Tag: #criminallaw

Dowry- A “Prohibited” Act

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Marriage- an age-old institution that is considered as a sacramental union is infested with a tradition that took the color of greed over the years and has agonized many- Dowry. 

What Is Dowry?

“Dowry” in simple terms means giving or agreeing to give any property (could be anything from gold, home appliances like fridge, etc., cash, to something as basic as utensils.) by one party to the marriage to another. This exchange could be made before, at, or even after the marriage. Sec-2 of The Dowry Prohibition Act, 1961, excludes dower or mahr from the ambit of dowry in the case of persons to whom Muslim Personal Law (Shariat) applies.

While the definition of dowry as given by The Dowry Prohibition Act, 1961, suggests dowry given by “one party to a marriage” (not specifying which), it is always the bride’s family who gives the dowry. This is a dominant example of the prevalent system of patriarchy. A girl child is considered a burden from her birth by her parents because they would have to give dowry in the future to make her somebody’s wife someday. Hence it is not far-fetched to say that dowry has led to offenses like female feticide, female child trafficking, etc. 

The amount of dowry depends on multiple factors (likely to be offensive) like education of the groom, education of the bride, caste-subcaste, bride’s skills, her beauty, the family status of both the parties in the society, family’s negotiation skills, and the list is inexhaustive.

Current Status 

It may come as a surprise to many, but in earlier times, dowry was given to the bride by her family as means to maintain her independence after marriage. Over the years, it developed as a means to satisfy the greed of her in-laws. Acknowledging the mounting cases of dowry harassment and death, the Indian Parliament enacted The Dowry Prohibition Act, 1961, declaring dowry illegal in India followed by Section 498A, 304B, Indian Penal Code-1860.

Statutory Provisions

  1.  THE DOWRY PROHIBITION ACT, 1961

This act aims at prohibiting giving and taking of dowry. 

  • Section 3, states the penalty of giving or taking of dowry or abetting of giving and taking dowry. 

Penalty- imprisonment for a term not less than 5 years and with a fine not less than 15,000/-, or the amount of the value of such dowry, whichever is more.

Proviso- For adequate and special reasons, to be recorded in the judgment, imprisonment for less than 5 years can be imposed.

{Before the 1984 amendment, the penalty under this section was- imprisonment which may extend to 6 months, OR with fine which may extend to 5000/- OR with both.}

EXCEPTIONS: – Presents, (given without any demand being made for them) at the time of marriage, to the bride or bridegroom. Conditioned on the fact that they are to be entered in a list maintained as per the rules made under this Act.

Provided such presents, when given from the bride’s side are customary and their value is not excessive having regard to the financial status of the person giving.

  • Section 4, states the penalty for demanding dowry. Demanding dowry-directly or indirectly, from parents/relatives/guardians of bride or bridegroom.

Penalty-  Imprisonment for a term which shall not be less than six months, but which may extend to 2 years and with a fine which may extend to 10000/-

Proviso- For adequate and special reasons, to be recorded in the judgment, imprisonment for less than 6 months can be imposed.

  • Section 8 makes every offence under this Act, non-cognizable, non-bailable, and non-compoundable.

{Before the 1984 amendment, the offenses under this Act were non-cognizable, bailable, and non-compoundable.}

  1. CRUELTY BY HUSBAND OR RELATIVE OF HUSBAND, SECTION 498A OF INDIAN PENAL CODE, 1860

In 1983, Chapter XXA was inserted that had only one section i.e., Section 498A.

Section 498A deals with all cases of cruelty towards and harassment of a woman by her husband or his relatives.  

Essential ingredients of this section are: –

  • The victim was a married lady (may also be a widow)
  • She has been subjected to cruelty by her husband or the relatives of her husband.
  • That such cruelty consisted of either

– harassment of a woman to coerce her meeting demand of dowry, or 

– willful conduct by the husband or the relative of her husband of such a nature is likely to lead the lady to commit suicide or cause grave injury to her life, limb, or health.

  • Such injury inflicted is either physical or mental.
  1. DOWRY DEATH, SECTION 304B, INDIAN PENAL CODE, 1860

“Section 304B has been inserted in the IPC by Dowry Prohibition (Amendment) Act, 1986 to combat the increasing menace of dowry deaths.”

Essential ingredients of this section are: –

  • The death of a woman was caused by burns or bodily injury or otherwise than under normal circumstances
  • Such deaths must occur within a period of 7 years of marriage.
  • She must have been subjected to cruelty or harassment by her husband or any of his relatives.
  • Such cruelty should be for or in connection with demand of dowry; and
  • Such cruelty or harassment is shown to have been meted out to the woman soon before her death. 

