RESEARCH PAPER

VICTIMS RIGHTS: CRITICAL ANALYSIS ON BASIS OF INDIAN

JUDICIARY

By:

RIDDHI JAIN

2nd Yr., BA.LLB.

NALSAR UNIVERSITY OF LAW, HYDERABAD

Mob.: -Xyz

www.probono-india.in

December 14, 2020

ABSTRACT

Victims of crime form an integral part of the Criminal Justice Systems. They are the one who
sets the justice system in motion by reporting the crime that has been committed against
them. Also, they form the most aggrieved party. However, they are left ignored and not
provided with rights and protections. They are accorded with the status of the forgotten entity
in the system. Justice BN Cardozo once said, "justice, though due to accused, is due to the
accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We
are to keep the balance true.”

The Indian Criminal Justice System has also accorded the victim with the status as that only
of informer and witness. The offence committed is taken as an offence against the state. To
ensure a fair trial, the rights of the accused are well defined by the legislature. However, the
rights of the victims to the crime are only identified by a few sections of the CrPc. In the same
light, the onus has shifted to the judiciary to address the plight of the sufferers. In the paper,
the author attempts to analyse how judicial activism has addressed the victims and prompted
the state to provide for their rights. The author concludes through judicial activism in the
area of victims rights has been an exemplar, it is limited to ensure an effective application of
only those mechanisms already provided by the legislature and the Constitution. Thus a gap
remains, where legislation specifically addressing the victim rights is imminent in the society
for their proper rehabilitation.

2
 TABLE OF CONTENTS

Table of Contents
INTRODUCTION..................................................................................................................4

VICTIM'S POSITION IN THE CRIMINAL SYSTEM ALONG SOCIETIES.......................................5

RIGHTS OF THE VICTIM IN THE INDIAN CRIMINAL SYSTEM.................................................6

CRITICAL ANALYSIS OF JUDICIAL RESPONSE IN SAFEGUARDING THE VICTIM’s RIGHTS........8

CONCLUSION....................................................................................................................13

3
VICTIMS RIGHTS: CRITICAL ANALYSIS ON BASIS OF
INDIAN JUDICIARY

INTRODUCTION

No society of free from crime. No doubt crime shakes the society at its core. However, the
primary by-product of its effect is the victim and the criminal. The penal codes around the
world place their focus only around the criminal. Their systems seem to be only guided by
the principle of protecting the rights of the accused so that they get a fair trial. 1 In these
circumstances, the plight of the victim gets overlooked. The victim thus takes the place of the
"forgotten man" in the criminal systems. As Justice Krishna Iyer rightly spoke, “Tears shed
for the accused are traditional and 'trendy' but has the law none for the victim of crime, the
unknown martyr?”2

The victim in its widest amplitude is defined by the UN as to include persons who have
suffered harm through physical or mental injury or impairments of rights through the
violation of criminal laws of the member states. 3 Within Indian framework, “victim is a
person who has suffered any loss or injury caused because of the act or omission for which
the accused person has been charged and the expression victim includes his or her guardian
or legal heir.”4

Doak has pointed out, " What constitutes a ‘crime’ as opposed to a ‘tort’ is purely dependent
upon how crime is defined within any given society.” 5In most societies, a victim is
considered a witness to a crime and not someone against whom the crime is committed. It
isassumed that the victim’s claim is satisfied sufficiently by sentencing the offender a
punishment. The assumption fails on justice and reasonability. The principles of fair and
reasonable justice demands victim should also be provided compensation and restitution for
the agony, whether physical or mental, they suffer.

