-By Tanisha Prashant
Introduction
The justice system does not provide any succor to the victims of crime. The concept of fair trial and justice embodies in itself a triangulation of rights and interests of the accused, the victim and the society. Under an adversarial system, the rights of the community and the accused are exhaustively defined and often supersede those of the victim whose rights procedurally don’t exist. Victim is viewed in relation to the society and the offender rather than an individual who has been harmed.
The impact of crime is long lasting and the victim is often left with no tool to deal with the tragic aftermath. Lack of coping skills coupled with traumatizing experience leads to no recovery and forces the victim into a vicious cycle of revenge and retribution. With increasing crime rates every year, there is a need for a victim-oriented approach in the justice system to heal the society internally. Victim reparation is a vanishing point of law and there exists a need for a mechanism which goes beyond mere compensations and convictions.
Recognizing victims
In order to improve justice administration for victims, the first task would be recognizing them. The world is witnessing myriad crimes today, from ethnic strives to political vindications, crimes are no more traditional and victims are not just individuals. In such a situation identifying the victims becomes more difficult.
The UN Declaration of Basic principle of justice for victims of crime and abuse of power, the Magna Carta on rights of victims has defined the term victim as
“a person, who has individually or collectively suffered any mental, physical, emotional, economical harm or substantial impairment of their fundamental rights, through the acts or omissions that are in violation of criminal laws operative within member states including those laws prescribing criminal abuse of power.”
The above reflects that, a person is considered a victim irrespective of whether the perpetrator is convicted, prosecuted, identified or apprehended. Victim is defined independently irrespective of his relation to the perpetrator or the society, hence, abolishing all kinds of discrimination.
Another important element is the recognition given to victims of abuse of power. A person will be a victim of abuse of power if he suffers any harm due to an act of the state. In the case of Rudul Shah Vs State of Bihar, the Supreme court while dealing with the plight of under trial prisoners and individuals in correctional institutions, termed them as victims of abuse of power thereby enabling them and their rights to a great extent. Further, in Alister Anthony Pareira vs State of Maharashtra the court declared that the system of law has a duty to protect such victims of crime and abuse of power thus, broadening the duty of the state in justice machinery.
The definition aims at including all individuals who have suffered any kind of harm either from a private citizen or at the hands of the state. This helps in imparting a sense of safety and security as it opens up the justice system for every individual.
However, the definition of victim as adopted under section 2(wa) of the Criminal procedure code, 1973 lies in stark contrast to international standards. Under the above- (1) accused has to be identified and charged for a victim to come into picture. (2) The victims of abuse of power have not been recognized in spite of affirmative actions of the apex court. The above difference in defining the term marks the first step towards miscarriage of justice.
Secondary to becoming a victim, the person also experiences the process of victimization. However, there exists little knowledge to what actually constitutes victimization. Theorists sellin and Wolfgang were the first to explain that victimization as a process exists in two stages- primary and secondary- (1) primary stage – It is personal to the victim, and is between the victim and the accused only. (2) Secondary stage – It come into picture when the victim comes in contact with the society after the crime.
The secondary victimization often supersedes the primary and is far worse than the primary. It exerts itself in the form of victim labelling and blaming. The cases of Rapes, domestic violence, marital rape are just a few examples where the victims are forced to silence themselves in order to save themselves from secondary victimization. The society and it stereotypes end up playing a very dominant role in how the victim reacts to the crime. Moreover, caste, class and the sex of the victim play a very large role in how society will react to a crime. Victims end up suffering more than the accused in a trial.
What it means to assist a victim
The principle of restorative justice provides the objective of victim assistance. As a concept it entails that stakeholders of an offense should come together to collectively deal with its aftermath. It focuses on a balanced justice delivery system where victim and offender are given equal representations.
Victim assistance aims at giving an assistance that is holistic in nature and goes beyond the criminal justice system. It is more than rescuing the victim. It fundamentally serves two purposes- (1) it restores victims to wholeness in the aftermath of victimization. (2) It provides mechanisms for reducing the risk of re-victimization. Hence, it aims at imparting a sense of agency and capacity to the victims. The essence of victim support is improving the quality of life of victims which was endangered by the crime. Victim assistance as a right comes into existence the moment a crime is committed and continues till the earlier position is restored. The criminal justice system is only one aspect of the overall process.
In India victim assistance is often taken to be just awarding compensations. The victim compensation scheme as incorporated through the 2009 amendment to the Criminal Procedure code poses a duty on every state government to prepare a scheme for purpose of compensation and rehabilitation for victims of crime. The fact that setting up of compensation schemes have been left to the sole prerogative of the states pose not just problems of implementation but also of discrimination among victims. Victims have the right to be treated equally irrespective of the state in which they seek justice. Furthermore, compensation is not available to the victims till the limitation period of appeal or till the time appeal is pending before a court of law. In an already exhausting trial machinery, this becomes a major impediment specially for indigent victims to support themselves and thereby defeating the whole purpose of compensations. However, compensations are just one of the many rights of the victim. In cases where the victim dies or is incapacitated compensation does not go a long way. Victim assistance is a comprehensive mechanism aimed at alleviating the position of the victim and compensation is only one part of it.
