This article has been written by Amruta Patil pursuing a Diploma in International Contract Negotiation, Drafting and Enforcement from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

“The rights of every man are diminished when the rights of one man are threatened – John F Kennedy”

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As human society advances rapidly, so has the alarming rate of criminal activity. From traditional thefts and robberies to emerging cybercrimes. Historical and modern crime share a common thread, which stems from the impact on the victims, who are the ones at the receiving end of the consequences of the criminal acts. The common goal of humanity is to establish a society that offers a peaceful existence along with a sense of security, allowing men to live with dignity.

Despite having stringent laws in place that primarily focus on getting the offender punished, it is seldom recognised that the victim of the offence also lives through the effects of the crime long after it has even taken place.

This article talks about the victims and the laws of crime in place in the past and in contemporary times.

Criminal jurisprudence

Criminal jurisprudence is a subfield of legal philosophy which investigates the ideas and theories which form the essence of the criminal justice system. It is the science that addresses crime; it dives deep into what led to the criminal behaviour and what the man’s response was to it.

The origin of criminal jurisprudence can be traced to the Code of Ur-Nammu and Hammurabi’s Code, which prescribed laws to regulate human behaviour in society. In mediaeval times, justice was administered based on the customs and norms, which were very distinctive and were practiced in specific areas or by members of certain groups as they lacked a more organised justice system.

The complexities of the progressing civilizations required a systematic framework to deliver justice. In order to ensure orderly administration, there was an initiative to create written legal codes. This was done to facilitate a more organised approach to covering various offences occurring in our daily lives in matters such as family or business-related matters.

The extensive Code of Hammurabi was composed by the Babylonian king Hammurabi in 1754 BC. It contained laws that described the consequences of breaking decorum and committing any offence.

The well-known “eye for an eye” law, also referred to as lex tallions, was based on the retribution method of justice, which maintained that the severity of the punishment meted out for the offence would depend on the victim’s suffering. The entire concept rests on the notion that to demonstrate how equitable the legal system is, the offender must endure the same suffering as the victim.

This principle was one of the earliest attempts to create an orderly form of achieving justice.  Despite its severity, its approach may not be welcomed in present times but it is certainly said to have had an impact on the development of the theory of retribution in criminal jurisprudence.

The objective of criminal jurisprudence is to shield society from wrongs by including the principles and guidelines that establish what crime is and lay out the penalties for those guilty of committing the crime. It seeks to preserve individual rights while maintaining law and order in society.

Victim and victim rights

Who is a victim

The excerpt of the definition of a victim under the UN declaration gives a more holistic perspective on the meaning of victim- A victim is an individual or a group of individuals who suffered individually or collectively any kind of harm, including physical, mental, and economic loss, or a significant loss that is a result of the violation of the individual‘s basic rights. A violation of a basic right occurs because of an act or an omission of an act that violates the criminal law of the particular country. Unlike most of the countries where there has been specific assistance and compensation provided to the victims, the same was ignored under the Indian Judicial System. Under the Indian legal framework, a Victim is defined in Cr.P.C under Section 2(wa)– as “a person who has suffered any loss or injury caused because of the act or omission for which the accused person has been charged and the expression victim includes his or her guardian or legal heir.”

The victim under the criminal justice system is seen suffering more than the offender or accused due to the lack of recognition of the victim’s rights. From the very start in the process of filing an FIR or registering the case, the victim often has to undergo a lot of hardship, even before their issues are even considered.

A brief timeline of victim’s rights in India

This section covers the rights of victims in India over the years, from the past to the present. 

The victim’s position in the event of a crime at the beginning of mankind was of prominence. The involvement of the victim was the key, as it came from the idea that the crime that took place was personal; hence, it becomes pertinent for the victim to also be a part of the administration process. Over time, the involvement of victims in the process was diminished up until recently, when the laws were modified in an attempt to be made in a manner that caters to the victims’ right to be heard and their struggles to be acknowledged.

The ancient times – the golden era of victim’s rights

The ancients gave victims more importance; it was their obligation to be part of the process to punish the offender. In the 18th century, the legal landscape had a more active participation of the victims in the criminal justice process. The victims were not only present at the scene of the crime but were also engaged in the prosecution of the offender.

They also had the opportunity to raise objections in courtrooms if they disagreed with the judgements passed by the courts.

