Victims' Rights in India

A criminal wrong is differentiated from a civil wrong based on the reason that it is a wrong against the entire society and not merely one or more individuals against whom it has been perpetrated. It is based on this notion that the State has taken upon itself to investigate into the commission of the offence through its own machinery, and then prosecute and punish the offender. While every accused has a right to fair trial, and those who are convicted are to be served justice not merely by punishing them, but by restoring them to a normal position in society, which is done by sending them to correctional homes where different kinds of psychological help and vocational training is imparted to them. In this debate, the issue of victims’ rights seems to have been consigned to the backburner and forgotten. It is in this context that I am writing here.

Compensation
Statutory provisions in the Indian criminal law in favour of the victims are few, but the judiciary has helped extending the scope of existing provisions to victims. One such provision is in relation to compensation to the victims. Sec. 357 of the Criminal Procedure Code states that the Court if an offender is given a sentence of which fine forms a part, then a certain portion of such fine or all of it may be applied in restoring any loss of property that the victim may have suffered. The fine can also be channelled for compensation in cases where the Court believes that such compensation could have been recoverable by suing the accused in a civil court. Even if a sentence of which fine does not form a part is given, the Court may order the accused to pay compensation for any loss or injury that may have been caused to the victim by his act. However, where the loss caused is significant and the offender is unable to pay the same, there is no provision in the existing law by which the State may be made to compensate the victim. There is also no provision for compensation during the pendency of the trial. However, in an exceptional circumstance where the accused was charged of rape, the Supreme Court had directed him to provide compensation to the victim during the pendency of the trial itself, while his offence had not even been proved, to provide relief to the victim. However, this was a rare occasion and cannot be taken to be the law of the land in all cases of rape.(Bodhisattwa Gautam v. Subhra Chakraborty) In a recent amendment to the Criminal Procedure Code which is still in the Bill stage, a victim compensation package is envisaged, which shall create a corpus from which compensation will be paid by the State to the victim. Such a corpus had been recommended by the Supreme Court in the to be established in respect of victims of sexual assault. (Delhi Domestic Working Women’s Forum )The amendment has already been passed in the Rajya Sabha, and awaits Lok Sabha approval and subsequent Presidential assent to come into force.

Kinds of Questions that may be put to female and child victims
In a trial for the offence of rape, during cross examination no question as to the general immoral character of the victim can be put to her. (Sec.146, Indian Evidence Act) This prevents unnecessary ordeal by way of innuendoes and other methods of character assassination from the lawyer of the accused. Further, the new Amendment Bill to the Criminal Procedure Code, envisages that the trial of witnesses is to be completed within two months from the date of commencement of examination of witnesses. This would go a long way in preventing protracted and gruelling examination of witnesses. It also requires the hearing of those cases by woman judges (to the extent possible) and interrogation of rape victims by the investigating agencies in the presence of their parents or social worker of the locality.

Methods of Examination
The new amendment Bill has expressly recognised utilisation of audio-visual recording of the statement of witnesses, and for the possibility of trial of cases through video-conferencing. The Supreme Court has given similar directions to the trial courts in cases involving child victims, such as in camera trial. It permitted taking evidence of the child victims by video-conferencing or the possibility of using a screen or similar arrangements whereby the victims do not see body or face of accused so as to enable them to give testimony without fear, and also so that they are not intimidated by the presence of the perpetrator of the crime. During cross examination, questions which relate directly to incident should be given in writing which may then be put to the victim or witnesses in a language which is clear and is not embarrassing. (Sakshi v. Union of India)

Abhyudaya Agarwal, member, SACJ 2007-08

Terrorism and Law: The need of the hour

In the wake of the recent Mumbai terror attacks, the government has announced to take strict and bold actions to combat the menace of terrorism. One of the measures taken has been tabling the National Investigation Agency Bill and the Unlawful Activities Prevention (Amendment) Bill, which will ensure a stricter legal regime.

