Shreya Kaul
Abstract
Through crime reporting in India, the prevailing criminal justice system tends to shove the victim into an ambience of apathy. Lamentably, the victim usually anticipates for justice to be served at the timeless leisure of the judiciary. To exacerbate the situation, while the accused is bestowed with ascertained privileges, the rights of the victim dwindle away in obscurity. To accentuate upon the colossal significance of the psychological damage suffered by the victim due to the crime, the author suggests the introduction of a Victim Impact Assessment (hereinafter referred to as ‘VIA’) within the Indian judicial setup, corresponding to the approaches taken across several international jurisdictions, such as in the United States, Canada and Scotland, among others. The former parts of the essay focus upon what the VIA procedure entails and how despite the presence of victim empowering provisions, a victim in India has to fight a wearisome battle for attaining justice. The latter parts of the essay discuss the scope and possible repercussions of the overture of VIA in India in the light of judicial precedents in addition to providing a succinct analysis of the purposes which the VIA will successfully serve and the probable ‘bias against offender commotion’ that it might create. The essay concludes with implementable suggestions for the future.
Pitfalls Within the Indian Criminal Justice System
A victim is a person who suffers from a loss or an injury occurring due to the omission or commission of an act, for which an accused has been charged. This definition of victim also comprises of the guardian or the legal heir of the original victim.[1] Before venturing ahead, the understanding of the rights of the victims becomes indispensable for eventually capturing the importance of a VIA. The victim has a right to procure the copy of the First Information Report without any additional charge.[2] A special public prosecutor can be appointed by the State or the Central government to protect and represent a victim in a criminal trial. The victim is also bequeathed with a right to move the court for cancelling the bail of an accused if it prompts unsalvageable injustice or harm to the victim.[3]All hospitals, public or private, whether overseen by the Central or the State Government, municipal bodies or any other person, shall immediately provide free first-aid or the relevant medical treatment to the victims and shall inform the police at the earliest.[4] With regard to medical costs, courts possess the authority to order the released offenders to pay restitution costs to the victims.[5]The state governments have a mandate to institute victim compensation schemes, in consonance with the central government to facilitate the rehabilitation of the victims as well as the affected dependents. Further, the District Legal Services Authority or the State Legal Services Authority (as required) is responsible for deciding the fitting quantum of compensation.[6] Compensation to the victim must be paid in addition to the fine under section 326 A (voluntarily causing grievous hurt by acid use, etc.)[7] or section 376 D (gang rape)[8] of the Indian Penal Code.[9] Courts have a compulsory duty to cautiously listen to the accused so as to ensure that no inborn subtleties are overlooked which could eventually be helpful in determining the quantum of his sentence.[10] Only the accused is obliged to be personally present during all the important stages of the trial (unless the magistrate personally does away with his attendance[11]); such persistent presence of the victim isn’t mandated by law. Even though the flexible presence of the victim for each hearing may be considered beneficial for him/her, it may happen on several unfortunate occasions that the continuous/regular absence of the victim may render his/her case weak or may shift the balance of convenience in favour of the accused owing to a better representation of his case (due to his regular presence). On one hand, the accused is at an unfettered will to appoint a lawyer of his preference, while on the other hand, the victims, even when appointing a pleader of their choice have to ensure that the appointed pleader acts under the direction and instructions of the prosecutor, and may present written arguments only after closure of evidence, with the court’s permission.[12]A considerable number of courts lack even the basic follow up mechanism to assess whether the determined compensation amount was provided to the victim or not[13]. All states don’t necessarily possess the drive to passionately allocate funds for victim compensation and are typically reluctant to raise awareness about such schemes.[14] An obvious, yet a dire picture of a hapless victim appears to be clearer when viewed in light of the existing laws and their execution. These drawbacks of the Indian criminal justice system signal the need for a shift in perspective as well as for the consideration of victim impact statements as crucial supplementary tools for gaining an authentic insight into the detrimental repercussions of the crime.
