Empowering Victims in India Through Criminal Justice System
This study evaluates the connection of victims' rights, human rights, and
criminal justice in India, accentuating the barriers and paths for encouraging
values and safeguarding the protections of victims. Regardless significant legal
improvements, victims in India continue to face organized obstacles, deficient
support, and persistent challenges within law enforcement protocols.
This research delves into the current legislative framework, focusing on the protection of victims' rights and the human rights provisions enshrined in the India constitution. It identifies gaps in implementation, assesses the impact of these shortcomings on victims' well-being, and examines international best practices for victim centered care. This examination puts rule changes and approaches to enhance victim aid schemes, advance successes, and guarantee that victims' rights are prolonged without acknowledging the values of human rights and the constitutional values.
Introduction
Victims' rights embrace the advantages and safeguards provided to individuals who experience injury owing to offenses. These rights purposes to furnish honor, pride, and neutral action during the full legal proceedings, dealing with bodily, emotional, and monetary outcomes of lawbreaking activity. In India, integrating human rights into the justice system is crucial to encourage parity and preserve democratic values, specifically for victims often exceeded in an organization going after wrongdoers.
Normally, victims have encountered disregard, reduced to detached onlookers with smaller part in legal actions and constrained possibility to restitution or assistance. Challenges such as extended legal hearings, organizational weaknesses, and limited victim help further exacerbate their adversities.
The output of the advocacy of the victims' movement and noteworthy progress in public policy, contributed by the victim was redefined in the 1980s. The progression of victims' rights through human rights is a reasonably modern development. While human rights instruments have long honored the demand for reparation for victims of human rights violations, it was not until the late 20th century that the attention moved to the rights of victims. This shift resulted in legal efforts to ensure that victims' rights, including the right to participate in legal proceedings, receive information, and obtain redress, were protected.
Several international legal instruments, such as the UN's Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, have been enacted to safeguard these rights. Recognizing and protecting victims' rights is essential to ensuring they receive the justice and support they deserve. In India, however, victims often face significant challenges. While the convicted person is taken care of, the victim is frequently neglected, with the state allocating resources to the accused rather than the person harmed.[2]
The victim of a crime encounters the difficulties right from registering the case as in a lot of case he/she depends upon the clemency of the police officer noting the FIR, up till he eventually attains redress. In short, the difficulty appears from the fact that scarce recognition is given to the status of a legal right as something primarily distinct from what might be observed as a justifiable claim. [3]
The Constitution of India identifies these rights of the people and articulates worry towards them.[6] The belief and objective of the Constitution of India is embedded in the preamble which contains the defense of the respect of an individual. It is the obligation of the central as well as state Governments to offer proper setting to each individual to cherish their human rights. The Preamble to the Constitution of India confirms, among other things, 'dignity of the individual'.[7]
Public interest litigation allows concerned individuals to bring cases to court on behalf of others, especially those unable to do so themselves due to structural inequalities. In SP Gupta v. Union of India and others[8], Supreme Court held that any member of the public can approach the court for applying the Constitutional or legal rights of those, who cannot go to the court because of deprivation or any other constraints. Public interest litigation serves as a vital tool for safeguarding the basic rights of marginalized and vulnerable communities. The Supreme Court of India, employing its powers under article 32 of the Constitution of India, which authorizes a person, as a subject of right, to move the Supreme Court for the execution of his fundamental rights and commands the Supreme Court to issue a proper way, order or writ, for the ensured of the fundamental rights guaranteed in the Constitution.
For inventing a channeled balancing system to soothe anguish from the standpoint of rape victims, the apex court could also use the Protection of Human Rights Act 1993, which acknowledges that the human rights represented in the ICCPR and the ICESCR are substantially guarded in the Constitution of India, which works for developments and safeguard of human rights in India. Supreme Court in Vishal Jeet v. Union of India[9] asked governments to commence consultation committee to recommend for the abolition of child misuse and to progress schemes to ensure fitting care and protection of the victim girls and children. The Supreme court supplementary in Gaurav Jain v. Union of India[10], showed its care about rehabilitation of minors encompassed in prostitution and held that juvenile homes should be used for recovery of them and other ignored minors.
Mumbai High court in Public at large v. State of Maharashtra[11], took a significant step by freeing children from the sex trade and issuing directives to limit their exploitation while ensuring their rehabilitation. Children are not only vulnerable to sexual abuse but they are also sometimes kept as agreements servitude as was in the case of People's Union for Civil Liberties v. Union of India[12] where the supreme court set free child laborers and also granted payment to them. Concern of the supreme court about the protection of rights of children does not end here as it repeated the importance of required foundational education annihilation of child labor in the case of Bandhua Mukti Morcha v. Union of India.[13]
It is widely acknowledged that sentiments of nervousness are plausible to be exacerbated particularly among sensitive communities of victim witnesses' anguish from intellectual barriers, plaintiffs in sexual cases, and witnesses at threat of intimidation or repeat victimization.[14] One complainant told the guardian that the capacity of having the need to confront in court and explain what this man had done to them sexually was distressing. Addressing these challenges the supreme court in Sakshi v. Union of India,[15] underscored the need for procedural reforms to support victims, including provisions for testifying via video conferencing to alleviate their trauma.
Women persist repression are often deprived basic human rights. They face violence both within households and in the workplace, with wage discrimination being a persistent issue. Injustice against women laborer in terms remuneration is a very widespread trend in India. In State of Madhya Pradesh v. Pramod Bhartiya,[16] Supreme Court held that under Article 39 the State shall direct its strategy for ensuring wage parity for both men and women.
Even if intimidation fundamentally is only an actuality in a few incidents, it can be supposed that the apprehension of intimidation may act to hinder many victims' notification crime or giving statement in court. The arising human rights law locally and internationally requires all state bodies to act in harmony with the worldwide view of the right to live with self-esteem but also resort to all the feasible approaches and safeguard and ensure the fundamental right to survival and freedom of a rape victim.
Although, it is meaningful that the victim of crime has been freshly revealed and is recognized as a person deserving of major recognition in countries all over the world after holding a role of mostly neglected for generations. Victims have the right to illuminated and present throughout criminal justice proceedings. This contains approach to facts about case developments, charges against the accused. Indeed, objective of all these rights is to improve the well-being of the victim which has been damaged by crime. The Indian judiciary has played an important position in promoting restitution for victims as part of its obligation to equitable redress. In modern times, there has been a growing international acceptance of crime victims as individuals deserving recognition and security, are mostly neglected.[17]
The Criminal Law Amendment Act, 2008 bolstered the rights of victims to legal direction and participation. Victims are now entitled to fully invoke in criminal justice proceedings, including the right to be informed about case developments and charges against the accused. The Nirbhaya Act moreover highlighted victim rights, particularly in cases of sexual abuse, authorizing more connected engagement and securing victim-centric trials. Section 396 of the BNSS outlines redress programs that authorize victims to seek and obtain compensation, situating them at the center judiciary distribution system.
The overreaching goal of these rights is to reinstate the victim's well-being, which has been significantly influenced by the crime. The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) stipulates victims' right to information, backing, and participation within justice systems. The right to participation ensures that victims have an active role in judicial matters, upholding their independence and ensuring that justice is not only served but also visibly achieved, with victims' dignity and concerns placed at the forefront.
In the past, victims of crime in India were decreased to passive observers in court proceedings. However, the progression of victimology has brought substantial improvements, leading to the understanding of their rights and enabling them to participate in the justice process. Right to fair trial is applicable not only to the accused but also to the victim. This will lead to extension of victim satisfaction with judicial process attaining fairness in the process as victims right to be heard is materialized.[18]
Section 418 of the BNSS, 2023 allocates victims the right to appeal against dismissal or inadequate constraints. Furthermore, Section 290 of BNSS allows victims to unit in plea bargaining, authorizing them to assist idea on condemning. In the case of State of Karnataka vs. Krishnappa (2000)[19], the Supreme Court held that Victim Impact Scheme can be deliberated during sentencing. In Dilip Kumar vs. State of Uttar Pradesh (2013)[20], the Allahabad High Court highlighted the value of VIS in establishing restitution.
The Supreme Court has steadily accentuated the necessity for trauma-informed strategy. In State of Gujarat vs. Hon'ble High Court of Gujarat (1998)[21], the Court identified the relevance of victim participation. Additionally, in Suresh Kumar Koushal vs. Naz Foundation (2014)[22], the Court concurred upon the importance of advancing the victim's outlook in explicit cases. Educational programs are critical to enlighten victims about their rights. Creating tailored aid systems, consisting of counselling and advocacy provisions, is also essential.
It signifies the neutral strategy for individuals to seek judicial resort objectively. Article 39A, merged through orders the 42nd Amendment to the Indian Constitution, orders the state to encourage equivalent righteousness by delivering complimentary legal services to underprivileged class. While this directive principle is not legally binding, it has played a substantial role in advancing access to justice.
The Legal Services Authorities Act, 1987, implemented this goal through the creation of supervisory powers at national, state, and district levels, securing voluntary legal aid and help to marginalized communities. The understated yet creative aspects of this system enable dispute resolution through conciliation, significantly reducing the need for litigation while reflecting a proactive approach. The case of MH Hoskot v. State of Rajasthan[23] affirmed that the right to free legal aid is inherent in Article 21 of the constitution. It mandates that the state must ensure legal representation for underprivileged individuals in criminal trials.
