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Access to Justice for Crime Victims in India Issues and Concerns by Kim Couto

Access to Justice for Crime Victims in India Issues and Concerns by Kim Couto

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Published by Dr. P.K. Pandey
Access to Justice for Crime Victims in India Issues and Concerns by Kim Couto
Access to Justice for Crime Victims in India Issues and Concerns by Kim Couto

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The Legal Analyst  ISSN: 2231-5594Volume 1, 2011, pp.75-78
ACCESS TO JUSTICE FOR CRIME VICTIMS IN INDIA: ISSUES AND CONCERNS
 Kim Couto*
 
Abstract:
 Access to justice is a fundamental human right, guaranteed under various international, regional and national instruments. Victims of crime suffer tremendously with the commission of a crime. Access to justice for victims of crime is far from easy in India. Such victims suffer all the more on account of a lack of access to justice.The UN Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power 1985 and the Handbook on Justice for Victims encompass various rights of victims which deserve special attention. Among other rights, access to justice for victims involves two components. Firstly, provision of means of access to justice for victims and secondly, prompt redressal for wrongs done. The existing criminal justice system does not adequatelyaddress both these essential components. Crime victims have to approach the police, prosecutors and the court for setting the criminal law in motion but they have to face a number of impediments in doing so. Besides theinsensitivity of the law enforcement officials, the inordinate delay in the conclusion of the trial, heavy legalexp
enses and anxiety, all contribute to create a ‘second victimization’ of the crime victim. Victim’s participation
in the criminal proceedings is very minimal causing the victim to feel ignored in the entire process. Variousmeasures have been suggested by which crime victims can be empowered, so that they can approach the criminal justice system with greater confidence.
Key Words
: Crime, Justice, Victim.
 
Victims of crime are those who have suffered some loss, injury or harm on account of the commission of a crime. In most cases, physical /bodily injury caused to victims of crime is accompanied bypsychological and emotional harm as well as economic loss. Ideally, immediate assistance and swiftpolice action should have been the appropriate response. But in India, the commission of the crime leavesthe victim in a state of helplessness and hopelessness. Seeking justice for the wrong has done become anordeal for them
1
. The reason being that a speedy, straightforward and, inexpensive redressal for thewrong done is practically impossible. Thus while still undergoing the trauma of the crime committed,crime victims are subject to a second kind of victimization. A number of factors inhibit easy access to justice for victims. Simply put, access to justice for a victim of crime in India, is far from easy.Conventionally, access to justice was thought to be associated mainly with the ability to vindicate legalrepresentation
2
. In more recent times, the principle of access to justice has implied that affirmative steps
have to be taken to give practical content to the law‟s guarantee of formal equality before the law. Thismeans the transformation of the aggrieved individual‟s formal right to litigate into a right of effective
 access to the legal system.
3
This would thereby imply that the justice system should be just in the results itdelivers; fair in the way it treats litigants; deals with cases at reasonable speed, is affordable, accessible,fair, efficient, effective and understandable to those who use it.
4
Ultimately, the analyses of access to justice reveals that it is important that the justice system is seen to be and is
 – 
a) accessible and affordable
 b) readily easy to understand c) fair, and efficient”.
5
 
The word „access to justice‟ generally connotes t
he ability to reach the process of law in order that justiceis done. According to Professor
Upendra Baxi
, “access” means an ability to participate in the judicial
process
6
. In so far as a person is unable to obtain access to a court of law for having his wrongs redressed,
*Assistant Professor, V.M. Salgaocar College of Law, Panaji, Goa, INDIA.
 
