SVKM’S NMIMS SOL, NAVI MUMBAI

SVKM’S NMIMS SCHOOL OF LAW, NAVI MUMBAI,

MAHARASHTRA

TITLE: AMALGAMATING A STANDPOINT OF VICTIM

RIGHTS INTO THE CRIMINAL JUSTICE SYSTEM IN INDIA
AND IN ACCORDANCE WITH INTERNATIONAL LAWS.

Under the directions of Prof. Shivam Jain Kakadia

Name: Ryssa Lemos

Roll no: A158

Email id: ryssa.lemos060@nmims.edu.in

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DECLARATION
I, Ryssa Lemos declare sincerely the content of this research paper titled “AMALGMATING A
STANDPOINT OF VICTIM RIGHTS INTO THE CRIMINAL JUSTICE SYSTEM IN INDIA
AND IN ACCORDANCE WITH INTERNATIONAL LAWS.” to be a representation of my work
and analysis. I furthermore assure you that this work has not previously been published for
academic or publishing purposes. The material used has been given due credits wherever
necessary.

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ACKNOWLEDGEMENT

I would like to take this opportunity to thank my Professor, Adv. Shivam Jain Kakadia for his
continued support and encouragement and to the director P.N. Mukherjee and the faculty in
charge Miss Manisha Band of our School of Law who has constantly pushed us to do better
without which the completion of this research paper would not have been possible. I would
also like to extend my gratitude towards my classmates for their cooperation.

Finally, my deepest gratitude to my caring and loving parents whose support worked like a
miracle in rough times. My heartfelt thanks.

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Sr. TABLE OF CONTENTS Pg

No No

1. ABSTRACT 5

2. INTRODUCTION 6

3. RESEARCH QUESTIONS 7

4. RESEARCH METHODOLOGY 7

5. REVIEW OF LITERATURE 8

6. SUGGESTIONS 16

7. CONCLUSION 16

8. REFERENCES 17

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ABSTRACT
The purpose of the criminal justice system is to discourage criminal behaviour, apprehend those
responsible for illegal acts, and rehabilitate those who have been found guilty. Each act of
criminality is seen as a threat to the safety and well-being of society as a whole. For far too
long, the rights of criminals have taken precedence over those of victims in legal proceedings.
It is past time that this tendency was corrected and the needs of victims and future victims be
given consideration. It wasn’t until the 1970s that the criminal justice system began to
emphasize the interests of victims of crime. As the study of victims developed, attitudes shifted.
Recent decades have seen a radical shift in how society treats crime victims. A growing number
of nations increasingly realised that they must help crime victims cope with the aftermath of
their experiences and help them traverse through the criminal justice system. On the other hand,
the status of crime victims has not improved much in India. This study makes an effort to
analyse the criminal justice system in India from the perspective of victims of crime. The study
also takes into account the legal developments that have taken place on the international
platform. This paper will also explore and suggest ways in which the criminal justice system
may be improved by centring its efforts on victims’ rights while also establishing a new balance
between the state and the offender.

Keywords: victim justice, victim rights, modern justice, adversarial system, victim support,
standpoint of victims, India.

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INTRODUCTION

Law and society are interwoven together and cannot exist without the other. Society may go
haywire in the absence of law. On the other hand, the law must tap into its dynamism in order
to keep pace with societal development and adjust to the changing characteristics of modern
societies. The legal system of a nation is a reflection of its society and it has moulded itself to
keep pace with the changing framework of the world. The law can enhance one’s life by
disregarding evil practices if they prove detrimental to the equilibrium present within the
society or can introduce new laws and acts that strive to provide more protection to the general
public, specific social classes, and weaker sections of the society. We depend on the law to
maintain social equilibrium and for the redressal of wrongs committed against individuals and
society. The criminal justice system similarly, serves as a social control mechanism with the
objectives of crime prevention, offender rehabilitation, and offender punishment. The very
nature of criminal conduct is seen as a threat to society and humankind. The Criminal Justice
System in India is constructed on the foundation of antiquated principles of “innocent until
proven guilty” establishing that an innocent person does not go behind bars even if many
criminals are set free. Over the course of years, the lawmakers of our country have refined,
advanced, and instituted new laws and rights for the protection of criminals, applying a
reformative approach to bring them back as law-abiding individuals of society. However, the
victims who are the most afflicted parties of crime have been overlooked and have gone
unnoticed.