Punishment: – Imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life.

Section 498A and Section 304B, Indian Penal Code, 1860 are not mutually exclusive. They deal with two distinct offenses. Even if cruelty defined in Section 498A will be the same for Section 304B, yet under 498A cruelty itself is punishable. But under 304B, Dowry Death is punishable that should have occurred within 7 years of marriage and no such period is mentioned in 498A.

Venugopal v. State of Karnataka (1999)- Constant demand of dowry leading to ill-treatment, harassment, and torture of the wife at the hands of the husband soon before her death, led her to take the extreme step of ending her life. The Supreme Court held the husband liable for dowry death u/s 304B, IPC for creating a situation whereby the wife committed suicide within 2 years of the marriage.

The state of Rajasthan v. Jaggu Ram (2009)- The death of the deceased wife took place after one and a half years of her marriage due to head injuries. Cruel treatment and harassment meted out to her immediately after her marriage till her death for bringing insufficient dowry. The Supreme Court held Section 304B to be applicable in the case. 

  1. SECTION 113B OF INDIAN EVIDENCE ACT,1872

To ascertain, whether a person has committed the dowry death of a woman, If soon before her death, she has been subjected to cruelty or harassment related to any dowry demand by that person, the Court will presume it to be a case of dowry death.

Also “dowry death” here has the same meaning as that given in Section 304B of the Indian Penal Code, 1860.

Kailash v. State of Madhya Pradesh (2007) SC- In this case, it was held that the words “soon before” in Section 113B cannot be limited by fixing time limit, it is to be determined by the Courts, depending upon the facts and circumstances of the case.

The combined effect of Section 304B of the Indian Penal Code, 1860 and Section 113B of Indian Evidence Act, 1872- If the prosecution proves the ingredients of Section 304B, then the presumption under Section 113B will operate. This is a rebuttable presumption and the onus to rebut shifts on the accused. 

Misuse Of Dowry Law

Like there are two sides of a coin, law related to dowry has two facets too. On one hand, we advocate that even after so many years of dowry law coming to life, our system has failed to eradicate dowry. On the other hand, there are cases of capturing the soul of these laws in the wrong way. 

Section 498A, Indian Penal Code, 1860 criminalizes cruelty towards a wife and makes it cognizable, non-bailable, and non-compoundable offenses. This section authorizes police to make an immediate arrest of the accused (husband and his relatives) based solely on the victim’s testimony and no other evidence. The flawed crafting of this section provides an opportunity for wrongful incarceration by vindictive women and at the same time makes this provision less effective for the ones actually in need. 

Structuring of this section is such that almost in all cases all the accused (husband as well as his relatives) receive the punishment of life imprisonment, as a result of not taking account of factors like physical or relationship proximity to comprehend whether the accused could actually be a part of such a commission. Due to this lack of clarity, many are undergoing punishment even without having any role in the act in question.

To overcome this shortcoming, in 2014, the Supreme Court in Arnesh Kumar v. the State of Bihar, ordered the police to follow a nine-point checklist before arresting anyone on a dowry complaint to avoid misuse of this section. This too faced backlash, one of the reasons being that it jeopardized the expediency in dowry cases.

Conclusion

Dowry is one of those social evils that has been fought against for a long time now, still, it persists. A problem was recognized and laws against it were drafted. But does it really matter if we have them written on paper only but not completely in practice? The biggest hurdle is the cases being unreported. From the very beginning, we as a society have motivated this tradition to prevail by giving, taking dowry, and watching others do the same. We have breathed life into this tradition time and time again. And today, when some of us advocate against it, most of us have accepted this as a totally normal act. Need of the hour is awareness & courage to put a stop to dahej pratha, acknowledge the anomalies in the laws drafted and look for their proper execution. One needs to realize the gravity of offenses committed in the name of this tradition and that it even leads to the death of the victim. Does it not make you wonder if it is dowry death or a well-thought dowry murder? 

The article has been written by Munmun Kaur, a law student from Law Centre-I, Faculty of Law, Delhi University.

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What are the various areas of law to practice?

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The present article is written by Priyanka Choudhary, currently pursuing BALLB from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

FIELDS OF LAW

The legal line of work is widely mistaken for being limited to courtroom appearances and defending criminals. Actually, the bar encompasses a huge subject pool and areas of practice. Sometimes, lawyers began their careers in one field, only to diversify to try something different in their later years. This will be because that field was the chance that was most readily available to them after school of law or thanks to a conscious decision to maneuver faraway from a field of the law.