UN in its declaration recognised four major components of victim’s rights –

1
A.H.Mondal, “Crime Victims and Their Treatment”, Central India Law Quarterly, Vol. XIV, (2001)
2
Justice Krishna Iyer, "The Criminal Process and Legal Aid", Indian Journal of Criminality, P.10
3
U.N. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985
4
Criminal Procedure Code, 1973
5
J Doak,‘Victims’ Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties’,Oxford,
UK: Hart Publishing

4
  Access to Justice and Fair Treatment;6
 Restitution;7
 Compensation and8
 Assistance9

The apex court in Ratan Singh v State of Punjab,10 first spoke about the deficiency of victim
rights in the Indian criminal system. However, it was only after Best Bakery’s case,11 that the
serious discussion on incorporation of victim’s rights in criminal law was started, which was
also recommended by the Malimath committee.

In light of this background, it becomes imperative to examine how the present legal
framework in India promote the rights of the victim. For the same, the paper is divided under
the following broad categories:

 Firstly, it deals with the position of victims in the criminal structures.

 Secondly, itanalyzes the provisions which deal with the rights of the victims, under
legislation in India.
 Thirdly, it critically analyses the judicial response in the safeguarding the victim’s
rights.
 Lastly, while concluding the paper, a summary of the whole paper is attempted.

VICTIM’S POSITION IN THE CRIMINAL SYSTEM ALONG with

SOCIETIES

The criminal justice systems around the world have been completely devoid of the victims'
sufferings till the culmination of World War II. The term 'Victimology' was first used by
Frederick Wertham who was an American Psychiatrist. 12 However, the study of victims as a

6
UN General Assembly Resolutions 40/34 on 29th November 1985, cl 4&5
7
Id, cl 8
8
Id, cl 12
9
Id, cl 14, part B
10
Ratan Singh v. State of Punjab, [1979] SCC 719
11
Zahira Habibulla H Sheikh And Anr vs State Of Gujarat And Ors, [2004] 4SCC158
12
Frederick Wertham: The Show of Violence, (New York. 1949)

5
separate subject within criminology was initiated with the works of Hans Von Henting 13and
Benjamin Mendelsohn.14

However, restitution and compensation for the victim have been a practice from an ancient
society.15According to Henry Maine, in the ancient traditional societies, the penal principles
or law exhibited the characteristics of law of torts rather than crimes. The victim recovered
damages from ordinary civil action.16In ancient India, the Law of Manu prevailed. The law
required the payment of compensation to the sufferer.17

Nonetheless, the Medieval period has exhibited to be the golden age in protecting the victim's
position. The evidence could be attributed to the system of 'Composition'. 18 Each kind of
injury had a price that was needed to be compensated.19

However, with the advent of modern society, the offender took place in the centre of the
criminal justice system. The compensation and restitution rights of the victims were
discarded from penal laws and were included in civil laws.20

RIGHTS OF THE VICTIM IN THE INDIAN CRIMINAL SYSTEM

The Indian criminal system runs on the Anglo-Saxon model and it is the prosecution who has
to prove the guilt of the accused beyond the doubt of a reasonable prudent man. In India, The
Constitution, The Indian Penal Code, 1860, The Criminal Procedure Code, 1973 and The
Indian Evidence Act,1872 rides the criminal system in the country apart from special
legislation that deals with accidents, harassments etc.

CONSTITUTION OF INDIA - The constitution provides for provisions such as Art.21 which
ensures life with dignity, right to legal aid, fair trial etc. This right is available to both the
victim as well as the accused.
13
Kritika "Victim and Law – A Socio-Legal Study' <http://shodhganga.inflibnet ac. in/ bitstream/ 10603
/7936/9/09_chapter%203.pdf accessed on 14.04.2015>
14
id
15
Das B. Bharath, Victims in Criminal Justice System, (New Delhi, APH Publishing Corporation, 1997), p.34.
16
Henry S. Maine: Ancient Law 11th edn, (London: John Murray 1887 ), p. 370
17
The Laws of Manu Sacred Books of East, Max Muller, (Vol. 25, Oxford, Oxford University Press, Oxford
1886), p 304.
18
Stephan Sacher, Restitution of the Victims of Crime, (London, Stevents and Cons Ltd, 1960), p 30
19
Fredric Pollock and Fredrick William Maitland: The History of English Law, (Cambridge, Cambridge
University Press, Vol. 11 1898), p. 451.
20
Joceylyne A. Scutt: "Victims, offenders and restitution: Real Alternative or Panacea?" The Australian Law
Journal, Vol. 56 (1987), p. 156.