Similarly, Khatri v. State of Bihar[24] highlighted the responsibility of the judiciary to inform accused persons of their right to legal aid at the state's costs. Indian courts have made a substantial distinction in safeguarding equity for victims and securing fair trial directives. The legal framework created by the UN Human Rights Committee has significantly supported to expanding the notion of remedies for rights violations. In Vishaka v. State of Rajasthan (1997)[25], the Supreme Court formed guidelines to fight sexual harassment at work, displaying its primary responsibilities dealing legitimate inability.
Another crucial case, Hussainara Khatoon v. State of Bihar (1979)[26], uncovered the adversity of undertrial prisoners suffering in jail as a result of structural inadequacy and stressed the value of speedy trials as part of the inherent right. The judiciary has also supported the cause of disadvantaged group through Public Interest Litigation (PIL), securing fairness for overlooked group.
In Bachan Singh v. State of Punjab (1980)[27], it affirmed the principle of fairness by constraining the application of the execution to the extremely uncommon cases, showing a kind approach to justice. Despite these progressive strides, substantial obstacles remain. Trial delays, frequently caused by a case congestion, remains an urgent concern. The concept of justice is no longer confined to political discussions or advisory legal documents.
According to the National Judicial Data Grid, over 4 crore cases are pending in Indian courts, undermining the principles of timely justice. This issue was highlighted in Common Cause v. Union of India[28], where the Court expressed concern over the detrimental effects of legal delays on public trust. Bribery within the judicial inefficiencies further intensify hindrance. The Justice Venkatachaliah Commission emphasized the demand for judicial reforms to confront these challenges.
Additionally, Section 396 of the BNSS orders state governments to set up compensation schemes for victims who endured loss or harm due to criminal act and demand rehabilitation. Reparation is pondered as the most detailed means of offsetting individuals whose rights have been infringed. Reparation is often associated with providing compensation as a way to address the harm suffered. Limited resources and obstacles in the distribution of reparation are common issues. Additionally, inconsistencies in how reparation is applied across different states result in unequal treatment for victims.[29]
The idea of compensation was first envisioned as lying within the legal framework of inter-state relations; the idea of individual victims by receiving compensation directly from the responsible party was somewhat unfamiliar before the development of modern human rights guidelines in the repercussions of the World War II. For instance, in the case of Nilabati Behera v. State of Orissa[30], the supreme court highlighted the state's responsibility to compensate victims of human rights violations. Such legal actions have considerably enhanced the rights of victims and their approach to justice.
Principles that once had their origin in the law of state obligation have now been moved into human rights law. While the primary aim of the International Criminal Court is the criminal case and trial of human rights perpetrators, the notion of restitution of victims is progressively allocated considerable focus. The responsibility rests on upon the victims to seek their own lawyer and follow the violator within internal legal framework.
Reparation, is taken to mean the producing of amends by an offender to his victim, or to victims of crime commonly, and may take the form of compensation the delivery of some service or the return of pilfered items restitution these being kinds of reparation which might be detailed as concrete.
As Groenhuijsen propose a solution to the civil law is not a potential answer for crime victims, alternatively it is one of the historical origins of their problems since it tends to indicate that the criminal justice system is not the proper venue to further their rights and interests. The concluding portion of the 20th century unlock new paths through which victims were enabled, on paper at least, to demand compensation from either the state other offender.
The criminal justice system isolates the victim making him or her feel like a foreigner to both the offense and the system process. Victim is provided with few ways to compensate his economic setback, which contains civil lawsuit and victim compensation. [31]
A Place For Victims' Rights In The Criminal Justice System:
The longing for victims to be regarded and to be acknowledged is gradually understood, and has been the theme of significant hollow aid and strategic plans the last few years. The victims' rights are still in their nascent phase and it remains to be seen range of legal study in years ahead. Victims' rights have secured important concentration in current era, both worldwide and within in India.
Conventionally, criminal justice systems, including India's, have chiefly centralized on the accused, directing on fair trial rights and systematic steps. Indian Penal Code, Criminal Procedure Lode and Indian Evidence Act which have its origin in the British era, as a totality covers Indian Criminal Justice System. The availability of these laws even after 70 years of Independence shows that the Indian Criminal Justice System is still a British colonial past.
One needs to reflect the Criminal Justice System and the Rule of law in parallel. Dicey's Rule of Law is crucial for Criminal Justice System as the same was also witnessed by the creators of Constitution, rooted on which they unified Article 14, which says that: "The State shall not deny to any person equality before law or the equal protection of the laws within the territory of India." President Venketaraman directly identifies then the critical imperfection in our criminal law, when he says that the recording of acknowledgements by a magistrate is a futile charade. [32]
Confessions should be excluded as evidence. Internationally, systems such as the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) set criteria for victim-oriented justice. The constitution of India guarantees essential human rights and freedoms, such as equal protection of laws, freedom of speech and expression, freedom of religion, freedom of religion, and freedom of assembly and association, freedom of movement within India, the right to practice any trade or profession, protection of personal liberty, protection of personal liberty, protection against double jeopardy, and safeguards against ex post facto laws.
India's ancient justice traditions, as reflected in texts like Manusmiriti and Dharmashastra, emphasized victim compensation. However, the modern criminal justice system remains predominantly focused on resolving existing legal disputes, often neglecting comprehensive victim restitution.
The judiciary has given power under Article 32 and Article 226, to protect people's fundamental rights from any unfair invasion by any organ of the government. The police play a key position in aid for victims as it is the authority to which victims meet after being victimized by a crime. In the case of Bodhisattwa Gautam v. Subhra Chakraborty,[33] recognized interim compensation for victims of rape, holding that such victims require instant support and aid. Victims' Rights and Restitution Act in Canada guarantees victims access to details, protection, and engagement. European Union Directive provides an inclusive framework for victims' rights across EU member states.
Victims Charter in South Africa ensures dignity, service accessibility, and reparative justice for victims. Even today, section 23(1) of the Bhartiya Sakshya Adhiniyam, "No confession made to a police officer shall be proved as against a person accused of any offence", remains in force. According to provision given under section 395 of the BNSS, the court is authorized to award compensation for harm undergone by a person, even in cases where fine does not form a part of a sentence.
Courts in India, nonetheless, have seldom counted on to these statutory provisions to compensate victim of crime. The Supreme Court of India in Harikishan & State of Haryana v. Sukhbir Singh[34] also observed that courts in India have occasionally called upon section 395, BNSS to compensate victims of crime. The Victim or his representatives who is a party to the track should have a right to opt for reconsideration against any rejection passed by the trial court. It has been seen in the criminal proceeding that the one who launches the proceeding is the most abandoned party in the entire criminal proceeding.
The Malimath Committee felt this inequality and gave the diverse proposals about appreciation of rights of victims for better and swifter allocate justice. Recommendations of the committee on the right of victims are as follows:
Schemes Favouring Victims' Rights:
The 41st report of the law commission of India, submitted in 1969, analyzed section 545 of the code of criminal procedure, 1898, and emphasized the importance of making compensation binding on civil courts while linking it to government-led solutions for tort claims. The code of criminal procedure bill 1979 proposed modifications to section 545, which were later incorporated into the current section 357. Additionally, two new subsections were introduced.
Three groups of persons have been explained in the term 'victim' namely:
Additionally, most plans emphasize the allocation of funds while neglecting the critical need for restorative care and disregarding the emotional trauma suffered by the victim. Collaboration among various components of the justice system, including the courts, police, district legal service authorities, and state legal service authorities, should be optimized in these evaluations. Since the concept of victim compensation is still in its early stages in India, the approach of the courts should be more proactive and empathetic.
Compensation should commensurate with the certainty of justice and judicial consideration. Efforts toward a rehabilitative criminal justice system were shaped by the adjustments made to the Indian criminal procedure code 1973. The board on Reforms of Criminal Justice System, headed by Justice Dr. V.S. Malimath, by the Ministry of Home Affairs, in its Report recommendation to the Government of India in March 2003, viewed that "justice to victims" is one of the vital requirements of criminal law in India.
It is important to note that the legal system, composed of experts, has been entrusted with the responsibility of evaluating the extent of harm.[36] Given their greater expertise in assessing the damage suffered by victims, the groundbreaking judgement of the Supreme court in the Hare Krishna case, which directed compensation for victims of crime under Section 357(3) of the CrPC was late overturned by subsequent rulings in cases such as:
Baldev Singh v. State of Punjab[42] is another important case in the trauma-informed approach of judicial law making. The Supreme Court mandated acknowledgement of remuneration by invoking Section 395 BNSS. Article 51A is a necessary responsibility of every citizen to have sympathy for living beings and to advocate compassion. There was a chain of judgements delivered in the 1980's and 1990's by the Supreme Court that seemed to accept the special right of the victim to compensation for damage done either at the hands of a private criminal or in the course of criminal justice administration.
The Supreme Court of India, in the case of Nipun Saxena v Union of India,[43] believed that 'it would be fitting if NALSA sets up a committee of about 4 or 5 persons who can organize Model Rules for Victim Compensation for sexual offences and acid violence taking into description the proposals made by the skilled Amicus.'