The National Investigation Agency will be a central body, having overriding powers to identify terror instances and investigate them, taking them over from state agencies. It will be empowered to independently commence investigation into cases dealing with inter-state crimes with possible international linkages e.g. circulation of fake Indian currency notes, organised crime and drugs trafficking, apart from terror activities. It will take up cases depending on the enormity and necessity of the crimes and has proposed a special court for trying such cases.

One of the amendments sought to be brought in the Unlawful Activities Prevention Act, 2004 is longer detention, upto 180 days of a terror suspect without bail and denial of bail to a foreigner accused of terrorism. It also expands the definition of "terrorist act" to include abetment, raising funds for terror activities, organising terror camps and recruiting persons for carrying out terrorist activities.

The government also proposes to update the National Security Act, 1980 to include the definition of terrorist and bring any other required amendment.

Read more on the issue here .

Debosmita Nandy, Director, SACJ 2007-08, NUJS

Law of Obscenity in India

Section 292 of the Indian Penal Code broadly describes obscene material as that which is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effects of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. At the same time it makes exceptions for any material, the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern.

The section says that even if the effect of some materials is to deprave or corrupt those who would access to it, if it's circulation is justified for 'public good' then it shall not be an offence within the meaning of the section. Is it possible theoretically or practically for some material to 'deprave and corrupt' and serve the public good at the same time?

The section seems to make an exception for any representation that is in the interest of science, literature, art or learning or other objects of general concern. Interestingly, this exception has done little to remedy the situation. This provision of law has been used to penalize authors and filmmakers for writing or showing what is obscene.

Similarly, the exception seeks to cover any representation on temples, cars used to carry religious idols, any religious object or any ancient monument. This exception probably seeks to protect all the ancient monuments which have erotic imagery sculpted in stone and are hailed as great works of art and are revenue earning tourist destinations.

At the same time, this section seeks to make an exception for religious purposes ( as distinguished from ancient monuments , for example, depiction of sexuality on temples, cars being used for carrying idol, and object used for religious purposes.). By virtue of this exception, the section seeks to respect the constitutional mandate of secularism and freedom of religion. The fundamental right to preach, profess and practice one's religion is reemphasized by the creation of this exception. One is led to wonder whether the 'freedom of religion' is in anyway more 'fundamental' a fundamental right than freedom of expression guaranteed under Article 19 of the Constitution. While others may argue that such rights are subject to reasonable restrictions, it may be contented that the law on obscenity is hardly reasonable as it seeks to define and regulate that which is completely subjective and therefore is little more than yet another farcical instrument employed by orthodox fundamentalists to fulfill the self-conferred responsibility of purging the society of depravation. The law on obscenity in India was essentially enacted to prevent the publication of some books that would contain graphic description of sexual encounters. It is little more than content regulation. What then is the purpose of the exception clause that says anything in the interest of 'art' is beyond the purview of the law prohibiting obscenity? A case in point is 'Lady Chatterley's Lover', a novel by D. H. Lawrence. The publication of the book caused a scandal due to it's explicit sex scenes, including previously banned four-letter words, and perhaps particularly because the lovers were a working-class male and an aristocratic female. In 1964, bookseller Ranjit Udeshi in Bombay was prosecuted under Sec. 292 of the Indian Penal Code for selling an unexpurgated copy of the book.
On appeal [1], before a three-judge bench of the Supreme Court of India, , Chief Justice Hidayatullah declared the law on the subject of when a book can be regarded as obscene and established tests of obscenity such as the Hicklin test.
The Court held that :
"When everything said in its favour we find that in treating with sex the impugned portions viewed separately and also in the setting of the whole book pass the permissible limits judged of from our community standards and as there is no social gain to us which can be said to preponderate, we must hold the book to satisfy the test we have indicated above."
As Oscar Wilde puts it "There is no such thing as a moral or immoral book. Books are well written, or badly written. That is all." This is one among many instances where literary merit has been strangled by ambiguous standards of morality.