The Hindu texts show that exhaustive approaches were taken to address the victim’s concerns. These scriptures, along with acknowledging the presence of the victims, also outlined provisions for tackling the issues faced by the victims. It ensured that the offenders were punished and victims received compensation, medical attention and damages done to the property were taken into account when the punishments were prescribed.

It can be said that the victims played a primary role in ancient times, while the offenders and Kings were to ensure the victims were well compensated for their losses.

The mediaeval times

The victim’s rights during mediaeval times were largely unchanged from those of ancient times. The crime, although no longer a personal injury, was an act against state or public morale. With the invasion of the Mughals, criminal jurisprudence went through some changes. The laws were divided based on religion and punishments were also prescribed based on the religions and local customs. In mediaeval times, the victims had the right to cross-examine the accused under oaths and were involved in the entire process, wherein the judgements were passed in open courts. The diversification of the legal system during mediaeval times varied based on social, cultural and religious factors. Despite attempts to codify and formalise the legal systems, they were influenced by the same.

The protection offered to the victim in mediaeval times was limited to restitution and compensation.

The colonial era

The rule over India by the Colonial Power, which lasted for more than a century, did come with its own set of challenges for the crown. 

Given the diversity of the Indian population, which was primarily balancing the justice system on customs and religions, the East India Company discovered numerous gaps in the legal administration. During a significant period of British rule, the use of law to decide matters of crime was based on Islamic law. An instance of this was when the victim’s family had the right under Islamic law to pardon the offender. The early British rulers tried to merge English laws with existing laws in India.

The victim’s participation in the process of criminal jurisprudence was limited and they often played a very passive role. The key focus during the British Raj was more on punishing the offenders than on the victim and their rights. 

The legal system followed during these times was an adversarial approach, wherein the state conducted the proceedings, deployed the punishment and imposed fines on the offender. Their reliance on the English Common Law to conduct the proceedings lacked restitution for the victims, who were often seen as marginalised in the legal process.

The criminal jurisprudence during the colonial era was very much influenced by the needs and demands of the Company and Crown; it had little to no measures prescribed for the victims and their rights.

Only after India gained its independence did the laws for the protection of victims begin to evolve.

VS Malimath Committee

The committee chaired by Justice VS Malimath, which was formed to suggest reforms in the criminal justice system, was formed in 2003. This was formed due to repeated criticism of the drawbacks of the reform system. The committee suggested 158 recommendations in two volumes.

The committee was to examine the criminal justice system in India and suggest more efficient and effective reforms.

It includes a wide range of subjects, from police reforms, judicial reform, victim’s rights, and witness protection programmes.

The committee suggested the following for victim’s rights in India some of them are as followed-

  1. The victims are to be made part of the proceedings where the sentence for the offence exceeds the term of 7 years of imprisonment or more and to be compensated adequately. The compensation to the victims was suggested to be through fines and forfeitures imposed on the offenders. 
  2. The victim is to be represented by his choice of advocate, and the cost of the same is to be borne by the state in case he cannot afford the same. This was done to balance the imbalance between the victims and the offending party and to accredit the victim with the means to navigate the proceedings better.
  3. The victim has the right to appeal against any adverse order passed by the court.
  4. The committee suggested forming cells to assist the victims with the court proceedings, informing them about their rights.
  5. It emphasises the need to protect the victims from harassment and recommends establishing safety measures for those participating in the legal proceedings.

The recommendations made by the committee, especially the compensation to the victim, were a right step in the direction of recognising and acknowledging the cost, not limited to financial but psychological effects, undergone by the victims of the crime.

The establishment of compensation funds for the victims, irrespective of the conviction status of the offender, to provide the victim and their families with financial aid.

The Committee constituted by the Ministry of Home Affairs on “reforms of the criminal justice system” suggested ways to protect the innocent and unsparingly punish the guilty, restoring the faith of the common man in the system.

This led to reforming the practice by the Apex and High Courts in passing sentences and awarding compensation and relief to the victims.

In the significant cases of Nilabati Behera vs. State of Orissa (1993 2 SCC 746) and Chairman, Railway Board vs. Chandrima Das (2000 Cr LJ 1437 SC), Indian courts recognized the importance of compensating victims for the failure of state instrumentalities to protect their rights. These groundbreaking decisions set a precedent for awarding substantial monetary compensation to victims who suffered harm due to the state’s negligence.