However, few lawyers know which field is suitable for them from the very beginning of their legal career. This text aims to explain the various fields of law that you simply will study in school of law and may take up as a career path.

CONSTITUTIONAL LAW

The Constitution is deemed to be the supreme law of the country. It governs the affairs of the country and involves rights and duties of the govt. also as its citizens. The study of the Constitution is one of the foremost important subjects in school of law. The practice of constitutional law is one among the foremost lucrative areas of the law in India. Most top lawyers in India are going to be constitutional experts thanks to years of practice and knowledge. Almost like the practice of human rights law, the constitution may be a vast area of the law and may have many cases and jurisprudence to stay track of. These cases require you to access the High Courts and Supreme Court as a number of these issues are often of great significance to the justice system. Most landmark judgments in India will have a constitutional law aspect built into them somewhere.

CORPORATE LAW

The field of corporate law deals with rules concerning the facilitation and management of the business. A company lawyer can advise on an agreement, write up a contract, or negotiate clauses on behalf of a client. Corporate lawyers don’t attend court, but rather advise clients from the comfort of their office. An understanding of the Business Act, 2013, and therefore the Indian Contract Act, 1872, is a must. This is often one of the foremost lucrative areas of practice in recent years, with young graduates flocking to prestigious law firms to practice corporate law due to the attractive pay packages. Life as a company lawyer will involve very long hours. However, a robust understanding of corporate law can make sure you can work for several different types of clients like companies, start-ups, banks, etc.

CRIMINAL LAW

This is a neighborhood of the law that’s often considered the foremost interesting and involves defending criminals or advocating for the innocent in cases of murder, rape, theft, etc. legal code requires an understanding of court procedures, police investigations, and therefore the Indian legal code, 1860. Typically, lawyers who enjoy court-facing lawyers practice legal code. Most law aspirants, dream of practicing within the courtroom as criminal lawyers thanks to the sector being intriguing and interesting. One will see that there’s a bent to avoid practicing legal code in India thanks to questions of safety and low pay, as compared to salaries in law firms at the beginning of your career. However, the amount of legal code cases is on the increase, and practice within the field pays well as you progress ahead in your career if you’re a first-generation lawyer. The foremost successful and well-known lawyers in India are criminal lawyers.

EMPLOYMENT LAW

Employment law concerns the rights & duties of employer and employee. Employment lawyers often fight cases to either defend compliance with the labor laws or absolve their clients of requirements prescribed by such legislation. Employment lawyers will also review employment agreements and assist with the termination of employees. They’ll also represent a private employee, employee unions, and other interest groups. While employment law in other parts of the planet is usually a really specialized area of practice, in India it’s not uncommon to ascertain employment law being clubbed alongside corporate law, with one legal team advising on both areas of the law. Employment law is one of the more exciting areas of the law because it has got to do with tons of people-centric issues (hiring, firing, onboarding, health and safety of workers, etc.), and therefore the Indian government has recently made it easier to practice employment law by harmonizing multiple legislations into singular codes of practice.

ENVIRONMENTAL LAW

The practice of environmental law in India may be a growing area of the law. It deals with laws concerning air, water, wildlife, biological preservation, and environmental protection. With the recent creation of the National Green Tribunal, there are more environmental law cases being litigated and corporations are taking environmental compliance more seriously also. Environmental issues affecting many of us often have an underlying constitutional aspect. Being an environmental lawyer also can allow you to figure more easily for international organizations like the WWF-India or government departments. Thus, the practice of environmental law can allow you to figure during a sort of settings that are different from the traditional firm or lawyer’s office.

FAMILY LAW

Family law concerns personal laws, which affect the personal relationships of citizens. Family lawyers are involved in divorce cases, cases involving custody of youngsters, also as property law. In India, family lawyers need to affect a variety of legislations, which may include even complex laws governed by one’s religion (Hindu laws, Muslim laws, etc.). Family lawyers often affect cases that will be very emotionally difficult, because the issues in family law affect families and young children.

HUMAN RIGHTS LAW

Human rights lawyers advocate on behalf of victims who have violated their rights. In India, the practice of human rights law is often long and arduous together tries to urge their day in court – however, this will even be one among the more satisfying areas of the law as often there’s a vulnerable party at one end who needs legal advice, also because of the relief. To be an honest human rights lawyer, one must remember basic rights that are enshrined within the Indian Constitution. One can also see human rights principles as reflected in procedural laws in India, as the Code of Criminal Procedure.

