PublicationsTo what extent is the criminal justice system in India geared toward witnesses/victim protection?

April 27, 20214
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Abstract

This paper talks about the absence of fair treatment and justice towards the victims. It further acknowledges the fact that the right of restitution for the victims has not yet been imposed statutorily and how the victim’s right to get compensated is narrow and limited. The paper talks about the steps taken by the Indian government towards witness and victim protection under the criminal justice system and outlines other possible solutions for the same. Lastly, a conclusion is drawn keeping in mind the common law tradition followed in India.

Access to Fair Treatment and Justice

The law has responded inadequately to rape victims and violent crimes against women. By shifting the burden of proof and imposing minimum punishments for the offence, the needs of the victim are not treated with dignity. The law fails to protect the victims from intimidation, to provide rehabilitation and legal aid and absence of readily access to the mechanisms of justice.[1] Even till now, in- camera trials have not been made mandatory, especially when the victim is a child.[2] Moreover, the rehabilitative needs of the rape victims are not recognised through any statutory scheme.

The procedural state did not merit the attention for position of women and children victims that they deserve. The protection under Section 160 Cr. PC that “no male person under the age of 15 years or women shall be required to attend any place other than the place in which such male person or woman resides” is not applicable to a woman or child suspect[3].

The rape victim’s plight is compounded on the pretext for providing evidence even though there is no legal basis for such a detention by holding them in women’s shelters known as Nari Niketans.

The increasing menace of victim and witness intimidation during the trial pendency has not been properly addressed by the Cr. PC. as the few existing provisions themselves are not used creatively in order to meet the challenge. Recently, there has been a 39.6% drop in the conviction rate and till the time the witnesses win, the sensational cases do not start with their trial. To ensure a fair trial, the court responds by holing sittings in camera while trying the case or changing the trial venue to a place which is safer. Another option which is not very frequently invoked is filing a petition under Section 406 Cr.PC. seeking a transfer of the trial to another state[4].

Restitution

The right of a victim of restitution to wrongdoing has not yet justified statutory acknowledgment. Here, the constitutional courts have been slanted to analyse the plea of victims for redressal of the misfortunes endured during violent occurrences including riots and rank conflicts. The rule that is evoked is that of culpable inaction due to which the state and its offices are required to foresee the misfortunes or harm to private and public property in specific circumstances which are not in control of the potential victims[5].

The courts express that it is just when the officials of the state do any demonstration decidedly or neglect to go about as examined under law prompting culpable inaction, that the liability to pay the damages comes on the State. There ought to be an immediate nexus for the harm endured by virtue of state activity and if that is missing, Article 21 of the Indian Constitution is absolutely inapplicable. This area is still evolving where the courts have been cautiously treading[6].

Compensation and Assistance

A victim’s right to get compensation was perceived considerably under the Code of Criminal Procedure, 1898, yet was accessible just where a meaningful sentence of fine was forced and was restricted to the measure of fine really figured it out. S.357 (3), Cr. PC 1973 licenses the right of compensation even where the blamed isn’t condemned to fine. However, this arrangement is summoned sparingly and conflictingly by the courts[7].

The recommendation in the 152nd  Report of the Law Commission included introducing Section 357-A applying inter alia that compensation be granted at the hour of condemning the crime victims with Rs.25,000/ – on account of substantial injury, not leading to death; Rs.1,00,000/ – on account of death[8].

The court suggested that a law should be made by the State for separating the wages portion earned by the detainees which they have to pay as compensation to meriting victims of the offence, the commission of which involved the sentence of the prisoner’s imprisonment, either legitimately or through a typical store to be made for this reason or in another doable mode.

Domestic Developments undertaken for Victims of Custodial Crimes and Witness Protection

Ongoing local improvements require to be taken a note of. Victims feel neglected and are sobbing for consideration and justice. In its turn the Malimath Committee, in the wake of making broad proposals to guarantee that the framework must concentrate on equity to victims, has reasoned that criminal equity organization will expect another heading towards better and faster equity once the privileges of victims are perceived by law and compensation for death toll, appendage and property are accommodated in the system. While to a great extent agreeing with the suggestions of the Law Commission of India according to witness protection the Malimath Committee infers that the opportunity has arrived for a far reaching law being sanctioned for insurance of the observer and individuals from his family[9].

The administration on August 14 2003, postponed in the Parliament the Criminal Law (Amendment) Bill, 2003 which proposed a progression of changes including the inclusion of new Section 164-A and 344-A in the Cr. PC to manage the issue of witnesses becoming hostile. Further, Section 195-A is proposed to be presented in the Indian Penal Code making the compromising or initiating of any individual to give bogus proof a cognizable and non-bailable offence culpable with detainment for seven years or fine or both. This reaction of the administration isn’t just specially appointed yet in addition deficient as it neglects to address the entire scope of issues raised by victims of crime.

