Victim- The Forgotten Party to the Criminal Justice System

“Some solace by way of compensation out of the public purse for the injury sustained, whether or not the culprit is brought to book and whether or not the culprit might otherwise be liable to the victim”.

- Ian Freckelton[1]

Who is a ‘Victim’ of a crime?

The Annex to the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (Hereinafter referred as the Annex to the Declaration) defines victims as persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within the Member States, including those laws proscribing criminal abuse of power[2]. Section 2(wa) of the Code of Criminal Procedure, 1973 also defines ‘victim’ as a person who by reason of the act conducted by an accuser has suffered any loss or injury.

Meaning, the word ‘Victim’ is a Legal status term and the ‘victim of a crime’ is a person who has/had suffered some substantial amount of harm who according to the law is entitled to right enforcement against the harm so caused. This right of the victim does not only extend to him/her but also to their legal representative’s[3] or any other person that may be designated by the victim to exercise the rights on the behalf of the victim[4].

A paradigm shift in the dynamics of victimhood:

A Victim of a crime is impacted in all aspects physical, emotional and financial by the crime committed against him. But in the adversarial criminal judicial systems, prima facie, the purpose of criminal justice is to ensure the due process of law by punishing the offenders for the violation of law in order to secure the rights of the victims of crime[5]. A paradigm shift is observed in the objective of the law from trying to recuperate a victim of a crime in all senses, in theory to their dominated focus solely upon proving the guilt or punishing the accused charged for causing the harm.

In the Indian adversarial criminal justice system, the role of the victim mostly concerns the reporting of the crime to the authorities who thereupon proceed with the case in a timely manner[6]. The authorities lay great focus upon the accused of a crime which in the process acts arbitrary and to the disadvantage of the victim of a crime i.e., it may not serve the victim in a meaningful way[7]. The rights of the victim of a crime remain neglected to a significant extent.

Addressing the victim’s state in a crime, principle 4 of the Annex to the Declaration states that the state must treat the victim of a crime must be treated with the utmost compassion and for the harm incurred upon them they must be entitled to have access to the judicial mechanisms for prompt redress.

In Rattan Singh v. State of Punjab, Justice Krishna Iyer, rightly stated that

“It is a weakness of our jurisprudence that victims of crime and the distress of the dependents of the victim do not attract the attention of the law. In fact, victim reparation is still the vanishing point of our criminal law. This is the deficiency, which must be rectified by the legislature.[8]”

In the modern welfare state, a gradual increase in the scope and impact of victimization is noticed, where the victim’s rights and the dynamics of their victimhood have been largely ignored. A state of affairs has emerged where a victim of a crime is playing a secondary role to the accused of the crime. Therefore in the current criminal justice process, a fundamental need to re-evaluate the position of the victim of a crime is felt.

Compensation for the Victim of a Crime:

Victim compensation is a direct financial reimbursement served upon the victim of a crime for the expenses incurred upon him/her from the commission of a crime. A British Judicial Magistrate Margery fry in 1950 for the first time advocated some compensation to adhere to the victims of crime and the incorporation of laws addressing victim’s compensation in the Criminal justice regime.

During the 1960s, with a gradual global movement of victimology, the right to compensation of the victim started to get incentivise in order to secure their co-operation in the proceedings. In the 1980s globally, initiatives for the reformation of the criminal justice system in respect of the victim of the crime was taken. The Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, 1980 also addressed the issue of victim’s compensation highlighting that the victim’s rights are not ‘adequately recognised and further affirms the global need for measures “to secure the universal and effective recognition of and respect for, the rights of victims of crime and of abuse of power;[9]” On the recommendations made by the committee, The Annex to the Declaration was unanimously adopted on 29th November 1985.

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

The United Nations General Assembly in November 1985, unanimously adopted comprehensive legislation titled “UN General Assembly Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power” exclusively dealing with the rights and obligations of the victims of crime. The Annex to Declaration elaborated upon the different rights and entitlements that must be advanced to the victims of crime by all the signatory countries.

The Annex to the Declaration calls upon its Member States to make fair restitution to the victims by ensuring that necessary actions are taken to accord the provisions contained in the Declaration and to reduce the victimisation by implementing “social, health, including mental health, educational, economic and specific crime prevention policies” while simultaneously providing proper assistance to victims in distress. At the International and regional levels, the declaration recommended that proper measures should be taken to recuperate the victims of a crime.[10]

The Annex to the Declaration also insisted upon the constitution of the judicial and administrative bodies where victims of a crime through formal or informal procedures that are inexpensive, fair and accessible attain redressal of the harm suffered[11]. Principle 12 of the Annex to the Declaration, Instances where the accused is not in a state to compensate the victim, the state must endeavour to provide financial compensation and also establish and strengthen national funds for awarding compensation to the victim of a crime out of the fund[12].

Victim compensation schemes in India:

In India, there is no specific legislation dealing with the right of compensation for a victim of a crime. However, the right of a victim to compensation was declared to be part of the fundamental right of right to life and personal liberty[13] under the Constitution of India. Justice Chandrachud, Supreme court in the landmark case of Rudul Sah v. State of Bihar[14] observed that,

“One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Art 21 secured is to mullet its violators in the payment of monetary compensation”.

The Supreme Court by virtue of series of cases reiterated the right to compensation as an integral part of the right to life[15]. Justice Malimath Committee on reform of Criminal Justice System, 2003 in its final report also elaborated upon securing a right to compensation for a victim of a crime.

Article 41of the Directive Principle of State Policy of the Indian Constitution, “the right to public assistance in cases of disablement and in other cases of undeserved want” and Article 51A (g) of the Fundamental duties - “have compassion for living creatures”; 51A(h)- “to develop humanism” are the provisions that in an expansive manner lays the directives for the state to compensate the victims of a crime.

