Indian Law/Victims rights

Reported cases of rape in India (2001-2012)

Background

In the inception, the Indian legal system was basically punitive in nature. The adjudicating authorities were complacent either by convicting or acquitting the accused by subjecting him/her to a fair trial. During lapse of time it was found that the criminal justice system was more or less revolving around the accused and in this way the victim has been totally ignored by the court of law.

Rights of Victim

For the first time in the year 1985 in the general assembly of United Nations, a declaration was made on basic principles of Justice for victims of Crime. This declaration is otherwise called a kind of magna carta of rights of victims of the world. The import of Article 21 of the constitution of India has been amplified in its application by the catena of decisions of the Honorable Apex court of India. Right of the victim was also derived from the said article. The necessity of the right of victim was felt by the courts when it was found that the victim, otherwise called as the initiator of the litigation, is losing confidence on and interest in the process of adjudication. The victim developed a kind of detachment from the adjudicating process when it was found that the human rights of the accused became well protected either by legislation or adjudication in comparison to the protection of the right of the victim. The victim is not a passive object but an active component in the judicial process. The victim deserves similar kind of protection and attention from the court like that of an accused. Punishment to the accused is a signal to the accused as well as to the society not to commit an offense. But by this the victim is not going to gain anything.

To make a balance between the human rights of the accused and the victim by plethora of decisions the Honorable Supreme court of India attempted to restore the dignity of the victim and to heal up the wounds sustained by the victim.

Redefining rights of victim

In this long journey it was found that rights of the victim comprise the following four ingredients.

a) Access to justice & fair treatment,

b) Restitution,

c) Compensation &

d) Assistance.

After the Code of Criminal procedure (Amendment) Act, 2008 and Criminal law amendment act 2013 a radical and impactful change is found in the Indian criminal justice system by introducing and redefining the rights of victim in the following manner.

i) Section 2(w)(a) of the Code of criminal procedure. This new definition includes a guardian or legal heir of the victim as a victim and confers them the right equivalent to victim. ii) Section 24(8) of the Code of criminal procedure. By this insertion the victim is able to engage his advocate of his choice to assist the public prosecutor.

iii) Section 26(A) of the code of criminal procedure. It provides that offense under section 376 and 376 (A) to 376 (D) of the Indian penal code shall be tried as far as practicable by a court presided over by a woman.

iv) Section 157 of the Code of criminal procedure. In the second proviso of the said section, it is inserted that the statement of the rape victim will be recorded at the residence of the victim or in a place of her choice or as far as practicable by the woman police officer in the presence of her parent or guardian or near relative or a social worker of the nearby locality.

v) Section 173(1-A) of the Code of criminal procedure. This amendment is made by stipulating a specific time of three months for the investigating agency to complete the investigation if the allegation relates to the offence of rape of a child.

vi) Section 357(a) of the Code of criminal procedure. This amendment was incorporated in order to provide for the state government to prepare in coordination with the central government a scheme called “Victim compensation scheme” for the purpose of compensation to the victim or his dependents who suffered loss or injury as a result of the crime.

Despite all these amendments some shortfalls are still existing in our criminal justice system to protect the right of the victim which are as follows:-

RIGHT TO PARTICIPATE IN THE PROCEEDING

In the existing criminal justice system a victim to a crime does not have any significant role to play. The investigation of the crime is the exclusive domain of the police officer. The victim has a role only if the police consider it necessary. The existing law envisages that the prosecutor appointed by the state is the proper authority to plead on behalf of the victim. Though the Code of criminal procedure does not completely prohibit the victim from participating in the proceeding but the role of the lawyer engaged by the victim is too limited and the lawyer so engaged by the victim has to act with the permission of the court to the extent of assisting the public prosecutor.

REHABILITATION

The Malimath Committee had recommended that victims of rape and domestic violence require trauma counseling, psychiatric and rehabilitative service apart from legal aid. But there is no statutory scheme recognizing the rehabilitative needs of the victims of rape. Nothing in the statute is available to address the needs of the victim with dignity.

VICTIM PROTECTION

The code of criminal procedure , though recognizes some rights relating to witness protection, it is silent about victim protection whereas in many countries like South Africa, France and The United States of America , there is provision for victim protection.

BAIL

Though the victim has the right to move the court for cancellation of bail under section 439 of the Code of criminal procedure, but in practice while releasing an accused on bail little importance is attached to the interest of the victim and he is hardly heard.