1
Hess Karen and Orthman Christine,
 Introduction to Law Enforcement and Criminal Justice.
Ninth Edition, (Wadsworth: USA)
2
www.lawfoundation.net.au/access/sackville/html.
3
 
 Ibid 
.
4
http://www.lawfoundation.net.au/access/index.html
5
 
 Ibid 
.
6
 
M. G. Chitkara, “Accessibility of Justice”,
 Nyaya Path Souvenir 
2000, at 81
 
 
76
THE LEGAL ANALYST 
[Vol. I
 ______________________________________________________________________________
 
 justice becomes unequal and laws that are meant for his protection have no meaning and to that extent failin their purpose
7
.Justice being dear to the human heart, access to justice holds the pride of place among the many rightsenjoyed by men by virtue of being human. Several international human rights instruments have sought tosafeguard the right to access to justice although not in specific terms. The Universal Declaration of Human Rights promulgated on 10
th
December 1948 and the Covenant on Civil and Political Rights of 1966, guarantee that any person whose rights or freedoms are violated would have an effective remedyand further have the right determined by competent judicial, administrative or legislative authorities
8
.While both these international law instruments emphasize access to justice for every aggrieved person,the General Assembly of the UN adopted The Declaration on the Basic Principles of Justice for Victimsof Crime and Abuse of Power on 29
th
November 1985 which specifically recognizes the rights of victimsof crime to access to justice among others. A fair, effective and humane criminal justice system is one thatrespects the fundamental rights of suspects and offenders, as well as those of victims, and which is basedon the principle that victims should be adequately recognized and treated with respect for their dignity
9
.In May 1996, the United Nations Commission on Crime Prevention and Criminal Justice adopted aresolution to develop a manual or manuals on the use and application of the Declaration
10
.As per the Declaration and the Handbook on Justice for Victims, besides compensation and reparation forthe harm suffered by them, victims are also entitled to mechanisms of access to justice and to the promptredressal for the harm that they suffer.What is clearly envisaged by the Declaration then is that a crime victim should have means of accessavailable to them to secure justice. Secondly, the Declaration also envisages that a victim should obtainprompt redressal for the wrongs he has suffered .In short, the noble aim and purpose of the Declaration isto ensure that impediment to the attainment of justice by victims of crime are nil or only minimal.The Constitution of India rich in human rights jurisprudence mandates equal justice to all. Byconstitutional amendment, a new Article namely, Article 39 A, has been added to the Constitution
11
,which directs the State to ensure that operation of the legal system promotes justice, on the basis of equalopportunities for all and in particular provide free legal aid by suitable legislation or schemes or in anyother way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities
12
.The right of access to justice does not expressly find place in the fundamental rights laid down in theIndian Constitution. Yet, the Apex Court has in a way, envisaged this right in the context of certainconstitutional provisions
13
. The Indian judiciary has shown utmost respect for the protection andpromotion of human rights especially the right to access to justice
14
, making significant pronouncementswhile interpreting various Articles of the Constitution in the light of the international treaties on humanrights. Highlighting the need to provide an effective remedy to those aggrieved, the Supreme Court has
time and again expressed: “If a man has been wronged, so long as it lies within the power of human
machinery of administration of justice that wrong must be remedied. Justice,
we must do justice to him”
15
.Viewed against this background, victims of crime in India suffer a number of hardships in the pursuit of  justice, under the existing criminal justice system. The criminal justice system, the cornerstone of everycivilized society, has at heart, the protection of rights of citizens and the delivery of justice to those
7
B.N.M. Tripathi,
 An introduction to Jurisprudence
. (Faridabad: Allahabad Law Agency) at 357
8
Article 2 Para 3,
 International Covenant on Civil and Political Rights
; Ian Brownlie,
 Basic documents on Human Rights.
Thirdedition, (Oxford: Clarendon Press) at 126
9
http://www.unodc.org/documents/justice-and-prison-reform/hb_justice_in_matters_professionals.pdf 
10
http://www.restorativejustice.org/articlesdb/articles/4465&sa=U&ei=fFLsTficG5DorQed4OjeBQ&ved=0CB8QFjAF&usg=AFQjCNE7AyDiJzriLzASLCuHSFlDIMe7Yg
11
Inserted by the Constitution (Forty Fourth Amendment) Act, 1976
12
See: Article 39 A of the Constitution of India
13
Article 21 and Article 39 A
14
Right to speedy trial, Right to free legal aid raised to status of fundamental rights through various Supreme Court decisions.
15
A.R. Antulay v. R.S. Nayak and others, 1988(2)
SCC 
602 at 672
 
