Nirati Gupta, Asst. Prof., Law Centre – I, Faculty of Law, University of Delhi
Victims meet with accidents because of some negligent driver on the road, they are sometimes beaten on street, have their homes vandalized, sometimes have their handbags or wallets stolen on the street. Then they are often double-victimized, the second insult being inflicted by the authorities. Law enforcement personnel, hardened from having dealt with so many crimes for so long, fail to understand that for most people victimization is a rare, often a unique and novel experience. Further frustrated by their inability to stem offences such as burglary and car theft- crimes in which the perpetrator usually cannot be described- law enforcement agents tend to be abrupt and dismissive in the face of victims’ despair, sometimes even refuse to register a complaint.
Once the FIR is registered and the process is initiated, the search for the perpetrator begins. Even when he is apprehended, it takes months for the trial to actually start. When it does, the victim would have to miss work, suffer through any number of postponements, and endure grilling by the defense attorney. Even when he has been through all this, there is no surety that the accused would be convicted. In the end the victim finds little satisfaction with the criminal justice process.
Before exploring what role if any a victim should play in the criminal law process, it is necessary to explore what it means to be a “victim.” Although a subspecialty of criminology called “victimology” has existed for many years little information about the experience or psychology of crime victims is available. Instead, the study of “victimology” has focused more on sociological questions; for example, who is likely to be victimized, what is the incidence of victimization, and what are the outcomes of social services for victims. Thus, while we may assume many things about crime victims, few of us know much about the experience and its effects ((Compare Notman & Nadelson, The Rape Victim: Psychodynamic Considerations, 133 Am. J. Psychiatry 405 (1976) (rape is traumatic external event that breaks balance of ego adaptation and environment, resulting in guilt, phobic reactions, anxiety, and depression), with K. Erikson, Everything In Its Path (1976), at 156-57 (medical terms for conditions present in 93% of flood survivors include depression, anxiety, phobia, post-traumatic neurosis; Erikson’s terms include confusion, despair, hopelessness), cited in Lynne N. Henderson, “The Wrongs of Victim’s Rights” 37 Stanford Law Review 937, at 956 (1985).)).
Psychological Issues Raised by Victimization
Sudden victimization can lead to extreme trauma. Kai Erikson has defined extreme trauma as “an assault on the person so sudden and so explosive that it smashes through one’s defenses and does damage to the sensitive tissues underneath ((K. Erikson, Everything In Its Path, 253 (1976), cited in Lynne N. Henderson, “The Wrongs of Victim’s Rights” 37 Stanford Law Review 937, at 956 (1985).)).” Crimes of murder, rape, kidnapping, robbery, and aggravated assault are the crimes feared most; the effects of these crimes on individuals would appear to fall within the definition of extreme trauma. Core crimes threaten our existence, either literally, as in murder, or indirectly, as in assault, and remind us of the fragility of life.
Taking individual responsibility for the experience may help the victim to find meaning, because responsibility. Responsibility in this sense means being “the uncontested author of an event or a thing ((J.P. Sartre, Being and Nothingness, 633 (1956), cited in Lynne N. Henderson, “The Wrongs of Victim’s Rights” 37 Stanford Law Review 937, at 962 (1985).)),” and “[t]o be aware of responsibility is to be aware of creating one’s own self, destiny, life predicament, feelings, and . . . one’s own suffering ((I. Yalom, Existential Psychotherapy, 218, (1980), cited in Lynne N. Henderson, “The Wrongs of Victim’s Rights” 37 Stanford Law Review 937, at 962 (1985).)).”
Unfortunately for many crime victims, Indian culture discourages this kind of personal responsibility and instead emphasizes another type of responsibility- “blame” and fault finding. By blaming others, the victim escapes responsibility. By blaming the victim for his plight, society further discourages the victim from taking responsibility for the event. Accordingly, the societal emphasis on innocence as a prerequisite to being a “real” victim, taken in combination with the confusion between “innocence” and “responsibility ((Lynne N. Henderson, “The Wrongs of Victim’s Rights” 37 Stanford Law Review 937, at 962 (1985).)),” make it very difficult for a victim to avoid displacing the criminal event from her experience.
