RIGHTS OF VICTIMS

RIGHTS OF VICTIMS*

Cases referred

Hari Shankar v. Sukhbir Singh [AIR 1988 SC 2127]

Bodhisattwa Gautam v. Subhra Chakrabort [AIR 1996 (1) SCC 450]

Dr Jacob George v. State of Kerala [AIR 1994 (3) SCC 430]

Punjab v. Ajaib Singh [AIR 1995 (2) SCC 486]

Delhi Domestic Working Women’s Forum v. Union of India [AIR 1995 (1) SCC 14]

Inder Sinha v. State of Punjab [AIR 1983 (3) SCC 702]

Rudul Shah v. State of Bihar [AIR 1983 SCC 1086]

People’s Union for Democratic Rights v. State of Bihar [AIR 1987 SC 355]

 Nilabati Behara v. State of Orissa [AIR 1993 SC 1960]

D. K. Basu v. State of West Bengal [AIR 1997 SC 610]

Anyone with even a passing interest in victimology must understand the types of victims of crime and the ways in which to secure for them a proper place in the criminal justice process, with an emphasis on their rights.

It is also important to note the changing scope of victimology, keeping in mind the changes brought about by human rights activists. The attempt should be to trace the growth in the number of victims of crime and redefine those whose rights have been violated, either by the State or private individuals. It is also necessary to find out the existing schemes for compensation.

Victimology, therefore, needs to be studied from the point of view of recognition of the victim, awareness of the needs and rights, and understanding the process of victimisation.

Early history of victimology

Before society became organised, people merely took the law into their own hands and avenged their victimisation without any restriction or outside interference.The response to victimisation becomes a collective responsibility when the individuals became identifiable through their social groups, in the form of clans or tribes.

Alternative methods of redressal were developed to reduce violence and to arrest feuding among clans. Offenders who had surplus wealth devised the method of offering it to the victims as compensation. This method was formalised through the code of Hammurabi. In many other jurisdictions over the globe it was, however, followed under different connotations, like the death fines of the Greeks, early Hebrews, Hindus and Turks. It also existed in the Roman law of Twelve Tables and Law of Moses.

Scope of victimology

Beginning in the 1940s and particularly by the late-1960s, an emerging science of victimology significantly boosted the victims’ status. At the same time, the growing movement for women’s rights and the broadening horizon of human rights jurisprudence influenced and promoted victims’ interests.

Separovic synthesised the definition of victimisation as:

“Victims are persons threatened, injured or destroyed by an act or omission of another man (man, structure, organisation or institution). Suffering may be caused by another man or another structure where people are also involved.”

Separovic, therefore, interprets crime as the violation of basic human rights contained in the general universal concept of human rights as accepted by the international community with reference to right to life, health, security and well being. Man-made victimisation is a violation of the human rights of the victim, therefore crime and victimisation as per his thesis, need to be evaluated in terms of violation of human rights of individuals which were developed individualistically as political rights to freedom and to participate in shaping community.

A parallel development of thought in Latin America was expressed by legal professional Elias Neumann in 1984. He looked at certain groups of the community who were victimised by the legal system, such as victims of police brutality, torture or even instances of the non-existence of legal assistance.

Indian experience

i. Constitutional Mandate

The recognition of human rights was declared in the Indian Constitution through the Fundamental Rights and Directive Principles of State Policy.

Article 21 lays down that no person shall be deprived of life or personal liberty except according to the procedure established by law. Article 38 enjoins upon the State to promote the welfare of the people.

Thus, when an individual’s fundamental or legal rights are violated because of the callous attitude of the custodians of the law, then the State shall be held responsible and the courts should not hesitate in granting compensation in appropriate cases.

ii. Other legal safeguards

In India, the provisions relating to compensation to the victims of crime are laid down in Sections 250, 357 and 358 of the Criminal Procedure Code (Cr.P.C.), 1973, Section 5 of the Probation of Offenders Act, 1958, and Sections 140-144 of the Motor Vehicles Act, 1988.

