Emerging Trends in Victimology

International Position:
      The Declaration of Basic Principles of Justice for Victims
of Crime and Abuse of Power (UN General Assembly, 1985),
considered the ‘magna carta’ for victims, provides the basic
framework of principles which in the last two decades have been
vociferously debated and converted as victims’ rights by some of the
developed countries. The international standards expected of the
countries in the treatment of victims have been elaborately detailed in
the UN Handbook on Justice for Victims. (1)

      The newly generated interest in crime victims has led to certain
trends and policies, some of them are as follows:

 It is being increasing realized that the victim must be treated

with dignity and respect by the criminal law agencies, viz. The police
and the courts. Often secondary victimization results because of
the indifferent and callous attitude not only of the criminal law
agencies but also of the people in vicinity, hospitals and mass media as
well. In the USA and some European countries, statutory guidelines in
the form of “Victims Bill of Rights” are being provided.
 A victim has hardly any role in the criminal justice system
though there is an increasing awareness now that the victim must be
given rightful participation in the trial. For instance, in USA under the
Witness Protection Act, 1982, victims are to be consulted in the plea
bargaining process. In Germany, compensation is now payable to a
victim if the charges are dropped against an offender.
 Innovative use is being made of certain sentencing techniques
like probation to provide relief to the victims. An offender, in
appropriate circumstances, may be released on probation, if willing to
compensate the victim. For instance, in England, under the Criminal
Justice Act, 1982, as amended in 1988, the court must specify the
reasons for not making an order for compensation.

(1) Chockalingam, Kumaravelu, Measures for Crime Victims in the Indian Criminal
Justice System, Resource Material Series No. 81 , p. 101
  In certain kinds of situations where the guilt of the offender is
clear, efforts are made to bring the victim and wrong-doer
together in order to lead them to agreement or adjustment for
the restoration of losses to the victim, there being a greater
potential in this kind of approach rather than the mere
punishment of the offender. (2)

Position in India:
      The police play a pivotal role in victim assistance as it is the first
agency victims come into contact with after being victimized by a
crime. The attitude of the victims towards the entire criminal justice
system will be based on the kind of treatment the victims get from the
police whom they first encounter. Unfortunately, in India the police
are still not oriented to meet the expectations of the victims as per the
UN Handbook on Justice for Victims. The police at the field level who
are in actual contact with the victims in day–to-day crime situations
are blissfully ignorant of the international developments in the field of
Victimology and the better treatment victims deserve from the police.

      The UN Handbook says that “victims have a valid interest in the
prosecution of the case and should be involved at all stages of the
proceedings”. In practice, the entire court proceedings protect the
rights and interest of the accused, neglecting the victims’ interest.
Excepting that the victims are summoned to tender evidence in courts,
the various services and assistance to be rendered by the prosecution
to victims are not practiced in the criminal courts in India. With
regard to the role of the judiciary in justice for victims, though judges
are by and large sympathetic towards victims, on many of the
requirements, such as separate waiting halls, information about the
criminal proceedings, special services and support, ordering of
restitution to victims, victim participation, victim protection etc. we
have a long way to go to realize victim justice in India.

However, in the last decade, there is greater awareness on the part of

the higher judiciary of the need for a better treatment of crime victims
by the criminal justice agencies at different stages in India and this is
reflected in the recommendations of the different committees and
commissions calling for reforms in the criminal justice system. (3)

(2) Siddique, Ahmad, Criminology, 5th Ed., Eastern Book Company, Lucknow,

2005, p. 556
 (3)  Chockalingam, supra note 22, p. 102

Affirmative Action by the Higher Judiciary

 Restitution to Victims– Despite the absence of any special
legislation to render justice to victims in India, the Supreme Court has
taken a proactive role and resorted to affirmative action to protect the
rights of victims of crime and abuse of power. The court has adopted
the concept of restorative justice and awarded compensation or
restitution or enhanced the amount of compensation to victims,
beginning from the 1980s. (4)
 Justice for Rape Victims – Guidelines for Victim Assistance
in Bodhisattwa Gautam v. Subhra Chakraborty (5)  the Supreme
Court held that if the court trying an offence of rape has jurisdiction to
award compensation at the final stage, the Court also has the right to
award interim compensation. The court, having satisfied the prima
facie culpability of the accused, ordered him to pay a sum of Rs.1000
every month to the victim as interim compensation along with arrears
of compensation from the date of the complaint. It is a landmark case
in which the Supreme Court issued a set of guidelines to help
indigenous rape victims who cannot afford legal, medical and
psychological services, in accordance with the Principles of UN
Declaration of Justice for Victims of Crime and Abuse of Power, 1985:
1. The complainants of sexual assault cases should be provided
with a victim’s Advocate who has to explain to the victim the
proceedings, and to assist her in the police station and in Court and to
guide her as to how to avail of psychological counselling or medical
assistance from other agencies;
2. Legal assistance at the police station while she is being
questioned;
3. The police should be under a duty to inform the victim of her
right to representation before any questions are asked of her and the
police report should state that the victim was so informed;
4. A list of Advocates willing to act in these cases should be kept at
the police station for victims who need a lawyer;
5. The Advocate shall be appointed by the Court, in order to ensure
that victims are questioned without undue delay;
6. In all rape trials, anonymity of the victims must be maintained;
 (4) Sukhdev Singh v. State of Punjab (1982 SCC (Cr) 467), Giani Ram v. State of
Haryana (AIR 1995 SC 2452), Baldev Singh v. State of Punjab (AIR 1996 SC
372)
(5)  (AIR 1996 SC 922)