6
INDIAN PENAL CODE -The Criminal Law Amendment, 2013 provided some modifications
in the substantive Indian Penal Code, 1860. Vide the amendment, the code provided for more
stringent punishments in cases which involved sexual offences against women and children.
Such punishments even extended to provide death penalty. further, new offences were created
along with the enlargement of the definition of rape in Sec 375.

CRIMINAL PROCEDURE CODE – The code has defined a victim which describes him "as
a person who has suffered any loss or injury caused because of the act or omission for which
the accused person has been charged.”21 This definition is also inclusive of the primary
victim's legal guardian or legal heir.

According to the code, it is the victim who in case of a cognizable offence, sets off the whole
process of criminal justice by filing an FIR in the police station, 22 or in case of refusal to
Superintendent of Police,23 or the Magistrate.24 Further, during the trial process, via the
amendment in 2008,the CrPc provides the victim to appoint a private counsel to assist in the
prosecution under proviso to Sec 24(8).25

The code further after the amendments of 2008 and 2013 in the CrPc, the cases involving the
sexual offences against women, court proceedings will be held in camera and will involve
women officers in all the steps through justice. Further, for such cases, special Mahila courts
will be established to make the process more comfortable to the victim.

Right to compensation has also been incorporated vide the amendment of 2008. The CrPc is
now provided with Sec 357A.26 It provides for victim compensation scheme where under the
provision, every state is in an obligation to prepare a framework for compensation to the
victim and his near ones, who have faced loss. And the amount to be compensated has to
decide by the legal service authority. The compensation to sufferers has also been provided
under legislation such as the Motor Vehicles Act, 1988 and Fatal Accident Act, 1855.

Additionally, through amendment of 2008, Sec 372 has been also modified to provide the
victim to file an appeal against the order of a subordinate court, in matters of acquittal,

21
Criminal Procedure Code, 1973, s 2(w)(a)
22
Criminal Procedure Code, 1973, s 154 (1)
23
Criminal Procedure Code, 1973, s 154(2)
24
Criminal Procedure Code, 1973, s 154(3)
25
Criminal Procedure Code, 1973, s 24(8)
26
Criminal Procedure Code, 1973, s 357(3)

7
conviction or meagre compensation.27 Such appeal can be filed by the victim on his own even
if the state does not take an action to do so.

INDIAN EVIDENCE ACT, 1872 – The act under Sec 151 and Sec 152 prevents the defence
as well as prosecution attorneys to ask questions from victims that could be indecent and
offensive in nature.28

JUSTICE MALIMATH COMMITTEE ON REFORMS OF CRIMINAL JUSTICE

The committee alluded to the victim’s position in the Indian justice system. It observed that
victim in the Indian system gets deduced to a mere witness to the crime. 29 Expressing its
concerns over the same, it formulated some suggestions which included to have the victim’s
right to be represented by the counsel of his own choice, to be heard while sentencing the
punishment, to be provided adequate compensation, and to appeal etc.30

Therefore, in light of the provisions mentioned above, the role of victim is meagre in light of
attaining justice for the harms he suffered. The position is just limited to being the witness.
The present legal framework of the country does not have sufficient provisions addressing the
rights which are addressed by the UN Declaration of Basic Principles of Justice for Victims
of Crime and Abuse of Power. Even the right to compensation has not been addressed
properly through statutes or schemes by the government.

CRITICAL ANALYSIS OF JUDICIAL RESPONSE IN

SAFEGUARDING THE VICTIM’s RIGHTS

“Justice, though due to the accused, is due the accuser also. The concept of fairness must not
be strained till it is a filament. We are to keep the balance true.”31

Judiciary plays an important part in the criminal justice system all around the world in
protecting the rights of the victims. In India, the courts have been assigned to be Parens
Patriae under the constitution.

