In earlier times, the injured party used to drag the offender before the courts seeking suitable punishment for the accused. Eventually, crime was seen as breaching 'King's peace', harming not only the victim but also the entire community. The State, being a protector of the community, started representing the injured party in the prosecution against the offender. Now, to prevent the possibility of State excesses, certain doctrines favoring the accused person, for the purpose of ensuring that they are not relegated as sub-human on account of criminal allegations, started developing gradually.

The principles of fairness and equity recognized that-

• the accused shall be treated as innocent until his guilt is proved;
• the burden of proving the guilt of the accused shall fall upon the State, unless otherwise stated;
• the accused shall have the right to be heard both- during the trial as well as at the stage of sentencing;
• he shall have the right to be released on bail (jail being an exception)
• a right to speedy trial, etc.

The emerging rights discourse favoring the accused created a lag in the arena of the rights of the victims of crime. The need for a corresponding rights-based framework for the victims was certainly felt. However, to what extent such rights are to be granted, the form of the rights, the time from which the rights should be recognized, became a subject of debate.

Victim Participatory Rights: Historical Account And Current Position In India

The idea behind victims' rights movement was conceived first in the US in 1970s. The psychological impacts of crime upon the victims and the prevalent neglect of victims' needs leading to the exaggeration of their suffering attracted attention. (1)

In the American Law, the history of the crime victims' rights movements can be traced to the Warren Court Revolution which created innovative rights favoring the accused, contributing to the imbalance with crime victim's rights. (2) The movement culminated into formation of the President's Task Force on Victims of Crime, which published a report concluding- "the criminal justice system has lost an essential balance. . . . The victims of crime have been transformed into a group oppressively burdened by a system designed to protect them. This oppression must be redressed". (3) Pursuant to this, the U.S. legislative wing passed the Crime Victim's Rights Act (4) ("CVRA") with the broad aim of securing the "victims' right to participate in the system", and the "right to be treated with fairness and with respect for the victim's dignity and privacy". (5)

In Does v. United States (6), the issue came up as to whether the crime victims have participatory rights under CVRA even before the filing of formal charges? The issue was answered in affirmative. It was held that, the existence of victims' participatory rights even prior to filing of formal charges can be culled out from the CVRA's object and purpose viz. 'the victims to be kept updated about the developments taking place in the criminal process and the same does not begin with filing of formal charges but even during criminal investigation'.

Indian Criminal Procedure On Victims' Participatory Rights

In India, the primary role in the criminal process is of the accused and the prosecution, with the judge sitting as an umpire. The only time victim is required to participate in criminal process is at the time of rendering evidence. The Code of Criminal Procedure, 1973 (7) ("CrPC"), nonetheless, does mention certain important participatory rights of the victims such as-

• if the officer in charge of the police station denies to record the first information report, then the victim cum informant has a right, under Section 154(2) of CrPC to send the first information report by post to the address of Superintendent of Police. (8)
• If Superintendent of Police denies to take up the case then he/she also has an option to directly proceed to the Magistrate, who has a jurisdiction to take cognizance under Section 190 (9).
• The Magistrate's power to direct an investigation upon such a request is provided under Section 156(3) (10).
• Further, the victim has an option to file a complaint before the Judicial Magistrate who is competent to take cognizance of offence upon such a complaint. (11)

In Bhagwant Singh v. Commissioner of Police, the Supreme Court held that, upon conclusion of investigation the police report is sent to the Magistrate empowered to take cognizance, and if Magistrate refuses to frame charges, then the victim must have a say in such a matter. (12) In another case namely, U.P.S.C. v. Papaiah, the Supreme Court held, "that the judge of the lower court had erred in accepting a closure report from the Central Bureau of Investigation, when such report was submitted without giving due notice to the complainant and behind his back". (13)

Section 157(2) of CrPC provides for the mandate on part of police officer to update the informant/victim in case of his decision to stop further investigation. (14) Further, Section 173(2)(ii) of CrPC requires that the contents of police report, forwarded to the Magistrate upon completion of investigation, must be forwarded to the informant/victim. (15)

The prosecution of any offence is conducted by a Public Prosecutor (16), the victim may engage an advocate of his own choice (17) and the such an advocate can submit his/her written arguments after the evidence is closed in the case. (18)

The Supreme Court held in Shivkumar v Hukum Chand (19), the role of a victim's advocate in a criminal prosecution is analogous to that of a junior to a senior counsel, as he does not have any independent authority to act in a case. However, in Shivkumar and J.K. International v State (20), the Supreme Court held that victim's advocate may be allowed to intervene and play a primary role in prosecution.