The term victim is defined in Section 2(wa) of the Criminal Procedure Code as “a person who
has suffered any loss or injury caused by reason or the act of omission for which the accused
person has been charged.” It is consequential to note that the definition of the victim was added
in the Cr.P.C. in the year 2009 which displays that the victims have been on the side-lines for
far too long reduced to silent observers in the process of justice. It raises questions like, “Who
are we exactly providing justice too?”

The sole participants in an adversary criminal justice system are the state and the accused, who
face off against each other in a ceremonial court of law. All criminals are required to be dealt
with in accordance with the law under this paradigm. Under this concept, criminal conduct is
seen as an infringement of societal standards and principles, and therefore can only be remedied
in the best interests of society as a whole, rather than in the benefit of the victim(s) of such

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infringement.1 Therefore, the State takes action against the convict because it views the crime
as an attack on mankind as a whole. However, the victims of crimes suffer real pain in addition
to the metaphorical damage done to society and social order. The real victims of crime are
obscured and devalued by the idea of mankind as a whole as the victim, as they are relegated
to the role of a silent observer. The Indian Justice system has always been accused centric,
invariably giving them a benefit of doubt despite the fact that they have been responsible for
the breakdown of social order. On the other hand, the victims who deal with the fallout of a
criminal act are treated as a second thought in terms of their rights.

This paper will discuss how the criminal justice system needs to develop to revolve around the
standpoint of victim rights and find a new balance in the subsisting equilibrium between the
state and the offender.

RESEARCH METHODOLOGY

This study employs a qualitative research strategy and a systematic literature review to examine
and understand the position of victims in the criminal justice process in India and on an
international platform. The project will examine the criminal justice system in India from the
perspective of victims using secondary sources such as books, scholarly articles, official
reports, law blogs, law databases, cases, etc. The study is based on a thorough analysis of books,
publications, and articles from the academic literature. A thematic analysis method will be used
to examine the information gathered from secondary sources. The research questions and aims
will be used to determine the overarching themes.

RESEARCH QUESTIONS

• What is the position of victims in the Criminal Justice system of India?

• What is the position of victims from an international perspective?
• What are the implications of the social media age on victim justice?

1
V., & Muralidhar, R. (2017). Victim Rights in India: Is the Focus of the Criminal Justice System Shifting from
the Accused to the Victim? International Journal of Law Management and Humanities, 4.

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REVIEW OF LITERATURE AND ANALYSIS

I. The position of Victims in India

The victim is the obliterated soldier in the Indian criminal justice system. He initiates the
criminal legislation, and then vanishes into obscurity. The victim does not have a right of
participation in the trial of the case initiated on the basis of the F.I.R. under the existing
legislation of criminal procedure. For criminal cases initiated by the state, he cannot file a direct
appeal against the trial court’s decision to acquit the accused. Even in the most severe of crimes,
the state has the option to not pursue and/or withdraw from prosecution. There is an inequitable
power dynamic between the all-knowing state and the person charged with a crime, and it has
been that way since the state removed victims from the criminal procedure. This takes us to the
crux of the matter: the victims are bystanders to a crime against the society. A two-party system
would be acceptable if criminal acts were perpetrated not against individuals but rather the
society. But, in actuality, criminal acts are perpetrated towards individuals. Furthermore, these
people, who have been harmed, are looking for acknowledgement of the wrongs done to them.
Former victims’ roles in filing criminal charges against offenders have been completely
usurped by the state. They have surrendered in the face of an all-controlling state that can both
compel them to testify as well as alienate them from the proceedings (Wemmers, 2012)2.The
court noted in Ram Phal vs. State and Ors.3 that, “presently, the victims are the biggest sufferers
in a crime and they have limited participation in the legal procedures. For the integrity of the
judicial system, it is necessary to provide them with certain protections and restitution.”

As the first point of contact for victims of crime, the police are essential to the victim aid
process. The way victims are treated by the initial responding police officers will have a
significant impact on their impression of the justice system as a whole. The victims are often
confronted with unpleasant and condescending treatment from public officials. The police in
India are still not trained to satisfy victims’ requirements due to which majority of crime
victims do not report their experiences to the authorities. When criminal justice tools are put
into place, victims naturally feel more vulnerable and unprotected owing to the vacuum present
regarding their rights.

