though he is the person who sets the criminal law in motion. Victim has no role to play in framing of charges against the accused nor the victim is consulted when the police and prosecution drops or amend the charges against the accused. Even the prosecution is not concerned with the wellbeing of victims of crime. It is more concerned in successfully prosecuting the accused. The role of the victim in the scheme of things provided under the law is limited. Thus the need of an hour is to have a benevolent system that would provide steady flow of progress report of information regarding arrest of suspect; granting of bail and pre trial release; acceptance of negotiated plea or the scheduling of a trial date and the judge’s sentence; condition of suspended sentence and term of probation; where the convict is to be incarcerated; and timely notification of release, whether due to furlough, parole or the expiration of the sentence.
All this give rise to very important questions as to what is the position of victim in our criminal justice system? Does the present legal framework recognise certain rights for victim are effective? If so whether these rights conform to the standard and norms prescribed by United Nations Declaration in 1985? What is the response of the judiciary in protecting the victim’s right? This article is proposed to explore these connected issues in the study.
JUDICIARY AND VICTIM’S RIGHT
“Justice though due to accused is due to the accuser also. The concept of fairness must not be strained till it is a filament. We are to keep the balance true.”
Indian judiciary has played a very important role to protect the rights of crime victims by way of its various decisions and directions. The most significant function of the judiciary is to enforce and protect the fundamental rights of the citizens enshrined under the Indian Constitution. Justice Untwalia with regard to the function and protective role of the judiciary was of the opinion that, “Judiciary is like a watching tower above all the big structures of the other limbs of the state from which it keeps a watch like sentinel on the function of the other limbs of the state as to whether they are working in accordance with the law and the Constitution, the Constitution being supreme.” The obligation of judiciary in every country is to protect the rights of the citizens granted under the Constitution. In India, Supreme Court and High Courts have been assigned with the responsibility in protecting the Human Rights of the Citizens by virtue of power conferred under Article 32 and 226 of the Indian Constitution. The Indian Criminal Justice system allows the accused to enjoy various rights but the victim has been neglected and his position is reflected just to that of witness.
Highlighting this apathy shown to the victims Justice Krishna Iyer in Ratan Singh v State of Punjab held that, “It is a weakness of our jurisprudence that victims of crime and the distress of the dependent of the victim do not attract 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.”
In Rudul Shah v. State of Bihar Honourable Supreme Court upheld the grant of compensation for illegal detention under a petition of Habeas Corpus taking into consideration the grave harm done. The petitioner was illegally detained for fourteen years despite his acquittal in a full dressed trial. In a Habeas Corpus petition, Court directed his release from illegal detention and passed orders for payment of compensation observing that:
“10. …In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders to release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilization is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner’s rights. It may have recourse against those officers.”
In case of Nilabati Behara v. State of Orissa the court upheld the grant of compensation to the mother of the deceased for contravention of his fundamental right under Article 21. The court further held that “the enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention. Also that principle on which the liability of the state arises in such cases for payment of compensation and the distinction between liability and the liability in private law for payment of compensation in an action on tort the public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation as exemplary damages in proceedings under Article 32 by this court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of citizens. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the Court moulds the relief by granting “compensation” in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by order of making ‘monetary amends’ under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is like ‘exemplary damages’ awarded against the wrongdoer for the breach of its public law duty. It is independent of the rights available to the aggrieved party to claim compensation under the private law in action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law. Whereas in private law/tort law, a defence of sovereign immunity may be maintainable, the State had no such defence and was fully liable for payment of compensation for contravention of fundamental rights of the petitioner.”
Justice Krishna Iyer in the landmark case of Maru Ram& Ors v Union of India held that, “While social responsibility of the criminal to restore the loss or heal the injury is the part of the punitive exercise the length of the prison term is no reparation to the crippled or bereaved. Victimology must find fulfilment not through barbarity but by compulsory recoupment by the wrongdoer of the damage inflicted not by giving more pain to the offender but by lessening the loss of the forlorn.”
In Sharwan Singh v State of Punjab it was observed that the court in awarding compensation should not just consider what compensation ought to be awarded to the heir of the deceased and then impose a fine which is higher than the compensation. The court lay down that the amount of fine should be determined on the basis of various factors of the offender. The Court has said that the accused must be given reasonable time for payment of compensation and if necessary it may be ordered to be paid in instalments.
