Importance Of The Victim Law essay

Importance Of The Victim Law

As is evident from the above made statement, the victim plays a very important role in the criminal justice system of any country, be it India, France, Germany or The United States of America. It would not be an exaggeration to say that the criminal justice system of a country revolves around the victim. The victim forms the core of criminal justice system and has an important role to play beginning with the filing of police complaint to identification of the accused to trials to the punishing of the offender. This paper of mine is a small attempt to chart the course of the role of victim in a session trial.

However to even track the course of victim, it is necessary to identify first, who a victim is and what the criminal justice system is. A criminal justice system functions on three levels,

The first level is the system’s attempt to prevent socially harmful actions by prohibiting them under the threat of punishment. [1] Punishments act as deterrents (ideally) preventing the commission of crime.

However if the crime is committed, the second level of the system comes into play and that is the apprehension and finding guilty of the offender. While some might treat this as punishment itself, others are of the view that this is the stage of public trial and hence the stage of moral disapproval associated with the criminal system which functions on the mechanism of positive general prevention. The role of victim in this stage has been changing over the years and is the bone of contention between law makers and law enforcers and is open to debate and much interpretation. The question is whether the victim should be acknowledged as a subject in the trial (i.e., as a party). In the origins of criminal law, the victim and the prosecution were identical. In all legal systems, however, the historical development has led to the establishment of an official prosecution, while the victim’s role has been reduced to that of a witness. Nonetheless, the victim has retained certain partial rights as private prosecutor in both the common law and continental European legal systems. [2] And a few decades ago, the general development not only stopped, but, in fact, was reversed as the procedural rights of victims were reinforced both in the United States [3] and in Germany. In these countries the victims of any kind of criminal act are allowed to appear in court as ancillary private investigators. For this purpose, victims have extensive rights to read the files, to participate in the trial, and to consult a lawyer.

The third level is the one where the victim has a proactive role to play. It is the stage of victim-offender mediation and has been a subject of much debate in the international arena as to how justified it is, because researchers tend to think that it negates the entire purpose of criminal law if it removes the possibility of punishing the offender caused by decriminalization of crimes. However this is an issue we shall not be dealing with in this paper.

Eventhough we have discussed the three tiered role of victim in a criminal justice system, we are not clear on the idea of who a ‘victim’ is. The distinction of who is the victim is central both to the legislature’s work and to the courts interpretation of unclear phrasing in statutes. The 2008 Amendment Act, therefore, brought in the much needed definition of victim. It is read as:

2. In section 2 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the

principal Act), after clause (w), the following clause shall be inserted, namely:-

‘(wa) “victim” means a person who has suffered any loss or injury caused by

reason 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;’

In a criminal legislation, the role of the victim is that of the subject of social harm. The criminal justice system therefore depends on crime victims to come forward, report their crimes, and cooperate in seeking to hold offenders accountable. And this role of the victim as envisaged before and after the Criminal Procedure (Amendment) Act, 2008 is what we are going to shed some light on.

The victim’s rights rests on a kind of social contract theory, perhaps captured in the preamble to Louisiana’s 1985 victim’s rights legislation:

“In recognition of the civic and moral duty of victims . . . of crime to cooperate fully and voluntarily with law enforcement and prosecutorial agencies, and in further recognition of the continuing importance of such citizen cooperation . . . the legislature declares its intent . . to ensure that all victims . . . of crime are treated with dignity, respect, courtesy, and sensitivity, and that the rights extended . . . to victims . . . of crime are honored and protected by the law enforcement, (sic) agencies, prosecutors, and judges in a manner no less vigorous than the protection afforded the criminal defendants.” [4]

This appeal to the duty of victims reflects a belief that members of the polity owe cooperation to others as part of their understanding of community membership and that the community in turn owes them.

Under most of the legal systems of world, a victim is simply a complainant who activated the machinery of the criminal justice system by bringing evidence and information about illegal acts to the attention of the authorities. If the police solved the case and made an arrest, the victim then played an additional role as a witness for the prosecution and helping the government to secure a conviction. Since crime is conceptualized as an event that threatened and offended the entire community, and was prosecuted by the state on behalf of the People, the actual victim was treated like just another piece of evidence, a mere exhibit to be discarded after the trial. These kinds of systems were therefore inquisitorial systems with a purely adversarial façade, in a strict sense there were no parties at all, and both prosecutor and judge theoretically seek objective truth without being opponents of the defendant.

