Rights of Victims in India

By reading the title, a question arises in our minds: Who is a victim? Generally, people believe a victim is a person who has been harmed physically. But it is not entirely true.

A victim is a person who has been harmed physically and mentally. As per Section 2 (a) of the Code of Criminal Procedure 1973, a victim is a person who has suffered any loss or injury caused because of the act or omission for which the accused person has been charged. 

Hence, one can say a victim is a person who has suffered harm, physical or mental injury, emotional suffering, economic loss or violation of their fundamental rights through acts or omissions violative of Indian criminal laws.

Constitution of India, Indian Evidence Act and the Code of Criminal Procedure, 1973

The Indian Constitution and the Code of Criminal Procedure, 1973 prescribe various rights for victims. Article 14 and Article 21 incorporate fundamental rights that must be read with the Directive Principles of State Policy listed in articles 39A, 41, 46, and 51C.

As per Article 39A, the State offers free legal assistance and a guarantee for promoting justice on the grounds of equal opportunity. By compelling the State to compensate victims of criminal violence, Article 21 ensures against unfair deprivation of life and liberty.

A Public Prosecutor appointed by the state represents the victim. Moreover, in 2008, an amendment was made to Section 24 (8) of the CrPC. As per the amendment, the victim was allowed to choose an advocate to assist the public prosecutor. Though the Code identifies a few rights that favour the victims, they are not as effective as those of the accused.

For example, the victim can choose his private lawyer, but the authority given to such a lawyer is limited. The lawyer can only submit the written arguments after the evidence is recorded and only after the court permits.

Other rights include the right to file an FIR (First Information Report). Although the police are the primary authority that investigates the case, they are unaware of international developments in areas such as victimology. As well as this, they are unaware of how victims should be treated.

United Nations Declaration rightly states that treating victims negatively will lead to misperceptions among victims of the criminal justice system in India. Hence, there is no iota of doubt about the importance of compassionate treatment and respect for the victims’ dignity.

Moreover, according to Section 25 of the Indian Evidence Act, no confession made to a police officer shall be proved against a person accused of any offence.

In a criminal case, after the judgment is pronounced, the victim’s role ceases to exist. However, after pronouncing the judgment, the victims should be offered some rights to ensure complete justice, such as the right to compensation.

According to Section 357(3) of CrPC, the court has the right to grant compensation to the victim for any loss or injury suffered by him, even in cases where a fine has not been levied upon the accused.

However, in the case Harikishan & State of Haryana v. Sukhbir Singh, it was observed by the Supreme Court of India that courts in India rarely make use of section 357 of the CrPC to grant compensation to victims of crime.

Thus, the legislature inserted a provision in section 372 of the Code through the Amendment Act of 2008, keeping in mind the recommendations given by the Malimath Committee and the Law Commission empowering victims with the right to appeal.

UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power

In 1985, the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power reaffirmed the importance of the protection of crime victims in international law. It has recognized the following major rights of victims:

1. Right to Attend Proceedings

During criminal proceedings, the victims and their families are entitled to attend the proceedings. This right to attend proceedings includes the right to attend trial, sentencing, parole hearing of the offender etc. A crime victim is more confident and in a better state of mind to exercise his right to attend the proceedings with the support and presence of a trusted advocate or family member.

2. Right to Compensation

To reimburse victims for their expenses relating to the crime, victim compensation is designed by the government. Most compensation programs are open to the direct victims of crime, or their surviving family members. However, sometimes victims are ineligible to claim compensation if their misconduct contributed to their injuries.

3. Right to be Heard

Generally, according to the law, the statements provided by the victim may be oral or written. However, in some states, such statements can be submitted in the form of videotape, audiotape, or other electronic means. These statements provided by the victims describe the impact of the offence on them, including financial, physical, psychological or emotional impact etc.

4. Right to Information

General information of interest to victims should be provided by the criminal justice system. It includes information on the right to attend a proceeding, submit a victim impact statement, sue the offender for money damages in the civil justice system, file for a protection order, and collect witness fees for their testimony, among others. The victim should be informed of various proceedings in the criminal justice process such as the arrest of the accused, bail release and related proceedings, dismissal of charges, negotiated pleas, sentencing hearings, parole release and related proceedings etc. 