In Rabindra Nath Ghosal v. University of Calcutta and OrsSupreme Court has held that:
“The Courts having the obligation to satisfy the social aspiration of the citizens have to apply the tool and grant compensation as damages in a public law proceeding. Consequently when the Court moulds the relief in proceedings under Articles 32 and 226 of the Constitution seeking enforcement or protection of fundamental rights and grants compensation, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizens. But it would not be correct to assume that every minor infraction of public duty by every public officer would commend the Court to grant compensation in a petition under Articles 226 and 32 by applying the principle of public law proceeding. The Court in exercise of extraordinary power under Articles 226 and 32 of the Constitution, therefore, would not award damages against public authorities merely because they have made some order which turns out to be ultra vires, or there has been some inaction in the performance of the duties unless there is malice or conscious abuse. Before exemplary damages can be awarded it must be shown that some fundamental right under Article 21 has been infringed by arbitrary or capricious action on the part of the public functionaries and that the sufferer was a helpless victim of that act.”
In Bhagwant Singh v Commissioner of Police ruled out that, “Where the Magistrate to whom the investigation report is submitted under Section 173 of Code of Criminal Procedure 1973 decides not to take cognizance of the case for the sufficient grounds must give notice to the informant i.e. the victim and provide him an opportunity to be heard before the decision. Since investigation consists of proceedings to the place of crime, ascertaining the facts, search and seizure of material objects, seeking information from various persons acquainted with the details of the offence, arrest of the accused and placing him before the magistrate for trial, there is no reason why victim cannot be involved by the police in the process of investigation to give justice to him.”
In M.N Shankarnaryan v P.V Balakrishna , the Court while dealing with the question of giving permission to withdraw the charges held that the courts have an onerous duty to see that the permission to withdraw the charges not to be given if the ground on which it has been sought is extraneous. The court held that “it is the duty of the Court also to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the State go unpunished merely because the Government as a matter of general policy or expediency unconnected with its duty to prosecute offenders under the law, directs the public prosecutor to withdraw from the prosecution and the Public Prosecutor merely does so at its behest. It may grant permission only if it is satisfied on the materials placed before it that the grant of it sub serves the administration of justice and that the permission was not sought covertly with an ulterior purpose unconnected with the vindication of the law.”
In Bhim Singh v State of Jammu and Kashmir the Supreme Court finally averred that it has got right to award compensation in the form of exemplary cost or compensation. The court awarded a sum of Rs 50,000 to the petitioner as compensation for violation of his fundamental right of personal liberty under Article 21 of the Indian Constitution. The petitioner who was an MLA was illegally arrested and detained in police custody and deliberately prevented from attending the session of the legislative assembly. The court in this case held that it could set right a mischief complained by the victim that his rights are violated by the illegal arrest and award compensation. The court deviated from the rule of Habeas Corpus from being remedial made into punitive.
In Saheli, A Women Resources Centre v. Commissioner of police, Delhi the state was held liable to pay compensation to the mother of the deceased who died as a result of beating and assaulting on the part of the police. Explaining the reason for awarding the compensation the court held that an action for damage lies for bodily harm, including battery assault, false imprisonment, physical injury and death. The court further held that the damage give a solace for mental pain, distress, indignity, loss of liberty and death.
In Charan Lal Sahu v Union of India upholding the validity of Bhopal Gas Disaster (Processing of Claim) Act 1985 the apex court has shown its sympathy for the victims of mass disaster. The court decision to disburse Rs 1503 Crore compensation from union carbide to victims or their kin of Bhopal gas tragedy is a significant milestone in granting compensation expeditiously to the victims of the disaster causing loss of life. Bhopal gas tragedy was the biggest industrial accident in the world which ultimately affected over 5 lakhs people. In the absence of any specific law, the court has taken note vacuum of law and adopted an activist approach. It was further laid down that the state act as Parens Patriae.
In considering the compensation to the victim to be paid out of the fine imposed under Section 357 (1) to meet the end of the justice, the Supreme Court in Adamji Umar v State of Bombay observed that, “While passing a sentence the court has always to bear in mind the necessity of proportions between an offence and the penalty. In imposing the fine it is necessary to have much regard to the pecuniary circumstances of the accused person and to the character and to the magnitude of the sentence. Where a substantial term of imprisonment is imposed excessive fine could not accompany it except in exceptional circumstances.”