In Hari Kishan v. Sukhbir Singh[16] the court observed that awarding compensation to a victim of a crime is additional to passing other sentences awarded, as it reassures the victim that they are also part of the criminal justice system. “It is a measure of responding appropriately to crime as well of reconciling the victim with the offender”.

Section 357 of the Code of Criminal Procedure 1973, empowers that a Court may pass an order for Victim Compensation for any of the losses or injuries caused to him by the offence conducted while imposing a sentence of fine or a sentence (including a sentence of death) of which fine forms a part. Vide the Code of Criminal Procedure (Amendment) Act, 2008, section 357A namely Victim Compensation Scheme was inserted in the Code of Criminal Procedure 1973 which comprehensively deals with the compensation to victims of crime.

According to Section 357A “every State Government in coordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who, require rehabilitation”. Meaning thereby, a victim making a request to the State or District Legal Services Authority is rehabilitated even if the accused is not tried. The quantum of compensation to be awarded is decided by the State or District Legal Services Authority. Section 357A is considered an institutionalized compensation payment mechanism that levies the responsibility on each state to create and maintain a fund for the purpose of securing victim’s rights[17].

As of now, the Victim Compensation scheme has been formulated by nearly all the Indian states and union territories. But though, all the states have complied with the mandate of the schemes, they are not uniform in letter or in spirit. The present operation of the Victim Compensation Scheme in these states faces variant drawbacks due to lack of uniformity in their monitoring authorities, the scope of duties, amount determination, the grossly inappropriate compensation acting as a barrier to the smooth functioning of the scheme[18].?In consonance with the Annex to the Declaration, the Constitution of India and the Code of Criminal Procedure 1973 by virtue of several provisions explicitly purport upon the need to secure the right of compensation for a victim of crime. But in the present state of affairs, due to the lack of uniformity among the different state’s issued Victim Compensation schemes victim’s right to compensation is grossly neglected.?

Conclusion and Suggestions:

After the adoption of the Annex to the Declaration, 1985 restitution and compensation of the victim of a crime was recognised as one of the prominent features of the criminal justice system. In India, though section 357 and 357-A of the Code of Criminal Procedure, 1973 are the step forward towards securing the right of a victim, their effect cannot be possibly foreseen due to the variance/divergence in different heads of the scheme across the states of India. Uniform principles for Victim Compensation Scheme must be laid by all the states both in letter and spirit.

Victims must be considered as the core of the Criminal Justice System and the recognition of the right of the victim must be initiated from a compensatory jurisprudence point of view. In the spirit with the objective of the scheme, if the victim right to compensation is incorporated expressly as a fundamental right, the victim’s right can be enforceable against the state, while it shall provide a great degree of importance and constitutional protection to the victims of a crime.

Law enforcement agencies should be well sensitised and trained to implement the right to compensation of the victims. In case the victim is not properly remedifyed a strong and easily accessible forum/tribunals must be established for victims redressal, for instance, Article 226 empowers the High Courts to issue directions, orders or writs to any person or authority, including the government. It is, therefore, imperative that all the possible actions must be taken to facilitate the process and that the scheme should be acting in the overall welfare of the victim.

[1] Ian Freckelton in his book, ‘Criminal Injuries Compensation: Law, Practice and Policy’ (2001)

[2]Principle 1, Part A, Victims of Crime, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Adopted by General Assembly resolution 40/34 of 29 November 1985?

[3] Jyo, Victims Rights in India, https://www.legalservicesindia.com/article/1315/Victims-Rights-in-India.html (last viewed on 19.02. 2021)

[4] Supra 1; Principle 1- The term "victim" also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.

[5] Handbook on Justice for victims, on the use and application Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power https://www.unodc.org/pdf/criminal_justice/UNODC_Handbook_on_Justice_for_victims.pdf

[6] Dipa Dube, Victim Compensation scheme in India- An analysis, International Journal Of Criminal Justice Sciences, Volume 13, Issue 2 July – December, 2018 https://www.sascv.org/ijcjs/pdfs/DubeVol13Issue2IJCJS.pdf

[7] Dr. Anand Deshmukh, Mitigating Ends Of Justice To Victims Of Crime: A Comparative Analysis, Bharati Law Review, Oct. – Dec., 2018, https://docs.manupatra.in/newsline/articles/Upload/9FC7B108-41B5-4363-B470-300273C1550D.pdf

[8] (1979) 4 SCC 719

[9]?Resolutions adopted on the reports of the third committee,?Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power https://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/40/34

[10] “Promoting training activities designed to foster adherence to United Nations standards and norms and to curtail possible abuses; To sponsor collaborative action-research on ways in which victimization can be reduced and victims aided, and to promote information exchanges on the most effective means of so doing; To render direct aid to requesting Governments designed to help them curtail victimization and alleviate the plight of victims;

To develop ways and means of providing recourse for victims where national channels may be insufficient;

[11] Principle 7 of the UN General Assembly Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985

[12] Principle 13 of the UN General Assembly Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985

[13] Article 21 of the Constitution of India

[14] ?(1983) 4 SCC 141

[15] Jacob George v. State of Kerala 1994 SCC (3) 430; People’s Union for Democratic Rights v. State of Bihar 1987 SCR (1) 631; Bhim Singh v. State of Jammu & Kashmir AIR 1986 SC 494

?

[16] 1988 AIR 2127

[17] Ibid.

[18] Dipa Dube, Victim Compensation scheme in India- An analysis, International Journal Of Criminal Justice Sciences, Volume 13, Issue 2 July – December, 2018 https://www.sascv.org/ijcjs/pdfs/DubeVol13Issue2IJCJS.pdf