In light of the above, several endeavors have been made towards the formation of a state funded victim compensation fund as foreseen in the amended law. There are specific chief hurdles in the organization and functioning of victim compensation. The accused are generally unqualified of paying reparation to the victim as they are generally from the least economic groups and following wages by the criminal as a prisoner would deficient to remit the compensation. Therefore, there occurs a crucial need to institute a victim assistance compensation board to the victim of the crime.
The criminal justice system in India is chiefly concerned with criminals, whether it is their assessing, care, correction. The objective of criminal justice system emerges, as of now, to be constrained to the straightforward goal of judging fault or innocence of an accused. [44] Often the police officials move at a delayed speed on investigations, thus relinquishing the occasion to obtain pertinent data and exposing the chance of misconduct. The lawyers practicing as Public Prosecutors at the district level consistently are inadequately competent and act without clarity to the victim in any way.
The Justice Malimath Committee on Criminal Justice Reforms (2003), Second Administrative Reforms Commission in 5th Report on "Public Order" (2007) and Law Commission of India's 226th Report on "Compensation to the Victims" (2010) have proposed different plans for victims' strengthening and renewal. However, the Ministry of home Affairs, Government of India introduced the certified assistance to victims of terrorist and criminal violence program, which was implemented beginning April 1, 2008.
The principal ideas of the scheme are summarized below:
Under section 5(1) of the probation of offender act comprises provision about restitution request. According to this section, the court may order the discharge of an offender under section 3 or section 4 of the act, if deemed appropriate. The court may also direct the offender to pay the victim an amount it deems necessary, along with the costs of the proceedings.
Several landmark judgments have underscored compensatory justice for victims, noting the judiciary's concern in this area. The Apex Court in Sarwan Singh v. State of Punjab,[46] emphasized that several aspects should be considered before mandating restitution for victims. The court must take into account the economic reparation by the offender, the nature of the misconduct, and the extent of the loss experienced. Additionally, the consequence of the offence on the victims' and their family's life, as well as the physical and mental distress endured by the victim and their relatives, must also be withstood.
Alongside established retribution system restitution to victim has diminished the accused biased perspective in justice system but in the case of India even though some arising progress in this field, there are various deficiencies and problem in this area for that aligned tasks from all the organization is required in the justice system. After the aligned work efforts, transparency and liability in every part of criminal justice system is another significant need to make the successful use of antecedent terms possible.[47]
Case Studies:
Suggestions:
The Legal Services Authorities Act, 1987: This Act strives to deliver free legal aid to victims who are cannot manage financially legal representation. It secures that victims have approach to legal services and help all along the legal process.
The National Legal Services Authority (NALSA): NALSA, founded by the Legal Services Authorities Act, works to enhance understanding of legal rights and provide legal aid to oppressed and susceptible populations, including victims of crime. [59]
The Right to Information Act, 2005: Victims have the right to approach information about the development of their case, encompassing examination records and court proceedings, under this Act. While considerable improvement has been made in identifying and protecting victim rights in India, obstacles remain, comprising issues related to access to justice, discrimination, and the efficient enforcement of prevailing rules and policies. Endeavors to fortify victim support facilities, increase recognition about victim rights, and upgrade the sensitivity of the criminal justice system are persisting to secure that victims secure assistance and equity they deserve.
For example, the United Nations has adopted multidisciplinary devices, such as the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, to exemplify fundamental rights that should be provided to victims. While defendants have rights such as the theory of innocence and the right to a fair trial, victims also have rights, encompassing the right to be heard, well-informed, and protected from continued injury. By emphasizing the needs and rights of victims, society can operate towards creating a more equitable and caring reply to crime.[60] Cl.193(3) BNSS requires the police to enlighten the victim of the progress in the assessment under ninety days and thus enables the victim to be mindful of practicable omissions and holdups in the investigation.
Cl.230 BNSS provides victims with a fundamental privilege to information about the specifics of their case through the obligatory clause of the police report, FIR, witness statements, etc., which is meant to empower successful and impactful engagement of the victim in the criminal process. While the BNSS has codified important rights to information, the original aim of these information rights, which is to eventually empower dynamic and substantive contribution in the criminal process, may not be accomplished without a system of free legal aid.[61] In Lalita Kumari[62], the Supreme Court held that the police have a required responsibility to register an FIR when the facts given discloses a cognizable offence.
Despite numerous judicial pronouncements on the matter, the failure to register FIRs remains a persistent challenge that requires urgent attention from the state. The concept of reconciliatory justice aims to provide meaningful support to victims. However, In India, victim assistance is often narrowly understood as merely offering compensation. The delegation of compensation programs to the discretion of the state has not only created challenges in enforcement but also led to disparities among victims.
All victims are entitled to equal and fair treatment, free from discrimination, in their pursuit if justice. Moreover, access to compensation is often delayed as it is contingent upon the expiration of the appeal period or the resolution of reviews still pending before the courts.[63]
Moreover in 2002, the National Commission to evaluate the working of constitution proposed the states to put greater emphasis on rights of victim under the criminal justice system. Police is the first communication channel in the criminal justice system and accordingly it demands to be the well-suited to manage with victims. They are required to assemble facts taking into account the dignity of the victim and treat them with appropriate esteem without regard of the crime.
Role of the lawyers and prosecutors align to that of the police. Prosecutor should be trained to attain justice and not conviction. Judiciary acts as the heart custodian of the rights of individuals. The judiciary has taken a prejudiced and exclusive strategy in the territory of victim assistance notwithstanding it being the standard-bearer of justice. Victims of crime should not get more by the justice system as it would subvert and ruin public confidence in administration of justice.[64]
The present structure hardly involves victims, even if it is then they are only at the boundary of the criminal justice system, they usually take a supporting role. The legislature and the management divisions need to align the criminal justice system in order to tap into the capacity to reach the victim in critical necessity of help. The legislative advancements have led to the commend of the police under section 173 BNSS to record the information provided by the victim (FIR) immediately. This ensures that the complaint of the victim is given adequate thought by the police. It also offers for them to retain legal counsel of their freedom to appoint representation them in the course of proceedings under section 18 BNSS.
To be handled with esteem and regard during the entire process and to ensure safety their rights. Their statements should be recorded in a considerate and harmless demeanor, and reflects significantly about the value of victims to the criminal system.[65]
Conclusion:
In the Indian criminal justice system, the role of the victims has traditionally been shaped by the common law framework, limiting them to the position of witnesses in criminal proceedings. However, the evolving understanding of criminal law emphasizes the need to establish effective mechanism to safeguard victims. Policymakers are increasingly urged to shifting societal norms and address concerns about the nature and extent of victimization. Both international human rights law and global criminal justice trends highlight victim participation as a crucial aspect of administering justice.
Efforts have been bolstered by recommendations from bodies like the Law commission and the Malimath Committee. Recently, legislative reforms in procedural criminal law have sought to address the challenges faced by the crime victims. Today, victims are no longer limited to being passive observers or witnesses for the prosecution; instead, they hold procedural rights that enable them to influence the functioning of the criminal justice system.
The right to life of rape victim hugely depends upon the society where legal authorities make sure that a rape victim should not go through any mental trauma or stress from the society and as a society we should include, encourage and support them to live a normal life like other women lives. Rehabilitation process of rape victim lies in the hands her parents, relatives, Colleagues, Neighbors and Friends or if a married women has been a victim of rape the husband's support is immensely important for the wife to regain her normal life and these people are important players in women's life to bring back a rape victim to lead a happy life without going through any agony, stress and discrimination.
Therefore, the criminal justice system acquires a "vertical facet" and becomes "a means of systematic supervision" by the state which takes over the indictment of the culprit to the exclusion of the victim. Our system however has remained with the vertical dimension model.
The realigning of the criminal justice system to confront the necessities a victims of crime need not and possibly should not be only ought to execute and protect the rights of suspects as well as the rights of the defendants. First, it is vital to admit that our justice system is not ready at present to successfully manage with atrocities, encompassing the crimes of extermination and crimes against humanity.
The effort at designing a lawful program of witness defense will have to be preceded by a extensive coverages of meetings by the law-making body with not only victims of crime but other lawful agencies like the National Human Rights Commission which are afflicted with a growing number of allegations.
References:
Books:
This research delves into the current legislative framework, focusing on the protection of victims' rights and the human rights provisions enshrined in the India constitution. It identifies gaps in implementation, assesses the impact of these shortcomings on victims' well-being, and examines international best practices for victim centered care. This examination puts rule changes and approaches to enhance victim aid schemes, advance successes, and guarantee that victims' rights are prolonged without acknowledging the values of human rights and the constitutional values.
Introduction
Victims' rights embrace the advantages and safeguards provided to individuals who experience injury owing to offenses. These rights purposes to furnish honor, pride, and neutral action during the full legal proceedings, dealing with bodily, emotional, and monetary outcomes of lawbreaking activity. In India, integrating human rights into the justice system is crucial to encourage parity and preserve democratic values, specifically for victims often exceeded in an organization going after wrongdoers.
Normally, victims have encountered disregard, reduced to detached onlookers with smaller part in legal actions and constrained possibility to restitution or assistance. Challenges such as extended legal hearings, organizational weaknesses, and limited victim help further exacerbate their adversities.