Need for a better approach

1. In the present Indian society courts are giving maximum stress on victim compensation as per the provisions under section 357 (a) of the Code of criminal procedure. Such compensation basically means financial compensation to the victim. In this form of compensation, it is found that in an offense where fine is to be imposed along with substantive sentence, the court cannot award compensation directly to the victim in addition to the fine imposed by the court. Because fine & compensation cannot run together. In a case where the statute prescribes substantive imprisonment or fine or both, there the court is at liberty to award substantive sentence & direct the accused to pay compensation to the victim. As fine and compensation cannot run together, so while imposing fine as a statutory requirement, there the court can direct that if the fine will be realized then it shall be given to the victim in the form of compensation.
2. So far as the case of Magistrate of the First class and Second class, the statute has prescribed a limit for imposing fine. Take the instance of an offense under section 326 of the I.P.C. tried by the Magistrate of First class. Upon conviction, the Magistrate is bound to impose a fine and it is up to the maximum of Rs.10,000/. When the victim has sustained injury and has spent a sum of Rs.50,000/- for recovery, in that case magistrate has no other option but to impose a fine of Rs.10, 000/-, if paid, be given as compensation. In other words the victim was not compensated properly.
3. The sessions court has no limitation while imposing fine. So keeping in mind the injury caused to the victim, the sessions court can impose a sentence of fine. If such fine is paid, then it shall be given to the victim as a token of compensation.
4. Realization of fine either imposed by the magisterial courts or by the sessions court is governed under section 421 and section 422 of the Code of criminal procedure. The realization in this procedure is lengthy and cumbersome. Compensation, if awarded in absence of fine then also it is to be realized by way of fine as per the provisions under section 421 and 422 of the Code of criminal procedure. So where the accused does not deposit the fine or the compensation sum, then it is difficult on the part of the victim to enjoy the flavor of the compensation.
5. If the accused does not pay the fine or the compensation then in default he has to undergo further imprisonment. Default sentence is not a punishment as it is not mentioned under section 53 of the Indian penal code. In other words a convict, if suffers default sentence by not making payment of the fine imposed or the compensation awarded, still then he cannot avoid making payment of the imposed fine or compensation awarded.
6. At this stage one would certainly brood for a moment that if default sentence is not a punishment then why the courts will not be empowered by the statute to issue a direction to the state government to deposit the imposed fine or compensation awarded in favour of the victim on the date of pronouncement of judgment. Thereafter the state is at liberty to realize the same from the estate of the aggressor. State is a powerful machinery to pounce upon the estate of the aggressor and to realize the same whereas not that much easier for an individual victim.
7. The state is expected to meet such monetary compensation of the victim, because in certain cases the accused has no means or minimum means to meet the fine imposed by the court. The poverty of the accused cannot be an impediment for the victim to get compensated as it is a legal right of the victim. To make the victim compensation scheme approachable to the victim, sufficient fund be allocated to each court. So that on the date of judgment the victim shall receive the compensation sum in the form of a cheque issued by the said court. As a result she shall not again run to different authorities to receive the compensation.
8. Compensation can be and should be awarded in every case irrespective of result of the case. In case of conviction or acquittal the victim shall receive compensation from the court on the date of judgment. Conviction or acquittal relates to appreciation of evidence in a case at hand before a court. But it has nothing to do with the injury either physical or mental sustained by the victim.
9. If the victim compensation will be made easier then there is a probability that fake cases may be registered to receive compensation from the state. But in a developing country like India, more risk will have to be taken for the benefit of the society as a whole. Law cannot make the genuine victims suffer at the cost of few fake victims. If the state is making payment for custodial violence being vicariously liable, then why the state shall not make payment by way of compensation to the victims.
10. If compensation to the victim becomes a statutory right and it will be easily available to the victim then each victim shall be careful to his allegation and shall be vigilant during trial regarding the improvement made with respect to his allegation. By this, without any special effort either from the state or from the court the victim will participate in the proceeding voluntarily and actively. If the victim will be vigilant in the proceeding then the prosecutor cannot conduct the case casually. As a result the rate of conviction will be high, which ultimately inspires confidence of the public on courts. It will dissuade others to commit crime.
11. The amendment of section 24(8) of Code of criminal procedure can be made more open. So that the victim shall engage his counsel to conduct his case. The way legal aid is given to the accused, similarly litigation expenses and fee of lawyer of the victim will be given to the victim by way of compensation.
12. Protection of the victims' rights is a vital factor. It was not that much guarded by our code. If an amendment is made and the statement of the victim before police, if not in all the cases, but in certain cases like allegation relating to rape and grievous injury, will be treated as a substantive piece of evidence, then the accused may not make an attempt to threaten the victim before she being examined in the court.
13. If the victim resiles from his/her earlier statement, burden should lie on him/her to prove that why he/she was resiling from his/her previous substantive statement.

• In the conclusion it can be held that i) Victim compensation, ii) complete freedom to choose one's own lawyer & iii) security of the victim are the immediate requirements to restore the right of the victim.

N.B:-(The author of this article is a senior civil judge from the state of Odisha in the Republic of India)

Resources

• Topic:Indian law
• For a broader aspect of the viewpoints see Comparative law and justice
• Wikipedia: Victims' rights

External links

• "Rights of victims in Indian justice system"