2
Wemmers, J. A. (2012). Victims’ rights are human rights: The importance of recognizing victims as
persons. Temida, 15(2), 71–83.
3
2015 SCC OnLine Del 9802.

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When victims are cross-examined by the defence counsel in today’s hostile criminal justice
system, they risk becoming secondary victims themselves. The systemic architecture and
values of the adversarial system supposedly necessitate this, since they determine how
witnesses must be handled. The victims’ hostility may have something to do with the reality
that they are not considered to be parties to a criminal prosecution. Similarly, Doak believes
that having victims present during trials would increase the criminal justice system’s credibility
(Doak, 2005). Similarly, Garbett agrees with Doak that victims’ access to justice, in the form
of compensation for their losses caused by criminals, improves the legitimacy of the system as
a whole (Garbett, 2013). It has been noted that the International Criminal Court (ICC) is unique
in this sense since it actively encourages victim participation in its trials. It has been argued
that the International Criminal Court’s framework for victim involvement strikes a good middle
ground between punitive and reparative justice by giving victims a chance to have their own
views represented in the proceedings.

When a crime is committed in India, the victim's sole involvement is during the witness stage.
There are, however, a few key victim participation rights outlined in the CrPC, 1973. For
example, if the Station House Officer refuses to record the F.I.R., the victim has the right,
under Section 154(3) of CrPC, to send the report to the address of the Superintendent of Police.
If the Superintendent of Police refuses to take up the matter, the defendant may go straight to
the Magistrate, who has authority under Section 190. Section 156(3) grants the Magistrate the
authority to conduct an investigation in response to such a request. The victim may also choose
to submit a complaint with a Judicial Magistrate who has the authority to investigate the crime.
According to the Supreme Court's ruling in Bhagwant Singh v. Commissioner of Police4, after
an inquiry is complete, the police report is submitted to the Magistrate who is entitled to take
cognizance, and in the event if the Magistrate declines to frame charges, the victim must be
given a participatory role to have him heard.

Therefore, there rises a need to entail participatory rights for the victim in the criminal
procedure established to administer justice. Participative rights include victims’ procedural
rights throughout the course of a criminal prosecution. At present, he just initiates the process
and has no say after that. These rights can be derived from the wider notion of citizenship,
which entails being in charge, having a voice, being heard to, or being treated with courtesy
and dignity. When it comes to the nation's criminal justice system, the State must make sure

4
Bhagwant Singh v Commissioner of Police (1985) 2 SCC 53.

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everything runs smoothly to preserve the rule of law. The effectiveness of a nation’s criminal
justice system is a yardstick to measure its level of governance.

The progressive judicial system in India has led to the growth of a victim-centric justice system
post 2009 wherein an attempt was made to define the victim for the first time. The Supreme
Court’s judgements between 1970’s and 1980’s helped draw attention towards the victims
paving the way for developments in our criminal proceedings. One of the most prominent tools
outlining the rights of victims initiated by the United Nations was the ‘Victim’s Declaration’
or the ‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power
(1985)’ which started the wave of judicial activism in India and other countries. This
proclamation defined “victims of crime” comprehensively and outlined their rights.

In its explanation of criminal law, the Supreme Court noted in Jagjeet Singh and Ors. vs Ashish
Mishra and Anr.5 that it had always been understood that courts were to adjudge between the
prosecution and the defence. It stated that: “the ‘victim’ -the de facto sufferer of a crime had
no role in the adjudicative process and was obliged to sit outside the Court as a silent
observer.”6(Bakshi, 2022) However, the law with regard to the rights of victims to be
recognized and participate in criminal processes started to positively change as it became clear
that the ideology of criminal justice administered to prohibit, deter, and punish ‘crime’ had
covertly turned its back on the ‘victim.’ In many respects, the above case is a breakthrough for
Indian law, since the courts here have never before pleaded so vehemently for victim justice.
The court found that there was a consensus among international human rights and
developments, in addition to the proposals of law reform studies, in favour of expanding
victims’ rights to participate.