Evolution Of Victims' Rights:
The rights of victims in India have often been overlooked and rarely debated, historically being a minor concern within the criminal justice system. It was only until 1970s when the initiative on victim studies appeared and achieved insight and basics of causalities of criminal acts.[1] The UN Declaration on Basic Principles of Justice for Victims and Abuse of Power was embraced by the General Assembly in 1985 to commence the program for redress. Jonathan Doak's influential book as 'Victims' Rights, Human Rights and Criminal Justice' emphasizes the importance of victims' rights and their place within the criminal justice system, examining this issue from an international and human rights perspective.The output of the advocacy of the victims' movement and noteworthy progress in public policy, contributed by the victim was redefined in the 1980s. The progression of victims' rights through human rights is a reasonably modern development. While human rights instruments have long honored the demand for reparation for victims of human rights violations, it was not until the late 20th century that the attention moved to the rights of victims. This shift resulted in legal efforts to ensure that victims' rights, including the right to participate in legal proceedings, receive information, and obtain redress, were protected.
Several international legal instruments, such as the UN's Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, have been enacted to safeguard these rights. Recognizing and protecting victims' rights is essential to ensuring they receive the justice and support they deserve. In India, however, victims often face significant challenges. While the convicted person is taken care of, the victim is frequently neglected, with the state allocating resources to the accused rather than the person harmed.[2]
The victim of a crime encounters the difficulties right from registering the case as in a lot of case he/she depends upon the clemency of the police officer noting the FIR, up till he eventually attains redress. In short, the difficulty appears from the fact that scarce recognition is given to the status of a legal right as something primarily distinct from what might be observed as a justifiable claim. [3]
Right To Protection:
The harsh unconcern of the penal system towards victims of rape is apparent in its failure to accept their emotional and restorative needs. This omission disregards the critical process of handling the hidden distress and shame experienced by survivors of sexual assault. The Supreme court of India precisely highlights such a tragic condition of victims of rape in administration of criminal justice.[4] In one of the very renowned cases of Velasquez Rodriguez v. Honduras[5], the European court highlighted the state has a legal responsibility to take logical actions to stop human rights violations and to use the means at its withdrawal to undertake out a intensive scrutiny of infraction done within its filed; to determine those liable; to levy the appropriate penalty and to secure the victim suitable restitution.The Constitution of India identifies these rights of the people and articulates worry towards them.[6] The belief and objective of the Constitution of India is embedded in the preamble which contains the defense of the respect of an individual. It is the obligation of the central as well as state Governments to offer proper setting to each individual to cherish their human rights. The Preamble to the Constitution of India confirms, among other things, 'dignity of the individual'.[7]
Public interest litigation allows concerned individuals to bring cases to court on behalf of others, especially those unable to do so themselves due to structural inequalities. In SP Gupta v. Union of India and others[8], Supreme Court held that any member of the public can approach the court for applying the Constitutional or legal rights of those, who cannot go to the court because of deprivation or any other constraints. Public interest litigation serves as a vital tool for safeguarding the basic rights of marginalized and vulnerable communities. The Supreme Court of India, employing its powers under article 32 of the Constitution of India, which authorizes a person, as a subject of right, to move the Supreme Court for the execution of his fundamental rights and commands the Supreme Court to issue a proper way, order or writ, for the ensured of the fundamental rights guaranteed in the Constitution.
For inventing a channeled balancing system to soothe anguish from the standpoint of rape victims, the apex court could also use the Protection of Human Rights Act 1993, which acknowledges that the human rights represented in the ICCPR and the ICESCR are substantially guarded in the Constitution of India, which works for developments and safeguard of human rights in India. Supreme Court in Vishal Jeet v. Union of India[9] asked governments to commence consultation committee to recommend for the abolition of child misuse and to progress schemes to ensure fitting care and protection of the victim girls and children. The Supreme court supplementary in Gaurav Jain v. Union of India[10], showed its care about rehabilitation of minors encompassed in prostitution and held that juvenile homes should be used for recovery of them and other ignored minors.
Mumbai High court in Public at large v. State of Maharashtra[11], took a significant step by freeing children from the sex trade and issuing directives to limit their exploitation while ensuring their rehabilitation. Children are not only vulnerable to sexual abuse but they are also sometimes kept as agreements servitude as was in the case of People's Union for Civil Liberties v. Union of India[12] where the supreme court set free child laborers and also granted payment to them. Concern of the supreme court about the protection of rights of children does not end here as it repeated the importance of required foundational education annihilation of child labor in the case of Bandhua Mukti Morcha v. Union of India.[13]
It is widely acknowledged that sentiments of nervousness are plausible to be exacerbated particularly among sensitive communities of victim witnesses' anguish from intellectual barriers, plaintiffs in sexual cases, and witnesses at threat of intimidation or repeat victimization.[14] One complainant told the guardian that the capacity of having the need to confront in court and explain what this man had done to them sexually was distressing. Addressing these challenges the supreme court in Sakshi v. Union of India,[15] underscored the need for procedural reforms to support victims, including provisions for testifying via video conferencing to alleviate their trauma.
Women persist repression are often deprived basic human rights. They face violence both within households and in the workplace, with wage discrimination being a persistent issue. Injustice against women laborer in terms remuneration is a very widespread trend in India. In State of Madhya Pradesh v. Pramod Bhartiya,[16] Supreme Court held that under Article 39 the State shall direct its strategy for ensuring wage parity for both men and women.
Even if intimidation fundamentally is only an actuality in a few incidents, it can be supposed that the apprehension of intimidation may act to hinder many victims' notification crime or giving statement in court. The arising human rights law locally and internationally requires all state bodies to act in harmony with the worldwide view of the right to live with self-esteem but also resort to all the feasible approaches and safeguard and ensure the fundamental right to survival and freedom of a rape victim.
Right To Participation:
Notifying a crime is the commencement in the victim's way to justice through the criminal justice system. They never meet with the criminal justice system and the criminal evades repercussions. Victims play a vital role in the criminal justice system. Under benchmark cases, the criminal justice system gave preference to crime victims. Victims also had the absolute right to intercede in court in deliberations to the sentence if they thought it was unjust or likely to result in leniency.Although, it is meaningful that the victim of crime has been freshly revealed and is recognized as a person deserving of major recognition in countries all over the world after holding a role of mostly neglected for generations. Victims have the right to illuminated and present throughout criminal justice proceedings. This contains approach to facts about case developments, charges against the accused. Indeed, objective of all these rights is to improve the well-being of the victim which has been damaged by crime. The Indian judiciary has played an important position in promoting restitution for victims as part of its obligation to equitable redress. In modern times, there has been a growing international acceptance of crime victims as individuals deserving recognition and security, are mostly neglected.[17]
The Criminal Law Amendment Act, 2008 bolstered the rights of victims to legal direction and participation. Victims are now entitled to fully invoke in criminal justice proceedings, including the right to be informed about case developments and charges against the accused. The Nirbhaya Act moreover highlighted victim rights, particularly in cases of sexual abuse, authorizing more connected engagement and securing victim-centric trials. Section 396 of the BNSS outlines redress programs that authorize victims to seek and obtain compensation, situating them at the center judiciary distribution system.
The overreaching goal of these rights is to reinstate the victim's well-being, which has been significantly influenced by the crime. The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) stipulates victims' right to information, backing, and participation within justice systems. The right to participation ensures that victims have an active role in judicial matters, upholding their independence and ensuring that justice is not only served but also visibly achieved, with victims' dignity and concerns placed at the forefront.
In the past, victims of crime in India were decreased to passive observers in court proceedings. However, the progression of victimology has brought substantial improvements, leading to the understanding of their rights and enabling them to participate in the justice process. Right to fair trial is applicable not only to the accused but also to the victim. This will lead to extension of victim satisfaction with judicial process attaining fairness in the process as victims right to be heard is materialized.[18]
Section 418 of the BNSS, 2023 allocates victims the right to appeal against dismissal or inadequate constraints. Furthermore, Section 290 of BNSS allows victims to unit in plea bargaining, authorizing them to assist idea on condemning. In the case of State of Karnataka vs. Krishnappa (2000)[19], the Supreme Court held that Victim Impact Scheme can be deliberated during sentencing. In Dilip Kumar vs. State of Uttar Pradesh (2013)[20], the Allahabad High Court highlighted the value of VIS in establishing restitution.
The Supreme Court has steadily accentuated the necessity for trauma-informed strategy. In State of Gujarat vs. Hon'ble High Court of Gujarat (1998)[21], the Court identified the relevance of victim participation. Additionally, in Suresh Kumar Koushal vs. Naz Foundation (2014)[22], the Court concurred upon the importance of advancing the victim's outlook in explicit cases. Educational programs are critical to enlighten victims about their rights. Creating tailored aid systems, consisting of counselling and advocacy provisions, is also essential.
Right To Justice:
The phrase right to justice is regularly used in human rights discourse, though its accurate meaning remains moderately ambiguous. In the Indian legal system, this right acts as a foundational serve as a basic principle, deeply ingrained in the constitution. It is closely associated to the right to life and personal liberty under article 21, emphasizing an impartial system where individuals can seek judicial correction without bias.It signifies the neutral strategy for individuals to seek judicial resort objectively. Article 39A, merged through orders the 42nd Amendment to the Indian Constitution, orders the state to encourage equivalent righteousness by delivering complimentary legal services to underprivileged class. While this directive principle is not legally binding, it has played a substantial role in advancing access to justice.
