( This Article is selected for Eighth International and Twelfth Biennial Conference of the Indian Society of Victimology)
Dr. Y. Srinivasa Rao, M.A (English Lit.)., B.Ed., LL.M., Ph.D in Law of Torts., Principal Senior Civil Judge, Tirupati., email@example.com.
“Khaki is ill-equipped and the robes too unrealistic. New tools must be fashioned if the law is meant to be more than a paper tiger.
That existing tools for protection of victims of this kind should have been relied upon as legitimate eye-openers for the safety of women, children, a fortiori, and other victims in the society is really astonishing. Having known the attitude of culprit and his being always tethered with ties of obligation to the ill-equipped and unrealistic thoughts of this scanty nature of the kind we have before us could not have been relied upon with any grace, nor does it appear that these tools have any sanction of any authenticity of the Constitution of India. The internal nature of the existing tools for protection of victims is such that they are shern of any genuineness.
The existing system that it functioned also indicates ‘no immediate relief to the victim in a criminal or civil case, despite the fact that numerous enactments, schemes and rules have been effected between the Legislatures inter se and victims, it is a potent factor showing that the enjoyment of fruits of justice by the victim is only paper tiger. If that is the position in the society there is no absolute protection to the victims as such existing and mark it this existing procedure is the hardihood to say that that protection is not suffice in the society which is now being given to the victims.
Have you ever heard the statement, ‘Women feel less safe”? The most dramatic difference in feelings of safety is according to sex. No doubt, it is true that the offence ‘Rape’ is being played a critical function. More or less than a conscious process of criminal intimidation by which a man keeps a woman in a state of fear. An act that exploits or victimizes someone is known as ‘Victimization’. More of than not, an unfortunate person who suffers from some adverse circumstances is known as ‘Victim’. By and large, to state explicitly as to female victimization, if a woman who is tricked or swindled, she is a victim.
To say, in short,, speaking of Kaffir custom in Nigeria, Dudley Kidd says, ‘a woman who has twins is taunted with belonging to a disgraceful family and in the olden days, if she gave birth to twins a second time, she was killed as a monstrosity’. It is difficult to know the extent of actual female victimization in several parts of India in connection with ragging, rape, cruelty, and witchcraft. The reason is that many women suffer victimization without the case being reported to the police. The cases that are reported in the press are those that the police knew of. In some cases a woman may be killed for rape or cruelty or ragging or witchcraft and the reason for the killing is never transpired. Now-a-days, people from big cities feel less safe.
Thorsten Sellin points out that ‘ Crime arising from primary cultural conflict occurs when a colonial power extends her legal system to her colonial territories. When this happens, traditional practices which are in conflict with the criminal code of the colonial power are made illegal by the colonial government.’
Section 357A of the Code of Criminal Procedure,1973 has been incorporated in the Cr.P.C. . The object and purpose of the provision is to enable the Court to direct the State to pay compensation to the victim where the compensation under Section 357 was not adequate or where the case ended in acquittal or discharge and the victim was required to be rehabilitated. The provision was incorporated on the recommendation of 154th Report of Law Commission. Victims of rape, assault, child sexual abuse, drunk driving, and domestic violence, as well as the families of homicide victims, are all eligible to apply for financial help. Compensation shall be provided for any economically Assessable damage resulting from violations of human rights or international humanitarian law, such as: (a) Physical or mental harm, including pain, suffering and emotional distress; (b) Lost opportunities including education; (c) Material damages and loss of earnings, including loss of earning potential; (d) Harm to reputation or dignity; (e) Costs required for legal or expert assistance, medicines and medical services.”
There are arguments that even several enactments are brought into existence, those are too vague to give any information as to whether any new schemes are being brought into effect for the speedy and immediate welfare of victims by the legislatures. When it is mentioned in the existing enactments that several social reforms were brought for safety of women, it is admitted that those are old laws and no new comprehensive legislation is enacted to provide immediate relief to the victim, at least, intentional civil wrongs are not codified in India whereas other developed countries enacted such law for the safety of victims. Still most of the people in India blindly rely on the provisions of Indian Penal Code,1860 without mulling over whether it is a civil or criminal case. The reason for such situation is that civil wrongs, which concentrate more on victims, is not codified in India.
These enactment referred to infra clearly indicate that even in the year 1830 social reforms were all brought under control by the legislation and women rights have been recognised by several enactments. If in addition to these rights and the below mentioned laws were also under practice and no negligence was shown in respect of rights of women and if it is alleged, that the enjoyment of these rights was by women exclusively as parts of their rights and if there is nothing to show that they were enjoying the rights surreptitiously, or covertly or furtively then of course, it is absurd for some sects of society to contend that they were not aware these extensions of rights, if really extensions were unauthorised. When it is possible for these people to have enjoyed these rights as parts of their requisite rights, it is a context in which the rule of equality could be applied that ‘no society can progress with men alone‘
To overcome the shackles of orthodox ideologies in the society, during British period itself, several enactments were introduced, such as
in 1830, the Sati Prohibition Act;
in 1856, the Hindu Widows Remarriage Act;
in 1872, the Special Marriage Act;
in 1929, the Child Marriage Restraint Act;
in 1937, the Hindu Women’s Right to Property Act (Now, repealed) ;
in 1956, the Hindu Succession Act;
in 1939, the Dissolution of Muslim Marriage Act.