Victims frequently encounter social isolation and an invalidation of their efforts to come to terms with their experience, while at the same time confronting the existential isolation presented by the reality of death ((Supra n.4)). Sometimes there is a marked inability of friends and relatives of victims to confront the issues raised by victimization, either by blaming the victim, minimizing the event, or by withdrawing from the victim’s distress. Frequently, people are not content simply to console, rather, they tell the victim what the victim should feel or think, or we blame the victim for his or her plight.
The trauma suffered by victims of violent crimes, the plight of a victim of ordinary robbery on street, coupled with the non-sensitivity of the people around him, sometimes leaves the victim mentally unbalanced and pining for vengeance.
Role of Victim- Historical Perspective
The victim was in oblivion till the close of Second World War when some criminologists took on the task of understanding the importance of studying the criminal – victim relationship in order to obtain better understanding of crime its origin and implication. Thus, the seed of victimology as branch of criminology was sown in UK, West Germany, Canada, Australia, New Zealand and United States of America. Victimology is basically study of crime from the victim’s point of view. In other words, it is the science which makes victims the centre of study and aims at intensive understanding of the victim – offender relationship, investigates the victim’s share in crime causation, examines the ways and means to protect the victim before commission of crime, during investigation and trial of the offender and also restitution and reparation of the damages caused to him by perpetration of crime.
After Second World War, B. Mendelsohn developed this branch of criminology as there was growing concern for the plights of the victims of all crimes. The first international conference on victimology under the auspices of United Nations was held at Jerusalem in the year 1973 followed by another conference at Boston in 1976. There were many seminars and studies on victimology at regional, national and international level from 1976 to 1985 highlighting the problems of victims, legal position of victims etc ((1999 C.L.J. 145.)). The question arose: who is a victim in the context of study of victimology. If we take various types of victims who suffered because of human acts, criminal, negligent and accident, living conditions in society, natural disasters, there one may not be able to focus attention on the problems of victims in proper perspective and will defeat the very objective of study of victimology.
However, in 1985 the 7th U.N. Congress in Milan took into its agenda “Victim of Crime” and considerably widened the scope and study of victimology by declaring the victims as:
Persons, individually or collectively, who have suffered harm physically, mentally or emotionally, economic loss or impairment of fundamental rights through acts or omissions that are in violation of criminal laws operative within the country including the laws prescribing criminal abuse of power ((According to the ‘Declaration of the Basic Principles of Justice for the Victims of Crime and Abuse of Power’, victim 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, within the member States including those laws prescribing criminal abuse of power.)).
The definition appears to be quite exhaustive and can include not only victims of crime but also victims of abuse of political and economic power, victims of trafficking, victims of natural calamity, victims of professional negligence, victims of business community, victims of pollution and also voluntary victims where drug addicts and the persons committing suicide are involved.
A person would be considered a victim, irrespective of whether the perpetrator is identified, apprehended, prosecuted or convicted and irrespective of familiar relationship between the perpetrator and the victim. The term victim also includes, where appropriate, the immediate family of the dependents of the direct victim and the persons who have suffered harm in intervening to assist the victim in distress or to prevent victimization. The provisions are applicable to everyone, irrespective of race, age, colour, nationality, religion, language, political or other affiliation, cultural belief or practices, property, birth or family status, ethnic or social origin disability and nationality.
The Declaration suggested adoption of following measures to help the victims and repose confidence in them:
- Access to justice and fair treatment – This right includes the mechanisms of justice and to prompt redress, right to be informed of victim’s rights, right to proper assistance throughout the legal process and right to protection of privacy and safety.
- Restitution – This right includes return of property for the harm or loss suffered; where public officials or other agents have violated criminal laws, the victims should receive restitution from the state.
- Compensation – When compensation is not fully available from the offender or other sources, the state should provide financial compensation, at least in violent crimes which result in bodily injury, for which national funds should be established.
- Assistance – Victims should receive necessary material, medical, psychological and social assistance through governmental, voluntary and community-based means. Police, justice, health and social service personnel should receive training in this regard.
In Europe, the Convention on the Compensation of Victims of Violent Crimes incorporates the essential rights of victims as stipulated in the UN declaration. The Council of Europe has recommended the revamping of criminal justice incorporating victim’s rights in every stage of criminal proceedings. Following this recommendation, many states in Europe and elsewhere enacted laws aimed at providing increased participation and more substantive rights to victims of crime. For example, the Criminal Injuries Compensation Act, 1995 of the UK, the Victims of Crime Assistance Act, 1996 of Victoria, the Victim and Witness Protection Act, 1982 of the USA, the Victims’ Rights and Restitution Act, 1990 of the USA, are in this category.
In an informative report on “Criminal Justice: The Way Ahead” presented to the British Parliament (February 2001) the UK home department made the following recommendation for criminal justice reform:
“We will put the needs of victims and witnesses at the heart of the criminal justice system and ensure they see justice done more often and more quickly. We will support and inform them, and empower them to give them best evidence in the most secure environment possible ((See, Justice M. Jagannadha Rao, “Rights, needs and benefits required to ensure effective victim testimony”, available at http://www.sabrang.com/cc/archive/2005/dec05/humanrights.html. Last visited on 29.03.2013.)).”
Rationale for Granting Rights to Victims
Advocates of a victim’s rights generally offer several possible rationales behind victim rights’ movements. The first is based on a kind of social contract analogy: Because the government depends on victims to make law enforcement possible, it owes them something in return. The second rationale is that a majority supports victim’s rights. The third rationale is that some kind of basic or fundamental human right entitles crime victims to participate in the criminal process. A fourth and related rationale is that the government somehow re-traumatizes victims in the criminal process—that it victimizes them—and victims ought to have a right not to be traumatized. The fifth rationale is that participation is, in some way, therapeutic and therefore, the Constitution ought to embody and enforce the therapeutic norm. Finally, there is an argument that victims ought to have a right to corrective justice ((Supra n.5)).
The first argument for a victim’s rights amendment rests on a kind of social contract theory, perhaps captured by the preamble to Louisiana’s 1985 victim’s rights legislation:
“In recognition of the civic and moral duty of victims . . . of crime to cooperate fully and voluntarily with law enforcement and prosecutorial agencies, and in further recognition of the continuing importance of such citizen cooperation . . . the legislature declares its intent . . . to ensure that all victims . . . of crime are treated with dignity, respect, courtesy, and sensitivity, and that the rights extended . . . to victims . . . of crime are honored and protected by the law enforcement, (sic) agencies, prosecutors, and judges in a manner no less vigorous than the protection afforded the criminal defendants ((Cait Clarke & Thomas Block, “Victims’ Voices and Constitutional Quandaries: Life after Payne v. Tennessee” 8 St. John’s J. Legal Comment 35, 61 & n.144 (quoting LA. REV. STAT. ANN. § 46:1841 (1999).)).”
The theory is that we cede our right to exact revenge or restitution to the State and to the law in return for the State’s protection and enforcement of the law. The democratic process is meant to ensure that the State responds to community and individual concerns about crime. Constitutionally, implementation and enforcement of the criminal law largely belongs to the legislative and executive branches.
Citizens who report crimes could be said to consent to the government’s processes and primacy in prosecution. If persons were asked if they would choose such a system ex ante, most probably would have no trouble delegating this function to government—indeed, why else have a government? ((Supra n.5))Requiring individuals to bear the costs of prosecution themselves would create a number of inefficiencies as well as increase the probability of inconsistent application of the law. Also, civic virtue emphasizes duties to the community as well as freedoms. Thus, victims are not individuals exercising rights against the government. Rather, victims of crime, as members of the community, have a duty to their fellow citizens to cooperate in criminal prosecutions in order to protect and safeguard the community’s interests.
Another argument is that victims are entitled to some constitutional protection, meaning that there should be creation of certain fundamental rights for the victims. Prof. Laurence Tribe, American philosopher, argues strongly for fundamental rights of the victims. He makes a strong substantive statement in asserting that “[t]he ultimate concern of the criminal justice system ought to be with the victim ((Laurence H. Tribe, Position Paper on Victims’ Rights 1 (June 27, 1996), as cited in “Re-visiting victims’ rights” Supra n.5)).” He apparently adopts the position that victims ought to have positive rights because criminal cases involve some kind of basic human right that people widely agree deserves serious and permanent respect.
Victims are harmed and they ought to have some special participatory rights that enable them to tell courts what they think and how they feel about their cases. At the same time, it is to be deliberated upon that if victims have a fundamental right, as well as a duty, to participate, they ought to have a right not to participate as well. But this stand has nowhere been addressed. A victim can be traumatized and denied autonomy and choice when forced to prosecute, which, under current law, can and does occur.
One of the humane impulses behind the victim participation rationale is that the victim’s experience is traumatic and not attended to in the current system. It is only natural that people feel a system is legitimate if they are heard by authorities. It does seem only fair, if the criminal process is the only opportunity the victim has for speaking to legal authorities, to tell his story.
Another argument advanced by legal scholars is that victims can assert a right to corrective justice. Victims have been harmed in some way by an offense, and the person who harmed them ought to be held accountable. Drawing on the German approach to criminal law, George Fletcher ((George P. Fletcher, With Justice for Some: Victims’ Rights in Criminal Trials, 181–201 (1995), as cited in “Revisiting Victim’s Rights”, Supra note 5.))argues that the victim ought to have a right to see her assailant declared guilty of perpetrating the crime in terms of the act. During the second stage of the trial, where the moral culpability of the offender is decided for purposes of punishment, the state interest in the criminal sanction takes precedence.
Rights of Victims / Complainants under Code of Criminal Procedure, 1973
Whenever an offence is committed:
- The aggrieved person or any other person can file an FIR orally or in writing with the Officer-in-charge of a police station ((See CrPC, 1973 Ss. 154 and155.)).
- In case of refusal to register a cognizable offence, the complainant can send his complaint by post to the Superintendent of Police who can start the process of investigation ((See CrPC, 1973 S.154 (3).)).
- A copy of the FIR is given free of cost to the informant.
- After registration of FIR, investigation is taken up. Thereafter findings are sent to the Court under section 173 Cr.P.C. and complainant is duly informed. When adequate evidence comes on record, the case is sent for trial. When evidence is inadequate, the case is sent as untraced. When it is found that no offence was committed, the case is sent for cancellation. Where a case is sent as untraced or cancelled, the informant can represent his case before the Court, who hears the person before accepting the police report ((See CrPC, 1973 S. 190)). Section 167(1) Cr.P.C. prescribes that every investigation shall be completed without unnecessary delay though no time limit is fixed for completion of investigation.
- Prosecution is conducted in the name of, and by the state, though he may appoint a private pleader ((See Cr.PC, 1973 Ss. 301 and 302))who shall work under the Public Prosecutor for the state ((Id. This aspect and SC’s response to this has been discussed later in the chapter.)). In the state’s case, victim is reduced to the level of only a witness for prosecution. He is called during the trial to give his testimony in open court and he may be asked questions by the judge at any time during the trial.
- Section 327 of the Cr.P.C. provides that the trial of certain sexual offences shall be conducted in camera. If a trial is conducted in camera, it would help the victim to give her testimony comfortably. The presence of the public and the media produces a sense of shyness in the mind of the victim and she may not give testimony freely. It also provides that wherever practicable such trial shall be conducted by a lady judge.
- Victim has a limited right to be compensated by the accused. One school of thought justifies compensation in the criminal process in terms of the aims of sentencing. The Widgery Committee in Britain had listed several views about the rationale of the concept of compensation, namely, “benefits of the victims, possible deterrent effect on the offender or on the public, the possible educative or preventive effect on public morality, the possible reformative effect on offender, its effect in depriving the offender from ill-gotten gains and the view that compensation has an ‘intrinsic moral value of its own ((Advisory Council on the Penal System (1970) Reparation by the Offender (London, HMSO), cited in, Law Commission of India, 154th Report on Code of Criminal Procedure, 1973 (Vol. I), 1996.)).” The Law Reform Commission of Canada was also of the same view, holding that compensation was consistent with the core values of the community.
In pursuance of the recommendations of the Law Commission of India in its 41st Report, 1969, a comprehensive provision for compensation to victims of crime has been provided in Section 357 sub-section (1) and sub-section (3), the Court may award compensation to victims of crime at the time of passing of the judgment, if it considers appropriate in a particular case in the interest of justice. Sub-section (1) of section 357, Cr.P.C. empowers court to award compensation to the victims out of the fine in the following four cases:
- Meeting proper expenses of prosecution,
- Compensation to a person (or his heirs) for the loss or injury caused by the offence when he can recover compensation in a civil court,
- Compensation to persons entitled to damages under the Fatal Accident Act, 1855; and
- Compensation to a bonafide purchaser of property which, being the subject matter of theft, criminal misappropriation, cheating, etc., and is ordered to be restored to the person entitled to it.
Apart from Section 357 a victim may approach the High Court under Section 482 to claim compensation, exercising its inherent power.
Newly inserted Section 357-A, Cr.P.C. incorporated a newly introduced Victim Compensation Scheme in order to alleviate the sufferings of the victim and to provide important safeguards to his rights and for facilitating rehabilitation of the victim into the society. The scheme directs State Governments, in co-ordination with Central Government, shall prepare scheme for providing funds for the purpose of compensation of victims or his dependents and who, as a result of the crime, require rehabilitation.
- Section 372, Cr.P.C. takes victims rights to a different plane by allowing victims the right to appeal against an order of acquittal or an order convicting he accused for a lesser offence or imposing inadequate compensation. The wide sweep of this section leads way for the inching of Victimology into the sacred Hall of Accused Rights.
Judicial and Legislative Response to Problems of Victims
S. 301 provides that public prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal. Hence, prosecutor has an unqualified right of audience in any court. In contrast, a pleader appointed by a private person has no such rights and he has to work under the directions of the public prosecutor. He may, with the permission of the court, submit written arguments after the evidence is closed in the case ((S. 302 (2), CrPC, 1973)).
In Hamsa vs. Assistant Public Prosecutor ((1978 K.L.T. 816))the court said that a private pleader is allowed to act under the directions of the public prosecutor. The phrase “act therein” in S. 301 (2) must necessarily mean that it would be permissible for the private pleader to act just as a junior counsel acting for senior, subject of course to the direction of the senior.
In Varghese John vs. State of Kerala ((1995 (1) KLT 374.))the court said that a person who is acting under the directions of the Public Prosecutor so appointed is also a Public Prosecutor. In the definition the legislature used the words “means” and “includes”. The public prosecutor can require any other person to act for and on his behalf under his direction. If the Public Prosecutor directs the pleader so instructed by the private person to prosecute the accused, then such pleader will come under the ambit of the definition under S. 2(u) of the Code and thereby can be treated as a Public Prosecutor.
S. 302, Cr.P.C. says that the court may permit a pleader appointed by the victim to conduct the prosecution in certain cases. In Babu vs. State of Kerala ((1984 Cr. LJ 499.))contemplated a scenario when, after permission under s. 302 is given and a pleader engaged by complainant / victim is assisting the Public Prosecutor, the latter disappears from the scene and the pleader engaged by victim/ complainant, who will invariably be the de facto complainant, will be in full charge of the prosecution. Court said that Public Prosecutors, as ministers of justice, are required to assist the court, impartially, in administration of justice by placing before the court all relevant aspects of the case. But the pleader engaged by a private person, who is a de facto complainant, cannot be expected to be so impartial. Not only that, it will be his endeavor to get a conviction even if a conviction may not be possible. So, the real assistance that a Public Prosecutor is expected to render will not be there if a pleader engaged by a private person is allowed to take the role of the Public Prosecutor by granting him permission under S.302. However, this does not mean that permission can not at all be granted under S. 302, merely that it should be done in very, very exceptional cases.
In the case of a non-cognizable offence, the offence being in the nature of a private wrong, the aggrieved party or the complainant, and not the State, is the prosecuting party. Even in such a case, the State, through its Public Prosecutor, can step in and take charge of the prosecution ((R.V. Kelkar, Lectures on Criminal Procedure 143 (2003).)). Thus, to a limited extent, the concept of ‘private prosecutions’ exists in India.
After Magistrate takes cognizance of the police report, if he decides to drop the proceedings, it is required of him to hear the victim-informant by issuing notice to him ((1997 Cr. L. J. 4636 (S.C.).)). The Court seems to have recognized a gap in the statutory provision and enjoined the court not to drop proceedings without giving an opportunity to the victim to ventilate his grievance.
Under certain circumstances, the venue of the trial may be shifted if the witnesses or victims are not in a position to depose freely due to various reasons. SC in Zahira Sheikh’s case ((Zahira Habibulla Sheikh v. State of Gujarat, (2004) 4 SCC 158))ordered a shift in the venue of the trial from Gujarat to Maharashtra. There are other such instances as well. CrPC contains provisions in respect of transfer of cases on victim’s application ((See CrPC, 1973, Ss. 406, 407.)).
Victims have also been accorded various rights during the trial to make it more comfortable for them to bear the proceedings. Admittedly, these rights relate to special groups and special offences like rape victims, victims of child sexual abuse, human trafficking, etc.
In Sakshi v. Union of India, ((AIR 2004 SC 3566.))the Hon’ble Supreme Court issued the following directions to deal with victim witnesses of child sexual abuse:
(i) a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable) do not see the body or face of the accused;
(ii) the questions being put in cross-examination on behalf of the accused, in so far as they relate directly to the incident, should be given in writing to the presiding officer of the court who may put them to the victim in a language which is clear and not embarrassing;
(iii) the victim of the child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.
Names and addresses of victims may be kept secret in criminal proceedings. Even in supplying copies of charge sheets to the accused, the identity of victims may be withheld. Supreme Court in State of Punjab v. Gurmit Singh, ((1996 (2) SCC 384.))while dealing with a case of rape has said, “The courts should, as far as possible, avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim of [a] sex crime. The anonymity of the victim of the crime must be maintained, as far as possible, throughout”. Though in some cases the identity of the victim is known to the accused, this is not so in all cases. Where the identity and all details of the victim are not known to the accused, maintaining anonymity would be quite helpful.
As regards victim’s right to compensation, in Chairman, Railway Board v. Chandrima Dass apex court ordered Rs. 10 lakh compensation to a foreign tourist from Bangladesh who was raped by the Railway employees in the Yatri Niwas at Calcutta. The contention of the Railway that it cannot be held vicariously liable for the offence of rape committed by the employees, for the liability would arise only when the act complained of was performed in the course of official duty and since rape cannot be said to be an official act the Government would not be liable even under the law of torts, was rejected.
In Bodhisattwa Gautam v. Subhra Chakraborty ((AIR 1996 SC 922.))SC ruled that if the court trying an offence of rape has jurisdiction to award compensation at the final stage, there is no reason to deny to the Court the right to award interim compensation, and that such interim compensation should also be provided in the Scheme that was envisaged by SC in Delhi Domestic Working Women’s Forum v. Union of India (( 1 SCC 14.))for providing compensation to victims of crimes ((It was suggested that a Criminal Injuries Compensation Board be set up to give compensation to victims of crime.)), with special mention to rape victims ((For developments in rape law jurisprudence in India, see generally, Law Commission of India, 172nd Report on Review of Rape Laws, 2000, Justice Verma Committee Report on Rape Laws, 2013 and The Criminal Law (Amendment) Act, 2013.)).
Rehabilitation of crime victims has also been recognized as a duty of the state. Hon’ble SC gave various directions for the rehabilitation and other welfare of victims of human trafficking in Gaurav Jain v. Union of India ((AIR 1997 SC 3021)). The Court said that three C’s, viz. counseling, cajoling by persuasion and coercion as the last resort are necessary for effective enforcement of rescue and rehabilitation of the victims of such trafficking. The Immoral Traffic (Prevention) Act, 1956 and the Juvenile Justice (Care and Protection of Children) Act, 2000 deal with these aspects. The apex court in Vishal Jeet v. Union of India ((AIR 1990 SC 1412, at 1416.))had also issued directions on the subject. Bodhisattwa Gautam ((AIR 1996 SC 922))and Delhi Domestic Working Women’s Forum ((Supra note 35))also talk about rehabilitation of victims of sexual offences. Since a spate of cases continued to urge the victim’s compensation right Legislature finally, in 2008, inserted Section 357-A ((Inserted by The Code of Criminal Procedure (Amendment) Act, 2008))introducing Victim Compensation Scheme for compensation and rehabilitation of victims of crimes.