Under Section 372 of CrPC, the victim has a statutory right to file an appeal against the sentence passed by the Court, if the victim finds the sentence to be inadequate, or if the accused is acquitted, or if the victim finds the compensation to be inadequate. (21) Further, the provision for compensation to the victims are enshrined under Section 357, 357A, 359 of CrPC. (22)

Need For Victim Participatory Rights In Criminal Justice System

Victims' participatory rights comprise of victims' procedural rights within the criminal prosecution. (23) The author I. Edwards has attempted to define 'participation' as – "it may be perceived as stemming from the broader concept of citizenship, and may include being in control, having a say, being listened to, or being treated with dignity and respect". (24)

The Rule of Law requires the State to ensure smooth functioning of criminal justice system of the Nation. The quality of governance of any country is judged by the strength of its criminal justice system. (25) Albeit the prevailing inadequacies of criminal justice system in India, one of the areas which require legislative reform as well as a strict executive action is meting out justice to the victims of crime.

The author P. V. Reddi has remarked upon the State's obligation to ensure that victims' interests are protected, as it is them who bear the blunt of the crime. A committee on 'Reforms of Criminal Justice System' headed by Justice V.S. Malimath has elaborated on the topic 'Justice to Victims' and laid down certain recommendations pertaining to victim's rights. (26)

The justification of victims' participatory rights falls into the three categories, 'fairness', 'due process' and 'recognition' (27)

Fairness

The criminal process favors public interest over victims' interests which makes it unfair for the victim. Thus, participation rights to victim are quintessential for striking a balance between victims' and accused persons' rights. Therefore, principle of fairness demands their increased participation throughout the trial and not only at the sentencing stage.

Due Process

The "due process" rationale emphasizes on victims' natural rights to "life, liberty, and property" and suggests for some due process protection to victims. The argument is as follows- "When an individual becomes a victim of a violent crime, that person's right to life or liberty (defined as security from harm) has been invaded. Although the due process clause is a check on government power, the government uses victims as witnesses, and victims can therefore claim a private interest in the outcome of a criminal matter. In this view, the government and the courts should provide procedural due process for victims."

Recognition

The victims' predicament must be recognized if they find criminal process is unfair to them. (28) It would go a long way in increasing social welfare by encouraging victims to prosecute crimes. However, recognition to the victims' dignity must be made right from the beginning of the process and throughout, not only at the time of sentencing.

The study of the position of victims' participatory rights in US's criminal justice system reveals that the same is in the process of advancement. In India, CrPC secures some of the rights of the victims and the Supreme Court has also displayed a sympathetic attitude. Nevertheless, there is a scope for much progress in this direction.

Suggestions For Indian Legal System

There is a gap between certain rights and their implementation. For instance, the absence of coordination between the police officers and the Prosecution leads to impropriety in the conduct of the trial. In this backdrop, the recognition of victims' rights becomes more important. (29) The crime victims' rights should be recognized both at the pre-trial stage as well as post-trial stage. The following rights can be given a legal recognition in the form of statutory backing (30)-

• Choice of prosecution- The police officer must be obliged to ensure that the victim is heard at the occasion of charge framing. (31)
• Bail decisions- The victims must be given due consideration at the time of releasing the accused on bail. The point in time at which victims can lodge their views is when the bail application is made before a court.
• Right of consultation at the time of imposition of sentence upon the convict, and to be consulted about the parole decisions. Victim's consultation at the sentencing stage is necessitated by reason of deciding upon the quantum of compensation as well as for enabling the victim to make a 'Victim Impact Statement' to influence severity of the sentence.
• Furnishing information to the victims at the investigation stage as well as trial stage- The victims' right to know the status of the case comprises of: the reasons for delay in finding the culprits, the stage of the inquiry or trial, the reasons for delay in the trial, details of evidence which are to be presented by the prosecution and the victims' right to have due access to the police report. Accordingly, a duty must be imposed upon the police to keep the victims in loop during the investigation.
• Right to content the findings of the police report- The victim's right to receive the police report under Section 173(2)(ii) of CrPC should be coupled with the victim's right to contest the findings of the report before a superior police officer.
• Informing the victims- In India, though the victim can claim information about the investigation or trial under the Right to Information Act, 2005. (32) However, there is an ambiguity upon the extent of police officers' obligation to furnish explanatory information such as the reasons for delay, and the steps being taken to expedite the investigation/trial. To solve this issue, the Government must publish executive instructions requiring the police officers to furnish such information to the victims, even though there is an absence of any legislative backing for the same under any law.
• Ensuring victims' active participation in criminal justice system- the victim must be given a right to appear before the courts enabling him/her to point out the non-examination of witnesses by police, or ignorance of some material evidence. The victims' advocate must be allowed to put questions to the prosecution witnesses and cross-examine the defense witness.
• Rehabilitation of the victim- the provisions must be made to ensure the rehabilitation of the victims from the adverse mental and psychological impacts of the crime. Making adequate provisions for monetary relief and compensation, is the step in the right direction. Further, provisions related to victim support services such as legal aid, counselling, medical aid and rehabilitation, must be made more robust.