INTELLECTUAL PROPERTY LAW

Intellectual Property law deals with securing and protecting legal rights concerning innovation, discoveries, and creations. The law seeks to guard the property rights of authors, inventors, artists, and businesses. A property lawyer will often advise on issues regarding the interpretation of statutes about patents, copyrights, or trademarks. Property law is one area that has grown significantly in recent years, with the increase of the media and show business. The work includes registering property, drafting legal notices, and actions associated with enforcing a breach of agreements. Being a property lawyer can keep you closer to business than other areas of the law, with many lucrative opportunities in companies like Netflix and Dharma Productions. Property law is taken into account by many to be one of the foremost exciting areas of practice for a lawyer today.

PROPERTY LAW

Property law deals with the laws regarding the transfer and inheritance of property. The practice of property law is a remunerative area of the law and may have some overlap with family law when families litigate disputed household properties. However, property lawyers also can be involved in land transactions, like people who concern the main construction projects that are prevalent in a developing country like India. The practice of property law also can include the review of tenancy contracts and rent agreements, which are straightforward and routine within the Indian system.

SECURITIES LAW

Securities law is a neighborhood of the law that has greatly expanded within the last 20 years. It focuses on the principles concerning investment and therefore the financial sector. With the expansion of fintech operators in India and an expansion of the Indian economic system, legal issues concerning them are getting increasingly common. Typically, one will find the large law firms in India with great law practice groups. A person should be well versed with the rules issued by the Securities and Exchange Board of India (SEBI).

The school of law journey is meant to offer law students a favor for these areas of law in order that a typical law graduate has minimal competence altogether of them. A student can then decide which area they need to specialize in and pursue upon graduation.

TAX LAW

Tax lawyers advise on the interpretation of provisions of the tax Act 1961 and may be expected to fight cases on behalf of clients in special tax courts. Law requires an intricate understanding of complex laws and maybe one among the foremost difficult areas of the law to master. However, each case is usually very unique, unlike other practice areas which will involve a repetition of issues and use of templates. There’s also an undersupply of lawyers during this domain, and therefore the competition isn’t as great because it is in other practice areas. Very similar to other countries, in India, the law is taken into account to be a distinct segment area of practice.

BIBLIOGRAPHY

  1. Discover Law, https://www.discoverlaw.in/fields-of-law.
  2. The Lawyer Portal, https://www.thelawyerportal.com/free-guides/areas-legal-practice/.
  3. Picking Your Area of Law, https://www.enjuris.com/students/types-of-law-careers.html.
  4. 16 Top Areas of Law, https://www.michaelpage.com/advice/career-advice/job-search-advice/16-top-areas-law.

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The Shortcoming of Rape Laws in India and a Need For Change

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The Present article has been written by Gracy Singh, pursuing BA. LL.B.(Hons.)(2nd year) from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

INTRODUCTION

India used to believe in the concepts like “Matri Devo Bhava” (the woman is revered to God), and “Yatra naryastu pujyante ramante tatra, Devata, yatraitaastu na pujyante sarvaastatrafalaah kriyaah” (Divinity blossom where women are honored, where women have dishonored all actions remain unfruitful). This concept seems to disappear in the present time as the number of sexual offenses against women keeps increasing. One such sexual offense which has become the most common crime in India is Rape. It is the most heinous crime as well as a huge disgrace to humankind. Rape means having sexual intercourse without the consent of another person. 

According to National Crime Records Bureau’s (NCRB), 88 rape cases per day, and 32,033 in the year were reported in India in the year 2019. The list is topped by Rajasthan (6,000 rape cases), and Uttar Pradesh (3,065 rape cases).  These are reported cases there are the majority of crimes against women committed by know people such as family members, friends, and neighbors; whereas in some cases victims are coerced by their families to keep silent. Who should be blamed for this?

LAWS REGARDING RAPE IN INDIA 

  1. India Penal Code, 1860 – 

In the Indian Penal Code, Section 375 states that rape is said to have been committed when a man has sexual intercourse with a woman without her consent or against the free will or obtains consent by force, fear of death, or by making her believe that the person is married to her, during the unsoundness of her mind, or intoxication.

  1. The Criminal Law (Second Amendment), 1983 

In the case, Tukaram v. the State of Maharashtra commonly known as Mathura Rape Case, a girl Mathura aged between 14-16 years, was raped by two police constables. Her family filed a case against two constables. The court said that Mathura did not call out for help and there were no visible marks on her body, so the act was consensual. The court further added that she was habitual to sexual intercourse. 

This case triggered endless violence across the nation; it was observed that the verdict given by the court was not sensible, legitimate, and linguistic. Women started protests demanding modification in the law. 

