INTRODUCTION
“Just as medicine treats all patients and all diseases, just as criminology concern itself with all the criminals and all forms of crime, so victimology must concern itself with all the victims and all aspect of victim city in which society takes an interest.”[1]– Nelson Mandela
The criminal justice system throughout the world is in the hands of State and State being at the centre stage. Law and order are the foremost duty of the State. With this primary duty the state fosters peace, prosperity, maintains rule and order and provides access to Justice for all. Every citizen in the modern welfare state is expected to have the basic human rights. Whenever these rights are violated the judicial system provides mechanism for redressal of such violations. Whenever a citizen is harmed, injured, killed as a result of crime, he or she is referred as “victim”.
Though there has been an inbuilt mechanism to initiate criminal proceedings against the offender of such crime, however, such victim may himself seeks justice by setting the criminal justice system in motion either by informing the police about the same or by the complaint. Crime affects the individual victims, their families and causes financial losses to the victims.
These crimes cause serious and psychological injuries to the families of victim of crime.[2] Such an act needs to be well and properly redressed by the courts by providing the victims easy access to justice. It is only in the past few decades that the impacts of victimization on crime have affected the person and drew their attention towards the present system of criminal justice and asked to be treated with compassion and dignity so that their fundamental rights must be protected and preserved.
“The criminal law in India is not victim-oriented and the suffering of the victim, often immeasurable is entirely overlooked in misplaced sympathy for the criminal. Though our modern criminal law is designed to punish as well as reform the criminals, yet it overlooks the by-product of crime i.e. the victims”[3] – Justice Krishna Iyer
Crime analysis all around this beautiful earth made by God reflects the fact that there cannot be a society without crime and criminals, violence and tragedy. Crime has been referred as one of the social phenomena which have always been faced by modern society. No society whether it is primitive or modern, no country whether it is developed or in the developing stage is free from the clutches of Crime. Crime destroys and damages the social fabric.
“The history of the crime and punishment in the whole civilized world reveals a steadily increasing concern with the treatment of criminals and the virtual blackout of victim’s attention towards crime. For more than thousand years, prior to the mid-twentieth century the victim of crime in our society and the administration of Justice has been, ignored.”[4] The victim of crime has been considered as the ‘forgotten man’ of the criminal justice. This lack of knowledge about the victims is shocking; given that the criminal justice system which is prevailing today would collapse if their cooperation was not forthcoming.
Tears shed for the accused are traditional and ‘trendy’ but has the law none for the victims of crime, the unknown martyr?[5]
The question and revealing marks by Honourable Justice Krishna Iyer on plight of victims in the criminal Justice system clearly indicates and depicts the lacuna and ignorance of the criminal Justice system towards ‘Victims’. The agencies that are concerned with the administration of Criminal Justice System are the Legislature, Police, Courts and the correctional services. The legislature provides the framework of legislation within which all other agencies operate. The police are concerned with the enforcement of law, the courts with the administration of justice through various procedures and correctional service with the treatment of criminal through several institutional and non-institutional programs.
The most important object of criminal law is the protection of primary personal right to life, personal liberty and the property. In the wider connotations, the protection it ought to be against the unlawful invasion by other- the lawlessness, the violent, the disorderly, predatory and fraudulent practices. But where the guilty man, lodged, fed, clothed, warmed, lighted, entertained at the expenses of the state model cell, issued from it with sum of money lawfully earned, has paid debt to the society. He can set the victim at his defiance but the victim has his consolation. He can think that by taxes he pays to the state treasury, he has contributed towards parental care, which has guarded the criminal during his stay in the prison.[6]
CRIMINAL JUSTICE SYSTEM IN INDIA
“Indeed, history is nothing more than a tableau of Crimes and misfortunes” – Voltaire
The concept of Criminal Justice System came into India with the advent of Manu. He had described many offences and believed in the “divine theory” which means that King is the Supreme and people are bound to follow his rules and regulations. With the change in the thought process of the society people started denying the King’s rule and started making their own law as per their convenience. The new rule that is “Might is Right” started being followed in the absence of the codified law and people started demanding “eye for eye justice”.
It was in this tough time only that the theories like Divine theory, Social Contract theory and theory of Natural Justice came into existence. In modern times we have the codified laws. The essential objects of these laws are to protect society from unwanted criminal objects and create threat of punishments to the prospective law breakers. In India the administration of Criminal Justice is divided into two parts-
- Substantive Law
- Procedural Law
Substantive Criminal law defines the offences and punishments for the offences while procedural administered the substantive law and provide the procedure which leads to Justice in reality.