The Legal Services Authorities Act, 1987, implemented this goal through the creation of supervisory powers at national, state, and district levels, securing voluntary legal aid and help to marginalized communities. The understated yet creative aspects of this system enable dispute resolution through conciliation, significantly reducing the need for litigation while reflecting a proactive approach. The case of MH Hoskot v. State of Rajasthan[23] affirmed that the right to free legal aid is inherent in Article 21 of the constitution. It mandates that the state must ensure legal representation for underprivileged individuals in criminal trials.
Similarly, Khatri v. State of Bihar[24] highlighted the responsibility of the judiciary to inform accused persons of their right to legal aid at the state's costs. Indian courts have made a substantial distinction in safeguarding equity for victims and securing fair trial directives. The legal framework created by the UN Human Rights Committee has significantly supported to expanding the notion of remedies for rights violations. In Vishaka v. State of Rajasthan (1997)[25], the Supreme Court formed guidelines to fight sexual harassment at work, displaying its primary responsibilities dealing legitimate inability.
Another crucial case, Hussainara Khatoon v. State of Bihar (1979)[26], uncovered the adversity of undertrial prisoners suffering in jail as a result of structural inadequacy and stressed the value of speedy trials as part of the inherent right. The judiciary has also supported the cause of disadvantaged group through Public Interest Litigation (PIL), securing fairness for overlooked group.
In Bachan Singh v. State of Punjab (1980)[27], it affirmed the principle of fairness by constraining the application of the execution to the extremely uncommon cases, showing a kind approach to justice. Despite these progressive strides, substantial obstacles remain. Trial delays, frequently caused by a case congestion, remains an urgent concern. The concept of justice is no longer confined to political discussions or advisory legal documents.
According to the National Judicial Data Grid, over 4 crore cases are pending in Indian courts, undermining the principles of timely justice. This issue was highlighted in Common Cause v. Union of India[28], where the Court expressed concern over the detrimental effects of legal delays on public trust. Bribery within the judicial inefficiencies further intensify hindrance. The Justice Venkatachaliah Commission emphasized the demand for judicial reforms to confront these challenges.
Right To Reparation:
The Indian legal system identifies the must restitute victims of crimes. Section 395 of the BNSS authorizes courts to order remuneration to victims or their reliant. There is a robust policy argument for granting compensation, as far as the likelihood of restitution should inspire victims to report crime and work together with the criminal justice system. Moreover, it may be contended that victims are ethically deserving compensation in order to reinstate stability that has been unsettled by the wrongdoer's behavior.Additionally, Section 396 of the BNSS orders state governments to set up compensation schemes for victims who endured loss or harm due to criminal act and demand rehabilitation. Reparation is pondered as the most detailed means of offsetting individuals whose rights have been infringed. Reparation is often associated with providing compensation as a way to address the harm suffered. Limited resources and obstacles in the distribution of reparation are common issues. Additionally, inconsistencies in how reparation is applied across different states result in unequal treatment for victims.[29]
The idea of compensation was first envisioned as lying within the legal framework of inter-state relations; the idea of individual victims by receiving compensation directly from the responsible party was somewhat unfamiliar before the development of modern human rights guidelines in the repercussions of the World War II. For instance, in the case of Nilabati Behera v. State of Orissa[30], the supreme court highlighted the state's responsibility to compensate victims of human rights violations. Such legal actions have considerably enhanced the rights of victims and their approach to justice.
Principles that once had their origin in the law of state obligation have now been moved into human rights law. While the primary aim of the International Criminal Court is the criminal case and trial of human rights perpetrators, the notion of restitution of victims is progressively allocated considerable focus. The responsibility rests on upon the victims to seek their own lawyer and follow the violator within internal legal framework.
Reparation, is taken to mean the producing of amends by an offender to his victim, or to victims of crime commonly, and may take the form of compensation the delivery of some service or the return of pilfered items restitution these being kinds of reparation which might be detailed as concrete.
As Groenhuijsen propose a solution to the civil law is not a potential answer for crime victims, alternatively it is one of the historical origins of their problems since it tends to indicate that the criminal justice system is not the proper venue to further their rights and interests. The concluding portion of the 20th century unlock new paths through which victims were enabled, on paper at least, to demand compensation from either the state other offender.
The criminal justice system isolates the victim making him or her feel like a foreigner to both the offense and the system process. Victim is provided with few ways to compensate his economic setback, which contains civil lawsuit and victim compensation. [31]
A Place For Victims' Rights In The Criminal Justice System:
The longing for victims to be regarded and to be acknowledged is gradually understood, and has been the theme of significant hollow aid and strategic plans the last few years. The victims' rights are still in their nascent phase and it remains to be seen range of legal study in years ahead. Victims' rights have secured important concentration in current era, both worldwide and within in India.
Conventionally, criminal justice systems, including India's, have chiefly centralized on the accused, directing on fair trial rights and systematic steps. Indian Penal Code, Criminal Procedure Lode and Indian Evidence Act which have its origin in the British era, as a totality covers Indian Criminal Justice System. The availability of these laws even after 70 years of Independence shows that the Indian Criminal Justice System is still a British colonial past.
One needs to reflect the Criminal Justice System and the Rule of law in parallel. Dicey's Rule of Law is crucial for Criminal Justice System as the same was also witnessed by the creators of Constitution, rooted on which they unified Article 14, which says that: "The State shall not deny to any person equality before law or the equal protection of the laws within the territory of India." President Venketaraman directly identifies then the critical imperfection in our criminal law, when he says that the recording of acknowledgements by a magistrate is a futile charade. [32]
Confessions should be excluded as evidence. Internationally, systems such as the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) set criteria for victim-oriented justice. The constitution of India guarantees essential human rights and freedoms, such as equal protection of laws, freedom of speech and expression, freedom of religion, freedom of religion, and freedom of assembly and association, freedom of movement within India, the right to practice any trade or profession, protection of personal liberty, protection of personal liberty, protection against double jeopardy, and safeguards against ex post facto laws.
India's ancient justice traditions, as reflected in texts like Manusmiriti and Dharmashastra, emphasized victim compensation. However, the modern criminal justice system remains predominantly focused on resolving existing legal disputes, often neglecting comprehensive victim restitution.
The judiciary has given power under Article 32 and Article 226, to protect people's fundamental rights from any unfair invasion by any organ of the government. The police play a key position in aid for victims as it is the authority to which victims meet after being victimized by a crime. In the case of Bodhisattwa Gautam v. Subhra Chakraborty,[33] recognized interim compensation for victims of rape, holding that such victims require instant support and aid. Victims' Rights and Restitution Act in Canada guarantees victims access to details, protection, and engagement. European Union Directive provides an inclusive framework for victims' rights across EU member states.
Victims Charter in South Africa ensures dignity, service accessibility, and reparative justice for victims. Even today, section 23(1) of the Bhartiya Sakshya Adhiniyam, "No confession made to a police officer shall be proved as against a person accused of any offence", remains in force. According to provision given under section 395 of the BNSS, the court is authorized to award compensation for harm undergone by a person, even in cases where fine does not form a part of a sentence.
Courts in India, nonetheless, have seldom counted on to these statutory provisions to compensate victim of crime. The Supreme Court of India in Harikishan & State of Haryana v. Sukhbir Singh[34] also observed that courts in India have occasionally called upon section 395, BNSS to compensate victims of crime. The Victim or his representatives who is a party to the track should have a right to opt for reconsideration against any rejection passed by the trial court. It has been seen in the criminal proceeding that the one who launches the proceeding is the most abandoned party in the entire criminal proceeding.
The Malimath Committee felt this inequality and gave the diverse proposals about appreciation of rights of victims for better and swifter allocate justice. Recommendations of the committee on the right of victims are as follows:
- Victim or his lawyer to have the right to be impleaded as a party in severe felony subject to punishment with 7 year's imprisonment or more;
- Participation includes the right to generate evidence, to ask questions to witnesses, to know the status of investigation, to be heard in regard to award or revocation of bail, to be heard if prosecution tries to revoke the suggestion and offer expansion, to support contentions beforehand after the attorney filed his and to participate in mediated settlements;
- Legal services to the victim to offer treatment, provisional reparation, and protection against secondary victimization.
Schemes Favouring Victims' Rights:
The 41st report of the law commission of India, submitted in 1969, analyzed section 545 of the code of criminal procedure, 1898, and emphasized the importance of making compensation binding on civil courts while linking it to government-led solutions for tort claims. The code of criminal procedure bill 1979 proposed modifications to section 545, which were later incorporated into the current section 357. Additionally, two new subsections were introduced.
Three groups of persons have been explained in the term 'victim' namely:
- who has persisted damage;
- Custodian of the prior group, if the victim is a minor or of insanity;
- legal heirs of the pioneer if the sufferer dies.
Additionally, most plans emphasize the allocation of funds while neglecting the critical need for restorative care and disregarding the emotional trauma suffered by the victim. Collaboration among various components of the justice system, including the courts, police, district legal service authorities, and state legal service authorities, should be optimized in these evaluations. Since the concept of victim compensation is still in its early stages in India, the approach of the courts should be more proactive and empathetic.