The status of victim participatory rights in India vis-a-vis the situation in US gives an indication towards a need for channelizing the legislative as well as judicial efforts in this direction. The judicial trend has been pro victim participatory rights. It is the victim who faces the biggest brunt of the crime. The need of the hour is to bring about an amendment in the Criminal Procedure Code of India, to ensure that the same is much more conducive to the victim participatory rights. An attempt must be made to strike a proper balance to accord victim participatory rights an adequate space in the criminal process.

Views are personal.

References:

1. 1.Mike Maguire, 'The Needs and Rights of Victims of Crime' (1991) Crime and Justice 363-433
2. 2.Paul G. Cassell, Nathanael J. Mitchell and Bradley J. Edwards, 'Crime Victims' Rights during Criminal Investigations? Applying the Crime Victims' Rights Act before Criminal Charges Are Filed' (1973) 104 The Journal of Criminal Law and Criminology 63
3. 3.Final Report, President's Task Force on Victims of Crime, 1982
4. 4.Crime Victim's Rights Act 2004
5. 5.ibid. 18 U.S.C. § 3771(a) (8)
6. 6.Does v. United States, 817 F. Supp. 2d 1337 (S,D, Fla. 2011).
7. 7.Code of Criminal Procedure, 1973 (2 of 1974)
8. 8.ibid. s 154
9. 9.ibid. s 190
10. 10.ibid. s 156 (3)
11. 11.ibid. s 200
12. 12.Bhagwant Singh v Commissioner of Police (1985) 2 SCC 53
13. 13.U.P.S.C. v. Papaiah (1997) 7 SCC 614
14. 14.Code of Criminal Procedure, 1973 (n 7) s 157 (2)
15. 15.ibid. s 173 (2) (ii)
16. 16.Code of Criminal Procedure, 1973 (n 7) s 24
17. 17.ibid. s 24 (8)
18. 18.ibid. s 301
19. 19.Shivkumar v Hukum Chand (1999) 7 SCC 467
20. 20.Shivkumar and J.K. International v State (2001) 3 SCC 462
21. 21.Code of Criminal Procedure, 1973 (n 7) s 372
22. 22.ibid. ss 357, 357A, and 359
23. 23.Jonathan Doak, 'Victims' Rights in Criminal Trials: Prospects for Participation' (2005) Journal of Law and Society 295
24. 24.I Edwards, 'An Ambiguous Participant: The Crime Victim and Criminal Justice Decision-Making' (2004) 44 British Journal of Criminology 967, 973
25. 25.PV Reddi, 'Role of the Victim in the Criminal Justice Process' (2006) Student Bar Review 2
26. 26.Justice V.S. Malimath and others, 'Committee on Reforms of Criminal Justice System' (2003, 1) 15
27. 27.Lynne N Henderson, 'The Wrongs of Victim's Rights' (1985) Stanford Law Review 1001-1006
28. 28.Mashaw, 'The Supreme Court's Due Process Calculus for Administrative Adjudication in Mathews v Eldridge: Three Factors in Search of a Theory of Value' (1976) 44 University of Chicago Law Review 28, 49-50
29. 29.PV Reddi (n 25) 12
30. 30.David Miers, 'The Responsibilities and the Rights of Victims of Crime' (1992) 55 The Modern Law Review 499
31. 31.ibid
32. 32.Right to Information Act, 2005 (22 of 2005) s 20