7. It is necessary, having regard to the Directive Principles

contained under Article 38(1) of the Constitution of India, to set up a
Criminal Injuries Compensation Board. Rape victims frequently incur
substantial financial loss. Some, for example, are too traumatized to
continue in employment;
8. Compensation for victims shall be awarded by the Court on
conviction of the offender and by the Criminal Injuries Compensation
Board whether or not a conviction has taken place. The Board will take
into account pain, suffering and shock as well as loss of earnings due
to pregnancy and the expenses of childbirth if this occurred as a result
of the rape.
 State Compensation for Victims of Abuse of Power – As
early as 1983, the Supreme Court recognized the need for state
compensation in cases of abuse of power by the State machinery. In
the landmark case of Rudul Shah v. State of Bihar (6) the Supreme
Court ordered the Government of Bihar to pay to Rudul Shah a further
sum of Rs.30,000 as compensation, which according to the court was
of a “palliative nature”, in addition to a sum of Rs.5,000, in a case of
illegal incarceration of the victim for long years. Similarly in Saheli, a
Women’s Resources Centre through Mrs . Nalini Bhanot v.
Commissioner of Police, Delhi Police (7) the Court awarded a sum of
Rs.75, 000 as state compensation to the victim’s mother, holding that
the victim died due to beating by the police.
 Victims right to challenge bail – In Puran v. Rambilas
(8) and P. Rathinam v. State (9), the Apex Court interpreted Section
439 (2) Cr.P.C. in a way that the victim has a say in the grant of bail to
an accused. The Court recognized the right of the complainant or any
‘aggrieved party’ to move the High Court or the Court of Sessions for
cancellation of a bail granted to the accused.
 (6) AIR 1983 SC 1086
(7) AIR 1990 SC 513
(8) (2001) 6 SCC 338
(9)(2000) 2 SCC 391
Recommendations of Commissions and
Committees on Justice to Victims in India
      During the last decade, there has been significant change in the
thinking of the judiciary about the human rights of victims. The
concern of the courts and the judicial commissions and committees
about the need to have a law on victim compensation or a
comprehensive law on victim justice has been reflected in their
judgments and reports.

 The Law Commission of India, 1996

      The Law Commission, in its report in 1996, stated that, the State
should accept the principle of providing assistance to victims out of its
own funds,

1. in cases of acquittals; or
2. where the offender is not traceable, but the victim is identified;
and
3. also in cases when the offence is proved
 The Justice Malimath Committee on Reforms of Criminal
Justice System

      The Justice V. S. Malimath Committee has made many

recommendations of far-reaching significance to improve the position
of victims of crime, including the victim’s right to participate in cases
and to adequate compensation. Some of the significant
recommendations include:

1. The victim, and if he is dead, his legal representatives shall have

the right to be impleaded as a party in every criminal proceeding
where the charge is punishable with 7 years imprisonment or more.
2. The victim has a right to be represented by an advocate of his
choice, provided that if the victim is not in a position to afford a
lawyer, the State would provide him with so.
3. The victim’s right to participation in a criminal trial shall,
inter alia, include:
4. To produce evidence, oral or documentary, with leave of the
court and/or to seek directions for production of such evidence
5. To ask questions to the witnesses or to suggest to the court
questions which may be put to the witnesses
6. To know the status of investigation and to move the court to
issue directions for further investigation on certain matters or to a
supervisory officer to ensure effective and proper investigation to
assist in search of truth
7. To be heard in respect of the grant or cancellation of bail
8. To be heard whenever prosecution seeks to withdraw
9. To advance arguments after the prosecutor has submitted
arguments
10. To participate in negotiations leading to settlement of
compoundable offences
11. The victim shall have a right to prefer an appeal against any
adverse order passed by the court acquitting the accused, convicting
him for a lesser offence, imposing inadequate sentence or granting
inadequate compensation
12. Victim compensation is a State obligation in all serious crimes,
whether the offender is apprehended or not, convicted or acquitted.
This should be organized in a separate legislation by the Parliament.
13. The victim compensation law will provide for the creation of
a Victim Compensation Fund to be administered possibly by the
Legal Services Authority.(10)

Compensation under the Indian Constitution

The Apex Court has continuously interpreted the Constitution of our
country in a way to protect life and liberty of people and uphold their
rights in the society. One of the most important Articles of our
Constitution is Article 21. It has been interpreted in numerous ways by
the Courts in India. The Supreme Court has interpreted Art. 21 in a
manner which also includes compensation to victims under its purview.
In a landmark case, the Supreme Court suggested that the National
Commission for Women should come up with a new scheme which
provides a compulsory compensation to victims of sexual offenses.

(10) Randhawa, supra note 1, pp. 153-

The Law Commission of India has also supported the concept
of compensation to victims, through its many Law
Commission reports like the 142nd, 144th, 146th, 152nd, 154th,
and the 156th Report, which are of prominence in the field of
victimology and victim compensation. Following various
judicial pronouncement and Reports, the legislature added
Section 357A to the Code of Criminal Procedure Code in the
year 2009.(12) In its 42nd Report, the Fifth Law Commission
dealt with three patterns of compensating a victim of crime
as reflected in the Criminal Codes of countries like Germany,
France, and Russia. The three patterns are:

1. Compensation by the State.

2. Compensation by the offender by imposing some sanctions.
3. Duty to repair the damage caused by the offender, i.e.,
restitution.

The concept of Victimology is gaining importance in the field of Criminal

Justice System slowly but surely. The Judiciary and the Legislature also
need to put in a little more efforts to help the growth of the concept,
because though rules and provisions exist, the plight of the victims, not
only in India but all over the world has not improved much (especially in
underdeveloped and developing countries). The victim is scarred for life
as their position in the society changes due to the impact of the crime. It
is the state’s duty to counter-balance the sufferings of various victims all
over the country. If the status of victims is alleviated, it would be the first
step in the reduction in crime and hence will lead to a certain amount of
control over the crimes.