In Hari Singh v Sukbir Singh and Ors. the court took a different view with regard to awarding compensation under Section 357(3) and held that:
“We are not concerned with sub-section (1). We are concerned only with subsection (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to re-assure the victim that he or she is not forgotten in the criminal justice system.”
A three Judge bench of the Supreme Court in Lata Wadha v State of Bihar while dealing with compensation for the victims of fire during a function granted compensation to housewives on the basis of services rendered by them in the house and their age. This court in that case held as follow:
10. “So far as the deceased housewives are concerned in the absence of any data and as the housewives were not earning any income, attempt has been made to determine the compensation on the basis of service rendered by them to the house. On the basis of the age group of the housewives, appropriate multiplier has been applied.”
In Arun Kumar Agarwal v National Insurance Company Limited, Supreme Court while dealing with the grant of compensation for the death of housewife due to motor vehicle accident held as follows
“26. In India the courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous service rendered by the wife with true love and affection to the children and husband and managing the household affairs cannot be equated with the services rendered by others. A wife or mother does not work by clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer’s work for particular hours. Takes all the requirements of her husband and children including cooking of food, washing clothes etc. She teaches small children and provides invaluable guidance to them for their future life. a housekeeper/maidservant can do the household work but she can never be a substitute for mother/wife who renders selfless service to her husband and children.”
A three Judge Bench in the case of Kirti v Oriental insurance Company Ltd. increased the total motor vehicle accident compensation of Rs 22 Lakhs awarded by the Delhi High Court to 33.20 Lakhs after a motor vehicle accident claimed the lives of a man and his pregnant wife leaving behind his parents and 2 children aged merely 3 and 4. The court while dealing with one of the most important issue that house makers do not add economic value to the household observed that, “Women on average spent 16.9 and 2.6 percent of their day on unpaid domestic services and unpaid care giving services for household members respectively while men spent 1.7 and 0.8 percent.” The court further observed that there is a need for fixing national income for a homemaker therefore serves important functions:
“It is a recognition of the multitude of women who are engaged in this activity, whether by choice or as a result of social/cultural norms. Signals to society at large that the law and the courts of the land believe in the value of the labour services and sacrifices of homemakers. It is an acceptance of the idea that these activities contribute in a very real way to the economic conditions of the family and to the economy of the nation, regardless of the fact that it may have been traditionally excluded from economic analyses. It is a reflection of changing attitudes and mindsets and of our International law obligations and most importantly it is step towards the Constitutional vision of social equality and ensuring dignity of life to all individuals.”
In Subhranshu Rout v. State of Odisha the court was dealing with the objectionable photos and videos which the appellant has posted on social media platforms without the consent of victim and this act was a direct affront on women’s modesty and her right to privacy. The Court observed that, “Indian Criminal Justice system is more of a sentence oriented system with little emphasis on the disgorgement of victim’s loss and suffering, although the impact of crime on the victim may vary significantly for persons and cases– for some the impact of crime is short and intense, for others the impact is long-lasting. If the right to be forgotten is not recognized in matters like the present one, any accused will surreptitiously outrage the modesty of the woman and misuse the same in the cyber space unhindered.”
In Ragini v State of Bombay the High Court of Bombay held that, “that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such court.”
In Vijay v State the court took note of the trial court’s observation that the victim appeared to be a completely credible witness and had been consistent with his version of the incident starting from the initial complaint to the statement under Section 164 Code of Criminal Procedure 1973 and his deposition before the court. The Court observed that, “Merely because there is no positive Forensic Science Laboratory report, would not cast any doubt on the testimony of the victim. Forensic Science Laboratory report is only a corroborative piece of evidence and merely because it does not corroborate the testimony of the victim would not, in any manner, render the testimony of the witness, which is otherwise reliable, as unreliable or liable to be discarded.”
In Nipun Saxena v Union of India it was held that,
“12. A victim of rape will face hostile discrimination and social ostracisation in society. Such victim will find it difficult to get a job, will find it difficult to get married and will also find it difficult to get integrated in society like a normal human being.”
The court issued the following directions:
“50.1. No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.”