The difference between erotica and obscene depiction of sexuality or pornography cannot be defined and any attempt to do so is futile. It is a matter of personal opinion and liberty. The law on obscenity is therefore completely obsolete.

[1] Ranjit D. Udeshi v. State of Maharashtra AIR 1968 SC 881, Interestingly , this book has also faced prosecution for obscenity in England .R v Penguin Books Ltd [1961] Crim LR.

Ushashi Khan, Member SACJ 2007-08, NUJS

The provision of Anticipatory Bail in India

The concept of bail has a lot of importance attached to it. It is a central doctrine in the criminal justice system, that every person is innocent till proven guilty. The Webster’s 7th New Judicial Dictionary defines ‘bail’ as follows: “Bail is a security given for the due appearance of a prisoner in order to obtain his release from imprisonment; a temporary release of a prisoner among security.” The principal aim of bail is removal of restrictive and punitive consequences of pretrial detention of an accused. So when a person has been charged with an alleged offence, he does not lose his right to life and personal liberty. The same applies to a person who is apprehending arrest. In that case, the bail is not an ordinary one that is granted after the arrest, but is given before the arrest. This bail is generally termed as ‘anticipatory bail’, which is basically a direction by the court to release a person on bail, even before the person is arrested. The provision for anticipatory bail is found in s.438 of the Code of Criminal Procedure, 1973.

The word ‘anticipatory bail’ per se has not been used in s.438 of the Code of Criminal Procedure or its marginal notes. The object of anticipatory bail is to relieve a person from unnecessary harassment or disgrace. The law presumes an accused person to be innocent till his guilt is proved and as a presumably innocent person, he is entitled to every freedom and facility to defend himself effectively. A person can file for anticipatory bail if he has reason to believe that he will be accused of an offence in the near future. An anticipatory bail is used to protect the interests of a weaker person from being harmed by his more powerful rival. It is granted when the Court is convinced that he is a person of such status that he would not abscond or otherwise misuse his liberty. S.438 was inserted in the Code of Criminal Procedure, 1973, in order to see that the life and liberty of the innocent person is not jeopardized on flimsy and frivolous grounds at the instance of irresponsible and unscrupulous persons or officers who may be in charge of prosecution.

Section 438 of the Code of Criminal Procedure, 1973 has various provisions for the granting of anticipatory bail. It lays down the directions for grant of bail to any person apprehending arrest. The 2005 Amendment of the Code has brought in a change in the 1st clause of the section wherein certain factors for consideration have been laid down for directing the Courts as to when anticipatory bail can be granted. They are, namely-
(i) the nature and gravity of the accusation;
(ii) the antecedent of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested.
If the considerations are satisfied, then the anticipatory bail is granted i.e. the High Court or the Court of Session as the case may be, will issue an interim order for the grant of anticipatory bail. However, the blanket guidelines cannot serve the purpose of day to day problems that invariably crop up while dealing with the matter of anticipatory bail. Some prominent points in this regard are-
Anticipatory bail orders should be of a limited duration
Anticipatory bail can be filed either in Sessions Court or High Court
Anticipatory bail can be applied for in the Court in whose jurisdiction the person ordinarily resides
Circumstances which should be borne in mind while determining the question of anticipatory bail
A ‘blanket order’ of anticipatory bail should not generally be passed
Order of anticipatory bail must show the reasons for making the order
Absconding person cannot be released on anticipatory bail
Anticipatory bail to be effective till the conclusion of the trial
Anticipatory bail once rejected by the Sessions Court cannot be maintainable on the same ground

Cancellation of anticipatory bail- When the police are deprived of speedy and effective investigation, then the anticipatory bail order can be cancelled. Anticipatory bail can also be cancelled when the judge has exercised his judicial power wrongly. The request for anticipatory bail is also turned down when public interest so demands and prevails.

The provision for anticipatory bail is an absolute must, especially in a society like ours. If a person gets wrongly implicated, not only he himself, but also his family and relatives have to bear the brunt. Thus, a question of discomfort for many people is involved and the matter elicits serious consideration.