In the 154th Law Commission Report on the CrPC, the focus on victim's rights was explored
in its own chapter titled “Victimology.” To establish the constitutional basis for Victimology,
it construed Article 41 (which protects the right to public aid in specific instances) and Article
51-A (which mandates that each person nurtures humanity and the attitude of inquiry and
change). It was also proposed that compensation not be restricted to monetary gains from
penalties, fines, and asset forfeiture. The Malimath Committee on changes in India's Criminal
Justice System recommended in 2003 that the Legal Services Authority establish a fund to
compensate victims of crime. As a result, the Indian Criminal Court system adopted a new

5
2022 SCC OnLine SC 453
6
Bakshi, G. K. (2022, April 29). A victim has unbridled participatory rights from the stage of investigation till
the culmination of the proceedings: SC – The Leaflet. The Leaflet.

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approach to victim rehabilitation with the implementation of Section 357A of the Code of
Criminal Procedure. When a victim suffers financial loss or physical harm as a result of an
offender's actions, he or his dependents may file a claim for compensation with the State or
District Legal Service Authority under Section 357A.

The maintenance of order and law is seen as the State's fundamental responsibility. In a social
welfare system, everyone, including the offender and the victim, is guaranteed fundamental
human rights. However, there may be occasions when these rights and concerns are at odds
with one another. The accused is always presumed innocent at the outset of a criminal trial in
India, yet victims may suffer permanent harm or loss as a consequence of the incident. The
Government of India and the State Governments need to develop a particular special legislation
for victims of crime since the effect of crime on them is varied and multifaceted, and the
existing protection under the criminal laws is inadequate. While victim justice is important, it
should be seen as supplementary to criminal justice rather than as a replacement for it (A.,
2022)7.

II. Area for Development in India

Among academics, there is a wide range of opinion on what kind of protections victims of
crime should be offered in the context of a hostile criminal justice system. According to
Maguire, the victims have the right to seek out emotional and practical help in the aftermath of
a crime, to be properly updated and to be treated with dignity and compassion by law
enforcement agents throughout the investigative process, to be treated with respect and
understanding prior to, during, and after court proceedings, and to get compensation for acts of
criminal violence. His victims have the right to be heard at all stages of the legal process, from
the initial decision to prosecute through the determination of bail and imprisonment,
conviction, punishment, and release (Maguire, 1991)8. According to the literature provided by
Maguire, there seem to be three distinct categories of victim needs. Compensation, fair
treatment in the judicial process, and assistance for victims fall under the first group of service
requirements. Second, there is the urge to express oneself, which includes the victim’s need to
be heard and to have a voice in the criminal justice process. The third classification emphasizes
the need for in-depth involvement in decisions like bail, sentence, and release. On the contrary,

7
A. (2022, August 7). Rights of an Accused v. Rights of a Victim. Legally Flawless.
8
Maguire, M. (1991). The needs and rights of victims of crime. Crime and justice, 14, 363-433.

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the third kind represents a threat to the adversary's infrastructure with reference to victims of
crime.

By examining the current legislative laws in India intended to aid crime victims on these three
parameters, it becomes clear that more improvement is needed. There is a lot that needs to be
done upon looking at the overall picture. But certain initiatives might be implemented at the
ground level to aid Indian crime victims. First and foremost, in this overall picture is, therefore,
raising awareness among all parties. The following are examples of victim services and help
that may be provided during a criminal investigation:

The first step in helping a crime victim is to (1) ensure that they have access to existing
resources and (2) have the opportunity to seek restitution for the effects of the crime.

Secondly, it’s important to gather information from victims, motivate them to seek help, and
tailor services to their specific need. Therefore, fair, compassionate, and accommodating
treatment by the police, healthcare facilities, welfare organisations, prosecution, and courts is
a must.

Third, the law enforcement authorities should have a victims assistance department, ideally at
the divisional level, to coordinate services for those who have been affected by crime.

Victims must be included in all phases of the legal process, from investigation to appeal.

The plight of crime victims in India's criminal justice system might be vastly improved if the
measures outlined above are taken.