In 1983, The Criminal Law (Second Amendment) was brought that amended the Indian Evidence Act, Section 114 (A) was added stating that if the victim says that there was no consent, the court shall presume that there was no consent given. Custodial Rape was made punishable, and the character assassination was prohibited of the rape victim in court by this amendment.

  1. Amendment to Indian Evidence Act, 2002 

In 1983, character assassination was prohibited but cross-examination of the rape victim was not defined. An NGO, Sakshi filed a PIL pointing out the humiliation, dishonor of the sexual integrity, and personal space faced by the victims during trials in the court. 

Later, the Supreme Court ordered the Law Commission to review rape laws and to recommend the changes. As per Section 155(4) of the Indian Evidence Act, 2002, a defense lawyer could dishonor the testimony by proving the immoral character of the victim. Therefore, this clause was amended in 2002, and the cross-examination of the victim was prohibited. 

  1. Protection of Children from Sexual Offence Act (POCSO), 2012

As per the statistical data, Indian reported a 336% increase in child rape cases from 2001 to 2011. NCRB statistics showed that 48,338 child cases were reported during this period. This led to an urgent need for a law for child victims of sexual offenses.  It is gender-neutral and includes the abetment of child sexual abuses, sexual harassment, child pornography, and non-penetrative assault. Hence, POCSO (Protection of Children from Sexual Offenses Act) was passed in 2012. This Act made the police in charge to ensure the protection of the child during the investigating process, and provide medical treatment in emergencies. Also, the courts were allowed the conduct the in-camera trial without revealing the true identity of the child. The Act also made it mandatory to report child sexual offense cases.

  1. Criminal Law (Amendment) Act, 2013

In 2012, Mukesh and Anrs. v. NCT Delhi and Ors. a 23-year-old girl was brutally gang-raped in a moving bus, which led to her death. This led to protest in the country, demanding not only amendment in the laws but also the perspective towards rape. It became a women’s rights issue in India. This case also led to reconsider the laws as well as realizing that still there are many crimes against women that are not mentioned in our legal framework such as stalking, voyeurism, acid attacks. 

This led to the Criminal Law (Amendment) Act, 2013, that added stalking, voyeurism, and acid attacks into the definition of rape, a threat to rape is also considered as a crime. The punishment for rape was changed from seven years to ten years, in case of vegetative state or death of the victim, the punishment was increased to 20 years. The age was changed from 18 to 16 to the Juvenile Justice Act for being tried for crimes like murder, and murder since one of the accused in this case was minor.

  1. Criminal Law (Amendment) Ordinance

In 2018, an 8 years old girl was gang-raped and murdered by two men and a juvenile in Kathua, a district in Jammu and Kashmir. This case led to outrage among the masses in the nation. An amendment was brought in POCSO, and made rape punishable of a child below 16 years, as well as the minimum punishment, was made 20 years of imprisonment and death penalty in case of death of a child below the age of 12. The fast-track clause was amended from a year to six months.

PROBLEMS IN THE RAPE LAWS  

  1. Justice delayed, justice denied

In the case of the Delhi Medical student rape case, the fast-track court was set up, and it wrapped up the proceedings of the case within eight months. The convicts were given the death penalty but it took more than seven years to hang them. In 2019, more than 1.66 lakh cases are pending in Fast Track Courts; there will be no final closure even though all the legal formalities are completed and judgment is passed by FTCs. Fast-track justice could instill fear among the people.

  1. Gender Biased

It is time for society to understand and accept that men can also be the victim of trape. The most affected groups by the gender-biased laws are transgender and non-binary persons who more often face abuse and sexual assault. Lawmaker needs to understand that any person can be a victim and a perpetrator. Law should not be amended to claim that both men and women are affected by rape in the same manner rather an amendment should change the way society sees gendered stereotypes of sexuality.

  1. Botched investigations, few convictions

The police are considered shoddy as they do not know how to collect evidence like samples, photographs, fingerprints, and the crime scene is rarely protected. This results in poor prosecutions, few convictions, and amiable jail terms for offenders who are convicted.

  1. Stricter Laws

In India, rape is a common crime, the majority of cases go unreported. The accused in most of the cases are known or trusted people. As the laws are made stricter and also have the death penalty in some rape cases, victims are murdered so that they cannot tell or lodge a complaint against the perpetrators. 

  1. The Legality of Child Marriage 

The Supreme Court read exception 2 of section 375 and held that an act of sexual intercourse of a man with his minor wife will amount to rape. A marriage between a minor girl with an adult is voidable at the girl’s choice but it not completely void. Child marriage is granted legitimacy. Therefore, an adult can have sexual intercourse with his minor wife, but unless it is not reported this will not be a crime. In India, the probability is that number of such cases will remain unreported. But declaring child marriage void could stop this crime against minors.

