Dinesh Singh Chauhan
“P eople by and large have lost confidence in the criminal justice system….. Victims feel ignored and are crying for attention and justice.”
The victim constitutes the most important as well as the most aggrieved entity in any criminal justice administration. The emergence of “victimology movement” in the late 1970s and early 1980s in the United States of America (U.S.) is credited for putting at the forefront the plights of the victims by describing them as the “forgotten entity” in the criminal justice administration. The movement in the U.S. was a result of the continuous neglect and ignorance of the rights of the victims in the criminal justice process. The story holds true for India also. In India, it is widely believed that victims do not have sufficient legal rights and protections, and hence they are considered to be the most neglected entity in the entire criminal justice administration. There is a general feeling that unless Justice to the victims is made the focal point of the Indian criminal justice administration, the system is likely to become an institution for perpetuation of injustice against the victims. Unfortunately in India, after the crime is reported and the criminal motion is brought into force, the entire focus tilts towards the accused, forgetting completely the victims’ rights and perspectives. As a result, the victims are sometime termed as “forgotten entity” or “marginalized entity” in the Indian criminal justice administration. The unresponsive attitude of the criminal justice administration contributes to the plights and pains of the victims in many and varied ways. When we look at the criminal justice administration along with its procedure, we find that it is tilted more and more in favour of the accused at the expense of the rights of the victims. The accused have been provided with protection at all the stages – pre trial, trial and post trial of the criminal justice. As soon as the crime is committed and accused is nabbed, effort is made to provide him with all the rights such as the right to legal representation, right to medical examination, production before the magistrate within 24 hours, right to be informed of the ground of arrest, etc. However, as against this, victim is left at his/her mercy. The fine imposed on the accused form part of the compensation to the victim. However, the fine amount is too inadequate to bring any substantial meaningful changes in the life of the victim. Further, rehabilitation is the most neglected area in the entire criminal justice administration. Since rehabilitation has financial implications, the State generally neglects this dimension. However, such attitude of the State adds to the plights of the victims especially when victims have been subjected to sexual offence, which at times result in loss of employment, unwanted pregnancy, mental trauma, and ostracization from society and several other problems. Hence, for all these reasons, victims continue to be the “marginalized entity” of the Indian criminal justice administration. However, in the last few years, with the growing awareness regarding the plights of the victims, efforts have been made to undo the situation. e. g., some changes have been made in the law and procedure to take care of the victims’ rights. One such example is the insertion of Victim Compensation Scheme in Section 357-A of the Criminal Procedure Code (Cr. P. C), 1973 (inserted by Act 5 of 2009).
Restorative Justice
Restorative Justice is a new movement in the fields of victimology and criminology. Acknowledging that crime causes injury to people and communities, it insists that justice repair those injuries and that the parties be permitted to participate in that process. Restorative Justice Programs, therefore, enable the victim, the offender and affected members of the community to be directly involved in responding to the crime. They become central to the criminal justice process, with governmental and legal professionals serving as facilitators of a system that aims at offender accountability, reparation to the victim and full participation by the victim, offender and community. A definition of restorative justice that emphasizes the importance of both restorative processes and outcomes is the following: Restorative Justice is a theory of Justice that emphasizes repairing the harm caused or revealed by criminal behaviour. It is best accomplished through co-operative processes that include all stakeholders. Restorative Justice is different from contemporary criminal justice in several ways. First, it views criminal acts more comprehensively — rather than defining crime as simply lawbreaking, it recognizes that offenders harm victims, communities and even themselves. Second, it involves more parties in responding to crime — rather than giving key roles only to government and the offender, it includes victims and communities as well. Finally, it measures success differently — rather than measuring how much punishment is inflicted, it measures how much harm is repaired or prevented.
“Victimology must find fulfillment not through barbarity but by compulsory recoupment by the wrongdoer of the damage inflicted, not by giving more pain to the offender but by lessening the loss of the forlorn.” – Krishna Iyer J. in [“Maru Ram & Ors. Vs Union of India & Ors”, AIR 1980 SC 2147.
A victim of crime is one who triggers the criminal process. A “victim” according to Section 2 (wa) of Cr. P. C is defined as a person who has suffered any loss or injury caused by reason 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. According to the 41st Report of The Law Commission of India, the significance of the requirement that compensation should be recoverable in Civil Court is that the act which constitutes the offence in question should also be a tort. Secondly, the compensation can only be paid out of the amount of fine recovered. It can in no case exceed the amount of fine. Thirdly, there is no Scheme of Interim Compensation under Section 357, as Section 357 (2) clearly declares that if the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed or, if an appeal be presented, before the decision of the appeal. Fourthly, compensation can be ordered only if the accused is convicted and sentenced, although to tackle that Section 357-A was introduced by amendment in 2009, where the Court will direct the State to pay the compensation in cases of acquittal or discharge or where the compensation by the accused is not adequate for such rehabilitation.
Justice R. L. Narasimham, member of 42nd Law Commission recommended deletion of Section 545 (Now Section 357 in the Cr. P. C and insertion of a new Section in Indian Penal Code as he found the Section unsatisfactory because compensation can be given only in money to the injured party and there is no provision for direct reparation for harm caused. Secondly, the procedure involved in the Section is circuitous, dilatory, expensive, and caused much harassment to the injured complainant. Lastly, it does not cover cases of those accused persons who are not able to pay the fine.
A crime is deemed to be an offence against the society and the de-humanized system that imparts Justice reduces the victim to any other piece of evidence. According to, “Duties of Frontline Professionals Towards Securing Justice For Victims”: a manual, in Hobbesian terminology, the Leviathan fails the victims twice: first in failing to secure their life, liberty and property from the transgressions of another and in the second instance failing to fully and completely restore the victims to their rightful position. The jurisprudence ameliorates the balance between the rights of the victim and the deterrence that the society seeks to create because criminal justice system is meant for doing justice to all – the accused, society and the victim.
Conclusion
Far from being into a novel approach to sentencing, restitution has been employed as a punitive sanction. In earlier societies, it was standard practice to require an offender to recompense the victim or his family for any loss caused by the offence. The primary focus of restitution was not to compensate the victim but to protect the offender from violent retaliation by the victim or the community. It was a means by which the offender could buy back the peace he had broken. As the State gradually established a monopoly over the institution of punishment, and a division between civil and criminal law emerged, the civil Law describes the victim’s right to compensation.
The endeavour must be to make the victim an integral entity of the criminal justice administration from the present status of forgotten entity in the criminal justice administration. No criminal justice administration can afford to ignore the rights and plights of the victims of the ever increasing number of crimes. The plight of the victims are many and varied, and hence it requires greater attention by the criminal justice administration.
(The author is Advocate High Court of Judicature, J&K, Jammu.)
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