Victim Impact Statement
A Victim Impact Statement (hereinafter referred to as ‘VIS’) alludes to articulations of oral or written nature, obtained from the victim to evaluate the damage suffered, after the crime has been committed.[15] To put it plainly, victim impact statements are delivered as a part of the procedure of VIA (which seeks to assess the true nature of the anguish which resulted from the crime).[16] Usually, the victim’s friends and family members also submit statements which bear the capacity of revealing and providing information of such nature (about the genuine impact of the crime), which would’ve otherwise not been accessible to the court.[17] Intricate details and subtleties related to the economic impact of the crime such as- medical and/or counselling expenditures, loss of salary/wages, property related damage, earnest pleas for providing compensation or ensuring restitution- can also be incorporated into the VIS, in addition to the considerations and opinions of the victim with regards to the crime and the quantum of the sentence for the accused.[18] Generally, the victim is provided assistance to submit a standardized and comprehensive form through the prosecutor.[19] The extent of damage caused by the crime can be narrated in detail by the victim himself/herself thereby producing a testimony of the factual circumstances, the enormity of the crime committed and the ramifications endured by the victim.[20] In an adversarial system, the arguments of the defendants and the victims are usually antithetical and contradictory variants of each other, thereby producing a contorted arrangement of facts. Accordingly, to achieve a robust understanding of the case and to grasp the accurate nature of facts, a VIA can serve a tremendously essential purpose of representing the intricate and defining details of the victim’s version of the story.[21] Even though the VIS may not be the sole determinant of the fate of the case, it invigorates an empathy oriented approach towards the victim so as to balance the scales of justice.[22] Each case progresses on its own set of merits and the mere procurement of a VIS is neither a conclusive evidence of the guilt of the accused, nor is it an equivalent to the facts and the arguments which are formally presented in a court of law.[23] However, justice may be served best only when the adjudicating authority gauges a profound understanding of the damage suffered by the victim through a VIS.VIA reports can aid in comprehending the psychological desolation caused due to the crime, thereby acting as an imperative factor in computing damages for the mental agony caused to the victim.[24]
A Global Standpoint on VIA
In the international context, VIA plays a crucial role for tending to the needs of the victims:
a) The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985[25] (Declaration) was the cornerstone of the victim empowerment movement. This declaration promoted the rights of victims with regards to protection, aid and involvement in the justice system, valiantly stating that the victims should have the loudest voices during the trial. The Declaration acts as an entryway for victims to present their concerns at various phases of the trial, without harming the rights of the offender.[26]
b) VIA was held to be constitutional even in the United States in the case of Payne v. Tennessee,[27] in consonance with the principle of proportionality.[28] The Congress, in 2004, had passed the Crime Victims’ Rights Act, which recognized and dignified the rights of the victims to act as complete participants in the justice system.[29]
c) In Canada, not only do the victims have a right to narrate their VIS but the court is also in a position to enquire, from the prosecutor, about a reasonable opportunity being provided to prepare a VIS. Courts may also adjourn the proceedings to sanction the victim to submit a VIS.[30]
d) In 2009, VIA was initiated in Scotland wherein the victims of grave crimes are permitted to submit written statements to the court regarding the emotional, physical or the financial harm which has surfaced owing to the crime. Particular data, however, ought not to be mentioned in the VIS; for example: how the crime influenced others or what sentence the victim figures the accused ought to receive.[31]
e) In England and Wales, a VIS is referred to as the Victim Personal Statement (VPS), which fulfils the purpose of providing an account of the severity of the crime’s impact upon the victim.[32]The Code of Practice for Victims of Crime is the grundnorm for the development of guidelines of VPS submission and its utilization in court proceedings.[33]
When the international domain is brought into focus, it becomes progressively evident that adopting a VIA mechanism should be indispensable for the Indian justice system. VIA would act as an unambiguous victim rights booster in a country, where the victim languishes for justice and encounters exploitation at multiple stratums of the system.