  1. Statutory Rape

It is defined under Section 375 of the Indian Penal Code states that if any man has intercourse with any girl below 18 years, with or without her consent will constitute statutory rape.

There is no difference left between sex between an adult and a minor, or two consenting minors because minors are considered to not have enough knowledge to give consent for sex. In such cases, sometimes the boys involved are unjustly convicted under the statutory rape clause. In a case, the Madras High Court said as obiter dicta that sexual activities between minors above the age of 16 should not be criminalized.

  1. Marital Rape

India is one of 36 countries where marital rape is legalized. However, the UN Committee on Elimination of Discrimination Against Women (CEDAW), as well as the  Justice Verma Committee, recommended criminalizing marital rape. Still, there is no law to protect women from marital rape. It violates the right to live with dignity (Article 21), and the right to privacy, only women below or 18 years of age are protected from marital rape but what about the women above 18 years? 

Case Study –

Kajal (not her real name), Madhya Pradesh

Kajal, a rape victim who was 23, said that after she filed a complaint of gang rape in the Neemuch district of Madhya Pradesh, she, and her father was detained, threatened, and beaten up by the police. She was slapped, beaten up with a stick, and compelled to sign on several blank papers, and forced to give a false statement in court or her father will be arrested on false charges. Police filed a closure report stating that Kajal and her father had filed a false case against the man accused because of the land dispute between them. However, the closure report was rejected, and the investigation officer was summoned by the chief judicial magistrate. 

Due to threatening from the accused Kajal’s parents asked her to move away from their home before her in-laws abandoned her when she filed a report of rape. When she was in urgent need of medical and counseling support but she was not provided with any referral for counseling.

CONCLUSION

Many changes have been brought in rape laws since 1860 and tried to bring the change in the existing condition of women but still, there are changes required such as criminalizing marital rape. Some laws end up having some negative effects. Every time a big rape case is noticed, the nation is shaken by the outrage and public demanding modification. However, many unreported cases also do not get similar public attention. In current rape laws changes and additions are required. It is time to bring some changes and fight this evil proactively. 

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Compensation in Criminal Cases

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This article is written by Aanya Gupta, a 1st-year law student at Vivekananda Institute Professional Studies, GGSIPU, New Delhi. The article gives an overview of the compensations being provided in criminal cases.

Introduction

Crimes committed by individuals and companies are classified in various laws according to the nature of the crime. For example, the crime of infringement of private rights is governed by civil law, and the crime of endangering the country is governed by criminal law. When the appropriate court proves the crime, the victim or victim can obtain relief from the court through compensation, court orders, and actions, or the punishment of the offender. Generally speaking, if damage to private rights is caused by tort or any civil law, compensation and court order shall be given, and the offender shall be fined or not fined by the law and criminal law. However, there is no clear distinction as to why compensation should not be granted in criminal cases. With the introduction of new research such as “victimology”, it is important to analyze the importance of compensation in criminal law. The golden sentence in the preamble highlights “social justice”, but it hardly retains its meaning in the criminal case, because the law only provides for criminal clauses and does not pass a clause on victim compensation. However, it is hopeless that compensation for the victims is considered an “oasis in the desert.”

Ancient History of Victim Compensation

The history of ancient India proves the fact that victims of crime have sufficient compensation clauses to compensate for their injuries. Since ancient times, India has recognized compensation or compensation as a form of punishment. In ancient Hindu laws, compensation was considered a royal right during the Buddhist scripture period. MANU law requires the offender to pay compensation. This shows that compensation to victims has never been an unknown concept in the country’s judicial system.

Compensation to the Victim

The criminal Justice System now recognizes that the country’s legal system does not treat the issue of compensation to crime victims in a uniform manner, so it is advantageous to discuss the legal position of compensation to victims of crime. After independence, the trials of criminals are governed by the Criminal Procedure Codes of 1898 and 1973. Until 2008, article 545 of the Old Code and article 357 of the New Code had increasingly similar provisions on compensation for women. crime victims.

In Hari Singh v. Sukhbir Singh,  the supreme court said “It should be pointed out that the court’s power to award compensation is not subordinate to other judgments, but is attached to other judgments. This power of attorney aims to do something. To ensure that victims are not forgotten in the criminal justice system. This is a measure to respond appropriately to crimes and to reconcile victims and perpetrators. The legislator stipulated section 357(3) of the Criminal Procedure Code of 1973 Provisions were made to allow the court to award any amount of compensation to victims of crime. This is described in the landmark Hari Kisan case, where the Supreme Court awarded Rs 50,000 in damages as punishment. Not only that but lower courts are also required and recommended to “exercise the power to compensate crime victims free of charge so that victims do not have to rush to file a claim in civil court.”