The responsibility of victims was only confined to reporting the incidents, cooperating fully with the investigation, and ultimately testifying as part of the state’s case in court. But the rights that the injured parties deserved within the criminal justice process, as it handled and resolved their cases, were not given much consideration at all. And the scenario was no different in India as well.

Which is why in the 1998 case of State Of M.P. vs Rammi @ Rameshwar And Ors. the trial judge held that, “Unfortunately, in the criminal justice delivery system, the victim has a minimum role to play and can assist the Court in reaching the truth only through the agency of the State i.e. the prosecution. The trial Judge, therefore, has to give due allowance to minor lapses and omissions of the prosecution agency.” [5]

Similarly in the case of, Touseef Ahmad v. State of Jammu and Kashmir, the court said that, “the Court should also keep in view that in the scheme of criminal justice system prevalent generally it is the State and not the victim which prosecutes the offender of law. The victim only assumes the role of a material witness in establishing the commission of crime.” [6]

The onset of change however happened with the submission of the Malimath Committee report in the year of 2003, which talked of rights of victims in the criminal justice system including their right to compensation, which is not covered in the ambit of this paper. We shall stick to recommendations regarding those rights of victims which propagate a greater involvement of the victim with the system and a more active role for him/her.

The Malimath Committee Report as it spelt out in the section of ‘Justice to the Victims of Crime’ is quoted as follows:

An important object of the criminal justice system is to ensure justice to the victims, yet he has not been given any substantial right, no event to participate in the criminal proceedings. Therefore the Committee feels that the system must focus on justice to victims. Therefore the Committee has made several recommendations which include the right of the victim to participate in cases involving serious crimes and to adequate compensation. Hence, the Committee has made the following recommendations:-

a) The victim, and if he is dead, his legal representative shall have the right to be impleaded as a party in every criminal proceeding where the offence is punishable with 7 years imprisonment or more.

b) In select cases notified by the appropriate government, with the permission of the court an approved voluntary organization shall also have the right to implead in court proceedings.

c) The victim has a right to be represented by an advocate of his choice; provided that an advocate shall be provided at the cost of the State if the victim is not in a position to afford a lawyer.

d) The victim’s right to participate in criminal trials shall, inter alia, include:

a) to produce evidence, oral or documentary, with leave of the Court and/or to seek directions for production of such evidence

b) to ask questions to the witnesses or to suggest to the court questions which may be put to witnesses

c) to know the status of investigation and to move the court to issue directions for further to the investigation on certain matters or to a supervisory officer to ensure effective and proper investigation to assist in the search for truth.

d) to be heard in respect of the grant or cancellation of bail

e) to be heard whenever prosecution seeks to withdrawand to offer to continue the prosecution

f) to advance arguments after the prosecutor has submitted arguments.

g) to participate in negotiations leading to settlement of compoundable offences.

e) The victim shall have a right to prefer an appeal against any adverse order passed by the court acquitting the accused, convicting for a lesser offence, imposing inadequate sentence, or granting inadequate compensation. Such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such a court. [7]

As is evident from the above mentioned the victim was a mere puppet in the hands of the public prosecution to be used and discarded for the furtherance of their own agenda without so much as some thought to what the victim actually needs because of which he has filed the complaint in the first place. This started changing however soon after the 2008 Amendment Bill came into existence in 2006 and when it was eventually passed in 2009. The next chapter deals with the change in position of the victim in a trial for his justice with the onset of the CrPC Amendment Act of 2008.

Like the Act of 2004 of the federal, Justice for All Act, which permitted victims to have their own attorney and file motions to reopen pleas and sentences under certain circumstances in federal cases, after the passing of the CrPC Amendment Act in 2008, the role of victims in the Indian Criminal Justice System and session trials more so became proactive compared to the earlier passive one.

The idea that, the best way to make sure that victim could pursue their personal goals and protect their own best interests is by granting them formal rights, duties and roles within the criminal justice system led to the proposal of amendment of the CrPC in 2006 and subsequently in 2008.