VIA in India – The Contemporary Unfolding
Presently, VIA isn’t mandatory in India by the prudence of any legal provisions. However, in recent times, numerous judicial decisions have displayed favorable traction towards VIS and have indicated towards its introduction to refurbish the criminal justice system.
Only recently, the Apex Court dignified[34] the principle of the victim possessing the right to a free, fair and non-biased trial.[35] The opinion of the victim is an essential factor[36] for granting/ non-granting of the bail.[37] In a landmark case,[38] the Court has inferred that victims have an irrefutable right to file an appeal for opposing the acquittal of the accused. Furthermore, emphasis has been laid upon how a VIA is solemnly required to adjudicate upon cases in an enhanced comportment. The Court has further affirmed that adequate guidelines need to be proposed by the state so as to procure a proper and standardized form of VIA reports for future adjudication.[39]
The Gains and Losses of Implementing VIA in India
To acknowledge the current storyline with a holistic perspective to actualize VIA in India, the following attributes need to be considered:
a) The Gains
VIA reports can present a detailed and a well-rounded, clarified account of the case which produces a clear imagery for the court to adjudicate upon; this places courts in an improved position to decide the appropriate amount of compensation as well as sentence quantum.[40] A comprehensive VIA may also help a victim to indirectly get bail orders dispensed with because courts will have an inclusive and an all-embracing understanding of the case which doesn’t merely revolve around the accused.[41] Victims with VIA reports will be more gratified by the sentencing of the court and may also develop sustained faith towards the judiciary.[42] The grievances of the victim stem more from their lack of inclusion in the process rather than from the deliverance of an unjust judgment.[43]The victims who could afford to voice their wishes and opinions are relatively more satisfied with the final judgments as compared to those victims whose voices were muffled.[44] Besides, VIS can additionally be used by parole officers to set conditions for the release of criminals.[45] It’s worthy to mention that since crimes cause severe psychological and emotional trauma, the narration of a VIS acts as a cathartic experience and has proven to mirror the positive effects of therapy.[46] The victim is not only the most fitting person to represent the social alarm bells which have been rung in his community owing to the occurrence of the crime,[47] but, also possess the competence to narrate the crime impact statements in ways which would assist in the legitimization of the procedure of punishment and could possibly invoke regret and a sense of realization within the accused. The accused would have a chance to understand the exact ramifications of the crime, the suffering that he has imparted thereby nudging him towards self-evaluation and future rehabilitation.[48] The victims will no longer be treated as mere spectators but as essential gear-teeth of the justice system, who can play critical roles in the deliverance of their own justice.
b) The Losses
It has been a pertinent observation that the resistances towards VIA are mostly centered on the keystone of legal grounds.[49] Even though VIA reports could contain thorough information about the crime, they may also contain an amalgamation of emotions of the suffering victim who may record the statement in vengeance thereby clouding his submissions with emotional extremities, and a diminished recollection of the actual events at the crime scene.[50] Some vestigial, emotionally charged statements may even possess the capacity to divert the court’s attention, leading to compromise of legal contemplations of the case. VIA reports could even be misused to emotionally manipulate and incline courts in favour of the victim.[51] It’s a genuine concern that the justice system might metamorphose into a “victim-dominated”, as opposed to a “victim-centric” system. Another opposition towards VIA is that allowing victims to participate in sentencing may subvert the protection of courts from intolerable public pressures.[52] It’s also believed that VIS can stir up strong emotions such as those of pity and sympathy towards the victim and conversely initiate an opposing set of emotions towards the alleged offender such as those of fear, disgust, racial hostility and an irrational motivation to vent communal fury.[53] Matters of legal deliberation involving bail orders and duration of sentencing may be ill-affected in light of emotionally radical VIA reports.
Recommendations
The victim of a crime in India, lands himself into a quagmire of discrimination, apathy and laxity, when he attempts to attain justice. This essay will not serve its purpose if it fails to mention a set of workable suggestions so as to ameliorate the disappointing state of affairs. Below mentioned are a few propositions by the author to remedy the perilous state of affairs:
Promulgation of enabling guidelines would encourage victims to partake in the VIA process. This may include the non-divulgence of VIS to the accused or conducting in-camera trials to safeguard the privacy of the victim.