ANCIENT CRIMINAL JUSTICE SYSTEM
“Mankind censure injustice fearing that they may be the victims of it, and not because they shrink from committing it”- PLATO
The concept of natural justice also prevailed in the ancient era when there were no codified laws. In ancient civilization, the victim of the offence has been referred as central figure in the criminal settings. In primitive societies there was as such no regulated system of criminal justice. In the ancient societies, redressal for the personal wrong was in the hands of the individual. The victim of the crime was having the right to take law into his hands and punish the aggressor in accordance with prevailing practices accepted by his society. He carried out the punishment in the form of revenge aimed at deterrence and compensation. It was a private revenge and compensation was exclusively personal.[7]
The basis of primitive law was the reparation by the offender of the offender’s family to the victim for his loss and injury. At the same time there was complete absence of political institution to enforce those laws and punish the criminals, so the right to punish was vested with the victim or victim’s kin. The victim’s family was allowed to punish a criminal or they can directly receive money as compensation for crime. In primitive cultures, prisons did not exist, therefore the choice of punishing a serious offenders was the death penalty, exile or fine. Criminals were harshly punished and the theory of eye for an eye was used to punish the criminals.[8]
The first and foremost duty of the king was to protect his subject from the bites of stolen thorns and treat them deservingly. Restoration of the stolen property, investigation of crime of victim compensation from the royal court was included under law enforcement of the programme. A detailed description about the criminal justice system in ancient India was given by Manu, Kautilya and Yajnavalka.[9] According to Manu, “If a judge or his clerk fails to perform their duties or divulge sub- judice court matters to public will receive punishment. According to Madhatithi and Brashaspati, and Sukraniti, king was the sole authority in executing both the punishment and pardon, nor the court and judge.
In early civilization, the responsibility of protecting oneself against crime and punishing the offenders rested with individuals, which reflected the idea of “retributive justice”. As the society got organised in the form of states, the responsibility of protecting the members against the criminals and punishing the violators of criminal code shifted to the political authority.
The remedies, however, continued to be based by and large on the retributive justice, which provide compensation, by the wrong doers to the victims or his family members. Therefore during the 19th century, most legislative activity has occurred in the states, providing victim services, changing the criminal process, emphasizing special groups, establishing victim rights and dealing more harshly with offenders. They were having greater say in trial formulating sentence. They enjoyed numerous protection and rights till emergence of states as welfare states where in victim slowly eloped from the criminal justice system.
MODERN CRIMINAL JUSTICE SYSTEM
The victim of crime after occupying a position of almost complete obscurity for centuries has now emerged and been accepted as a person worthy of attention in nation’s across the world. The interest in the victims of crime has been quite rapid in the 19th century during which many international symposia were held to focus the attention of the victims of crime. Justice Benjamin N. Cardoza of the Supreme Court of the United States says that “Justice though due to accused, is due to accuser also.[10]
The concept of fairness must not be strained till it is narrowed to a filament. In a seminar on criminal law, Lord Denning said “So far as concern compensation for victims of crime, we have a system whereby the victims of violent crime. Such as murder, are paid, ex-gratia sums of the state… this is not the statutory scheme but really unique and working well there.” United Nations Organisation has also initiated movement in which way the situations of crime victims might be improved.
The seventh United Nation Conference on the Prevention of Crime and Treatment of Offences took place in Milan during August- September 1985 recommended to United Nations General Assembly, for the rectification of “Basic Principles of Justice for Victims of Crime and Abuse of Power”. This declaration, concerning victims of crime, establishes standard for access to Justice and fair treatment, restitution from the offender, compensation, compensation from the state and assistance towards recovery. The declaration calls upon state to take necessary steps to give effect to the provisions in the declaration and to curtail victimization.[11]
The declaration also specifies certain ways in which victims should have access to judicial and administrative procedures and how they should be treated fairly. The declaration says that the victim should be treated with compassion and respect for their dignity and entitled to prompt redress. The victims should be informed about their rights in seeking redress through formal and informal procedures the expeditious, fair, inexpensive and accessible.[12] The responsiveness of judicial and administrative processes should be geared to serve the needs of the victim.
The victims should be informed about their roles and scope, timings and progress of the proceeding and disposition of the case. Offenders and third parties responsible for the crime should make fair restitution to victims, their families and dependents. Such restitution should include the payment of harm or loss suffered or reimbursement of expenses incurred as a result of victimization. Also the government should help to adopt practices and regulations to consider restitution as an available sentencing option in criminal cases.[13]
[1] Mendelson, “Victimology and Contemporary Society’s Trends” Victimology 1 (1976), pp. 8-28
[2] Measures for Crime Victims in the Indian Criminal Justice System by Kumaravelu Chockalingam.
[3] V. R. Krishna Iyer: Access to Justice- A case of Basic change (1991) p.14
[4] Michael Fooner, an eminent criminologist in his article, “Victim Induced Criminality” published in “Science” Vol. 153 (1966).
[5] Justice Krishna lyer, Hon’ble Judge, Supreme Court of India in his writing “The Criminal Process and Legal Aid”, Published in Indian Journal of Criminality. P.10
[6] Adolphe Prins: Belgian Criminologist wrote about the inequitable treatment accorded to the offender and victim.
[7] Sir Henry S Maine: Ancient Law, Oxford Library Press (1946): The Penal law of ancient communities is not the law of crimes; it is the law of wrongs or in English technical term, Torts.
[8] An example: If a debtor failed to fulfill an obligation, his creditor could haul him into a public square and proclaim the particulars of the bad debt. He could then bring the debtor before a magistrate who confined him for sixty days while the creditor continued to announce the debtor’s bad faith. If the debtor, or his family and friends, had not discharged the obligation after sixty days, the creditor had the right either to kill him or to sell him as a slave and keep the proceeds. Usually the debtor was allowed to work off his obligation.
[9] Manusmriti : IX 272
[10] The Statement of the Chairman, US President’s Task Force on actions of Crime Final Report (1982) Quoted in Snyder Vs Massachusetts (1934)
[11] Para 4 of the Preamble of UNO.
[12] Para A-5 of Declaration for Basic Principle for Victims of Crime and Abuse of Power
[13] Extract from Declaration for Basic Principle for Victims of Crime and Abuse of Power.