Section 250 Cr.P.C. deals with compensation in a case instituted upon a complaint or information given to a police officer or magistrate on false or frivolous accusations. It does not apply to a case instituted on a police report or on any information given by the police officer regarding a cognizable offence. The following conditions must be fulfilled for an order of compensation:

• The case must have been instituted either on a complaint or on information given to a police officer or magistrate.
  The person against whom the complaint is filed or information given must be accused of an offence.
  The offence must be such that a magistrate can try it.
• The magistrate discharges or acquits the accused.
• There was no reasonable ground for making the accusation against the accused.

Similarly, the object of Section 357 is to provide compensation to those entitled to recover damages from the person sentenced, even though the fine does not form a part of the sentence. In awarding compensation it is necessary for the court to decide whether or not the case is one to be so. The capacity of the offender to pay compensation is to be determined, because the object is to collect the fine and pay it to the victim. The purpose will not be served if the offender does not have the capacity to pay and a sentence in default of payment of fine or compensation is imposed. Further, an Appellate Court, Sessions Court or High Court – while exercising its power of revision – may also make an order under this Section. At the time of awarding compensation in any subsequent civil suit relating to the same matter, the court should take into account any sum paid or recovered as compensation under this Section.

Section 358 deals with compensation to those arrested without any grounds. If the magistrate holds that the arrest has been made without sufficient ground, he can pass orders of compensation for such an arrest.

Similarly, Section 5 of the Probation of Offenders Act, 1958, empowers the court to order the released offender to pay compensation and costs in appropriate cases. Moreover, the Section provides that the compensation and costs may be recovered as a fine, as under Section 357 Cr.P.C.

In addition to these provisions, an application under Sections 140 -144 of the Motor Vehicles Act, 1988 can also be filed for recovery of damages within six months of the accident to the Motor Accident Claims Tribunals, and an action for relief in the criminal courts initiated.

These legal provisions make it clear that the victim or dependents have no legal right to claim compensation from either the offender or the State. The courts too seem to have no wide powers to deal with the plight of victims, and have to award compensation within the framework of these provisions. Further, the reluctance on the part of courts to enforce legal provisions relating to fines, works as a bottleneck in improving the lot of victims. This reluctance seems to be due to two factors: First, the courts think that the offender in most of the cases is not capable of paying the compensation; second, they are hesitant to indefinitely keep files open due to an increasing workload, and so award other sentences.

In its 41st report, the Law Commission of India expressed its view about the rigid attitude of the courts and rare use of this provision.Similarly, fines under the Cr.P.C. are a part of the penalty, whereas under the Probation of Offenders Act, it has no penal element. Further, under Section 357 Cr.P.C., where no fine is imposed, no order of compensation can be passed.

iii. Protection of Human Rights Act, 1993 and victimology

Nearly five decades after the United Nations adopted the Universal Declaration of Human Rights in 1948, Parliament enacted the Protection of Human Rights Act, 1993 , with an aim to protecting the human rights of its citizens guaranteed by the Constitution. The function of the National Human Rights Commission (NHRC) has been detailed in Section 12 of the Act, which, in addition to others, gives it the power to inquire into complaints of human rights violations or public servants’ negligence in the prevention of such abuse. The Commission has also been empowered to recommend measures for the effective implementation of constitutional and legal safeguards for the protection of human rights. Since the enactment of the Human Rights Act, 1993, NHRC has worked as a watchdog, providing protection to a number of people who have been victimised and whose rights have been infringed on either by the commissions or omissions of the State.

iv. Indian Society of Victimology

The Indian Society of Victimology, established in 1992, drafted the Victims (Criminal Injuries) Right to Assistance Bill, 1996, providing assistance to victims of criminal injuries and abuse of power. The Bill has set out the whole scheme regarding institution of funds, the machinery for the distribution of funds, the eligibility of the victim to receive the funds and the method of computation of compensation.

v. Jurisprudential approach

While victimology has grown rapidly in many countries, in India it has been understood more as a method of sentencing the perpetrator of the crime rather than a method of restituting the victim. This can be studied and understood as a method of compensating victims of crime (conventional) and compensating victims of abuse of power (non-conventional crime).