Compensation should commensurate with the certainty of justice and judicial consideration. Efforts toward a rehabilitative criminal justice system were shaped by the adjustments made to the Indian criminal procedure code 1973. The board on Reforms of Criminal Justice System, headed by Justice Dr. V.S. Malimath, by the Ministry of Home Affairs, in its Report recommendation to the Government of India in March 2003, viewed that "justice to victims" is one of the vital requirements of criminal law in India.
It is important to note that the legal system, composed of experts, has been entrusted with the responsibility of evaluating the extent of harm.[36] Given their greater expertise in assessing the damage suffered by victims, the groundbreaking judgement of the Supreme court in the Hare Krishna case, which directed compensation for victims of crime under Section 357(3) of the CrPC was late overturned by subsequent rulings in cases such as:
- Brij Lal v. Prem Chand[37]
- State of U.P v. Jodh Singh[38]
- State of Mysore v. Tyhappa[39]
- N.B. Panth v. State[40]
- Gur Swami v. State[41]
Baldev Singh v. State of Punjab[42] is another important case in the trauma-informed approach of judicial law making. The Supreme Court mandated acknowledgement of remuneration by invoking Section 395 BNSS. Article 51A is a necessary responsibility of every citizen to have sympathy for living beings and to advocate compassion. There was a chain of judgements delivered in the 1980's and 1990's by the Supreme Court that seemed to accept the special right of the victim to compensation for damage done either at the hands of a private criminal or in the course of criminal justice administration.
The Supreme Court of India, in the case of Nipun Saxena v Union of India,[43] believed that 'it would be fitting if NALSA sets up a committee of about 4 or 5 persons who can organize Model Rules for Victim Compensation for sexual offences and acid violence taking into description the proposals made by the skilled Amicus.'
In light of the above, several endeavors have been made towards the formation of a state funded victim compensation fund as foreseen in the amended law. There are specific chief hurdles in the organization and functioning of victim compensation. The accused are generally unqualified of paying reparation to the victim as they are generally from the least economic groups and following wages by the criminal as a prisoner would deficient to remit the compensation. Therefore, there occurs a crucial need to institute a victim assistance compensation board to the victim of the crime.
The criminal justice system in India is chiefly concerned with criminals, whether it is their assessing, care, correction. The objective of criminal justice system emerges, as of now, to be constrained to the straightforward goal of judging fault or innocence of an accused. [44] Often the police officials move at a delayed speed on investigations, thus relinquishing the occasion to obtain pertinent data and exposing the chance of misconduct. The lawyers practicing as Public Prosecutors at the district level consistently are inadequately competent and act without clarity to the victim in any way.
The Justice Malimath Committee on Criminal Justice Reforms (2003), Second Administrative Reforms Commission in 5th Report on "Public Order" (2007) and Law Commission of India's 226th Report on "Compensation to the Victims" (2010) have proposed different plans for victims' strengthening and renewal. However, the Ministry of home Affairs, Government of India introduced the certified assistance to victims of terrorist and criminal violence program, which was implemented beginning April 1, 2008.
The principal ideas of the scheme are summarized below:
- An amount up to Rs. 3 lakhs would be given to the damaged family, regardless of the number of deaths in the family in a distinct incident;
- The principal amount would be lodged in a government-controlled bank for a vesting period of 3 years, and the interest on the above sum will be credited to the grantees' savings account four times a year;
- A district-level committee under the leadership of the District Magistrate will note beneficiaries;
- The MHA, after inspecting the case, would issue the cheque in the name of the receiver, and this would be sent to the District Magistrate (DM) for payment;
- In case of work being given to any family member of a victim of violent extremism, the family will not be certified for aid under this scheme;
- Those permanently weakened, and the members of the victims killed/permanently paralyzed in terrorist violence, would be given a health card by the District Health Society supported under the National Rural Health Mission, Rashtriya Arogya Nidhi, and the National Trauma Care Project.
Under section 5(1) of the probation of offender act comprises provision about restitution request. According to this section, the court may order the discharge of an offender under section 3 or section 4 of the act, if deemed appropriate. The court may also direct the offender to pay the victim an amount it deems necessary, along with the costs of the proceedings.
Several landmark judgments have underscored compensatory justice for victims, noting the judiciary's concern in this area. The Apex Court in Sarwan Singh v. State of Punjab,[46] emphasized that several aspects should be considered before mandating restitution for victims. The court must take into account the economic reparation by the offender, the nature of the misconduct, and the extent of the loss experienced. Additionally, the consequence of the offence on the victims' and their family's life, as well as the physical and mental distress endured by the victim and their relatives, must also be withstood.
Alongside established retribution system restitution to victim has diminished the accused biased perspective in justice system but in the case of India even though some arising progress in this field, there are various deficiencies and problem in this area for that aligned tasks from all the organization is required in the justice system. After the aligned work efforts, transparency and liability in every part of criminal justice system is another significant need to make the successful use of antecedent terms possible.[47]
Case Studies:
-
Delhi Domestic Working Women's' Forum v. Union of India.[48]
The case originated resulting from an occurrence in which six women, working as domestic servants in Delhi, were raped by eight armed forces members in a moving train between Ranchi and Delhi. The members of the claimant venue, when hindered by the employers from gathering the victims, pursued the court's directions for prompt and fair probe of the offences. The court targeted out the following "broad guidelines for supporting the victims of rape":
- The complainants in sexual assault cases had to be furnished with advocacy. It was important to have someone knowledgeable with the criminal justice system. The role of the victim's advocate would not only be to explain to the victim the nature of the proceedings but also to plan her for the case and to aid her in the police station and in court and to provide her with direction as to the way she might acquire help of a different nature from other agencies, for example, psychological guidance or medical help. It was important to guarantee consistency aid by ensuring that the same person who looked after the complainant's interests in the police station represented her till the end of the case.
- Legal support would have to be provided at the police station since the victim of sexual assault might very well be in a suffering situation upon arrival at the police station; the guidance and support of a lawyer at this stage and whilst she was being inquired would be of considerable support to her.
- The police were under a duty to inform the victim of her right to representation before any questions were asked of her and the police report should state that the victim was so apprised.
- A register of advocates to perform in these cases must be maintained at the police station for victims. Advocate would be assigned by the bench, following petition by the police at the soonest possible, but in order to ensure that victims were questioned without procrastination, advocates would be empowered to perform at the police station before leave of the court was pursued or achieved.
-
R Gandhi v. Union of India[49]
The Madras High court based on a report of a commissioner assigned by it to estimate the harm, mandated disbursement of fluctuating figures of compensation for harm to property of the Sikh Community in Coimbatore.
-
Sri Lakshmi Agencies v. Government of Andhra Pradesh,[50]The Andhra Pradesh High Court rejected the request for compensation to the deaths, wound, ruin and harm to assets stemming from the turmoil that succeeded the murder of a sitting member of the legislative assembly.
-
Smt. Haimanti Mal v. The State of West Bengal[51]
The Calcutta High Court bestowed a compensation of Rs. 1,00,000 for emotional suffering and mental pain according of Section 22 of the Protection of Women from Domestic Violence Act, 2005.
-
Suresh and Anr. v. State of Haryana, [52]
The court underlined particular intrinsic shortcomings in Section 395. These limitations include:
- Section 395 BNSS can only be cited after sentencing, and even then, it is at the discernment of the judge and dependent on the monetary resources of the accused to compensate.
- Extended periods taken in the settlement of criminal cases, while victims usually need prompt aid.
- Compensation amounts depend on the monetary ability of the accused, for which evidence is infrequently obtained.
- Victims often deal with obstacles in producing a representation for compensation due to a shortage of legal aid or other resources.
-
Palaniappa Gounder v. State of Tamil Nadu,[53]
The Supreme Court observed that compensation orders under Section 395 could only be enacted when the court levies a fine or sanction that includes a fine. However, Section 396 expanded the victim compensation scheme's scope, ensuring compensation even for crimes committed before its rollout.
-
Bachan Singh v. State of Punjab,[54]
This case emphasized evaluating both aggravating and mitigating circumstances while determining penalties, particularly for capital punishment.
-
Manoj & Ors. v. State of Madhya Pradesh,[55]
The Court issued functional directives for compiling details related to mitigating circumstances, including:
- Psychological and emotional analysis of the accused.
- Details such as age, education, financial-cultural situation, and family background.
- Reports from jail authorities and/or probation officers about the accused's behavior in jail.
-
Satya Pal v. State of Madhya Pradesh, [56]
The Supreme Court held the victim's right to appeal, interpreting the proviso to Section 419 of BNSS pragmatically to ensure victims can exercise their rights effectively.
-
Parvinder Kansal v. State (NCT of Delhi),[57]
The Supreme Court denied the complainant's appeal to increase the convict's sentence, underscoring that appeals must align with specific provisions in the law.
- Rudal Sah v. State of Bihar,[58] The Court directed the State to pay compensation of Rs. 35,000 for Rudal Sah's unjust detention, recognizing the violation of Article 21.
Suggestions:
The Legal Services Authorities Act, 1987: This Act strives to deliver free legal aid to victims who are cannot manage financially legal representation. It secures that victims have approach to legal services and help all along the legal process.