These special legislations brought tremendous change in the unequal socioeconomic status of women. Even today, the Indian Government and the Indian Judiciary have been taking effective steps for giving a dignified status to women in the Society and to protect the rights of women and also to achieve the constitutional goals.
Another salient feature in this context is that it is quite possible for these victims to have enjoyed the whole protection or part of their safety as part of their life and liberty because they own already under Article 21 of the Constitution of India. We have also in evidence that Article 14 is in the enjoyment of the victims in India in which we find ‘equality’ as beneficial provision of victims. This study will show later on how the liberty and equality are being enjoyed by the victims and how also Articles 15, 16, 39 and Article 51(A)(e) etc and what extent of it was in the enjoyment of women. We have seen that women were considered as a weaker section in the society for a long time. If these victims had been enjoying the benefits proximate to and abutting upon the provisions of the Constitution of India and the respective Government Schemes and they had by virtue of their enjoyment of life, liberty and equality had also enjoyed these benefits as parts of their respective rights and there is nothing to show that they could not have consciously enjoyed these rights as parts of their other rights then of course the plea of adverse stands good. But if on the other hand it is established that parts of rights which are close to women empowerment lying beyond the limits of the said liberty had also been in the enjoyment of these people and if action has been taken in respect of these portions long ago and proposals had been taken in respect of those portions as I will show the Governments did, then it is stupendous meaning less to suppose that the legislative actions would not have been aware of the enjoyment of constitutional benefits by the women of these respective rights of personal liberty and equality, if they were already in the enjoyment of these people.
Important Constitutional Provisions:—
Article 14 (Equality before law):- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
This Article enshrines that the State shall not deny to any person the equality before the law and equal protection of laws with in the territory of India.
Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth):- Articles 15 of the Indian Constitution speaks about prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Article 15 (1) It prohibits the State not to discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth pr any of them. Article 15(3) permits the State to make special provisions for women and children. It is pertinent to note that Article 15(3) of the Indian Constitution allows the state to make special laws for women empowerment. Article 15 (4) of the Constitution says that nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. The Parliament wanted to prevent the same and enacted the Pre- Conception and Pre-Natal Diagnostic Techniques (Prohibition on Sex- Selection) Act, 1994 which has its roots in Article 15 (2) of the Constitution of India. The Act is a welfare legislation. The Parliament was fully conscious of the fact that the increasing imbalance between men and women leads to increased crime against women, trafficking, sexual assault, polygamy etc. Unfortunately, facts reveal that perpetrators of the crime also belong to the educated middle class and often they do not perceive the gravity of the crime.
Article 16 (Equality of opportunity in matters of public employment):- This Article provides that there shall be equality of opportunity for all citizens and no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State.
Article 39(a) :- This provision provides that the state in particular direct its policy towards securing that citizen, men and women equally, have the right to an adequate means of livelihood.
Article 39( Certain principles of policy to be followed by the State):— The State shall, in particular, direct its policy towards securing – (a) that the citizens, men and women equally, have the right to an adequate means to livelihood; See. Article 39 (a). Article 39 (e) provides that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter vocations unsuited to their age or strength.
Article 51(A)(e):- It provides that it will be the duty of every citizen to renounce practices derogatory to the dignity of women. Article 51 (A) says about fundamental duties wherein Article 51-A (e) says that it shall be the duty of every citizen of India to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.
73rd and 74th Constitutional amendments:— These Amendments provide for reservation of seats (at least ⅓) in the local bodies of Panchayats and Municipalities for women.
84th Constitutional Amendment:- It relates to reserve 33 % seats in Parliament and State Legislatures.
Of course, these special provisions are incorporated in the Constitution of India for empowerment of women. So that to the full consciousness and knowledge of well-educated women victims the constitutional provisions now classified as beneficial provisions for women empowerment have been in the enjoyments of victims. Evidently women have been gained over by those enactments with the promise of achieving the constitutional goals.