Progressive Solutions

Reorienting the criminal justice system in addressing the necessities of victims of crime need not and maybe ought not be selective of the need to authorize and ensure the rights of suspects just as the privileges of the accused. It should be conceivable to suit the two. prerequisites as has been done in nations like United Kingdom and the United States of America. In the first place it is fundamental to recognize that our legal framework isn’t prepared currently to successfully manage mass violations, including the wrongdoings of genocide and wrongdoings against humanity. It is imperative to set up an agency which is accountable and independent through suitable modification among the models available like the model which helped in creating ICC by the Statue. This should be incorporated within the statutory legal framework[10].

The constraint of the assets of the State in making satisfactory arrangement assisting a victim should not to be countenanced longer than presently.  Attempting to formulate a legal plan of witness protection should be gone before by a wide scope of interviews by the law making body with victims of crime as well as other legal bodies like the National Human Rights Commission which are tormented with a rising complaints. The methodology likewise had to be multi-disciplinary including, inter alia, sociologists, persons of law and experts from the field of medication. Keeping in mind the endemic postponements by litigants in the current legal system, it would be proper to create various types of dispute resolutions  without thinning the requirement for provision of equal and fair justice to victims of crime. The U.N. Declaration keeps on filling in as a valuable benchmark to address the necessities of victims of crime to reorder the criminal justice system[11].

Conclusion

The short audit of the current legal framework according to the victim’s rights of crimes uncovers that aside from in the region of compensation, next to no has been done

either by the statue or through plans to address the whole scope of issues looked by victims of a crime. A fresh look needs to be taken for the victim’s position in the criminal justice framework.

The job of the survivor of a crime in our criminal justice system, which adheres to the tradition of common law, is limited to that of a witness’s role in the prosecution of an offence.  This stems from a contrary view of the victim of crime as an individual who has endured hurt, including mental and physical injury, passionate misery, financial misfortune or considerable disability of their fundamental rights. As a result, a vertical dimension is acquired by the criminal justice system which the State evolves as a formal social control to exclude the victim and taking over the prosecution of the offender[12] 

BIBLIOGRAPHY

Articles

  • Muralidhan, S. “Rights of Victims in the Indian Criminal Justice System.” International Environmental Law Research Centre, n.d.
  • Jyosna Digh. “ Victims’ Rights in India.” Legal Service India.
  • Ramanathan, Usha. “A Criminal Appraisal of the Laws Relating to Compensation for Personal Injury,” September 2001.
  • “152nd Report on Custodial Crimes.” Law Commission of India, 1994.
  • “Report of the Committee on Reforms of Criminal Justice System.” Government of India Ministry of Home Affairs, March 2003.
  • Kirchhoff, Gerd Ferdinand. “Victimology – History and Basic Concepts.” International Debates of Victimology, 1994.
  • Grover, Vrinda. “For a Detailed Analysis of the Failure of the Legal System to Deal with the Mass Killings of 2733 Sikhs in Delhi in November 1984 in the Wake of the Riots Following the Assassination of the Prime Minister.” Quest for Justice 1984 Massacre of Sikh Citizens in Delhi, 2002.

Case Laws

  • Sakshi v. Union of India (2001) 10 SCC 732
  • Nandini Satpathy v. P.L.Dani (1978) 2 SCC 424
  • State of J&K v. Jeet General Store AIR 1996 J&K 51
  • Hari Singh v. Sukhvir Singh (1988) 4 SCC 551
  • State of Maharashtra v. M. P. Vashi (1995) 5 SCC 730

[1] Jyosna Digh. “ Victims’ Rights in India.” Legal Service India.

[2] Sakshi v. Union of India (2001) 10 SCC 732

[3] Nandini Satpathy v. P.L.Dani (1978) 2 SCC 424

[4] Muralidhan, S. “Rights of Victims in the Indian Criminal Justice System.” International Environmental Law Research Centre , n.d.

[5] Ramanathan, Usha. “A Criminal Appraisal of the Laws Relating to Compensation for Personal Injury,” September 2001.

[6] State of J&K v. Jeet General Store AIR 1996 J&K 51

[7] Hari Singh v. Sukhvir Singh (1988) 4 SCC 551

[8] “152nd Report on Custodial Crimes.” Law Commission of India, 1994.

[9] “Report of the Committee on Reforms of Criminal Justice System.” Government of India Ministry of Home Affairs, March 2003.

[10] Grover, Vrinda. “For a Detailed Analysis of the Failure of the Legal System to Deal with the Mass Killings of 2733 Sikhs in Delhi in November 1984 in the Wake of the Riots Following the Assassination of the Prime Minister.” Quest for Justice 1984 Massacre of Sikh Citizens in Delhi, 2002.

[11] State of Maharashtra v. M. P. Vashi (1995) 5 SCC 730

[12] Kirchhoff, Gerd Ferdinand. “Victimology – History and Basic Concepts.” International Debates of Victimology, 1994.

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Author: Seema Bindal

Designation: 3rd Year Law Candidate 

Organisation: Jindal Global Law School

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Vinay Bindal
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Very informative and precise to point .
Well written!!

Prerna
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Keep up the good work

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