Further, to thwart the misuse of VIA reports, the victim must not have the authority to settle the sentence quantum; he must only specify the gravity with which the crime impacted him and the losses that he persevered through.
The government should be the front-runner in employing substantial resources and funds for instructing and training doctors, psychologists and specialists to prepare durable VIA reports which don’t impede the cause of the victim in an unjust manner yet also don’t irrationally fixate the blame upon the alleged offender.
To ensure procedural ease, the VIS could be recorded during the documenting of the FIR itself to ensure that lesser time, money and exertion is consumed and the negative predisposition which may formulate due to diminished memory of the victim might be preventable.
Conclusion
For the fair functioning of a criminal justice system, the punishment for a crime should be equivalent to the public commotion caused while also having the capacity to respond to the society's whimper for justice.[54] In 2017, a noteworthy reiteration of familiarizing the victim to the justice system was observed in The Draft National Policy on Criminal Justice[55], thereby attempting to reinstate a sense of balance between the victim, the criminal and the social order.[56] Today, a significant number of years later, the proposal of the introduction of VIA into the system still remains precarious. It’s hoped that the VIA reports transform into legal necessities in the near future thereby ensuring the weakening of an authoritarian regime and the advancement of an inclusionary society.[57]A pertinent study has found that emotional statements in the VIS don’t necessarily tantamount to harsher sentencing.[58]Rather than being viewed as a revenge-seeking apparatus, VIA should be viewed as a mechanism to obtain psychological and emotional closure from the crime and as a dignified acknowledgment of victimhood[59]. Adding to the wisdom of the victimologists around the world,[60] the author sincerely hopes that a VIA system is initiated so as to positively assert the rights of the victim albeit with appropriate safeguards to prevent any prejudicial judgments towards the accused.
[The author is a fourth-year law student at Symbiosis Law School, Pune.]
[1] The Code of Criminal Procedure, 1973, §2(wa). [2] The Code of Criminal Procedure, 1973, §154(2). [3] Puran v. Rambilas, 2001 SC 2023. [4] The Code of Criminal Procedure, 1973, §357 C. [5] The Probation of Offenders Act, 1958, §5. [6] The Code of Criminal Procedure, 1973, §357A. [7] The Code of Criminal Procedure, 1973, §326 A. [8] The Code of Criminal Procedure, 1973, §376 D. [9] The Code of Criminal Procedure, 1973, §357 B. [10] The Code of Criminal Procedure, 1973, §235(2). [11] The Code of Criminal Procedure, 1973, §205. [12] The Code of Criminal Procedure, 1973, §301(2). [13] Vibha Mohan, Revisiting Victim Compensation in India, Articles on Manupatra, available at: http://docs.manupatra.in/newsline/articles/Upload/6F5E12E5-2A56-49A9-BF1B-CBE1DF4F8726.2F__criminal.pdf (Last visited on August 15, 2020). [14] Id. [15] Erez E., Victim Impact Statements - Trends and Issues in Crime and Criminal Justice, 33 Australian Institute of Criminology (1991). [16] EREZ, supra note 16. [17] Id. [18] Id. [19] G.S Bajpai, Mainstreaming Victims of Crimes, Victim Impact Statement, February 2019, available at: https://www.researchgate.net/publication/331045772_Victim_Impact_Statement (Last visited on June 22, 2020). [20] BAJPAI, supra note 20. [21] BAJPAI, supra