By Vanshika Batra
In India, crime is treated as a wrong done to the society at large, that is, Jus in rem. Since the metamorphosis and formation of the state, it is considered to be the prime responsibility of the state to protect its individuals. The commission of a crime is thus a direct failure on the part of the state in the performance of its duty. Thus, the state initiates action against the accused via a Public Prosecutor. The primary redressal of the harm done to the victim occupies a backseat wherein the victim is not closely associated with the investigation, their private counsel is not allowed to represent them in the court and victim compensation is not a mandatory part of sentencing, but is left over to the discretion of the judge. This research emphasizes on a victim-centric approach rather than a solely accused-centric approach in criminal law, the rights of the victims, the measures that have been taken to ensure the rights of the victims, international stance on Victim Justice and suggestions to realize victim justice in practice rather than on paper.
Victim
The term “victim” has been defined under Section 2(wa) of the Code of Criminal Procedure,1973 as “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 their;”
The criminal justice system in India assumes a criminal oriented approach to jurisprudence and measures to rehabilitate, correct, treat and re-socialise the criminal via correctional homes, probation, parole, juvenile justice facilities and retention of their constitutional rights even in detention while the victim is kept in the backseat during the entire redressal mechanism is deeply problematic. Thus, compensatory jurisprudence or a victim-oriented approach to jurisprudence should be adopted to ensure the benefit of the victims who have primarily suffered the harm.
International Stance
The 1985, United Nations Declaration on the 'Basic Principles of Justice for Victims of Crime and Abuse of Power', is basically concerned with the following rights of victims;
1). Access to Justice and Fair Treatment- The judicial system should be easily accessible and affordable for the victims. They should be treated with compassion and dignity and kept informed about the investigation, their requisite involvement should be assisted and they should be provided with proper legal assistance throughout the process of redressal.
2). Restitution- The victims should be duly restored of the harm or loss that they might have suffered as a result in the form of property or the expenses incurred as a result of victimisation and should be made a part of sentencing. The victims might receive restitution from the Government or the offender as the need may be.
3) Compensation- This declaration provides for compensation to the victim when the offender is not in a position to furnish the same as a result of financial impairment. In such situations the state should take it upon itself to provide compensation to the victim for any bodily injury or harm suffered or mental stress or trauma that the victim or their dependants might have suffered as a direct or indirect result of the crime.
4). Assistance- The victims should be granted the requisite medical, psychological and social assistance and the requisite authorities or intermediaries should be trained in order to sensitize them to the needs of the victims. The gravity or the nature of the harm inflicted upon the victims should also play a role in offering them the requisite assistance.
Measures taken by the Government of India towards Victim compensation
The 154th Law Commission Report has a chapter dedicated towards “Victimology”, wherein the rights of victims during criminal trials were emphasized. Article 41 (that directs the state to “secure the right to work, education and public assistance in certain cases”) and Article 51A (h) (“to develop the scientific temper, and the spirit of inquiry and reform”) were interpreted by this report as the constitutional provisions that formed the basis of Victimology.
The 'Committee on Reforms of Criminal Justice System (2003)', suggested that United Kingdom’s method of ensuring victim rights should be introduced in India. The Committee also recommended the creation of a victim compensation fund that would provide compensation to the victim irrespective of whether the accused is convicted or acquitted.The recommendations of this committee led to the introduction of Section 357A under the Code of Criminal Procedure, 1973. This section, provides for compensation even without a sentence for fine, but it is the discretionary power of the court and is invoked in rare circumstances thus making victim compensation available only on paper.
Rekha Murakha V. State of West Bengal
In Rekha Murakha v. State of West Bengal, the Supreme Court of India has read Section 24(8) of the Code of Criminal Procedure,1973 along-with Section 301(2) of the same act. The court has denied the private counsel of a victim to cross-examine a witness or make oral arguments since it has been found to fall outside the purview of the interpretation of the term “assist” in Section 24(8) of the Code of Criminal Procedure, 1973. The Court also remarked that,
“11.5. …if the victim’s counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 CrPC or Section 165 of the Evidence Act, 1872....”
The Public Prosecutor retained his position as the sole prosecutor and the victim’s private counsel was denied to cross-examine or make oral arguments on the grounds that it could lead to the proceedings becoming “vindictive”, thus loosing its main purpose of redressal.
RECOMMENDATIONS IN ORDER TO ADOPT A MORE VICTIM-ORIENTED APPROACH TO JURISPRUDENCE
Victim-compensation scheme should be implemented in practice. Leaving the enforcement of the rights of the victims at the discretion of the courts under Section 357A of the Code of Criminal Procedure, 1973 would make it a mere occurrence on paper. The private counsel of the victims should be allowed to cross-examine and make oral arguments to a certain extent, since the discretion allowed to them via Section 311 of the Code of Criminal Procedure,1973 and Section 165 of the Indian Evidence Act,1872 is restrictive in its nature and not enough to keep the victim in the loop regarding the proceedings. This should also be implemented so as to ensure victim justice since the accused enjoys all sorts of privileges in terms of a private counsel and retention of their constitutional rights so as to ensure their best shot at attainment of justice.
Justice R. L. Narasimham, had recommended the deletion of Section 357 of the Code of Criminal Procedure, 1973, since the compensation that could have been offered under it remained solely financial. The victims suffer from psychological, physical and in certain cases social harm that cannot be compensated via money. Thus, the rigidity in the section as to the means of compensation should be altered by the legislature for the purpose of attainment of victim justice.
Various juvenile justice homes and correctional homes have been established by the state so as to treat, rehabilitate and re-socialize the juveniles or offenders into the society. In a similar fashion, rehabilitation facilities should be established for the victims of a crime based on the severity or gravity of the harm suffered by them, via central or state legislative acts. These rehabilitation centres should offer mental, social or physical assistance to the victims thus making an attempt to re-socialize them into the society. The recommendations of the United Nations Declaration on the 'Basic Principles of Justice for Victims of Crime and Abuse of Power' should be implemented in India, thus ensuring Victim Justice under the Criminal Justice System of India.
The author of this article is Vanshika Batra, a second-year BALLB student at Institute of Law, Nirma University.
This article contains the view of the author and the publisher in no way associates with the views or ideologies of the author. All the moral rights vests with the Author(s).
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