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