Compensatory technique for victims of crime

As early as 1988, the Supreme Court in Hari Shankar v. Sukhbir Singh [AIR 1988 SC 2127] directed all trial courts to exercise the power of awarding compensation to victims of crime under Section 357 Cr.P.C. liberally, so as to meet the ends of justice in a better way. This approach of the judiciary has now become more visible and is apparent from various pronouncements given in cases of rape, homicide, State lawlessness, custodial violence etc.

In the landmark case of Bodhisattwa Gautam v. Subhra Chakrabort [AIR 1996 (1) SCC 450] the Supreme Court brought out some creative principles of victim justice, which will have far-reaching impact. In this case, the respondent victim filed a complaint against the appellant for developing sexual relationship with her on the false assurance of marriage, compelling her to undergo two abortions and ultimately deserting her. The apex court said that it has the jurisdiction to pass orders compelling the accused to pay maintenance to the victim during pendency of the criminal proceedings. This case was unique because it held that the court had jurisdiction to award compensation to the victim under such conditions even when the accused is not convicted, due to the slow progress of the proceedings. It further emphasised that when a court trying a rape case has the jurisdiction to award compensation in the final stage, there is no reason to deny the court the right to award interim compensation.

In Dr Jacob George v. State of Kerala [AIR 1994 (3) SCC 430] a case relating to causing the death of a woman while performing an abortion with her consent, the Supreme Court reduced the sentence of four years rig- rous imprisonment imposed by the High Court, to two month., imprisonment, already undergone. The apex court, however, enhanced the fine amount of Rs. 1,000 awarded by the High Co rt to Rs. one lakh to be paid to the deceased’s minor son. The sentence was modified as the ultimate aim was the rehabilitation of the victim’s minor son.

In State of Punjab v. Ajaib Singh [AIR 1995 (2) SCC 486] the Supreme Court went a step further in granting a huge compensation to the victim even after acquitting the accused, as, during the pendency of the trial the accused had offered to pay a sum of Rs. five lakhs to avoid litigation.

The court, while enhancing the scope of compensation to victims, seems to have given the broader interpretation to the term ‘victim’ to include those whose basic human rights have been violated. Thus, in Delhi Domestic Working Women’s Forum v. Union of India [AIR 1995 (1) SCC 14] the apex court held that the jurisdiction to pay compensation shall be treated to be part of the overall jurisdiction of the courts trying the offence of rape, which is an offence against basic human rights and the fundamental rights of liberty and life.

Similarly, in Inder Sinha v. State of Punjab [AIR 1983 (3) SCC 702] there was proven evidence of violation of human rights committed by the Punjab police. The Supreme Court ordered compensation to be paid by the State as a token, for failure to enforce the law and order and protect its citizens.

Victims of abuse of power and constitutional remedy

Compensation to victims of abuse of power in India came by involving the written jurisdiction and giving wider connotations to Article 21 (right to life and personal liberty).

Every individual has an inalienable right to life and personal liberty that is guaranteed by Article 21 of the Constitution of India, and the apex court has given it a new orientation. Thus, this Article became a sentinel of the poor against governmental lawlessness. The Supreme Court has attempted to fill the lacunae in the field of compensation for police excesses by using its power under Article 32.

The apex court brought about a revolutionary breakthrough in human rights jurisprudence in Rudul Shah v. State of Bihar [AIR 1983 SCC 1086] when it granted a compensation of Rs. 35,000 to the petitioner against the lawless act of the Bihar government that kept him in illegal detention. The court observed:

“The refusal of this court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his Fundamental Right to liberty which the State Government has so grossly violated.”

It was pointed out that Article 21 would be denuded of its significant content if the power of the court was limited to passing orders of release from illegal detention. The Supreme Court further observed:

One of the telling ways in which the violation of the right can reasonably be prevented and due compliance with the mandate of Article 11 ensured is to compell its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of Fundamental Rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the. unlawful acts of instrumentalities which act in the name of public interest and which present for their protection of power the State as a shield. Therefore, the State must repair the damage done, by its officers to the petitioner’s rights. It may have recourse against those officers.”