In India, the Malimath Committee report for the first time gave this idea a formal recognition. Though it was a bit restricted, yet it emphasized on three basic rights- (1) right to participate in criminal proceedings. (2) Right to adequate compensation. (3) Extension of legal services to victims at all levels. Further in 2002, the National Commission to review the working of constitution suggested the states to put greater emphasis on rights of victim under the criminal justice system. However, the scope of victim assistance remains limited in India.
The real impediment to victim assistance in India is two-fold in nature. (1) There is a lack of structural legislative regime for assisting the victims of crime. Two major legislative actions which refer to victim assistance are section 357C, inserted through the Criminal Law (Amendment) Act, 2013, in the Criminal Procedure Code, 1973 and the guidelines and protocols on medico-legal care for survivors/victims of sexual violence prepared by the Ministry of Health and Family Welfare. They together create a duty on the public and private hospitals or health service providers to give free and immediate medical treatment to victims of sexual offences and acid attacks. However, it must be noted that, these provisions are highly restrictive in nature. They are not extended to all crime victims but are limited to victims of sexual offences and acid attacks. Moreover, the duty created is a duty to tend to medical treatment of the victim which gets limited to dealing with bodily injuries thereby neglecting the psychological condition of the victim. The doctors often tend to collect evidence from the victim rather than comforting or treating the victims mentally and physically. (2) There is no established framework which can be referred to by the service providers for assisting the victim. The police, the lawyers, the judiciary, and other service providers that come across a victim end up employing their own means of interaction with the victim. In order to ascertain facts from the victim, the police, and the lawyers, push the victim in traumatic question-answer rounds, completely disregarding the victims state of mind. The Supreme court in the case of Delhi Domestic Working Women’s Forum vs Union of India observed how the justice system treats the victims of sexual assault by subjecting them to humiliation from the reporting stage itself.
Having a procedural fairness in justice administration, being treated with respect and dignity, receiving full-fledged assistance (financial, social, medical, legal, and mental) are just a few of the rights of victims that need to be exhaustively defined in the law.
There are numerous stakeholders in victim assistance machinery- (1) Police. (2) Lawyers. (3) Judiciary. (4) Educational institutes. (5) Rehabilitation centres. (6) Counsellors (7) Hospitals. All these interact with the victim at some stage pre or post trial. Hence, they should be equipped with how to handle and deal with the victim. Lapse by any one of them would end up affecting the victim adversely. It is imperative for any right to be realised that the stakeholders act together in consonance with each other and promote the goal.
Police is the first point of contact in the criminal justice system and therefore it needs to be the best equipped to deal with victims. They are required to collect the evidence keeping in regard the dignity of the victim and treat them with due respect irrespective of the crime. The police then, needs to redirect the victims to lawyers, NGOs, and other support system which can provide the best possible help.
Role of the lawyers and prosecutors run parallel to that of the police. Prosecutor should be trained to aim at fairness and not conviction. Lawyers act as a bridge between the police and the victim and by working with the prosecutor they should put victim’s best interest in trial.
Judiciary acts as the sole guardian of the rights of individuals. From expediting trials to inclusion of victim in stages of trial, the judiciary plays a major role in protecting the victims.
However, it has not played its role in the best way. There have been series of judgements where the judiciary has blatantly ignored the rights and interests of the victims. With orders like, granting bail on condition of tying rakhi to the perpetrator of rape or making a rapist marry the victim, on mere claims of the accused, the judiciary has failed the victims. The judiciary has taken a restrictive and discriminative approach in the domain of victim assistance in spite of it being the flag bearer of justice. Victims of crime should not suffer more by the justice machinery as it would undermine and destroy public confidence in administration of justice.
Several steps that can be undertaken to improve victim assistance, some of which are as follows-
- The state should establish crisis intervention association and NGOs dedicated solely to help the victim throughout rehabilitation process.
- Public sensitization and education comes as the most important tool in fighting against the evils of the justice system.
- The victims should be made known of their rights and recourses that are available to them or could be made available, at the first instance.
- Immediate and onsite assistance to victim through specialized agencies that would help them deal with trauma effectively and restore their position.
Conclusion
Victim assistance is a social policy task that should maintain coherence with international human right standards. Reduction of re-victimization, encouraging community participation and revision of laws to make it more responsive to the needs of victims are just a few solutions to above stated problems. The criminal justice system needs to be transformed comprehensively and made more inclusive to the needs of the vulnerable.
[The author is a fourth year law student at Institute of law, Nirma University]
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