III. International Perspective

In majority of the legal systems of the world, a victim is assigned the mere role of a complainant
who sets in motion the process of criminal justice by reporting the criminal conduct to the law
enforcement agencies. After the unlawful activity has been reported, the police officials begin
the investigation process and on being successful, a trial commences wherein the victim takes
a supplementary role of a testifier assisting the State and the prosecution convict the criminal.
(Hambali, 2015) 9

9
Hambali, Y. (2015). Finding Voice for Victims of Crime in the Adversarial Criminal Justice System. The
GSTF Journal of Law and Social Sciences, 4(2), 1–6.

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The world populace was urged to improve the situation of victims by two significant
instruments that came out almost consecutively in the year 1985. The first is the “UN
Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power”. The
other was the “Recommendation on the Status of the Victim within the Context of Criminal
Law and Process”, which was accepted by the Council of Europe in 1985. These were the key
developments achieved by International Criminal Justice to recognise the importance and
rights of victims. Although investigation, inquiry, trial, conviction, and sentencing of the
accused are central to criminal procedure, the victims' voices were frequently dismissed as a
dilutive influence on the rule of law or seen as unnecessary hurdles to justice.

The principles that formed the framework of the UN’s Victim Declaration were: the right to
justice and equitable treatment, the right to restitution (including the recovery of property), the
right to compensation, and the right to medical, social and legal aid. (Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power, 1985.) Regarding the rights
to restitution and compensation, the above Declaration states that criminals should pay
reasonable compensation to victims or their families. The word “victim” is used here instead
of “survivor” or “aggrieved individual” to include those who have been harmed, either directly
or indirectly, by criminal activity. Victims and families interact with the judicial process for a
variety of reasons, including the desire to learn what happened to their dear ones, to tell their
stories, to advocate on behalf of those who have been killed, maimed, or vanished, and to hold
those responsible for their suffering.

The guidelines issued by the Council of Europe in 2006 are the most current and exhaustive
guidelines for providing support to crime victims. Some of the key features of the Council of
Europe Guidelines (2006)8 on the treatment of victims and mitigation of victimization are as
follows: aid, involvement of the government services, victim support programs, education,
rights to efficient access to alternative procedures, state compensation, coverage, protection,
mediation, increasing public awareness of the consequences of crime, and so on. It has also
advocated for victim compensation and restitution initiatives. For victims of significant, brutal,
violent offences, including sexual assault, it is suggested that the state provide compensation.
It goes hand in hand with the UN declaration to say that if the offender, policies, or publicly
supported health and welfare services cannot compensate for the damages, then the state
should.

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The United States has a lot of lessons to offer to the world about giving victims of crime a fair
opportunity. Most crimes would go unreported to the authorities if victims and witnesses didn't
come forward. Most crimes cannot be investigated and perpetrators cannot be identified and
punished unless the victim or witness is willing to help identify them. It wasn’t until the late
1960’s that the United States government first began conducting a number of surveys to try to
get an idea of how many people had been victims of crime. The study observed high rates of
crime, but the major finding was, that many victims were not reporting it. Additional research
has demonstrated that even when an arrest is made, many victims do not help bring criminals
to justice. The unwillingness to cooperate was attributed by victims to their negative
experiences with the criminal justice system, including lengthy wait times for trials, unclear
instructions, and a lack of accessible child care and transportation services. As a direct result
of these demands, the victim aid movement was born. Significant legislation, action at the
fundamental level, and more than 10,000 victim service systems are available in the United
States as a direct result of research on victim requirements. More than three decades ago,
victim/witness programmes in the United States emerged as an important part of victimological
progress. Additionally, the United States is emblematic of the statutory method, since almost
every state and the federal government have enacted legislative standards on how the police
officers and other officials taking part in the criminal justice system should deal with victims
of crime.

In tandem with these legal developments, there has been a rise in institutionalised international
and regional collaboration on victims’ concerns. In light of the aforesaid legislative
achievements, governments now have the resources to work together more closely beyond
borders to ensure victims are protected and their rights are upheld.

IV. Implications of the social media era on justice for victims

The digital era has enhanced the way we communicate, making it more feasible, accessible and
time saving. New forms of communication and the use of Internet are now deeply embedded
in our daily lives. These avenues of communication have allowed victims to access the
resources that are available to them to discover more about their rights (Zhang et al., 2022). A
wide variety of resources, including those provided by law regulating agencies, victim support
providers, victim litigators, lawmakers, and other interested parties, are immediately
feasible after a crime occurs and can help victims find immediate answers to the questions to
deal with the repercussions of a crime.

