INTRODUCTION
Crime is an offence committed by any person against the society. In India, crime is regulated by two major legislations IPC and CrPC. When anyone commits the crime, he is called the offender and the party who suffers is called a victim. The term victim has been discussed in various international conventions and our Indian legislation also. Victim plays a pivotal role in setting the criminal justice system in motion. So, they are also entitled to get every benefit through the tool of law. Legislation in India or response of law against victims of any grave offence and related to any offence is not adequate. There is no provision for the protection of child victim whose trial should be conducted in-camera. Also, the menace of intimidation of victim of witnesses during the pendency of trials etc. is not being addressed. Similarly, there are many cases where the term victim is being defined broadly but not given due attention.
This article examines the interpretation of the term victim, their rights, and lacunae in the laws to protect them, suggestions to improve their condition, and then finally moved to the conclusion.
WHO IS A VICTIM?
This part of the article definition of the victim given by drafters of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (hereinafter, UN Declaration) and definition under CrPC has been defined and discussed some deficiency in the definition of CrPC.
The definition of a victim as explained in the UN Declaration is-
“Victims” means 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 violate criminal laws operative within the Member States, including those laws proscribing criminal abuse of power.[1]
This definition of the UN Declaration has given wider meaning to the term victim to ensure maximum coverage. By having broad connotations, it also covers apprehension, prosecution, or conviction of perpetrator or even the relationship of the perpetrator to the victim. In these cases, the victim continues to be treated as a victim. In certain circumstances, it treats all persons, including the family of the victim as the victim since they might suffer harm in the process of intervention to assist the victim or stop the victimization. So, this definition tries to cover several rights of the victim as well as of the family.
Now, the definition of a victim under the Indian legal framework is explained. The term victim is defined under Section 2 (wa) of CrPC, 1973. It defined victim 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.”[2]
This definition of the Indian legal framework has some deficiencies. One is the term loss, or injury is not clearly defined, and it depends on judicial interpretation to consider something loss or injury. Secondly, it does not protect the rights of every person who will be affected by the process of assistance or while stopping the crime. It is still based on the common law tradition considering the victim as a witness only of any criminal offence.
DOES VICTIMS HAVE ACCESS TO JUSTICE AND FAIR TREATMENT?
Now, the most important question arises that apart from having lacuna in the definition do victims have access to justice and treatment. The needs of victims of rape and other violent crimes against women are unpredictable and inadequate. Section 160 of CrPC says that “no male person under the age of 15 years or women shall be required to attend any place other than the place in which such male person or woman resides does not applicable on those women or a child who is arrested or picked up as a suspect. The legislation also fails to address the needs of victims to be treated with dignity, to sustain protection from intimidation, legal aid, and to rehabilitate them. Till now, there is no provision regarding victims of rape and other crimes against women are not being provided with sufficient. To provide free access to justice and fair treatment Supreme Court in the case of Delhi Domestic Working Women’s Forum v. Union of India[3], the court stated some broad guidelines to assist the rape victims.
IS THE COMPENSATION PROVIDED TO VICTIMS ENOUGH?
Victims of a crime granted compensation under CrPC even when the court has not imposed fine upon them, but this provision is not used very frequently by courts. Then, after the recommendation given by the 152nd Law Commission describing the criteria that what amount of compensation should be given in each case, no step was taken by the Indian government. Then the 154th Law Commission report again recommended to institute 357-A in CrPC and to include a comprehensive scheme of payment for victims to be given adequately in courts. Still, the government did not take steps for the implementation of this recommendation also. In the Delhi Domestic Working Women Forum Case, the court stated that Rs.10, 000/- should be given to each victim as an ex-gratia amount. Due to the absence of legislation, courts are exercising their jurisdiction to award compensation to the victims of crime. Still, their rights are not being addressed properly until now.Schemes and mechanisms have been framed to address the entire problem. Still, no statute has been formulated yet, which shows that the place of a victim is not considered important in the criminal justice system in India.
RESTITUTION RIGHTS OF VICTIM
This is a growing area of rights of the victim. The rights of victims of crime to restitution is not achieved the statutory recognition till now. Courts through the decision of pleas examine the losses suffered according to the riots and caste clashes to protect rights. But, courts have only granted in those cases where they find the state liable only in the case when the loss has occurred because of definite failure of the state has resulted in the loss and where loss can be anticipated easily. So, this area also needs to grow up to recognize the right to restitution of the victim.
RIGHTS OF A VICTIM OF CUSTODIAL CRIMES
Supreme Court initiated the concept of providing compensation to the victims of custodial crime in the case of Nilabati Behera v. the State of Orissa[4]. In this case, the court stated that only providing the ordinary remedy of a civil suit to the heirs of a victim of custodial violence is not sufficient, relief of compensation was also recognized by the court which is following public law. Then this concept was started flourishing and further developed in the case of D.K. Basu v. State of West Bengal[5]. This practice to grant compensation to the victim should also be practised regularly in India, as different other countries also follow this mechanism. Recently, there are various cases of custodial crimes that happened in India, which should be considered as an alarming condition and should put-forward the solution to protect the victims and protect their rights.
CONCLUSION
Review of the definition of victim in Indian legal framework and their rights in the current scenario makes clear that the interpretation of the term victim should not be confined to witness only and their rights should be extended. Their rights related to restitution and other rights should be recognized and should be given a wider interpretation by coming out of common law. Compensation to be provided to them should be increased and should follow the recommendations given by the Law Commission to make the position of victim better. Malimath Committee[6] has recommended that-
‘The victim has a right to representation by an advocate of his choice; provided that an advocate shall be provided at the cost of State if the victim is not in a position to afford a lawyer, but fails to acknowledge that statutory provisions concerning free legal aid in criminal justice system too much desired. Reform should take place simultaneously so effective right of representation should be granted to the victim. The approach for the interpretation of the term victim and protection of rights should be multi-disciplinary.’
By-
Dharmashastra National Law University
[1]Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, A(1), Adopted by General Assembly resolution 40/34 of 29 November 1985, https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.29_declaration%20victims%20crime%20and%20abuse%20of%20power.pdf.
[2]The code of Criminal Procedure, s.2(wa), (1973).
[3] Delhi Domestic Working Women’s Forum v. Union of India, 1 SCC 14 (1995).
[4] Nilabati Behera v. the State of Orissa,2 SCC 746(1993).
[5]D.K. Basu v. State of West Bengal, 1 SCC 416, (1997).
[6] Report of the Committee on Reforms of Criminal Justice System, Government of India Ministry of Home Affairs- Vol. 1, Mar 2003.
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