Malimath Committee Report

To re-examine the criminal justice system in India in 2003, the Criminal Justice System Reform Committee was established under the auspices of Judge V. Malimath. The main assumption of the function of the criminal justice system is that protecting the life and property of all citizens from harm is the prerogative and dominant function of the state. The principle of compensating victims is seen as more symbolic relief than punishment for the offender or a substantial remedy provided by law for the victim. In 2008, the CRPC was significantly revised, focusing on the rights of victims in criminal trials, especially those related to sexual crimes. Although the amendments did not affect section 357, they did introduce section 357-A. Authorizes the court to instruct the state to pay compensation to the victim.

Section 357 and Section 357A of the Criminal Procedure Code

Former Compensation Clauses for the Victim Compensation Program. Previously, Article 357 of the Criminal Procedure Law provided for compensation for crime victims. The article was to order the convicted person to pay compensation to the crime victim, provided that the defendant’s sentencing court ordered so. However, in many cases, we have seen that the convicted were of poor origin, or were unwilling to pay compensation due to long-term imprisonment, and the victims seemed hopeless. seems to be to overcome this situation. In 2009, an amendment was passed to add a new section 357 A to the Criminal Procedure Code. According to Article 357A of the Criminal Procedure Law of this article, the state is also obliged to compensate victims of crimes other than the defendants specified in Article 357 of the Criminal Procedure.

Victim Compensation Scheme

  • The state governments shall coordinate with the central government to formulate A plan to provide compensation funds to victims or their families who have suffered loss or injury or need rehabilitation due to crimes.
  • Whenever the court makes a recommendation for compensation, the regional or state legal service agency will determine the award based on the above plan as appropriate the amount of compensation.
  • If after the first instance the court finds that the compensation awarded under section 357 is not sufficient for such rehabilitation.

Conclusion

We concluded that compensation is not only required but is a very important aspect of even criminal law and the courts should not use this sparingly but a little liberally. Of course, they should be careful of not awarding too high compensation and hence should be careful.

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Rights of Victim under Criminal Justice System in India

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This article is written by Aayukta Sharma, a law student at NIMS University Rajasthan, Jaipur. This article gives an overview of the background and history of victims with today’s circumstances to evaluate the relationship between the victims and the criminal justice system in India. It also includes the rights given to the victims in the Indian criminal justice system.

Introduction

The Ancient period was the golden age for victims of crime. The relationship between crime victims and criminal justice was very unique as the victims could ask for justice as per their wish. The system of retributive justice was present at that time which would mean an “eye for an eye” treatment provided to the victims. However, it had some kinds of elements of restorative justice because the perpetrator undoes the harm done to the victim. [i]

Criminal Justice System from the Ancient Period to Later Middle Age

During the Middle Ages, we can see the influence of the Anglo-Saxon period. During this time the crime was treated as a matter of private revenge. The entry of social leader (e.g., king) was noticed and it was no more the victim alone was given all sorts of rights during this time. But there was also a third party who would be deciding that what sort of punishment or compensation should be provided to the victim. The ultimate decision was taken by the state or the king/leader. The system fines were introduced during this period which went to the state which was paid by the accused with the amount of compensation that went to the victim.

In the later Middle Ages, the crime was considered as social harm and the state assumed complete responsibility. So, the state was considered the main victim. Crime victims were just “pieces of evidence”. It is considered the dark age for victimology.

Background of Rights of Victims Under the Criminal Justice System

The General Assembly of the United Nations adopted the declaration of basic principles of Justice for Victims of Crime and Abuse of Power at its 96th plenary on November 29, 1985. The Declaration constituted an important recognition to set the norms and minimum standards in international law for the protection of victims of crime and also for the rights of victims of crime – access to justice and fair treatment, restitution, compensation, and assistance.[ii] It also observes relevant judicial dicta that have sought to address the needs of victims of crime. The victim of the crime is the person who initiates the criminal justice system by informing the police about the crime, crime scene, accused, and suspects and the officer in charge is duty-bound to register the complaint[iii]free of cost[iv] and also provide a copy of the FIR free of cost. If the officer in charge refuses to register the written complaint, the victim can write to the Superintendent of Police.[v] In case he also refuses or is not entertaining the matter, the victim can file a complaint to the magistrate.[vi] The victim thereafter only participates in the investigation when he is called to confirm the accused’s identity.[vii]

The criminal justice system is responsible for looking after the needs of the victims of rape and other violent crime against women has always been predictable and inadequate.  The place of the victims who are women or children. In imposing the punishments[viii] and shifting burden of proof [ix] the law has failed to address the need of the victim to be treated with dignity, protection from intimidation, to readily access the justice procedure to legal aid and rehabilitation.