Thus with the onset of the Amendment Act of 2008, the scenario changed a bit and now the victim is not revictimised by reducing his position to that of a mere witness. This was evident from the benefits of plea bargaining which set in with the Criminal Law (Amendment) Act of 2005 [8] . Although the crime is against the state and the society but it is ultimately the victim which need to be satisfied. Thus plea bargaining came up as a ‘victim oriented reform’ in the criminal justice system. Perhaps, it was the first time that the recommendation and suggestion of law commission in CrPC had been implemented for taking care of the interest of the victim. [9] It provided greater respect and consideration towards the victim and their rights. [10] There was a scheme for compulsory compensation; and also satisfactory disposition of the case. The plea bargaining also mandated for giving compensation to the victims of the crime. When the process was completed and the quantum of punishment and possibility of the probation was finished, we could say that the victims were not the forgotten actors rather they had become key players in the criminal justice system. [11] The rights of the victims were better upheld; and they did not have to satisfy themselves with the court decision. They could bargain over the court’s decision.

The victim did not have to produce evidence in the court and thus led to reduction in anxiety to the victims and the unpleasantness of hearing all details of crime analyse in length in public. [12] For those who did give evidence the process was often stressful [13] . Due to plea bargaining the victim could even avoid the stress and publicity of trial; and even the court’s time was saved. All in all plea bargaining brought about a new ray of hope for the victims of crimes.

Then next came the CrPC (Amendment) Act of 2008 which made some changes to the laws pertaining to the victims mentioned in CrPC. Those were as follows:

The scope and definition of victim was amended so as to include the victim’s legal guardian or heir in the definition itself.

Referring to the amendment of S. 24 [14] , now the court could permit the victim to engage an advocate of his choice to assist the prosecution under this subsection.

Newly inserted section 357A incorporated a newly introduced Victim Compensation Scheme in order to alleviate the sufferings of the victim and to provide important safeguards to their rights. (Not quite a role that they play in the trials but a safeguard and incentive necessary to ensure the proper playing of their roles.)

Amendment to section 372 [15] provided that the victim shall now have the Right to Appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. [16]

Thus we see that the victim is now empowered with greater rights and duties to perform during a trial rather than just being a mere witness used and discarded by the prosecution at their will. They are taken more seriously during trials and greater attention is now paid to their demands and their wants from a trial rather than just the idealistic punishing of the offender.

However no ride towards greater empowerment is ever smooth and the rights and roles of victims in trials are no exception to this hard fact of life. Resistance to progress in the field of victims’ rights arises out of the inherently contradictory role of victims within the criminal justice system. The contradiction may arise at any of the following instances: On the one side, victims are allies of the government in the state’s effort to suppress lawbreaking, through punishment or compulsory treatment. But the victims are treated as junior partners on the same side as the police and the prosecution, reforms intended to empower victims might end up facilitating the government’s ability to convict and punish those persons that officials choose to pursue selectively. If it turns out that changes designed to strengthen the position of victims in the criminal justice process actually strengthen the position of law enforcement agencies and the prosecution in the adversarial system, then this would lead to enhancements of distrust, alarm, and opposition from individuals and groups concerned with constitutional rights, procedural safeguards, and due process guarantees. On the other side, victims are independent actors in the criminal justice process. In defense of their own best interests, they might advocate courses of action that are rejected by a police officer, the assistant district attorney, the judge, the warden, or the parole board. What victims define as their best interests in their cases often diverges from or directly clashes with the goals of the state. Therefore it is a widely held idea that, the victim should not be assigned the role of a party or even a quasi-party in the criminal trial. This holds, of course, if, and only if, we have a traditional criminal trial, that is, a process aiming at the imposition of criminal punishment in the narrow sense. The situation however has been changing over the years with the idea of why a trial is necessary. This change is evident when one ponders replacing punishment with restitution and reconciliation, both of which have to be defined and effected in collaboration with the victim. And thus we see that a trial is not only about punishing the wrong-doer but also bringing justice to the one who has been harmed, the victim. And this might not necessarily be throwing of the criminal into the jail. It could mere societal work that the victim expects out of the offender. Anything that makes the victim feel put back in his or her earlier position. And putting across their wants is what is now possible with their increased roles in the session trials and criminal justice system as such.