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Victim's rights and criminal justice reforms

N.R. Madhava Menon

The rights of victims should be recognised by law. Restitution for loss of life, limb, and property should be provided for in the system.

AMONG THE many proposals on the table for reforming criminal justice, the one that attracts universal acclaim relates to the status and role of the victim in criminal proceedings. Today he or she is an informant and possibly a witness for the prosecution depending upon the good sense of the police and the discretion of the public prosecutor. Unlike the accused, the victim has no rights to protect his or her interests in the proceedings, which are supposedly conducted on his or her behalf by the state and its agencies. And when the state agencies fail to do their duty, as has often happened in many cases in the recent past, the victim is left to suffer injustice silently or to take the law into his or her hands and wreak vengeance on the offender.

What can be done to give a better deal to the victims of crime to make the proceedings equally fair to both sides?

In 1985, the United Nations adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. The Declaration recognised four types of rights and entitlements of victims of crime. They are:

(a) Access to justice and fair treatment — which includes prompt redress, right to be informed of benefits and entitlements under law, right to necessary support services throughout the proceedings, and right to protection of privacy and safety.

(b) Right to restitution — return of property lost or payment for any harm or loss suffered as a result of the crime.

(c) Compensation — when compensation is not fully available from the offender or other sources, the State should provide it at least in violent crimes that result in serious bodily injury, for which a national fund should be established.

(d) Personal assistance and support services — includes material, medical, psychological, and social assistance through governmental, voluntary, and community-based mechanisms.

The United Kingdom enacted the Criminal Injuries Compensation Act in 1995. In 2001 in a report on "Criminal Justice: The Way Ahead," the Home Department found "that many victims felt that the rights of the accused of a crime take precedence over theirs in criminal proceedings." Every time a case is discharged or acquitted or the verdict is perceived to be unjust, a victim's suffering is made worse. During the long proceeding of investigation and trial, victims are not kept properly informed or provided with a sense of security. Too often they are expected to turn up at court for cases that are then adjourned, or are subjected to unnecessarily stressful courtroom experiences.

Crime can leave victims physically injured, emotionally traumatised, with potentially long lasting psychological trauma, all of which can be compounded by severe financial difficulties, observed the U.K. report. The agencies with which victims come into contact, particularly during the period after the crime, do not always understand and respond effectively to their needs. The U.K. report, therefore, recommended the following measures to balance the system of justice in that country:

(a) Legislate to entitle victims with information about release and management of the offenders, and progress of their cases.

(b) Enable victims to submit a "victim personal statement" to the courts setting out the effect of the crime on their lives.

(c) Introduce measures to protect vulnerable victims/witnesses such as screens, video evidence, etc.

(d) Establish a victim's commissioner (ombudsman).

(e) Legislate to produce a Victim's Code of Practice setting out what protection, practical support and information, victims have a right to expect from criminal justice agencies.

In France all those who suffer injuries on account of crime are entitled to become parties to the proceedings from the investigation stage itself. They can assist investigation to proceed on proper lines and move the Court for appropriate directions when the investigation gets delayed or distorted for whatever reasons. They may suggest questions to the Court to be put to witnesses produced in Court. They may conduct the proceedings if the Public Prosecutor does not show due diligence. They can supplement the evidence adduced by the Prosecution and put forth their own arguments. They will help the Court in the matter of deciding the grant or cancellation of bail. They will adduce evidence in the matter of loss, pain, and suffering to decide on their entitlement of interim relief and compensation by way of restitution. Wrongful attempts to withdraw or close the prosecution due to extraneous factors can be resisted.

The status of victim in criminal proceedings in India is dealt with in a few provisions of the Criminal Procedure Code, which are too insufficient to be considered fair in dispensing equal justice under law (Article 14).

If the victim of a cognisable offence gives information to the police, the police are required to reduce the information into writing and read it out to the informant. The informant is required to sign it and receive a copy of the FIR (Section 154 (1) and (2) of the Cr.P.C.). If the police refuse to record the information, the victim-informant is allowed to send it in writing and by post to the Superintendent of Police concerned (Section 154(3)). If the police refuse to investigate the case for whatever reason, the police officer is required to notify the informant of that fact (Section 157(2)). Alternatively, victims are enabled by section 190 of the Cr. P.C. to avoid going to the police for redress and directly approach the Magistrate with their complaint.

The complaints of victims are many. That they are ill treated or harassed. That the police do not truthfully record the information. Investigation being exclusively a police function, victims have a role in it only if the police consider it necessary. There is no special provision for support to victims of rape to enable them to overcome the trauma and hurt.

In the granting and cancellation of bail, victims have substantial interests though not fully recognised by law. Section 439 (2) allows a victim to move the Court for cancellation of bail; but the action thereon depends on the stand taken by the Prosecution. Similarly, the prosecution can seek withdrawal at any time during trial without consulting the victim (Section 321 Cr. P.C.). Of course, the victim may proceed to prosecute the case as a private complainant. However, the victim cannot challenge the prosecution decision to withdraw at the trial stage itself.

The compensation provision is of little value. Section 357 says when the sentence of fine is imposed as the sole punishment or any additional punishment, the whole or part of it may be directed to be paid to the victim as per the discretion of the Court. Section 357 (3) makes provision for compensation even if a fine does not form part of the punishment. There is no question of compensation if there is acquittal or where the offender could not be apprehended.

In 1992, the Uttar Pradesh Government through an amendment to Section 357 provided that where the victim belongs to a Scheduled Caste or Scheduled Tribe and the person convicted is not of that category, the Court is obliged to order compensation to the victim.

Of course, compensation is sometimes ordered to be paid by the state for illegal detention, custodial torture etc. by the constitutional court under writ jurisdiction.

Malimath panel recommendations

In the above context, the Malimath Committee appointed by the Government of India (2003) made a series of recommendations to put the victim back at the centre of criminal proceedings through a series of steps designed to empower him and the court. These include:

(i) The victim, and if he is dead, his legal representative shall have the right to be impleaded as a party in every criminal proceeding where the offence is punishable with seven years imprisonment or more. In select cases to be notified by Government, this right may even be extended to recognised voluntary organisations as well.

(ii) The victim has a right to be represented by an advocate of his choice; an advocate shall be provided at the cost of the state if the victim is not in a position to afford a lawyer.

(iii) The victim's right to participate in criminal trial shall, inter alia, include the right to provide evidence, to put questions to witnesses with the leave of the court, to be informed of the status of investigation, to move court to ensure proper investigation, to be heard on issues relating to bail and withdrawal of prosecution, to advance argument after the prosecutor has submitted his arguments, and to participate in settlements of compoundable offences.

(iv) The victim shall have a right to prefer an appeal against any adverse order passed by the court acquitting the accused, convicting for a lesser offence, imposing inadequate sentence, or granting inadequate compensation.

(v) Legal services could include psychiatric and medical help, interim compensation, and protection against secondary victimisation.

(vi) The victim compensation law is to be made by Parliament, which will provide for the creation of a victim compensation fund to be administered possibly by the Legal Services Authority. The law should provide for the scale of compensation in different offences for the guidance of the court.

Criminal justice administration will assume a new direction towards better and quicker justice once the rights of victims are recognised by law and restitution for loss of life, limb, and property are provided for in the system. The cost for providing it is not exorbitant as sometimes made out to be. In any case, dispensing justice to victims of crime cannot any longer be ignored on grounds of scarcity of resources.

(The writer is Director, National Judicial Academy, Bhopal.)

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