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Victims of Crime- Restoration and Legal Care under Indian Criminal Jurisprudence

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This article has been written by Nashrah Fatma, a third-year law student at the Faculty of Law, Jamia Millia Islamia.
This article aims to discuss the various aspects of victim restoration under Indian law.

1.INTRODUCTION
2.ORIGIN AND DEVELOPMENT OF VICTIMOLOGY IN INDIA
3.WHO IS A VICTIM?
4.COMPENSATION TO VICTIMS
5.VICTIM RIGHTS AND VICTIMOLOGY IN INDIA
6.RIGHT OF PRIVACY OF RAPE VICTIMS
7.CONCLUSION

INTRODUCTION

Crime affects a large number of people. It is a violation of interpersonal relationships. The criminals or perpetrators are punished for their criminal acts but the plight of the sufferers or victims of the crime cannot be ignored. Victimization refers to any form of pain endured by the victim of a crime experienced by a victim of an assault. When a victim reports a crime, law enforcement acts, and the victim’s journey through the criminal justice system begins. The trauma may worsen due to all these procedures in the criminal justice system, and re-victimization may also play a role. Victimology is the study of victimization, which includes a scientific analysis of the connection between the victim’s physical and psychological distress and the crime.

Benjamin Mendelsohn, a criminologist, is credited with being the first to use the term “victimology”. Between the 1940s and 1950s, he and his colleague Hans von Hentig examined victimology with a focus on what types of behaviours or qualities the victim exhibited that drew the attention of the offender and resulted in the victimization. They are regarded as the “Father of Victimology Study.”

Von Henting examined homicide victims and found that they were more likely to be of the “depressive type”, who were easy prey for criminals. Following this approach, another victimologist postulated that “many victims precipitate homicide was in reality caused by the unconscious inclinations of the victims to commit suicide”.

The criminal justice system has largely ignored the victims of crime, despite the fact that they frequently get support and help from their families, tribe, or community. Only recently have criminal law jurisdictions come to the realization that victims must be treated with empathy and that their basic rights and dignity must be safeguarded.

The scientific study of victimization, including the interactions between victims and offenders, the criminal justice system, the police, courts, correctional personnel, and victims, can be roughly referred to as victimology. However, the study of victimology is not just defined by these relations but also by other forms of human rights violations that are not necessarily crimes.

ORIGIN AND DEVELOPMENT OF VICTIMOLOGY IN INDIA

The goal of the criminal justice system in India during the early Vedic era was not only to punish offenders but also to make amends for the victims. Throughout the Mughal and British periods of Indian history, the focus was more on punishing perpetrators than providing victims with compensation. The only things the criminal justice system cared about were guiding offenders and attempting to change them. However, since the 1980s, and mainly as a result of legal action, the protection of victims has garnered more attention.[1]

WHO IS A VICTIM?

The victim as defined by Section 2(wa) of the Code of Criminal Procedure is as follows: ‘Victim’ refers to 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 victim includes his or her guardian or legal heirs. The concept of victim includes any person who experiences an injury, loss, or hardship due to any cause.[2]

The primary victims are those who are most directly impacted by the offence, but there are also other victims, including witnesses, members of the affected community, and family members of both the victims and the offenders. It is imperative to address the relationships that were impacted by the crime. Responses to the variety of needs and damages felt by victims, offenders, and the community constitute restoration.

COMPENSATION TO VICTIMS

Traditionally, compensation was awarded according to the principle “Ubi remedium ibi jus” (where there is a remedy, there is a right principle. Criminal law was not a concept in any prehistoric culture. Every crime, including murder, might be made up for financially. Every crime was, in fact, a civil wrong rather than an offence against society as a whole. The phrase “Ubi Jus ibi remedium” -where there is a right, there is a remedy” holds true in the present times. The idea of compensation nowadays is that no one should go without compensation.[3]

There are some general and specialized laws with provisions relating to compensatory relief in India.

Sections 357 (1) and (2) of Cr.P.C. empower the trial court to award compensation to the victims of crime. The compensation provided in S. 357(1) includes costs, damage, or injury, suffered or loss caused due to death or monetary loss incurred due to theft or destruction of property, etc. Similarly, Sec.357-A is inserted by Amendment Act 2008 in Cr.P.C. and it provides a scheme relating to victim compensation. Accordingly, every State Government is required to prepare a scheme for providing funds for the purpose of payment of compensation to a victim or his dependent who has suffered any loss or injury due to the crime.

The current criminal justice system is predicated on the idea that the conviction of the offender is sufficient to recognize the rights of a crime victim. The Ministry of Home Affairs Committee on Reforms of the Criminal Justice System, chaired by Justice Dr. V.S. Malimath, recognized “justice to victims” as one of the core principles of Indian criminal law in its Report presented to the Government of India in March 2003. By permitting, among other things, involvement in criminal processes as well as compensation for any loss or injury, it suggests a comprehensive justice system for the victims.

Victimology was not formally acknowledged as a branch of criminology until the 1970s. The founding of the World Society of Victimology by criminologist Hans Schneider in 1979 was one of the significant turning points in the history of victimology. It is presently a nongovernmental, nonprofit organization with Special Category consultative status with the Council of Europe and the Economic and Social Council (ECOSOC) of the United Nations.[4]

As the word implies, victimology is the study of victims. The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985, defines a “victim of crime” as a person or group of persons who have been harmed, individually or collectively, by acts or omissions that violate criminal laws in effect within the Member States, including those laws proscribing criminal abuse of power.[5]

VICTIM RIGHTS AND VICTIMOLOGY IN INDIA

Victims’ rights have been given recognition by the Indian Criminal Jurisprudence. By submitting an F.I.R. under Section 154 of the Code of Criminal Procedure or a complaint before the Magistrate under Section 200, the victim or any other person initiates the legal process. The victim has the right to be present at every process, including the bail application, the investigation, the inquiry, the trial, and any future sentencing or parole hearings. It recognizes the harm done to the victim as well as his interest.

When an F.I.R. is filed, the police launch an investigation. However, the police cannot begin an investigation if there is a report of an offence that is not cognizable without the consent of a magistrate who has the power to try the case or commit it for trial. The office in charge of the Police Station need not go in person or appoint a subordinate officer to conduct an inquiry immediately in the case of a cognizable offence when the information is presented against any person by name and the situation is not serious. Officer-in-Charge of the Police Station shall not examine the case if it appears that there is insufficient justification for opening an investigation.

Additionally, the option to complain to the Magistrate has been provided. A magistrate who receives a complaint about an offence must examine the complainant and any present witnesses.

RIGHT OF PRIVACY OF RAPE VICTIMS

In numerous instances, the privacy of the victims is infringed. Their name or place of residence is made public which may cause them to suffer even after restoration or rehabilitation. The Supreme Court, in Raja Gopal’s case,[6] observed that a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing, education, etc. because the right to privacy is inherent in the right to life and liberty guaranteed under Article 21 of the Constitution. However, despite the fact that the CrPC specifically states that rape cases must be tried in secrecy, the privacy of the victim is breached throughout a criminal prosecution. In Gurmeet Singh’s case, the Supreme Court was forced to reiterate the law as it is stated in Section 327 of the CrPC.[7]

A victim may be authorized to instruct a pleader as a prosecutor in any Court pursuant to Section 301(2). In such a case, the prosecution will be handled by the public prosecutor or assistant public prosecutor in charge of the case.
Section 12 of The National Legal Service Authority Act, of 1987 reinforced the idea of free legal aid. It provides that every person who has to file or defend a case shall be entitled to legal services under this Act if that person is a Scheduled Caste or Scheduled Tribe member, a woman, a child, a person who is mentally ill or otherwise disabled, an industrial worker, a victim of a major disaster, or a person in custody of a protective home as defined by clause (g) of Section 2 of the Immoral Traffic (Prevention) Act, 1956 and people whose annual income is less than Rs. 9,000 or another higher amount that may be prescribed by the State Government if the case is before a court other than the Supreme Court, and less than Rs. 12,000 or another higher amount that may be prescribed by the Central Government if the case is before the Supreme Court.[8]

In the State of Himachal Pradesh v. Prem Singh,[9] the Supreme Court has held that the delay in lodging F.I.R. in a case of sexual assault cannot be equated with a case involving other offences. There are several matters that weigh the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint and in such cases of sexual assault, the victim’s psychological and mental torment should definitely be considered.

In India, the higher courts have traditionally taken great care to ensure that victims of crime receive compensation. Since the Supreme Court’s formation, the first instance in which a person received monetary compensation for the violation of one of his or her fundamental rights was the case of Ruddal Shah v. State of Bihar[10] that a person is entitled to compensation for the loss or injury caused by the offence, and this includes the victim’s wife, spouse, parents, and children. The ruling, in this case, is a landmark one since it sparked the development of compensatory jurisprudence for constitutionally protected fundamental rights violations. It is significant in this regard that this verdict was based on the Court’s interpretation of the Indian Constitution and that there is no clear provision in the text of the Indian Constitution for awarding compensation and that this judgment was on the basis of the Court’s interpretation of the extent of its remedial powers.

In the case of Bhim Singh v. State of Jammu & Kashmir,[11] the court ordered a compensation of Rs. 50,000 to the petitioner, a member of the Legislative Assembly, for the violation of his legal and constitutional rights after finding that he was maliciously and deliberately detained and arrested by the police in order to prevent him from attending the assembly session. The court observed that the malicious intention of the arrest and detention is not washed away by his later release.

The victim or his family cannot be neglected by the court in its efforts to uphold and defend the human rights of the convict if the victim dies or becomes otherwise unable to support himself as a result of the convict’s criminal act. The victim is certainly entitled to reparation, restitution, and safeguarding of his rights. In the criminal justice system, a victim of a crime cannot be ignored. He has endured the most hardship. His family is completely destroyed, especially in the event of death or severe physical harm. This is in addition to considerations like humiliation and reputational damage. An honour that is lost or a life that is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace. This was observed in the case of the State of Gujarat v. Hon’ble High Court of Gujarat.[12]

For a variety of reasons, witnesses and victims of crime are hesitant to cooperate with the criminal justice system and actively participate in court procedures. When called to the police station for questioning, witnesses are scarcely ever treated with respect. Additionally, they do not receive any compensation in the form of TA and DA reimbursement, as required by section 160(2) of the CrPC. The court’s repeated adjournments of cases, the subordinate courts’ lack of basic amenities, and the failure to pay TA and DA for witnesses’ attendance in court all cause a significant amount of difficulty for the witnesses. The prosecution would brand the witnesses hostile for not backing the statement recorded by the IO or the overzealous defence attorney would browbeat them for being questioned after a long interval of 5 to 10 years after the incident.

The limitation of the aforementioned legal provisions is that when the accused is exonerated of the allegation, which occurs in roughly 93% of instances in India, compensation cannot be granted by the court. The United Nations General Assembly has advised states to compensate crime victims when the criminal or other sources are unable to provide it in full. The urgent needs of crime victims are not being addressed by Indian legislators. Despite being required to comply with the terms and conditions of the International Covenant to Protect Human Rights and Fundamental Freedoms, India has not passed any legislation to provide compensation to the victims when the accused is found not guilty by a criminal court. As a result, the victims of racial strife, dacoity, arson, rape, etc. are not receiving any recompense.[13]

CONCLUSION

The study of victims in the contemporary criminal justice system and providing restoration remains the sole focus of mainstream victimology. This emphasis has affected how crime is measured and the role that victims play in addition to increasing awareness and understanding of crime victims. Additionally, society as a whole is morally responsible for the crime because it is a result of some unfavourable socioeconomic conditions. If the State fails to eliminate certain issues from society, it must provide compensation.

Organized crimes, such as drug trafficking, shootings, money laundering, extortion and murder for rent, fraud, and people trafficking, in particular, are rapidly raising the crime rate in India. A survey indicates that every two minutes, a crime against a woman is reported in India. The data emphasize how vital it is to create effective law and order in the country and suitable victim compensation mechanisms.

References

  1. L. D. Dabhade & N. A. Qadri, Present Scenario of Contempt and Development of Victimology in India, 2 IJRSSIS 61-64 (2015).
  2. Ibid.
  3. Ibid.
  4. Ibid.
  5. Ibid.
  6. (1994) 6 S.C.C. 632 (India).
  7.  (1996) 2 S.C.C. 384 (India).
  8. Ibid.
  9.  2009 Cr LJ 789 (S.C.).
  10. (1983) 4 S.C.C. 141 (India).
  11. (1985) 4 S.C.C. 677 (India).
  12.  (1998) 7 S.C.C. 392 (India).
  13. R K Bag, Perspectives in Victimology in Context of Criminal Justice System, 41 JILI 78 (1999).

Analytical Positivism

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INTRODUCTION

Jurisprudence is defined as the science or philosophy of law. The origin of this term can be traced back to a Latin term, ‘Jurisprudential,’ translated to the ‘study, knowledge or science of law.’ There are five primary schools of thought in jurisprudence. They are:

  • Philosophical School.
  • Historical School.
  • Realist School.
  • Sociological School.
  • Analytical School.

This article attempts to explain the analytical positivism of the analytical school of thought. The analytical school of thought is also known as the positivist law or the positive school. This is mainly because the proponents of this theory focused on what the law is rather than what it should be. For example, if there is a law that punishes anyone murdering with a death sentence, then according to the positivist law, people must follow this rule without questioning if anyone should be given a death sentence. Analytical positivism calls for consideration of empirical facts, rejecting any moral or value-based theories.   

ORIGIN

Through the 18th century, the natural law theory was more prominent in practice. According to the natural law theory, there are some laws common to all societies irrespective of their cultural or ethnic backgrounds. Natural law theory is based on the premise of the human conscience of what is good and what is evil. Anything morally wrong is considered to conflict with the law according to this theory. It was only around the beginning of the 19th century when the positivist school of thought emerged, rejecting the unclear assumptions of the natural law school. 

As proposed by Jeremy Bentham and John Austin, the theory of utility and analytical positivism contributes majorly to the analytical school of thought. Analytical positivism also found support in the works or ideas of philosophers like Salmond, Hart, and Holland. Auguste Comte, a French thinker, was the first one to coin the term positivism. The term ‘positivism’ has five meanings:

  1. Law commands.
  2.  Legal concept analysis differs from social and historical investigations and critical evaluation.
  3. Decisions can be made based on predetermined guidelines.
  4. Moral judgments cannot be accepted or defended by rational arguments.
  5. Law, as it is, must be kept separate from the law that ought to be.

JEREMY BENTHAM’S CONTRIBUTION

In England, Jeremy Bentham became the flag-bearer of a new era of history in legal thought. His theories on positivism later led to the establishment of a new school of thought (Analytical School of thought). Around the late 18th century, the law that existed in England was mainly developed through customs. The then prevailing English legal system lacked organization. At this point, Bentham, with his robust positivist approach, gave a new direction for legal research and lawmaking. His ideas laid the building blocks for a phase of transformation from Blackstone’s Natural Law Theory to the Analytical School of thought.

In Bentham’s belief, every law must be considered concerning eight aspects, namely:

  1. The source of the law
  2. The subject of the law could be either persons or things.
  3. The object for the enactment of the law.
  4. The extent of the applicability of the law
  5. The aspect of the law, i.e., whether it is directive or sanctioned.
  6. Force
  7. Expression and
  8. