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Judiciary’s contribution towards evolving Victimology

June 16, 2019
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This article is written by Ashpreet Kaur, IInd year student, B.B.A L.L.B, Symbiosis Law School, NOIDA. In this article, the author discusses about the aftereffects of the crime on the victim. The study of victim is known as victimology which is also a branch of criminology.

Introduction

The current law scenario of India can be aptly defined by Gladstone’s famous saying, “justice delayed is justice denied”, the number of pending cases in our courts are increasing at an alarming rate. It is the people’s faith in the judiciary, that sustains or slurs it. The latter happens when justice is either delayed or denied to the people. Justice is basically for that section of people which are victimized by the criminal mindset and ideologies and basically affected by people of the same mindset hence justice is an integral part of victimization and criminology. Justice, crime and victims are interrelated because victims are born from crime and justice are born for victims. If there is no crime there will be no victims consequently there will never come a time when people would struggle to be heard in order to get justice.

Victimology which is derived from the branch of criminology deals exclusively with victims as they needed to be treated with empathy and justice under our criminal justice system. Even though victimology is derived from criminology, they are very different from each other, criminology is related to chain of causation which has caused crime whereas victimology is mainly concerned about aftereffects of crime on the victim of the crime and providing legal remedies for victims.

Historical background

The power of victim during the Rigvedic period was so vast that he can even punish the offender but slowly and gradually this power was taken by the state (king in ancient India, the government in modern India). the laws at that time were not diverse, they all have laid down more or less same rules, under the laws of Vishnu, Yajnavalakya, Narada, Brishpati, manu or smritis victim of crime get compensation for the injury and offender has to pay a fine to the king. Herein, the main principle followed is of compensation not punishment but during the Vedic period, the varna system was introduced in which administration of justice and infliction of punishment was introduced and followed. Adjudication of crime and punishment inflicted upon the offender was made in accordance with the class or varna of the victim.

Muslim law also follows the concept of restitution and atonement, at the time of Islamic rule more emphasis was laid on the administration of criminal justice and steps were taken for the betterment of the society.  During the period of Sher Shah Suri, village councils were recognized who were required to pay the victims in case of robberies and the resulting losses suffered by them. There was direct involvement of victim and accused in criminal justice process under  penal law and punishment was divided into four categories : kisa; had; tazeer; diya.

The issues related to the criminal-victim relationship were not hidden, yet for centuries no one had paid any heed to this issue and even today criminal’s mental, social, psychological aspects are more important than the victim’s, the subject of the victim comes last in the priority list in the administration of criminal justice system.

In the 1700s, Indians followed the tribal law under which, the respond collectively to criminal offences and any transgression against an individual is considered as a transgression against the tribe as a whole.  . The tribe, in essence, appropriated a victim’s concerns and whether the communal response included a long-standing blood feud, vendetta, or even monetary reparation, the core purpose was not the restoration of any moral order but rather the re-establishment of tribal authority and the securing of optimal conditions for survival of the tribe as a whole.

Studies related to crime victim in India started in the late 1970s which covered the small ambit of dacoit gangs, motor vehicle and homicide. In 1984, the first seminar on victimology was organized in the University of Madras and subsequent developments related to this issue started taking place after that. Finally, in 1992, Indian society of victimology was found with a motive of creating new laws for victims and spreading awareness regarding this issue. During the 1980s and 1990s victimology has gone through rapid and fundamental development, it was a period of fortifying, data collection and theorization combined with new laws.

Types

Different ideologist has proposed different types of victimologies which we will discuss below one by one:

1- Fattaah (1989):

According to him, there are two types of victimology namely:

2- Jan. J.M. van Dijk:

He has given us two important for victimology which is still prevalent in India-

3- Hans von Hentig (1887–1974):

In the mid-1900s, Von Henting came up with new thinking of merging the study of penal and general victimology and discussed the relationship between criminal and victim. He   that victimization is based on psychological, social and biological factors and on the basis of this he divided victims on the basis of three classes namely:

1. The General Classes of Victims

2. The Psychological Types of Victims

3. The Activating Sufferer:

When the victims are themselves responsible for their victimization due to reasons such as certain dispositions, age, alcohol, age, loss of self-confidence etc operates as an activator on the victim.

The most affected section of people

Any random individual can be targeted by a criminal and be subjected to victimization but there is a particular section of people who are more vulnerable and targeted to victimization than others. The characteristics which make them more prone to crime are their physical wellbeing, economic status, social status, societal norms etc.

In the current scenario, laws are evolving rapidly, new laws related to vulnerable sections of the populations such as children, women, mentally ill, and elders have been made to provide timely justice and to mitigate the suffering of the victims. Laws such as The Protection of Women from Domestic Violence Act, 2005, The Maintenance and Welfare of Parents and Senior Citizens Act, 2007, Prevention of Child Abuse and Victim Protection, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, are made to particularly to prevent victimization and providing timely justice to special category in which they belong. Even though laws are rapidly and more and more of laws related to victimology is in the process of developing, our system has a number of drawbacks and challenges both national and international and in order to overcome these challenges and provide assistance to victims, judiciary had taken some steps. Briefly describing these vulnerable sections can be grouped as:

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  1. Elderly victims: Abuse, neglect and financial exploitation of elders by their family members and others are very common these days, forms a base for victimization. Such victimization can be in the form of physical, emotional. Neglectful, financial, sexual and self-neglect. In order to protect and mitigate them, certain laws have been made such as The Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
  2. Child victims: Lack of mental maturity, physical strength and gullible nature make them highly dependent on others and vulnerable. There is a need to separately address and deal with them because once they are subject to any kind of cruelty, it will leave a deep mark on them for a lifetime if not mitigated on time. That is why they require separate treatment from elders. The juvenile laws made for children are specifically child-centric and child-friendly like Prevention of Child Abuse and Victim Protection, juvenile justice act 2015, human trafficking and child exploitation prevention act etc. Parliament had also made a national commission for the protection of child rights in the year 2007 to ensure that all legislative and administrative policies are laid according to the rights of children mentioned in Indian Constitution and the UN convention of child rights.
  3. Victims of sex offences: The most common type of victimization prevalent in our society is on the grounds of sexual pleasure, mostly women are targetted to such kind of victimization. Offences like rape, marital rapes, sexual assault, outraging the modesty of women, stalking and many more comes under its ambit. These sexual offences have psychological, emotional and physical effects on victims, it takes time to overcome these effects because of the such as depression, flashbacks, anxiety, self-harm, substance abuse, STDs, suicidal tendencies to name a few.
  4. Female victims: Nothing victimizes women more than a patriarchal society and gender disparity. Apart from sexual exploitation, there is offence like disparity in wages, maternity leave, the ill-treatment to women in homes, dowry, discrimination in the workplace and many more still prevalent in our modern society due to its patriarchal structure that is why there is a need to protect women and give them special treatment. The National Commission for Women in India is the apex body that works for protecting and promoting the interests and rights of women. Similar Commissions have also been established in most of the states in India. These Commissions were constituted under the National Commission for Women Act, 1990. It spreads awareness among women and about women rights, ensures justice to them, paves the way for their right to life with dignity etc.
  5. Minority groups and weaker sections: India being a hub to multilingualism, multiculturalism and biggest democracy in the world, have given a way to socio-economic disparity among them. Such disparity has lead to majority and minority group, economically weak and economically strong group and socially weak and socially strong group. Consequently, of the weaker sections of the society by the stronger one is not a shock-horror and will lead to denial and infringement of rights. Therefore, it is quintessential that laws should be made in order to protect these people and their rights. The National Commission for Scheduled Castes in India looks into the implementation of legislation like the Protection of Civil Rights Act, 1955 and the Scheduled Castes and Scheduled Tribes (Protection Of Atrocities) Act, 1989. It aims at ensuring socio-economic development and protection of the Scheduled Castes from victimization. Similarly, as per the Constitutional mandate, the National Commission for Scheduled Tribes looks into the affairs related to the scheduled tribes and strives to prevent their exploitation and assure their upliftment. The National Commission for Minorities takes care of the interests of the minority of the country. It was set up under the National Commission for Minorities Act, 1992 and  Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) have been notified by the Central Government as minorities.

Year

Children

Women

SC/ST

2013

58,224

3,09,546

39,408

2012

38,172

2,44,270

33,655

2011

33,098

2,28,650

33,719

2010

26,694

2,13,585

32,712

2009

24,201

2,03,804

33,594

2008

22,500

1,95,856

33,615

2007

20,410

1,85,312

30,031

2006

18,967

1,64,765

27,070

2005

14,975

1,55,553

26,127

2004

14,423

1,54,333

26,887

Judiciary’s contribution towards evolving victimology

Krishna Iyer J. in Rattan Singh v. State of Punjab lamented, “In fact, the victim reparation is still the vanishing point of our criminal law. This is the deficiency in the system, which must be rectified by the legislature.”

An analysis of the working of the Indian judiciary shows that the traits of compensatory jurisprudence existed in India, even prior to the 1985 UN Declaration. In Sukhdev Singh v. Lal Chand, a single Bench of the Punjab High Court directed, “if the compensation is not paid within three months the respondents would be called upon to serve the sentence imposed by the learned trial court….” It was submitted that this case was not correctly decided. There can be a penalty for default of payment of compensation. In Bhim Singh v. State of Jammu and Kashmir, it was stated, “the right to award monetary compensation by way of exemplary costs otherwise is now established by the decision of this court in Rudal Shah v. State of Bihar and Anr and Sebastian M.Hongray v. Union of India.” Hussainara Khatoon & Ors v. Home Secretary, State of Bihar recognized victimization due to abuse of state power.

The case felt the need to address and redress such grave violation of basic human rights which directly infringed the fundamental right to live with dignity under Art. 21 of victimology was mainly inspired by the liberal interpretation of fundamental rights of the Indian constitution. The judicial activism of Indian courts have identified rights of the victim in India, and surprisingly most people who had gone through victimization were offenders who were victimized during the criminal justice process. Nevertheless, the jurisprudential contribution of the supreme court help in the development of victimological jurisprudence.

Even though the development of victimology is mainly because of judiciary but the legislature was not completely ignorant of this issue. Rules of evidence, as provided in Sections 151 & 152, Indian Evidence Act, 1872, protect victims and witnesses from being asked indecent, scandalous, offensive questions, and questions intended to annoy or insult them. As provided in Section 312 Code of Criminal Procedure, 1973, Criminal courts is also under an obligation to order for payment of reasonable expenses incurred by the witness or complainant for the purpose of attending the court. Due to judicial activism, some protective measures during the trial, like holding a trial, suppression of identity of the victim, are being provided for victims and witnesses.

A provision like in-camera trials is very helpful at times when the testimony of the witness/victim may be subject to the possibility of being vitiated by a hostile court atmosphere. Suppressing the identity of a victim or witness helps to protect and secure the privacy of the individual. The recording of evidence through video conferencing has also been encouraged by the Supreme Court. Thus, the contribution of the Judiciary towards the goal of victim justice in India is enormous and either can it be neglected or overlooked.

In India victimology has evolved mainly due to specific general rights, judiciary and some laws which indicated towards the rights of the victim. Even if there is no specific code or law made for victims,there are many legislations which protected the rights of the victims to name a few Indian Penal Code section 195-A which makes threatening or inducing of any person for giving false evidence  a cognizable and non bailable offence with punishment of imprisonment of 7 year or fine or both; under code of criminal procedure of 1973 section 154(2).160, 190, 406, 439 are related to victims right; CrPC section 357 subsection (1) (3) and (4) gives power to trial, the appellant and the revisional court to grant  award compensation to victims; Article 14 and 21 of Indian constitution are wide enough to give adequate protection to victims.; Article 51-A enforces a fundamental duty on citizens for protecting and improving the natural environment; Article 41 gives public assistance to vulnerable sections of society. Apart from this there are certain which are provided to victims for getting timely and fair justice such as The right to attend the criminal justice, the right to be heard,  the right to be informed,the right to be compensated, the right to be protected, the right to restitution, the right to speedy trial and many more.

Courts have also taken some measures to minimalize delay in justice and prevent abuse of power, they have adopted the concept of restorative justice and awarded compensation or restitution to victims. In Bodhisattwa Gautam v Shubhra Chakraborty , the Supreme Court held that if the court trying an offence of rape has jurisdiction to award compensation at the final stage, the Court also had the right to award interim compensation. In the landmark case of Rudul Shah vs. State of Bihar the Supreme Court ordered the Government of Bihar to pay to Rudul Sah a further sum of Rs.30,000 as compensation, which according to the court was of a “palliative nature”, in addition to a sum of Rs.5,000, in a case of illegal incarceration of the victim for long years. From the 1980s, the court’s judgements have continuously indicated their efforts and concern about comprehensive law on victim justice. Various committees have been set up to look deeply into this matter. The law commission and Justice V S Mallimath committee have stated that state should provide assistance to victims from their own fund and look upon the victim’s right to participate in cases.

But even after these enactments, the violence of these crimes has reached an alarming level. In 2016,  A total of 48,31,515 cognizable crimes were reported, showing an increase of 2.6% over 2015 (47,10,676 cases). In the same year, IPC crimes have increased by 0.9% and SLL crimes have increased by 5.4% over 2015. The percentage share of IPC was 61.6% while the percentage share of SLL cases was 38.4% of total cognizable crimes during 2016. Uttar Pradesh accounted for 9.5% of total IPC crimes reported in the country followed by Madhya Pradesh (8.9%), Maharashtra (8.8%) and Kerala (8.7%).

These stats show the ground reality of the situation, awakening us from the daze that the existing legal provisions to tackle the current situation are enough and, thus needing us to formulate ones adapt to the current scenario.

Conclusion

But even now we have not been able to provide timely justice or even worse justice to our citizens. One of the major challenges faced by us in preventing victimization and protecting victims is that no specialized law related to victimology. Abuse of power is another method of victimizing people, in order to control this abuse of power by various law enforcement agencies of the state while discharging their statutory duty government needs to ensure against excess or omission of power or authority in order to prevent any injury, harm or hardship to citizens. It is quintessential to keep a check on governmental agencies so that they do not misuse any power given to them.

Gladstone’s saying “justice delayed is justice denied” is not an easy one to understand because defining the meaning of delay is very subjective and without any clarification. There are a number of issues in criminology including victimology but according to the system followed in our society maximum attention is paid to the crimes and behavioural pattern of criminal and hardly any heed is paid to the condition of the victim.

One cannot expect to solve a problem by viewing it from a single perspective. Only when it is analysed from every viewpoint can we get a true picture. Victimisation too has aspects of its own. Where the victim is confronted with the crime perpetrator immediate reaction will be anger or fear depending on his physical strength and capacity to face his own misfortune. The psychological impact of victimization is clearly reflected in the behavioural responses of the crime victim which may include increased alcoholism, use of drugs, segregation of social relationships avoidance of people’s contact or social withdrawal and so on. As a victim of a crime one is prone to experience physical injuries as well as mental trauma, thus sometimes becoming a patient of Post Traumatic Stress Disorder. Apart from this, regular visits to the court to seek justice not only results in aggravating the pain and trauma, but it also results in depleting our financial assets. Besides the physical and financial impacts of victimization, the marital and other relationships of crime victim are also likely to be adversely affected which may result in fatal consequences and even destroy his settled family life this generally happens in case of women who are victims of rape or any other sexual offence.

The duration between finding justice and actually getting justice, there are lots of important formalities and procedures and rules and regulations related to court, that needs to be completed as soon as possible because as we all know procrastination is a thief of time, procrastination will lead to loss of important evidence which can result in serious injustice. Circumstances such as criminal could escape or bribe the lawyers if he is rich and the victim is poor, could arise. This will result in denial of justice to the victim or other innocent people related to the case which will ultimately increase social ills in the society.

Crimes against humanity involve not only a willing offender but often collaboration by government authorities as well. Besides threatening victims’ faith in others, their faith in government and social institutions is also threatened. We need to examine victims’ perceptions of justice in order to obtain a better understanding of how to restore justice for victims following crimes against humanity.

References

  1. https://www.coursehero.com/file/p2osp1f/Types-of-Leadership-According-to-him-there-are-two-types-of-leadership-1-Task/
  2. https://www.livemint.com/Opinion/DWZTZTfYOScT8inQuPCHAO/A-case-for-lobbying-in-India.html
  3. https://mafiadoc.com/measures-for-crime-victims-in-the-indian-criminal-justice-system_59ae53061723ddbfc5889207.html
  4. “India : Union Home Minister Shri Rajnath Singh Releases NCRB Publication Crime in India 2016- Statistics.” MENA Report, Albawaba (London) Ltd., Dec. 2017, p. n/a.
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