The Supreme Court in People’s Union for Democratic Rights v. State of Bihar [AIR 1987 SC 355] laid down the working principle for the payment of compensation to victims of ruthless and unwarranted police firing. In this case, about 21 people — including children — died, and many more were injured due to the police’s unwarranted firing. The Supreme Court observed:

“Ordinarily in the case of death, compensation of Rs. 20,000 is paid. We may not be taken to suggest that in the case of death the liability of the wrong doer is absolved when compensation of Rs. 20,000 is paid. But as a working principle and for convenience and with a view to rehabilitate the dependents of the decreased such compensation is being paid.”

In Nilabati Behara v. State of Orissa [AIR 1993 SC 1960] a case of custodial death, the Supreme Court once again reiterated that in cases of violation of Fundamental Rights by the State’s instrumentalities or its servants, the court can direct the State to pay compensation to the victim or his heirs by way of ‘monetary amends’ and redressal. The principle of sovereign immunity will be inapplicable in such cases. In this case, the State was directed to pay Rs. one lakh as compensation to the deceased’s mother. The court further held that other liabilities of the respondents or any other persons for custodial death remain unaffected. It was observed:

“The court is not helpless and the wide powers given to the Supreme Court by Article 32, which itself is a Fundamental Right, imposes a constitutional obligation on the court to forge such new tools, which may be necessary for doing complete justice and enforcing the Fundamental Rights guaranteed in the Constitution which enable the award of monetary compensation in appropriate cases.”

To support the above observation, the court referred to Article 9 (5) of the International Covenant on Civil and Political Rights, 1966, and held that the said provision indicates that an enforceable right to compensation is not alien to the concept of a guaranteed right.

The trend to affirm the right of victim by involving Article 32 or 226 continued as late as 1997. The Supreme Court once again, in D. K. Basu v. State of West Bengal [AIR 1997 SC 610] reaffirmed its stand taken in Nelabati Behra case. The court observed:

“It is now a well accepted proposition in most of the jurisdiction, that the monetary and pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for the redressal of the established infringement of the Fundamental Right to life of a citizen by the public servants. The State is vicariously liable to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified from the wrongdoer.

In the assessment of compensation the emphasis is to be on the compensatory and not the punitive element. The object is to apply balm on the wounds and not to punish the transgressor or the offender, as, awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do.

The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages, which is lawfully available to the victim or heirs of deceased victim with respect to the same matter for the tortuous act committed by the functionaries of the State. The quantum of compensation will of course depend upon the peculiar facts of each case. The amount of compensation as awarded by the court and paid by the State to redress the wrong done, may in the given case, be adjusted against any amount which may be awarded to the claimant by way of damages in civil suit.”

The apex court’s approach has given a boost to victims and compensatory jurisprudence in India. Whatever little effort has been made by the courts should not die as a populist movement, as has happened with many innovative measures. It, therefore, seems necessary to institutionalise it by suitably amending the existing provisions of the Cr.P.C, and by enhancing a separate legislation dealing with compensation to victims of crime. It is necessary to lay down certain norms in such cases for determining the quantum of compensation (monetary) as well as the responsibility of primary assistance and other services to victims, who have been traumatised, both physically and psychologically.

vi. New trends and future action plan

When viewed from the broader perspective of human rights, the concept of victimology encompasses more than just victimisation and victims’ rights. Viewed in this manner, it also helps us to understand the growing international trends that promote victimology.

So far, victimology in India has been considered as being within the realm of criminology and therefore been understood as including only victims of crime. The broader interpretation of victimology helps us come out of this mode of thought to include other victims as well.

The media also has a role to play in this. Some victims are further victimised by the media, who fiercely compete with each other to report sensational news, particularly that which pertains to crime. Such reports, more often than not, have an adverse effect on victims of crime. The media must realise the power it wields, and use it judiciously and responsibly. For, the media, like the State, must always attempt to preserve social order.

*S. C. Raina, Branded edited by Renu Ghosh, 2001

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