The National Legal Services Authority (NALSA): NALSA, founded by the Legal Services Authorities Act, works to enhance understanding of legal rights and provide legal aid to oppressed and susceptible populations, including victims of crime. [59]
The Right to Information Act, 2005: Victims have the right to approach information about the development of their case, encompassing examination records and court proceedings, under this Act. While considerable improvement has been made in identifying and protecting victim rights in India, obstacles remain, comprising issues related to access to justice, discrimination, and the efficient enforcement of prevailing rules and policies. Endeavors to fortify victim support facilities, increase recognition about victim rights, and upgrade the sensitivity of the criminal justice system are persisting to secure that victims secure assistance and equity they deserve.
For example, the United Nations has adopted multidisciplinary devices, such as the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, to exemplify fundamental rights that should be provided to victims. While defendants have rights such as the theory of innocence and the right to a fair trial, victims also have rights, encompassing the right to be heard, well-informed, and protected from continued injury. By emphasizing the needs and rights of victims, society can operate towards creating a more equitable and caring reply to crime.[60] Cl.193(3) BNSS requires the police to enlighten the victim of the progress in the assessment under ninety days and thus enables the victim to be mindful of practicable omissions and holdups in the investigation.
Cl.230 BNSS provides victims with a fundamental privilege to information about the specifics of their case through the obligatory clause of the police report, FIR, witness statements, etc., which is meant to empower successful and impactful engagement of the victim in the criminal process. While the BNSS has codified important rights to information, the original aim of these information rights, which is to eventually empower dynamic and substantive contribution in the criminal process, may not be accomplished without a system of free legal aid.[61] In Lalita Kumari[62], the Supreme Court held that the police have a required responsibility to register an FIR when the facts given discloses a cognizable offence.
Despite numerous judicial pronouncements on the matter, the failure to register FIRs remains a persistent challenge that requires urgent attention from the state. The concept of reconciliatory justice aims to provide meaningful support to victims. However, In India, victim assistance is often narrowly understood as merely offering compensation. The delegation of compensation programs to the discretion of the state has not only created challenges in enforcement but also led to disparities among victims.
All victims are entitled to equal and fair treatment, free from discrimination, in their pursuit if justice. Moreover, access to compensation is often delayed as it is contingent upon the expiration of the appeal period or the resolution of reviews still pending before the courts.[63]
Moreover in 2002, the National Commission to evaluate the working of constitution proposed the states to put greater emphasis on rights of victim under the criminal justice system. Police is the first communication channel in the criminal justice system and accordingly it demands to be the well-suited to manage with victims. They are required to assemble facts taking into account the dignity of the victim and treat them with appropriate esteem without regard of the crime.
Role of the lawyers and prosecutors align to that of the police. Prosecutor should be trained to attain justice and not conviction. Judiciary acts as the heart custodian of the rights of individuals. The judiciary has taken a prejudiced and exclusive strategy in the territory of victim assistance notwithstanding it being the standard-bearer of justice. Victims of crime should not get more by the justice system as it would subvert and ruin public confidence in administration of justice.[64]
The present structure hardly involves victims, even if it is then they are only at the boundary of the criminal justice system, they usually take a supporting role. The legislature and the management divisions need to align the criminal justice system in order to tap into the capacity to reach the victim in critical necessity of help. The legislative advancements have led to the commend of the police under section 173 BNSS to record the information provided by the victim (FIR) immediately. This ensures that the complaint of the victim is given adequate thought by the police. It also offers for them to retain legal counsel of their freedom to appoint representation them in the course of proceedings under section 18 BNSS.
To be handled with esteem and regard during the entire process and to ensure safety their rights. Their statements should be recorded in a considerate and harmless demeanor, and reflects significantly about the value of victims to the criminal system.[65]
Conclusion:
In the Indian criminal justice system, the role of the victims has traditionally been shaped by the common law framework, limiting them to the position of witnesses in criminal proceedings. However, the evolving understanding of criminal law emphasizes the need to establish effective mechanism to safeguard victims. Policymakers are increasingly urged to shifting societal norms and address concerns about the nature and extent of victimization. Both international human rights law and global criminal justice trends highlight victim participation as a crucial aspect of administering justice.
Efforts have been bolstered by recommendations from bodies like the Law commission and the Malimath Committee. Recently, legislative reforms in procedural criminal law have sought to address the challenges faced by the crime victims. Today, victims are no longer limited to being passive observers or witnesses for the prosecution; instead, they hold procedural rights that enable them to influence the functioning of the criminal justice system.
The right to life of rape victim hugely depends upon the society where legal authorities make sure that a rape victim should not go through any mental trauma or stress from the society and as a society we should include, encourage and support them to live a normal life like other women lives. Rehabilitation process of rape victim lies in the hands her parents, relatives, Colleagues, Neighbors and Friends or if a married women has been a victim of rape the husband's support is immensely important for the wife to regain her normal life and these people are important players in women's life to bring back a rape victim to lead a happy life without going through any agony, stress and discrimination.
Therefore, the criminal justice system acquires a "vertical facet" and becomes "a means of systematic supervision" by the state which takes over the indictment of the culprit to the exclusion of the victim. Our system however has remained with the vertical dimension model.
The realigning of the criminal justice system to confront the necessities a victims of crime need not and possibly should not be only ought to execute and protect the rights of suspects as well as the rights of the defendants. First, it is vital to admit that our justice system is not ready at present to successfully manage with atrocities, encompassing the crimes of extermination and crimes against humanity.
The effort at designing a lawful program of witness defense will have to be preceded by a extensive coverages of meetings by the law-making body with not only victims of crime but other lawful agencies like the National Human Rights Commission which are afflicted with a growing number of allegations.
References:
Books:
- Jonathan Doak, Victims' Rights, Human Rights and Criminal Justice (2008).
- Online Journal:
- Mansi Gaba, Position of Victims in Criminal Justice System with Special Reference to the Right of Victim Compensation in India and the World, 3 Indian Journal of Law and Legal Research (2020).
- K.I Vibhute, Victims of Rape and Their Right to Live with Human Dignity and to Be Compensated: Legislative and Judicial Responses in India, 41 Journal of the Indian Law Institute (1999).
- Amartish Kaur, Protection of Human Rights in India: A Review, 2 Jamia Law Journal (2017).
- Dr. Anusree A & Dr. Priya R, Participatory Rights of Victims of Crime: With Special Reference to Indian Position, 11 IJFANS INTERNATIONAL JOURNAL OF FOOD AND NUTRITIONAL SCIENCES (2022).
- Dr. Pawankumar Mishra, Criminal Justice Delivery System and Rights of Victim: Need for Introspection, 7 Indian J.L. & Just. (2016).
- Nishica Srivastavaa, A Critical Evaluation of Victim Compensation Scheme in India: Past, Present and Future Insights, 4 Jus Corpus Law Journal (2024).
- Rajni Kaushal, Victim Compensation Scheme in India, 11 International Journal of Creative Research Thoughts (2023).
- Mrs. Santosh Manjabapu Manchare, Protection of Victim Rights in Criminal Justices System, 4 International Journal of Advanced Research in Science, Communication and Technology (IJARSCT) (2024).
- Nayana Kb & Tanishta Mangaraj, Unveiling the Gaps: A Critical Analysis of Victim Protection Under the Code of Criminal Procedure, 6 International Journal of Law Management & Humanities 2764-2769 (2023).
- Websites:
- Yukta K, Rights of victims in Indian Criminal Justice System, Legal service India - https://www.legalserviceindia.com.
- Rajesh Mahajan, Victim compensation laws in India, Dentons Link Legal (Apr. 11, 2024) - https://www.lexology.com.
- Jhalak Kakkar & Shruti Ojha, An Analysis Of The Vanishing Point Of Indian Victim Compensation Law, Manupatra (Aug. 23, 2009) - https://docs.manupatra.in.
- Victimology and Victims' Rights, Lucknow University - https://www.lkouniv.ac.in.
- Criminal Law Bills 2023 Decoded #13: Victims' Rights, The P39A Criminal Law Blog (Nov. 10, 2023) - https://p39ablog.com.
- Tanisha Prashant, Victim Assistance in India: Broadening the Scope of Victim Reparations in the Criminal Justice System, The Criminal Law Blog (Mar. 6, 2021) - https://criminallawstudiesnluj.wordpress.com.
- Velasquez Rodriguez v. Honduras, (1989) 28 ILM 291
- S.P. Gupta v. Union of India and others, AIR 1982 SC 149
- Vishal Jeet v. Union of India, 1990 (3) SCC 318
- Gaurav Jain v. Union of India, 1997 (8) SCC 114
- Public at large v. State of Maharashtra, (1997) 4 Bom CR 17
- People's Union for Civil Liberties (PUCL) v. Union of India, 1998(8) SCC 485
- Bandhua Mukti Morcha v. Union of India, (1997)10 SCC 549
- Sakshi v. Union of India, AIR 2004 SC 3566
- Mansi Gaba, Position of Victims in Criminal Justice System with Special Reference to the Right of Victim Compensation in India and the World, 3 Indian Journal of Law and Legal Research 1-13 (2020).
- Yukta K, Rights of victims in Indian Criminal Justice System, Legal service India https://www.legalserviceindia.com.
- Madhavi Raje, Victims' rights under the Indian criminal law system, IPleaders (Dec. 6, 2022), https://blog.ipleaders.in.