Anticipatory bail, though a boon for many in the society, can also be used by individuals for wrong purposes. Thus, the criminal justice system has to be strengthened in order to prevent such occurrence and misuse of the provision. Only then can s.438 providing for anticipatory bail achieve its true meaning and purpose and lead to development of a progressive legal system in the society.

Aditi Aparajita, Member, SACJ 2007-08, NUJS

The Concept of Economic Offences

Economic offences are those offences which have very large impacts on the economy of a country. They involve very large sums of money or have a disruptive effect on the economy. There are different forms that such crimes can take: corporate scams involving corporations and companies, money laundering or the conversion of black money into legitimate money, tax evasion, counterfeiting of currency, bank and credit card frauds and so on. The common factor in each of these however is that the ultimate victims are the general public and the country and economy at large.
Experience around us shows a large growth in such offences. Yet they are very difficult to perceive and detect, despite their true magnitude. To give instances of the extent of money involved in these crimes, the famous Enron Scandal in the USA in 2001 involved a lawsuit for about $25 billion and the share prices of the company fell from $90 to $1 almost overnight. The Ketan Parekh Scam in India around the same time, involving the UTI Bank required a bail out of Rupees 3300 by the government. The Harshad Mehta Scam involving 17 public sector companies also involved gigantic sums of money.
Economic offenders are often persons holding positions of authority. They command the respect of the society by the profession that they are engaged in. They are often tagged as ‘white-collar criminals’. The most common examples of such crimes are those committed by persons who have breached some fiduciary duty that they owe to the organization where they work or to the society at large.
A distinguishing factor in such crimes is that the persons committing them are not considered by the society to be ‘real criminals’ such as those involved in violent and physical crimes such as murder or assault.
White-collar offenders are usually from the elite and form part of the ruling class. They influence policy decisions including the ones which decide what sort of punishments must be accorded to persons in their league who commit offences. As a result, they are invariably dealt with by administrative and civil proceedings and very rarely, mild criminal statutes. The penalties are lower when compared to street crimes. The difference in punishment is not proportionate to any difference there might be in the seriousness of the two kinds of crime.
This difference can be largely attributed to societal perception. The quantum of money involved in such crimes is enormous. But to begin with, there is no single victim in any of these crimes, leading to the apparently appropriate title ‘victimless crime’. But the society as a whole is the victim. Very high expertise is required for such an offence to be committed and therefore the common public does not even understand the exact nature of the crime. This is especially so, if the money has been appropriated by the violation of procedural requirements of the law. The nature of these crimes also allows them to go undetected for very long periods of time. Most importantly the media attention given to these crimes is also minimal because it lacks sensationalism that is present in street crimes, with regular victims. Academically too, these crimes have received far less attention.
The law has not been sufficient to address these offences in an effective and efficient manner. Since these crimes involve high expertise, the law countering them needs to be very specific and targeted. It cannot be loose and general, which would provide loopholes to the criminals concerned. The investigation cannot be conducted by persons without sufficient knowledge and expertise to understand and thereafter detect such crimes. The high stature that these offenders have in society, allows them far superior legal representation and resources than available to the prosecutors. The punishments imposed on them are very miniscule considering the gravity of the offences, making the risk involved in committing the offences much more lucrative.
Another important consideration is that because such crimes are committed by the persons with high stature in society, they have political and social clout. As a result the laws are rarely framed with the intention to be unduly punitive. The clout is also exercised at the stage of implementation.
It is time to change the way society perceives such crimes. People need to realize the extent to which these crimes affect the society. These crimes are not mere irregularities of law but serious crimes with very far-reaching consequences, which affect society at large. Different people are affected differently by such crimes, but in some way every person is affected. There is no reason why such crimes must be exempt from the kind of retribution that is reserved for violent crimes such as murder. Economic offences are real crimes and must be treated as such.

Geetanjali Shankar Member, SACJ, 2007-08