note 20. [22] BAJPAI, supra note 20. [23] Paul Gewirtz, Victims and Voyeurs: Two Narrative Problems at the Criminal Trial, 90 Nw. U. L. REV. 863 (1995-1996). [24] GEWIRTZ, supra note 24. [25] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. Res. 40/34, United Nations (November 29, 1985). [26] Id. [27] Payne v. Tennessee, 501 U.S 808, 808–10 (1991). [28] Georgia State University Law Review, Sentencing: Victim Impact Statement, 1 GA. ST. U.L. REV. (2012). [29] Riley M.B., Victim Participation in the Criminal Justice System: In re Kenna and Victim Access to Presentence Reports, Utah L. REV.(2007). [30] The Criminal Code of Canada, 1985, §722.2. [31] Mygov.scot, Make a Victim Impact Statement, January 8, 2020, available at: https://www.mygov.scot/victim-statement/(Last visited on September 1, 2020). [32] J.V. Roberts and M. Manikis, Victim Personal Statements: A Review of Empirical Research,8Report for the Commissioner for Victims and Witnesses in England and Wales, 2011. [33] Cps.Gov.Uk, Joint Agency Guide to the Victim Personal Statement, available at: https://www.cps.gov.uk/sites/default/files/documents/legal_guidance/joint-agency-guide-victim-personal-statement_0.pdf (Last visited on August 31, 2020). [34] Nirmal Singh Kahilon v. State of Punjab, C. A. No. 6198-6199 of 2008. [35] The Constitution of India, 1950, Art.21. [36] Puran v. Rambilas, 2001 SC 2023. [37] The Code of Criminal Procedure, 1973, §439(2). [38] Mallikarjun Kodagil v. State of Karnataka, (2019) 2 SCC 752. [39] State of Gujarat v. Raghu and Ors., AIR 1965 SC 1467. [40] Julian Roberts, Victim Impact Statements: Lessons Learned and Future Priorities, Victims of Crime, 1 Research Digest, Department of Justice Canada (2008). [41] Id. [42] Id. [43] BARBARA E. SMITH, NON-STRANGER VIOLENCE: THE CRIMINAL COURT’S RESPONSE (1983). [44] Id. [45] ROBERTS, supra note 41. [46] EREZ E., KILCHLING M., JO-ANN WEMMERS (EDS.), THERAPEUTIC JURISPRUDENCE AND VICTIM PARTICIPATION IN JUSTICE- INTERNATIONAL PERSPECTIVES ix-x (2011). [47] Raineri A.S., Re-Integrating the Victim into the Sentencing Process: Victim Impact Statements as an Element of Offender Disposition, 1Queensland U. TECH. L.J. (1995). [48] Dubber M.D., Victims in the War on Crime: The Use and Abuse Of Victims’ Rights336 (2002). [49] Sebba L., The Victim's Role in the Penal Process: A Theoretical Orientation, The American Journal of Comparative Law (1982). [50] RAINERI, supra note 48 [51] Id. [52] Id. [53] Bandes S., Empathy, Narrative and Victim Impact Statements, 63(2) U. CHI. L. REV.(1996). [54] State of U.P. v. Shri Kishan, AIR 2005 SC 1250;State of M.P. v. Saleem,(2005) 5 SCC 554;Ankush Maruti Shinde v. State of Maharashtra, AIR 2009 SC 2609;Bikram Dorjee v. State of West Bengal, AIR 2009 SC2539. [55] Madhava Menon Committee Report, The Draft National Policy on Criminal Justice (2007). [56] N.R. Madhava Menon, Report of the Committee on Draft National Policy on Criminal Justice, Ministry of Home Affairs, Government of India (2007). [57] Sandes A., Victim Participation in Criminal Justice,49 Criminal Justice Matters (2002). [58] Peace K.A & Forrester D.L., Gender, Emotionality and Victim Impact Statements, 2 J. OF CRIM. PSYCHO.(2012). [59] Giannini M.M., Equal Rights for Equal Rites? Victim Allocution, Defendant Allocution and the Crime Victims’ Rights Act, 26 Yale Law & Policy Review (2008). [60] Dipa Dube, Muffled Voices: Making Way for Impact Statements in Criminal Justice System in India,12 Rivista di Criminologia, Vittimologia e Sicurezza(2018).
Comments