‘No society can progress with men alone‘
– Swamy Vivekananda
‘Victim’ – definition :-
Section 2 (wa) of the Code of Criminal Procedure, 1973 defines the word ‘Victim’. It says as follows:- —“victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression“victim” includes his or her guardian or legal heir;’
Indian society’s discrimination towards female child still exists:-
As was observed by the Hon’ble Supreme Court of India, in the case of Voluntary Health Ass. Of Punjab, Indian society’s discrimination towards female child still exists due to various reasons which has its roots in the social behaviour and prejudices against the female child and, due to the evils of the dowry system, still prevailing in the society, in spite of its prohibition under the Dowry Prohibition Act. The decline in the female child ratio all over the country leads to an irresistible conclusion that the practice of eliminating female foetus by the use of pre-natal diagnostic techniques is widely prevalent in this country. Complaints are many, where at least few of the medical professionals do perform Sex Selective Abortion having full knowledge that the sole reason for abortion is because it is a female foetus. The provisions of the Medical Termination of Pregnancy Act,1971 are also being consciously violated and misused.
If we treat the trafficked persons are criminals or illegal migrants, it amounts ‘further victimizing the victims‘, a fortiroi, Department of Women and Child Development (DWCD) and UNICEF, 1996 and a report on the Six Regional Workshops on Sexual Exploitation and Trafficking of Children, New Delhi: DWCD, MHRD, Government of India, it was observed that “The judiciary is accused of playing a role in secondary victimization, by its mode of questioning during court procedures, the long tedious legal processes and legal system is seen to be forbidding for victims who seek justice rather than detering those who commit injustice.”
As it is mentioned in this paper if proceedings were taken against those people who violates the law in the society by a specific legislation and welfare schemes, for welfare of victims, are alleged to have been detected in this global era, the fact that no proceedings were taken all these years and no special and comprehensive enactments were codified for the protection of victims at any time also negative the nature of procedure as beneficial legislation for the victims. Well if these existing tools were effective, look at the conduct of the officials in some areas who have responsibility and accountability to protect the victims.
Despite there is no concrete study on the number of females and children who are victims of sexual exploitation for commercial purposes and trafficking, the study of on child prostitution indicates that there are over one million victims in India, a fortiori, the study shows as follows:
|1||Child prostitution through abduction||49.00%|
|2||Percentage of Devdasis … (brothels)||in Mumbai 15-20%in Hyderabad, Nagapur, and Delhi 10%in Pune 50%|
|3||Children come into prostitution after incidence of rape.||About 50%|
|4||Children of prostitutes||About 10%|
|5||Girls are married off and sold in prostitution.||About 5 – 10%|
|6||Childrenof Dalit and Tribal families where prostitution is a cultural and customary practice.||About 5%|
|7||From broken homes, desertion by husband or family.||0 -5%|
|8||Of natural disasters.||0 -2%|
Urgent need to take steps for speedy legal action against exploiters such as pimps, brokers and brothel owners by effective implementation of guidelines issued by the Hon’ble Apex Court in Vishal Jeet’s case. Mere setting up of Zonal Advisory Committees are sufficient for providing rehabilitative homes, effectively dealing with the Devdasi system, Jogin tradition, etc. The Supreme Court of India laid down directions to ensure the protection of human rights of such persons and observed as infra:
A victim of rape may choose a place of her choice for recording of her statement:-
Basically, recording of the statement of victim shall be conducted at the place where the victim resides. Yet, second proviso, in section 157 (1) of Cr.P.C gives a choice to victim that she can choose any place for recording of statement. A fortiori, statement of a victim of rape must be recorded as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality. Now, it is essential to see that proviso in section 157 (1) of Cr.P.C which reads as follows:—“Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.’’.
The investigation in relation to rape of a child is time bound:-
Section 173 (1), (1A) of Cr.P.C mandates that ”the investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.”; Similarly, in sub-section (2) of section 173 of Cr.P.C, clause (h) the words as reads as follows :—“ whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376A, 376B, 376C, 376 D or 376E of the Indian Penal Code (45 of 1860).”.
The names of rape victims will no longer be disclosed in judgments:-
The Hon’ble Apex Court had taken note of this and ordered that victims’ names should be left out of judgments. Section 228A of the Indian Penal Code,1860 makes it an offence to publish the names or disclose the identities of victims of rape.
Usage of audio and video electronic means to record statement/confession of victim:-
To state explicitly, in view of new amendment, provisos in section 161 (3) of Cr.P.C provide the investigation agency to record statement of victim by audio- video electronic means. The relevant proviso reads as infra :-‘‘Provided that statement made under this sub-section may also be recorded by audio video electronic means.’’. In similar way, a proviso in section 164 (1) of Cr.P.C allows to record a statement or confession under section 164 of Cr.P.C by audio-video electronic means in the presence of the advocate of the person accused of an offence. The relevant proviso reads as under:- ”Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.” Of course, proviso, in sub-section 1 of section 275 of Cr.P.C says that evidence of a witness under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence.”.
In Camera Proceedings:-
A proviso, in section 327 (2) of Cr.P.C says that in camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.”; further, sub-section (3), proviso says that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.”.