It is the right of the victim to get compensation under the criminal procedure code 1898 but it is substantively available to the extent of the fine received by the offender according to the fine specified in the Indian penal code 1860

Victimology and Criminology

Criminology is a broader term where victimology is a part of criminology. Victimology consists of victims, crime victims, victim rights, victim precipitation, etc.[x] The term victimology academically consists of two words – “Victim” and “ology”. It means the psychological study of the victims of crime and the main objective is to restore their mental, physical, psychological, emotional, and financial status as it was before the occurrence of the accident with them. Whereas criminology focuses on the punishment of the criminals and prevents the crime before happening.

Victimology vs Victimization

There is a great misunderstanding between both the words, “Victimology” and “Victimization”. Victimization is the outcome of deliberately taken actions by a person or institution to exploit or harm another. Victimology is the study of Victimization[xi]. The harm includes emotional, psychological, physical damage, economic loss, or sexual injury.[xii]

Victim’s Rights

Victims have very few legal rights as compared to criminals or accused of crimes in the criminal justice system. Victims do not have any right to be notified about the trials, court proceedings, or arrest of the defendant but they have the right to be informed, heard, and present within the criminal justice system. The victim assistance program is virtually non-existent. The core rights of the victim are-

  • Right to apply for compensation
  • Right to a speedy trial
  • Right to attend the criminal proceedings in court
  • Right to protection against harassment and intimidation.
  • Right to prompt return of personal property seized as evidence

Other rights given to the victims by the constitution are-

  • Right to attend the trial and proceeding
  • Right to be treated with fairness, dignity, and respect
  • Be informed of the proceeding and events such as the release of the defendant
  • Be awarded restitution from a convicted offender.
  • Be heard at critical points in the criminal justice system such as sentencing or parole hearings.

Judicial Activism – Landmark Judgments for Victims of Crime

  • The National Human Rights Commission V State of Gujrat 2009[xiii]

The Necessity for considering victim’s rights

  • Alister Antony Pareira v State of Maharashtra 2012[xiv]

Significance of no contract order

  • Delhi Domestic Working Women’s Forum v Union of India[xv]

Legal representatives of direct victims & all sorts of aid to the victims

  • State of Punjab v Gurmit Singh 2002[xvi]

The Necessity for in-camera proceedings

  • Balasaheb Ranganath v state of Maharashtra[xvii] 

Victim’s right to appeal

Conclusion

Over the last two decades, the victims have taken a much more prominent place in the criminal justice system. From the golden age of victims in the ancient era to the current era, Victims struggle a lot to gain their rights within the system. The victims also get defamed and end up in subjugation and are unable to cope with the circumstances or crimes they’ve witnessed even after the punishment to the criminal and compensation to the victim. 

References

[i] http://www.legalservicesindia.com/article/1391/The-Legal-system-in-ancient-India.html

[ii] Clause 4 and 5 of the UN Declaration

[iii] S. 154(1) of Cr. PC. 1973 – Registered as the first information report (FIR)

[iv] S. 154(2) of Cr. PC. 1973

[v] S. 154(3) of Cr. PC. 1973

[vi] S. 190 of Cr. PC. 1973

[vii] S. 9 of Evidence Act 1872 – the evidence gathered by some means of test identification parade is relevant and admissible.

[viii] S.376(2) IPC 1860 – Punishment of rape

[ix] S. 114 A, Evidence Act 1872 -presumption as to the absence of consent where the women raped says that she did not give her consent.

[x] https://www.jusdicere.in/crime-victims-and-victimology/

[xi] https://en.wikipedia.org/wiki/Victimology

[xii] http://www.legalservicesindia.com/article/1349/Victims,-victimization-and-victimology.html

[xiii] National Human Rights Commission vs State of Gujarat & Ors on 1 May, 2009

[xiv] Alister Antony Pareira v State of Maharashtra on 12 January 2012

[xv] Delhi Domestic Working Women’s Forum v Union of India 1995 SCC (1) 14, JT 1994 (7) 183

[xvi] State of Punjab v Gurmit Singh 2002 CriLJ 3210

[xvii] Balasaheb Ranganath v state of Maharashtra on 19 December 2017

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