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As an added benefit, victims now have more channels for their voices because of the online
world and social media. By creating and maintaining portals for victim self-help groups,
victims may assist others who have recently suffered crime and might not know where to turn
to find a support network, by sharing their own stories and ways to cope with the harmful
impacts of crime. The social media has ignited and widened the scope to reach out to a “larger”
audience to start broader social campaigns against wrongdoings. These experiences shared on
social media can foster a feeling of compassion and unity among those who have suffered in a
similar manner. In a significant way it can bring the severity of the issue into the spotlight,
which in turn can spark a public discussion about the prevalence of heinous crimes in settings
where it had been previously disregarded.

In particular, we can see how the expansion of social media has provided a forum for victims
to reach out their voices. As a result, victims in general and victims of sexual assault and
harassment in specific and the broader public have seen a powerful display of solidarity in the
face of these crimes, which are traditionally linked with shame and taboo. If social media is
utilised as a forum for justice as opposed to a means for criminal activity, it may become a
catalyst for social change by prompting us to question and reconsider whether or not we provide
victims of crime with the requisite regard, acknowledgement, and assistance.

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SUGGESTIONS
There is a need for some constructive and efficient steps to be taken in India in order to address
the various difficulties encountered during the process of safeguarding victims and advocating
for their rights. Some of the suggestions are as follows:

1. There is a pressing need to expand existing laws to formulate a specific legislation

dealing with the rights of victims based on the guidelines set by the United Nations.
2. The public has to be informed about the purpose and operation of Criminal Justice
System, and this can only be accomplished by a concerted effort to increase awareness
and disseminate education about the same.
3. It appears to be evident that progress has been made in recognising victims’ rights in
past decades. However, questions concerning whether or not such rights can really be
enforced remain unanswered because a right without a remedy is no right. Measures
need to be taken towards the implementation process of such rights.

CONCLUSION
The conventional adversarial model of the criminal justice system has been subject to
significant scrutiny. This is due to the widespread belief that the criminal justice system puts
the needs of the offender above those of the victim in criminal cases by establishing, caring
for, and protecting the offender’s interests while ignoring the victims. Every day, the current
adversarial criminal justice system loses another victim who has faith in and actively
participates in the system. In their current form, the system’s newly established victim rights
are mostly academic. Because of this, victims are still dependent on the whims of the criminal
court system, which determines the limits of their entitlements and the compensation they get.
These rights, such as the rights of victims, can only be relevant and helpful if they are enforced
inside the system of criminal justice itself.

The Indian Criminal justice system has taken strides towards a victim centric process but there
is still a considerable distance to go before we accomplish the goal of redemption.

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REFERENCES
[1] Wemmers, J. A. (2012). Victims’ rights are human rights: The importance of recognizing victims as persons.
Temida, 15(2), 71–83.
[2] Pavithra, V., & Muralidhar, R. (2017). Victim Rights in India: Is the Focus of the Criminal Justice System
Shifting from the Accused to the Victim? International Journal of Law Management and Humanities, 4.
[3] A. (2022, August 7). Rights of an Accused v. Rights of a Victim. Legally Flawless.
[4] Davis, R. C., & Mulford, C. (2008). Victim rights and new remedies: Finally getting victims their
due. Journal of Contemporary Criminal Justice, 24(2), 198-208.
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Society, 32(2), 294-316.
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[7] McCarthy, C. (2012). Victim Redress and International Criminal Justice: Competing Paradigms, or
Compatible Forms of Justice?. Journal of International Criminal Justice, 10(2), 351-372.
[8] Van Dijk, J. (1988). Ideological trends within the victim’s movement: An international perspective. Victims
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[9] Lamborn, L. L. (1987). The United Nations Declaration on victims: incorporating abuse of power. Rutgers
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[11] Hambali, Y. (2015). Finding Voice for Victims of Crime in the Adversarial Criminal Justice System. The
GSTF Journal of Law and Social Sciences, 4(2), 1–6.
[12] Bakshi, G. K. (2022, April 29). A victim has unbridled participatory rights from the stage of investigation
till the culmination of the proceedings: SC – The Leaflet. The Leaflet.
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