In the case of Madhuben Arvindbhai Nimavat v. State of Gujarat, in which a plethora of cases dealing with identical issues were discussed and the test of ‘best interest’ was applied. In that case, it was held that the Court shall have to consider the course of action bearing in mind the ‘best interest’ theory. Victim girl is very young. Her trauma, mental agony and possibilities of social ostracism need to be kept in view. Considering the medical opinion on feasibility of continuing pregnancy as well as social circumstances faced by the victim, the Court’s decision has to be guided by the best interest of the victim alone and not of the guardians or the society.
In District Collector v. District Legal Service Authority the question before the court was related to the applicability of Section 357 (4) Code of Criminal Procedure and court observed that, “The principles of victimology have their foundations in Indian constitutional jurisprudence. The fundamental rights under Part III and the Directive Principles of State policy in Part IV of the Constitution of India form the bulwark for a new social order. The social and economic justice provided in Article 38 and Article 41, which mandates the State to secure the right to public assistance in case of disablement and undeserved want, Article 51A which makes it a fundamental duty to have compassion for living creatures and to develop humanism. According to the Law Commission of India, if the above Constitutional provisions are expanded and interpreted imaginatively, they could form the constitutional underpinnings for victimology in India.”
The court with regard to the legislative intent of the act held that, “It is a settled proposition of law that when a strict application of the definition in a statute will frustrate the legislative intent of a particular provision or when the defined word is used and makes the provision unworkable, then recourse can be had to a different meaning. This recourse to a different meaning is intended by the legislature by using the legislative tool in the form of the words ‘unless the context otherwise requires’… To add meaning and life to Section 357A (4) of Code of Criminal Procedure it is necessary that the word ‘victim’ in Section 357A(4) is meant as a person who suffers any loss or injury by reason of the act or omission of another in which the offender has not been traced or identified and against whom a trial has not taken place. Such an interpretation alone would make Section 357A (4) Code of Criminal Procedure, workable, and have meaning.”
CRITICAL ANALYSIS
The Code of Criminal Procedure confers various rights on the victims of the crime, but these rights are inadequate to secure justice to the victims. There are various problems which the victims face in the criminal justice system. The role of the victim in our criminal justice system is restricted to that of a witness in the prosecution of an offence. This stems from a negative perception of the victim as a person who has suffered harm, including physical and mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights. As a result, the criminal justice system has acquired a vertical dimension and became a means of formal social control by the state which takes over the prosecution of the offender to the exclusion of the victim. The predominant question concerning victim participation is not how to circumvent the conflict of rights between the accused and the victim but rather how to manage the parties interests effectively, so that as many conflicting interests as possible can be recognised by the criminal justice system. In this connection, there is a need to find within the present adversarial system a greater voice for victim which aimed fundamentally at unprejudiced adjudication of accused and protection of his rights.
CONCLUSION
“It is impossible to undo victimisation. At the least, help for victims should include the promise that they will not be violated again, but the pledge is equally impossible.” -J.L. Barke
The quality of life in society is largely determined by the manner in which the laws are enforced. There will be no takers for the rights guaranteed by the Constitution or law, if the realization of these rights proves to be costlier than the rights themselves. The primary function of the Constitution and the laws is to fulfil the aspirations of the common man. Criminal justice system is that instrumentality which is looked at by the people to redress the harm done against them and seek justice to improve the quality of their life. The Indian criminal justice system is based upon adversarial system which is heavily loaded in favour of accused. The accused is presumed to be innocent, till the prosecution proves his guilt beyond reasonable doubt. Throughout the process the accused enjoys right to be silent and cannot be compelled to answer the questions incriminatory in nature. Though the system is fair enough, but from the point of view of victim is not conducive enough to consider his interests in broader context. Though he is part of the crime he plays the roles of both esoteric and exoteric. The victim has no significant role to play except as a prosecution witness. The law fails to address the needs of the victim to be treated with dignity, to sustained protection from intimidation, to readily access the justice mechanisms, to legal aid and to rehabilitation. The Indian criminal law lacks these four components as contemplated by UN Declaration except the compensation and restitution as effective rights. As a result the victim is disenchanted from the system and chooses not to report or to co-operate with the agencies. His experience also induces the general public in developing reluctance to co-operate with the criminal justice system.
Mail us at edumoundofficial@gmail.com