2011]
 ACCESS TO JUSTICE FOR CRIME VICTIMS
 
77
 
 ______________________________________________________________________________
 
wronged. These goals are achieved with the involvement of the four important pillars of the criminal justice system namely the police, the prosecution, the courts and the prison systems/correctional agencies.Of these, the victim has to necessarily interact with the police, prosecution and the courts in order to setthe criminal law in motion. While these are available within the present system, yet, they are far frombeing accessible. The existing system denies most crime victims the opportunity to seek justice freelyand fearlessly.In the first place, upon the commission of a crime, a victim under the law is expected to approach thepolice to lodge his comp
laint. Thus, the victim‟s first contact with the criminal justice system is with the
police. Approaching the police and remaining in contact with them until investigation into the offence isover, is an ordeal for most victims. The often callous, over -bearing and non -cooperative attitude of thepolice towards the victim/his family at the inception of the criminal law process itself, make the policeinaccessible to victims of crime. Investigation being a police function, the victim is often neglected andforgotten, unless the police consider it necessary to call on the victim. The victim on the other hand, isput through untold hardship and trouble at the hands of the investigating authorities, having to run frompillar to post only for the purpose of gathering information regarding the status of his own complaint.Victims of crime are thus subject to a second victimization at the time of seeking redress against theoffender. While police are trained to deal with criminals, their lack of expertise is evident in their dealingwith victims. This results in a rather negative image of the criminal justice system for the victim. Oftenthis experience is responsible for many crimes going unreported by several genuine victims. Moreover,victims also feel greatly victimized by the lack of communication from the police. They are oftenunaware about whether the offender has been released on bail and such other significant details. To sumup, police in India are till today not sufficiently oriented to meet the various guidelines laid down in theUN Handbook on Justice for Victims and in the UN Declaration. Clearly, victim participation at this juncture, is far from satisfactory.Secondly, once it is decided to prosecute an offender, the Pubic Prosecutors and the Judges take over thecase from the police. At this stage also, the victim has no say in any matter as the State takes over theprosecution and appoints the prosecutor. According to the law of criminal procedure, the prosecution hasthe task of presenting the case before the criminal court by bringing the evidence on record
16
. In
Thakur  Ram v. State of Bihar 
17
, the Supreme Court ruled, that barring a few exceptions, in criminal matters, theState as the aggrieved party is the custodian of social interests of the community at large, and so it isnecessary for the State to take all steps necessary for bringing the person who has acted against the socialinterests of the community, to book. The role of the prosecution in this regard therefore, is of greatsignificance and consequence. Except for making himself available for being examined by the court, thecrime victim himself has no further role. Often however, he has to interrupt his normal routine to visitthe court being interested that justice is done to him. Without any appropriate mechanisms for disclosureof information nor communication of essential information to the victim, the means available forseeking justice cannot be said to be accessible to the victim. In a study conducted, D.P. Kelley, found
that rape victims felt they were denied of participation and information about what they saw as „their‟
case
18
. This position can be said to be true of other crime victims as well.The criminal courts form the penultimate stage of the criminal justice system. Despite several visits to thecourtroom, crime victims generally find it difficult to comprehend the proceedings. At the end of thetrial, the judge passes the judgment and sentence which in a way seals the fate of the offender. Even atthis stage, the victim does not have any say in stipulating the punishment for the perpetrator of the crimeagainst him.The length of time to conclude the trial often varies considerably from case to case. The extremely longand unexplained delays in concluding the trial result in what is commonly said to be a denial of justice not just to the accused but also to the victim. The cumbersome and lengthy legal procedures coupled with the
16
Section 301 Criminal Procedure Code, 1973
17
AIR 1966 SC 911
18
Bharat Das,
Victims in the Criminal Justice System
. (New Delhi: APH Publishing House) at 129

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