COMPENSATION THROUGH PUBLIC INTEREST LITIGATION

27
Criminal Procedure Code, 1973, s 372
28
Indian Evidence Act, 1872, s 151, s 152
29
Justice Verma, Committee on Reforms of Criminal Justice System
30
id
31
Snyder v. Massachusetts,[ 291] U.S. 97, (Cardozo J)

8
The rights of victim fall under the basic human rights as has been guaranteed under the
constitution and thus could be addressed through the mechanisms such as PIL and writ
appeals provided under Art 32. The most prominent example could be illustrated through DK
Basu v. State of West Bengal,32 and the Khatri and Others v. State of Bihar &Ors.33 In both
cases, the supreme court dealt with cases of victims to custodial torture, which was addressed
through the mechanism of Public Interest Litigation. The actions of the state were declared
against basic human rights in both cases.

Although the Indian criminal systems tend to serve the rights of the accused. Even the above
mentioned two judgements addressed the basic rights of the accused in custody who then
ultimately became the victims to brutal actions of the state. Nonetheless, the judiciary has
been trying to address the rights of the victims since the end of the 20th century.

The courts have time to time recognised the rights of the victims available through the above-
discussed legislations.

COMPENSATION UNDER CrPc.

In Manu Ram v. Union of India &Ors.,34 Justice Krishna Iyer J reiterated his position by
observing that the courts in all circumstances would consider the plight of the victims, even
while sentencing the punishment. A complaint should be necessarily registered as FIR by the
police, and in failure to do so, the complainant can approach the court. 35 And in case of a
cognizable offence, the police have no exception.36

The decisions of Bhagwat Singh v. Commissioner of Police 37 and Union Public Service
Commission v. Papaiah,38 reflect that victim has an important right of being heard at the pre-
trial stage, to assist, in a situation if the magistrate, has to decide on the cognizance, of the
framing of charges.The victim or a third party has the right to prosecute, in a situation if the
state withdraws from the case.39

32
DK Basu v. State of West Bengal,[1977] 1 SCC 416
33
Khatri and Others v. State of Bihar &Ors,[1981] SCC (1) 627
34
Manu Ram v. Union of India &Ors, AIR [1980] SC 2147
35
Palwinder Singh v. the State of Punjab, [1997]CrLJ 2811 (P & H)
36
Latika Kumari v. Govt. U.P. and others, AIR [2013] SC 554
37
Bhagwat Singh v. Commissioner of Police, AIR [1985] SC 1285
38
Union Public Service Commission v. Papaiah, AIR [1997] SC 3876
39
Id

9
At the same time, the victim has been awarded the right to participation in the trial 40 and he
can also mandate the prosecutor to fight against the accused on the instructions of the
victim.41 A victim also has right engaged a lawyer and a court will only have a say when his
lawyer submits a written argument after evidence has been submitted.42

In Hari Shankar v. Sukhbir Singh,43 the court stated, that compensation under Sec 357(3) is
an addition to the sentence awarded, to reassure that the justice system recognises the victim's
plight. Such compensation is an attempted balance on the response to crime with the
recognition of the victim’s plight and suffering. Further, awarding of such compensation
should be reasonable and proportionate to the crime committed among considering other
factors like the ability of the accused to pay.44 The Supreme Court in R. Mohan v. A.K. Vijaya
Kumar,45observed, that since the object of the compensation is to provide immediate relief to
the victim or complainantin so to address his plight, the court may also sentence punishment
in case of default.

The compensation jurisprudence apart from being available as a claim in Criminal Procedure
Code has also being evolved, by the courts in the country, by exercising the powers, under
Art 32 and Art 226 of the Constitution. Such compensation is provided in cases of riots,
environmental hazards etc.