5. Right to Restitution

Restitution refers to the restoration of the harm caused by the defendant[1]. Courts have the authority to order restitution from convicted offenders as part of their sentences. A court considers the victim’s losses for calculation of the restitution owed. The court may also consider the defendant’s financial resources while setting the total amount of restitution.

6. Right to the Expeditious Return of Personal Property

Sometimes, a victim of a crime may suffer the loss of property. This loss can either be due to theft or the seizure of property by the police. Generally, the property seized is returned to its rightful owner when it is no longer required as evidence in criminal prosecution. Some states have attempted to impose specific time requirements for the return of property so that the victim is not deprived of his property for a long time.

7. Right to a Speedy Trial

This right is provided by many jurisdictions to crime victims. Moreover, some specific cases are given priority as compared to others due to their facts and circumstances by several jurisdictions. Such priority cases can be cases involving children or vulnerable elderly victims.

8. Right to Privacy

Furthermore, many victims back down from seeking justice because of the fear of harassment or retaliation from their known ones and offenders. Victims have the right to protect their privacy such as name, address, phone number etc. In addition, particular communications, such as conversations between husband-wife, doctor-patient, attorney-client etc. are safeguarded from judicial disclosure.

Moreover, the State has witnessed significant developments in the form of new laws such as the Protection of Women from Domestic Violence Act 2005, Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, Maintenance and Welfare of Parents and Senior Citizens Act 2007 etc.

Protection of Women from Domestic Violence Act, 2005

This Act protects the victim from domestic violence and prohibits the accused from denying the victim continued access to resources or facilities which the victim is entitled to use or enjoy under the domestic relationship, including access to the shared household.

The victims can obtain a protection order, a monetary relief order, a custody order, a residence order, a compensation order etc.

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

This Act was introduced to prevent atrocities against the members of the scheduled castes and scheduled tribes. Under this Act, compensation to victims is mandatory, besides several other reliefs depending on the type of atrocity faced by the victims.

Maintenance and Welfare of Parents and Senior Citizens Act, 2007

This Act has been adopted to eradicate the growing problem of elder abuse and victimisation prevalent in many countries, including India. Under the provisions of this law, children or legal adult heirs are required to maintain their parents or senior citizens above the age of 60 who are unable to utilise their earnings to live a normal life.

The Tribunal may issue an order to the children or legal heirs asking them to give a monthly maintenance allowance in case the children or legal heirs fail or refuse to retain the elderly citizen.

National Commission for Protection of Child Rights

Article 21-A of the Constitution provides that the State shall grant free and obligatory education in the form that the State may determine by law to all children aged 6-14 years.

To ensure that all laws, policies, programmes and administrative mechanisms conform to the views of children’s rights, the National Commission for Protection of Child Rights (NCCPR) was established in March 2007. The National Committee can recommend the commencement of prosecution proceedings or any other action it may deem appropriate following an inquiry.

Conclusion

Several rights have been enacted to empower victims. However, the victims have to go through many struggles and hardships including long and cumbersome proceedings and the fear of victimization by the people. As a result, the Indian criminal justice system has become a channel of social control by the state by taking over the right to prosecute the accused without the victim.

Hence, there should be a replacement of the vertical criminal justice system with a horizontal justice system in which the punishment system is sought to be replaced by a negotiation system. Hence, giving the central role to the victim.

Moreover, medical, psychological, and social assistance should be provided to victims in a manner that is governmental, voluntary, community-based, and indigenous. Victims should also be informed of the availability of health and social services and have easy access to them.

Moreover, victims should be treated with compassion and respect for their dignity. Furthermore, an unnecessary delay should be avoided in the disposition of cases and the execution of orders or decrees granting awards to victims.

Continuing the progress, citizens should use informal dispute resolution methods, such as arbitration, customary justice, or indigenous practices, to facilitate conciliation and redress for victims. Sadly, our criminal justice system has neglected to adequately assist the victims of crime for far too long.

It’s time to ensure that victims are given their rights. Since suffering confers no rights on its victims, we who witness are the ones responsible for restoring these rights.

This article has been contributed by Megha Singal.