In Nilabati Behera vs. State of Orissa, the Supreme Court of India awarded compensation to the victim of a brutal gang rape committed by police officers. The court held the state liable for the actions of its employees, emphasising that the state has a duty to protect the rights of its citizens. The court awarded compensation of Rs. 1 lakh to the victim, considering the physical and mental trauma she had endured.

Similarly, in Chairman, Railway Board vs. Chandrima Das, the Supreme Court awarded compensation to the victim of a railway accident caused by the negligence of railway employees. The court held that the railways, as an instrumentality of the state, was liable for the injuries suffered by the victim. The court awarded compensation of Rs. 5 lakhs to the victim, considering the severity of her injuries and the loss of earning capacity.

These cases are significant as they established the principle of state liability for the failure to protect the rights of victims. The courts recognised that the state has a duty to ensure the safety and security of its citizens and that any failure to do so can result in legal liability. The awards of substantial monetary compensation in these cases also sent a strong message that the state must take proactive measures to prevent such incidents from occurring and to provide adequate compensation to victims when they do occur.

However, the successful implementation of the strategies needs a more comprehensive strategy but is met with procedural obstacles such as lack of funds, stigma around victims, and delay in court proceedings, all of which reduce the effectiveness of the recommendations made by the committee.

The recommendations made by the committee represent a significant milestone in the journey of recognising the victim’s rights in Indian criminal jurisprudence Although the process of implementation of the same on a larger scale is limited, sustained efforts to implement the recommendations can pave the way for a better future of the victim’s rights in India.

The present scenario

Present scenario regarding victim rights has seen a significant shift, with recognition and emphasis being laid on the importance of victim rights beyond compensations and convictions. 

Even though the criminal justice system still follows the adversarial model of jurisprudence, several substantial changes have been made to make it more victim-centred. The existing criminal justice system might use some improvement, and this paradigm shift that equally emphasises the punishment of the accused as well as the rehabilitation and empowerment of those affected by crimes is a welcome development.

The elevation of the role of victims from being marginalised, passive participants as witnesses with limited chances to voice their concerns to the realisation of the impact of the crime beyond mere victimisation to including broader recognition of their rights and needs.

The Criminal Procedure Code of 1973 provides mechanisms that are discussed further to assist the victims in exercising their rights. They are as follows-

Section 357 of the Criminal Procedure Code, 1973 (hereinafter Cr.P.C.) deals with the victim’s rights, which include sentencing the accused and imposing a fine for any loss or injury caused to the victim. The pre-requisite for the application of this section relies on the guilt being proved beyond a reasonable doubt by the victim to be implemented. While imposing fines, the court also considers the accused person status quo and, on occasion, reduces the compensation award to the victim.

Section 357A of Cr. P.C. was introduced to address the issues regarding the compensation offered to the victim. The primary aim was to ensure that the victims were awarded adequate compensation for the losses they suffered.

The state government is to establish schemes for victims or their dependents in the event of death or severe injuries caused by the offence. The criteria for executing this scheme depend on the nature and gravity of the offence, which are decided by the court and the financial situation of the offender. 

Section 372 of Cr. P.C. allows an appeal against the orders of acquittal, conviction or discharge passed by the court. This was to encourage more active participation by the victims in the investigation and trial process to make their voices heard. This section is crucial in protecting against the miscarriage of justice and making the judiciary more accountable for its decisions. It also promotes transparency and fairness in court proceedings.

By allowing them to challenge the unfavourable outcomes, it upholds the basic rights of the victims and ensures that access to justice or remedies is ensured.

Despite the constraints of resources and structural barriers, the ongoing awareness and advocacy promoting the victim-oriented system to help them realise their rights and facilitate the needs of victims seeks persistent efforts on the part of legislation, advocates and even society to help achieve a lasting change in the system.

Conclusion

India has witnessed an evolution in the segment of victim’s rights, changes in the legal system, societal structure and values. The role of the victim has changed from being the centre point in the ancient era to being sidelined during the British administration. The trajectory of victim rights has come a long way.

In order to ensure a fair and just society, it is imperative that due recognition and support be extended to the victims of crime to express their needs and offer them the right assistance to minimise the aftermath of the crime and allow them the chance to lead a dignified life.

References

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