COMPENSATION FOR ADMINISTRATIVE ACTIONS, CUSTODIAL DEATH

The Apex Court in Devaki Nandan v. the State of Bihar,46 the petitioner whose pension was
intentionally delayed by the administration was awarded exemplary compensation. Further, in
the case of Rudul Shah v. the State of Bihar,47 provided the relief to the petitioner who filed a
writ for habeas corpus, had been detained illegally for 14 years.The similar kinds of approach
were followed by the court in Sebastian Hongray v. Union of India,48 and Bhim Singh v. State
of Jammu and Kashmir.49 The courts awarded compensation for torture, agony and illegal
detention.

40
J.K. International v. Government of the National Capital Territory of Delhi,[2001] 3 SCC 46
41
M. Balakrishna Reddy v. Home Department, [1999] Cr LJ 3566 (AP)
42
Kuldip Singh v. the State of Haryana, [1980]CrLJ 1159 (H & P)
43
Hari Shankar v. Sukhbir Singh,AIR [1988] SC 2127
44
id
45
R. Mohan v. A.K. Vijaya Kumar, [2012] 8 SCC 721
46
Devaki Nandan v. State of Bihar,AIR [1983] SC 1134
47
Rudul Shah v. the State of Bihar, AIR [1983] SC 1086
48
Sebastian Hongray v. Union of India, AIR[1984] SC 571
49
Bhim Singh v. State of Jammu and Kashmir, [1985] 4 SCC 677

10
The compensation has been also provided in cases of custodial torture and deaths. The case of
Nilabati Behera v. the State of Orissa,50 is an exemplar, wherein the court awarded Rs
150000 to the mother whose son died in police custody. The court further held, that when
compensation is awarded through constitutional remedies, it is based on the principle of strict
liability and state in such cases could not claim sovereign immunity. The principle has also
been observed in Kunj Parida v. State of Orissa &Ors.,51Govt. of NCT v. Nasiruddin,52Saheli
v. Commissioner of Police, Delhi53among several others.

COMPENSATION TO VICTIMS OF MASS DISASTER

The example of compensation to victims of mass disaster could be seen from the analysation
of judgements of Charan Lal Sadhu v. Union of India.54 The court in the case reiterated the
validity of the Bhopal Gas Disaster Act, 1985 thus upholding the claims of lakhs of people.

JUDICIAL RESPONSE IN CASES INVOLVING WOMEN

The initial trend of judicial response to cases of sexual assaults depicted the patriarchal nature
of society. Cases studies have revealed that sentences to the convicts were reduced on
grounds such as woman was of questionable character or belonged to the aboriginal tribes. 55
However, lately, courts have shown a rigorous stand and have also granted reliefs in way of
in-camera trials,56 compensation to the victim of sexual assaults. Justice VR Krishna Iyer has
stated that ".a rapist must pay dearly by way of reparation. He must be made to work in the
jail, paid wages and made to part with a large part of it to the victim of his crime. The raped
must be given protection and right to abortion, free of charge, under court direction.”57

The Apex court has held that an initial relief could be awarded to rape victims even during
when the trial is being held by the courts.58 Further, in Delhi Domestic Working Women
Forum v. Union of India &Ors.,59 the court has made it mandatory for the National
Commission for Women to prepare a scheme for the rehabilitation for victims of rape.

50
Nilabati Behera v. the State of Orissa,AIR [1993] SC 1960
51
Kunj Parida v. State of Orissa &Ors, AIR [2012] Ori. 126
52
Govt. of NCT v. Nasiruddin, [2001]CrLJ 4925
53
Saheli v. Commissioner of Police, Delhi,AIR [1990] SC 51
54
Charan Lal Sadhu v. Union of India, AIR [1990] SC 1480
55
Prem Chandra v State of Haryana,[1989] Supp. (1) SCC 286 ; Dayaram v State of M.P, [1992] CrLJ
1246(MP)
56
State of Punjab v. Gurmit Singh, AIR [1996] SC 1393
57
Iyer Krishna. J.“Victimology- The Victim of Criminological Neglect,” IJCC, 15(Jr Dec. 1994) pp 1-5
58
Bodhisattwa Gautam v. Subhra Chakraborty, [1996] 1 SCC 490
59
Delhi Domestic Working Women Forum v. Union of India &Ors.,[1995] 1 SCC 14

11
Further, it has been held in Om Prakash v. State of UP,60 that the sole testimony of the
prosecutrix can lead to accused’s conviction, even if the medical evidence proves otherwise.