The Criminal Law Amendment Act, 2013 strengthened, in leaps and bounds, the position of a rape victim in the machinery of criminal justice system. From creation of new offences ((Ss. 166A, 166B, 326A, 326B, 354A, 354B, 354C, 354D, 370A, 376E have been inserted by the Criminal Law (Amendment) Act, 2013.)), taking each aspect of body-and-person invasion ((S. 375, Indian Penal Code, 1860 punishes invasion and penetration by a man of any orifice of the woman’s body, i.e., vagina, mouth, urethra or anus, by any means, including a man’s penis, his mouth, finger or any other external object.))into consideration and giving due recognition to the age of innocence ((By virtue of Section 375, IPC, 1860, age of consent, for the purpose of statutory rape, has been raised to eighteen years, from earlier 16 years. Similarly, where the victim is one’s wife, committing rape on her, when she’s below the age of 16 years, is made punishable by Section 376, IPC, 1860)), to enhancement of punishment ((Ss. 370, 376A, 376B, 376C, 376D, 509, IPC, 1860)); from raising presumptions in rape cases in favor of the prosecutrix ((S. 114A, Indian Evidence Act, 1872)), to a complete ban on character assassination of the victim ((Ss. 53 and 146, Indian Evidence Act, 1872)), where a question of consent arose; from providing for complaints to be recorded by lady police officers ((S. 154, CrPC, 1973)), to saving victim from the trauma of confrontation with the accused ((S. 273, CrPC, 1973)), if need be. Immediate and efficient medical treatment for care and counseling of the rape victim has also been made mandatory ((Ss. 357B, 357C, CrPC, 1973)).
The unforgettable incident of Nirbhaya, that jarred the conscience of old and young alike, compelled the Machinery of the state to come forward and make stringent laws and punishments for persons convicted of rape. Nirbhaya’s trial became the first in the country where the Trial Court conducted the trial in Fast Track mode and decreed capital punishment to the criminals for raping and causing death of the innocent girl.
The National Human Rights Commission and Victim-Rights Movement
While police are trained to abide by a national charter for the rights of the accused (potential perpetrators of crime), no such charter exists yet to protect the victims. Victim care services are wholly absent, leaving victims no better off than when the primary contact was made. NHRC is working towards establishing a charter for victims’ rights in India, similar to that which exists for the accused. The charter delineates victims’ rights, modeled on those established by the United Nations in 1985, and the duties of police and other justice agencies in protecting them.
Tackling the issue of victims’ rights protection simultaneously at three angles – community, law enforcement, and policy – their approach challenges stale thinking and creates opportunities for collective action toward developing a new understanding of humane and just treatment for victims. By working with police departments and other extensions of the justice system, their program looks to change the attitudes and actions of those in authority.
Revamping traditional methods will create new policies to protect the rights of victims and help solidify changes in the agencies responsible for their care. NHRC is penetrating the system at three levels. At the community level, it educates victims and their families on their rights, avenues for recourse, and resources for help and healing. At the law enforcement level, it trains police to use humane methods of questioning victims of crime. At the policy level, NHRC is advocating for due recognition for the rights of victims in India.
This discussion gives rise to an important question: what is the stake of victim in a criminal trial? One school of thought says that the victim is interested in the outcome of trial for restitution. Monetary compensation may or may not satisfy that demand.
Prof. Robert Solomon says ((Robert C. Solomon, “Justice and the Passion for Vengeance” What Is Justice? 253 (2000), cited in, Steven Eisenstat, “Revenge, Justice and Law: Recognizing the Victim’s Desire for Vengeance as a Justification for Punishment” 50 Wayne Law Review 1115 (2005).)), “To the dangers of vengeance unlimited, it must be countered that if punishment no longer satisfies vengeance, if it ignores not only the rights but the emotional needs of the victims of crime, then punishment no longer serves its primary purpose.” These lines suggest that the primary reason why a victim is interested in the result of a criminal trial is to exact vengeance on the true offender, (whether known or unknown). This is the second school of thought, which gives rise to the assumption that more than anything thing else, the victim is looking for vengeance.
State, with its responsibility of maintaining law and order, might fail in satisfying victim’s animal instinct for retribution, i.e., an eye for an eye, a tooth for a tooth, must try to ensure that it does not relegate the victim to the status of a mere witness for prosecution but should ensure some basic rights of participation in the trial process, more so for the reason that the victim is not himself tempted to exact revenge on the offender, or sometimes, the presumed offender.