The victim shall have a right to prefer an appeal:-
Section 372 proviso, of Cr.P.C, the following proviso shall be inserted, namely:—
“Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”.
A victim can engage an advocate to support her case.
A proviso, in section 24 (8) of Cr.P.C permits the victim to engage an advocate of his choice to assist the prosecution. The said proviso, reads as infra:- “Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.”
Scheme for compensation to Victim:-
Section 357A of Cr.P.C clearly says that every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation. Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1). If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation. Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation. On receipt of such recommendations or on the application under sub-section the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months. The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.”
Why section 357A Cr.P.C is not widely being implemented?
It was informed to the Hon’ble Apex Court that 25 out of 29 State Governments have notified victim compensation schemes. The schemes specify maximum limit of compensation and subject to maximum limit, the discretion to decide the quantum has been left with the State/District legal authorities. It has been brought to notice of the Hon’ble Supreme Court that even though almost a period of five years has expired since the enactment of Section 357A, the award of compensation has not become a rule and interim compensation, which is very important, is not being granted by the Courts. It has also been pointed out that the upper limit of compensation fixed by some of the States is arbitrarily low and is not in keeping with the object of the legislation.
The decisions in Nilabati Behera V. State of Orissa and in Chairman, Railway Board V. Chandrima Das are illustrative of this new trend of using Constitutional jurisdiction to do justice to victims of crime. In numerous cases, to do justice to the victims, the Hon’ble Supreme Court has directed payment of monetary compensation as well as rehabilitative settlement where State or other authorities failed to protect the life and liberty of victims. For example, Kewal Pati Vs. State of U.P.(death of prisoner by co-prisoner), Supreme Court Legal Aid Committee Vs. State of Bihar, (failure to provide timely medical aid by jail authorities, Chairman, Rly. Board Vs. Chandrima Das, (rape of Bangladeshi national by Railway staff), Nilabati Behera Vs. State of Orissa, (Custodial death), Khatri (I) Vs. State of Bihar (prisoners’ blinding by jail staff), Union Carbide Corporation Vs. Union of India, (gas leak victims).
Victim can seek interim compensation :-
The Hon’ble Supreme Court of Indian observed that interim compensation ought to be paid at the earliest so that immediate need of victim can be met. For determining the amount of interim compensation, the Court may have regard to the facts and circumstances of individual cases including the nature of offence, loss suffered and the requirement of the victim. On an interim order being passed by the Court, the funds available with the District/State Legal Services Authorities may be disbursed to the victims in the manner directed by the Court, to be adjusted later in appropriate proceedings. If the funds already allotted get exhausted, the State may place further funds at the disposal of the Legal Services Authorities. The Hon’ble Apex Court observed as follows:- ”the States of Andhra Pradesh, Madhya Pradesh, Meghalaya and Telangana are directed to notify their schemes within one month from receipt of a copy of this order. We also direct that a copy of this judgment be forwarded to National Judicial Academy so that all judicial officers in the country can be imparted requisite training to make the provision operative and meaningful.”
One of the main infirmities in the existing system is such that despite criminal wrongs are codified, intentional civil wrongs are not codified in India. If intentional civil wrongs are codified in India, it would be a great help to the victim because torts concentrate more on victim whereas criminal wrongs concentrate on accused to send him to jail, a fortiori, almost all developed countries like France, U.S.A, Russia, and England etc codified intentional civil wrongs.
As is discussed above, an unfortunate person who suffers from some adverse circumstances is known as ‘Victim’ and hence there must be some financial help for the victims especially for the victims of rape, assault, child sexual abuse, drunk driving, and domestic violence, as well as the families of homicide victims. Delay in payment of compensation to the victim should be avoided. Workshops for Public prosecutors, lawyers and judicial officers should be conducted to make section 357A of Cr.P.C more operative and meaningful. Interim compensation ought to be paid at the earliest so that immediate need of victim can be met. Special Legal Literacy Camps should be done every month to create awareness of Victim compensation. Even if the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation. Disclosure of name of rape victim amounts an offence under section 228A of the Indian Penal Code,1860. It is our obligation to offer free, confidential, practical, emotional and financial support to victims of crime. If Our Government starts a separate ‘ VICTIM SUPPORT LINE’ which is a telephone helpline for victims, witnesses and family and friends of victims and witnesses, it helps a lot to the victims of crime. Charities for victim support should be established because there was little or no help on offer for victims of crime. Specialist services for the victims of crime should to established at local, and national level to help the victims of domestic or sexual violence, exploitation, anti-social behaviour, or hate crime.
“If a victim is treated as if he is a quidnunc, it is meaningless.” That he -is talking rattling nonsense is clear from the fact, he has no definite knowledge about the rights of victims. When he is put the question where is the safety for the victims he only fences would not answer.