- K.I Vibhute, Victims of Rape and Their Right to Live with Human Dignity and to Be Compensated: Legislative and Judicial Responses in India, 41 Journal of the Indian Law Institute 222-236 (1999).
- Velasquez Rodriguez v. Honduras, (1989) 28 ILM 291
- Amartish Kaur, Protection of Human Rights in India: A Review, 2 Jamia Law Journal 22-37 (2017).
- Supra Note. 2
- S.P. Gupta v. Union of India and others, AIR 1982 SC 149
- Vishal Jeet v. Union of India, 1990 (3) SCC 318
- Gaurav Jain v. Union of India, 1997 (8) SCC 114
- Public at large v. State of Maharashtra, (1997) 4 Bom CR 17
- People's Union for Civil Liberties (PUCL) v. Union of India, 1998(8) SCC 485
- Bandhua Mukti Morcha v. Union of India, (1997)10 SCC 549.
- Supra Note. 6
- Sakshi v. Union of India, AIR 2004 SC 3566.
- State of Madhya Pradesh v. Pramod Bhartiya, AIR 1993 SC 286.
- Dr. Anusree A & Dr. Priya R, Participatory Rights of Victims of Crime: With Special Reference to Indian Position, 11 IJFANS INTERNATIONAL JOURNAL OF FOOD AND NUTRITIONAL SCIENCES 3306-3319 (2022).
- Supra Note 17
- State of Karnataka v. Krishnappa, 30 March, 2000
- Dilip Kumar v. State of Uttar Pradesh, 2013
- State of Gujarat v. Honorable High Court of Gujarat, AIR 1998 SUPREME COURT 3164
- Suresh Kumar Koushal v. Naz Foundation, AIR 2014 SUPERME COURT 563
- MH Hoskot v. State of Maharashtra, 1978 AIR 1548
- Khatri v. State of Bihar, 1981 SCR (2) 408
- Vishaka v. State of Rajasthan, AIR 1997 SUPREME COURT 3011
- Hussainara Khatoon v. State of Bihar, 1979 AIR 1369
- Bachan Singh v. State of Punjab, (1982) 3 SCC 24
- Common Cause v. Union of India, 1996 AIR 1619
- R. Malathi M.L, REPARATION LAWS AND COMPENSATION TO THE CHILD VICTIM ANALYSIS OF THE SCHEMES IMPLEMENTED IN TAMILNADU-INDIA, Tamil Nadu State Judicial Academy https://www.tnsja.tn.gov.in.
- Nilabati Behera v. State of Orissa, 1993 AIR 1960
- Supra Note 29
- Dr. Pawankumar Mishra, Criminal Justice Delivery System and Rights of Victim: Need for Introspection, 7 Indian J.L. & Just. 42-59 (2016).
- Bodhisattwa Gautam v. Subhra Chakraborty, 1996 AIR 922
- Harikishan and State of Haryana v. Sukhbir Singh, (1998) 4 SCC 551.
- Nishica Srivastavaa, A Critical Evaluation of Victim Compensation Scheme in India: Past, Present and Future Insights, 4 Jus Corpus Law Journal 504-512 (2024).
- Jhalak Kakkar & Shruti Ojha, AN ANALYSIS OF THE VANISHING POINT OF INDIAN VICTIM COMPENSATION LAW, Manupatra (Aug. 23, 2009), https://docs.manupatra.in.
- BrijLal v. Prem Chand, (1989) Supp (2) S.C.C. 680
- State of U.P. v. Jodh Singh, A.I.R. 1989 S.C. 1822.
- State of Mysore v. Tyhappa, A.I.R. 1962 Mys. 51
- N.B. Panth v. State, A.I.R. 1977 S.C. 892.
- Gur Swami v. State, A.I.R. 1979 S.C. 892.
- Baldev Singh v. State of Punjab, (1995) 6 S.C.C. 593.
- Nipun Saxena v Union of India WP (C) 565/2012
- Victimology and Victims' Rights, Lucknow University https://www.lkouniv.ac.in.
- Rajni Kaushal, Victim Compensation Scheme in India, 11 International Journal of Creative Research Thoughts 542-552 (2023).
- Swaran Singh v. State of Punjab, 1957 AIR 637
- Supra Note 32
- Delhi Domestic Working Women's' Forum v. Union of India, (1995) 1 SCC 14
- R Gandhi v. Union of India, AIR 1989 Mad 205
- Sri Lakshmi Agencies v. Government of Andhra Pradesh, (1994) 1 Andh LT 341
- Smt. Haimanti Mal v. The State of West Bengal, 2019
- Suresh and Anr. v. State of Haryana, (2015) 2 SCC 227
- Palaniappa Gounder v. State of Tamil Nadu, 1977 SCC (2) 634.
- Bachan Singh v. State of Punjab, [(1980) 2 SCC 684]
- Manoj and Ors v. State of Madhya Pradesh, Criminal Appeal Nos. 248-250 of 2015, decided on May 20, 2022
- Satya Pal v. State of Madhya Pradesh [(2015) 5 SCC 613]
- Parvinder Kansal v. State (NCT of Delhi) [(2020) 19 SCC 496]
- Rudal Sah v State of Bihar, 1983 AIR 1086, 1983 SCR (3) 508
- Mrs. Santosh Manjabapu Manchare, Protection of Victim Rights in Criminal Justices System, 4 International Journal of Advanced Research in Science, Communication and Technology (IJARSCT) 476-478 (2024)
- Supra Note 59
- Criminal Law Bills 2023 Decoded #13: Victims' Rights, The P39A Criminal Law Blog (Nov. 10, 2023), https://p39ablog.com.
- Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1.
- Tanisha Prashant, Victim Assistance in India: Broadening the Scope of Victim Reparations in the Criminal Justice System, The Criminal Law Blog (Mar. 6, 2021), https://criminallawstudiesnluj.wordpress.com.
- Ibid
- Nayana Kb & Tanishta Mangaraj, Unveiling the Gaps: A Critical Analysis of Victim Protection Under the Code of Criminal Procedure, 6 International Journal of Law Management & Humanities 2764-2769 (2023).
- Jonathan Doak, Victims' Rights, Human Rights and Criminal Justice (2008).
- Online Journal:
- Mansi Gaba, Position of Victims in Criminal Justice System with Special Reference to the Right of Victim Compensation in India and the World, 3 Indian Journal of Law and Legal Research (2020).
- K.I Vibhute, Victims of Rape and Their Right to Live with Human Dignity and to Be Compensated: Legislative and Judicial Responses in India, 41 Journal of the Indian Law Institute (1999).
- Amartish Kaur, Protection of Human Rights in India: A Review, 2 Jamia Law Journal (2017).
- Dr. Anusree A & Dr. Priya R, Participatory Rights of Victims of Crime: With Special Reference to Indian Position, 11 IJFANS INTERNATIONAL JOURNAL OF FOOD AND NUTRITIONAL SCIENCES (2022).
- Dr. Pawankumar Mishra, Criminal Justice Delivery System and Rights of Victim: Need for Introspection, 7 Indian J.L. & Just. (2016).
- Nishica Srivastavaa, A Critical Evaluation of Victim Compensation Scheme in India: Past, Present and Future Insights, 4 Jus Corpus Law Journal (2024).
- Rajni Kaushal, Victim Compensation Scheme in India, 11 International Journal of Creative Research Thoughts (2023).
- Mrs. Santosh Manjabapu Manchare, Protection of Victim Rights in Criminal Justices System, 4 International Journal of Advanced Research in Science, Communication and Technology (IJARSCT) (2024).
- Nayana Kb & Tanishta Mangaraj, Unveiling the Gaps: A Critical Analysis of Victim Protection Under the Code of Criminal Procedure, 6 International Journal of Law Management & Humanities 2764-2769 (2023).
- Websites:
- Yukta K, Rights of victims in Indian Criminal Justice System, Legal service India - https://www.legalserviceindia.com.
- Rajesh Mahajan, Victim compensation laws in India, Dentons Link Legal (Apr. 11, 2024) - https://www.lexology.com.
- Jhalak Kakkar & Shruti Ojha, An Analysis Of The Vanishing Point Of Indian Victim Compensation Law, Manupatra (Aug. 23, 2009) - https://docs.manupatra.in.
- Victimology and Victims' Rights, Lucknow University - https://www.lkouniv.ac.in.
- Criminal Law Bills 2023 Decoded #13: Victims' Rights, The P39A Criminal Law Blog (Nov. 10, 2023) - https://p39ablog.com.
- Tanisha Prashant, Victim Assistance in India: Broadening the Scope of Victim Reparations in the Criminal Justice System, The Criminal Law Blog (Mar. 6, 2021) - https://criminallawstudiesnluj.wordpress.com.
- Velasquez Rodriguez v. Honduras, (1989) 28 ILM 291
- S.P. Gupta v. Union of India and others, AIR 1982 SC 149
- Vishal Jeet v. Union of India, 1990 (3) SCC 318
- Gaurav Jain v. Union of India, 1997 (8) SCC 114
- Public at large v. State of Maharashtra, (1997) 4 Bom CR 17
- People's Union for Civil Liberties (PUCL) v. Union of India, 1998(8) SCC 485
- Bandhua Mukti Morcha v. Union of India, (1997)10 SCC 549
- Sakshi v. Union of India, AIR 2004 SC 3566
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