Abstract
The place of victim in the criminal justice system has always been nominal one as it is today. Though the criminal justice system has changed its purview and the legislature and courts have been playing a significant role in the expansion of the rights of victims of crime in the criminal justice administration of the country, yet the victims have not received their due concern and their rights have not been given due importance. The study on the status of victim in criminal justice in the preceding chapters reveals a harsh truth that the victim is not getting the attention which he ought to have got. He is almost a forgotten man in the system.
Introduction and Background to Research Effort
The world is full of crime and criminals, tragedy and violence. Crime is a social phenomenon. No society primitive or modern, no country whether under developed or developing or developed is free from its clutches. It is obvious that under these circumstances, the by-product of the crime i.e. victim is bound to emerge. However, the focus is mainly and always has been on criminal and crime, none on victim. Therefore, the victim is virtually a ‘forgotten man’ in the criminal justice system. .
The administration of criminal justice all over the world seems to be guided by one cherished principle, namely, the rights of the accused and it is to be secured at all costs while a criminal court determining liabilities of him. This is the reason for which the entire criminal jurisprudence has been dedicated thereon and plethora of criminal laws has been enacted with the changing Social attitude towards crimes and criminals. When any crime takes place, the offender is apprehended, tried and convicted or acquitted and in some cases released on probation. In such cases we hear more about the reformative slogans in the court, even if the accused is found guilty. The entire criminal justice system is more concerned in defending the rights of accused than inflicting punishment. In the entire process, the plight of the crime victim who is the worst sufferer goes unnoticed. In the guise of criminal reform the so called activists of human and civil rights historically paid attention to the rights of accused, but completely neglected the victim. As Justice Krishna Iyer rightly puts, "Tears shed for the accused are traditional and 'trendy' but has the law none for the victim of crime, the unknown martyr?"
Anticipating this more than eighty years ago Justice Benjamin N. Cardozo of the United States Supreme Court wrote "justice, though due to accused, is due to accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are
to keep the balance true." Even then crime victims have not been treated fairly. Somewhere along the way the system began to serve lawyers, judges and accused, treating the victim with institutionalized disinterest.
The purpose of criminal justice is to protect the rights of the individuals and the State against the intentional invasion by criminals who violate the basic norms of Society. In a modern welfare State this protection is sought to be achieved and ensured by punishing the accused in accordance with the provisions of law. To ensure that the innocent persons may not be victimized, the accused person has been granted certain rights and privileges to defend himself and prove his innocence before he is condemned. This ideal is elevated to the level of constitutional guarantee by enshrining fundamental rights in this regard. A plethora of cases decided by the higher judiciary have analyzed these provisions and have explored myriad dimensions of these protections. Even if he is imprisoned as a punitive measure, it is with an object of reforming the accused and ensuring proper rehabilitation after his release from jail. The courts have from time to time directed the State to provide all the necessary facilities and ensure that the human rights of prisoners are not violated.
Criminal law is a reflection of social practices and rules in the given society. It is designed not only to inflict punishment to the criminals but also has the task of reforming him. In a criminal trial at least there will be two active participants , viz, one, the offender or perpetrator for whom the entire machinery of justice becomes vigilant throughout, and the other is victim of the crime – ‘the forgotten man’ of the criminal justice system. It is paradoxical that the convict will be fed, clothed, provided all the amenities including entertainment at the cost of State exchequer through the taxes paid by the public including the poor victim. It is said that this is the worst shortcoming of criminal justice system which does not give due attention to the victims of the crime.
As it was rightly pointed out by Apex Court, “It is a weakness of our jurisprudence that victims of crime and the distress of the dependents of the victim do not attract the attention of law. In fact, the victim reparation is still the vanishing point of our criminal law. This is the deficiency in the system, which must be rectified by the legislature”
At one time the reparation to the victims of crime or wrong occupied a major place in most of the legal systems. However, the momentum was lost during the 12th and 13th centuries when a distinction was made between the different kinds of wrongs on the basis of gravity and the impact on the individual and the society. For instance, if the magnitude of injury was concentrated more on the individual, the wrongdoer was asked to pay the compensation to the injured in terms of money. These types of wrongs were termed as civil wrongs or torts. On the other hand, if the gravity of the injury was more and directed towards the public at large, for instance, murder, rape, kidnapping, etc. the state took upon itself the responsibility to punish the accused instead of leaving it to the individual victims. Such wrongs were termed as public wrongs or crimes. Thus, the reparation aspect became subordinate and punitive role of state became dominant factor in the administration of criminal justice system leaving the poor victim neglected; left to his own fate by reducing him to the level of a piece of evidence in the form of prosecution witness.
It was believed that the claim of victim would be sufficiently satisfied by inflicting the punishment on the offender. This assumption is neither fair nor just nor reasonable. The fair justice demands that when the society and the State are resorting to every possible measure of correction and rehabilitation of criminals, equal concern must be shown for the victims by providing compensation and restitution for the loss, agony, physical and mental torture they suffer.
Realizing the gravity of the problem the United Nations General Assembly in 1985 adopted a ‘Declaration of the Basic Principles of Justice for the Victims of Crime and Abuse of Power’. The Declaration envisages the basic norms to be adhered to for the recognition of victims’ right to information, treatment, restitution and compensation.. To ensure that the victims are not neglected by the society, the Declaration gives a comprehensive definition of victim. According to the Declaration, ‘victim’ includes any person who, individually or collectively has suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of his fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power. The provisions are applicable to everyone, irrespective of race, age, color, nationality, religion etc.