The laws relating to sexual harassments and offences against women have been more
rigorous by the Criminal Law Amendment, 2013 and even provides for the death penalty in
case of rape of a child below 12 years.

RESPONSE OF THE JUDICIARY TOWARDS CASES OF ACID ATTACKS

Laxmi v. Union of India61 has been considered a landmark case in concern towards the
victims of acid attack. The case laid down several guidelines which included compensation
following the which a total of 1300000 was awarded to the victims in the case of
ParivarthanKendra v. Union of India.62The courts have also provided compensation in cases
governing medical negligence, posting obscene pictures of a woman etc.

Through the way of above mentioned judicial pronouncements, it is noticed that judicial
interventions have been limited to what is already provided in the legislation. However, the
judiciary has played a huge role in safeguarding those rights of the victims provided in the
system. Further, the Supreme Court and the High Courts have attempted to include the victim
in the process of justice as well as issued guidelines to the state and investigating officials to
inform the complainant at every stage. It is noticed that the courts in granting the relief have
taken a view of these cases as a violation of human rights. Thereby, the judgements are more
or less finds their basis through the doctrine of natural justice.

Nonetheless, the growth of jurisprudence of relief in form of compensation is the paragon of

judicial activism, wherein, the court has recognised the plight of the victims as the violation
of their fundamental rights along with their human rights.

In India, since no major code other than the Criminal Procedure Code, 1973, that explicitly
provides compensation to victims. Thereby, the Supreme Court from time to time has stated
that lower courts should apply Sec 357(3) of CrPc by applying a liberal interpretation.
Further, the court has stated that the compensation mandated on states through the
amendment made to the CrPc in 2008 has to be awarded to victims regardless of the
judgement of the court.

60
Om Prakash v. State of UP, Appeal (crl.) 629 of 2006
61
Laxmi v. Union of India, [2014] 4 SCC 427
62
ParivarthanKendra v. Union of India, WRIT PETITION (CIVIL) NO. 867 OF 2013

12
Therefore, it is beyond doubt, the higher judiciary in India has recognised the victims’ role in
the system and have attempted to address the concerns around his position. However, the
courts have emphasised the right of compensation rather than other rights available in the
criminal justice systems around the world as well as in India such as the right to challenging
bail etc.

CONCLUSION

The legal regime in society is responsible for the quality of life in society. 63 The position of
the victim has been the one subsidiary to the state. The Indian criminal system is the one
based on the adversarial system and has rights mostly favoured towards accused. Even
though modern societies depict an era wherein human rights have been accorded the most
important status, it is ancient and medieval societies, that the rights of the victims of crimes
were addressed better.As it was rightly pointed out by Apex Court, “It is a weakness of our
jurisprudence that victims of crime and the distress of the dependents of the victim do not
attract the attention of the law. The victim reparation is still the vanishing point of our
criminal law. This is the deficiency in the system, which must be rectified by the legislature”64

Even though the Criminal Procedure Code, 1973 provides certain rights to the victims, it is
highly uncertain that these rights are effectuated at lower levels. Judiciary in the case comes
to light, who have to seem o realised the victims' plights and have attempted to ameliorate
them. However, due to a lack of comprehensive legislation, the judiciary has also faced a gap
to grant appropriate relief to the victim, besides the compensation. It does face a bridge in
dispensing justice to those individuals. Thus such a void could only be addressed by enacting
legislation specifically dealing with rights of the victims to crime and seeking an effective
application of the same along with providing a conducive environment, rehabilitating
facilities etc.

63
Barke J.L., We Are All Victims, (London, Peel Press, 1978).
64
Ratan Singh v. State of Punjab, [1979] SCC 719

13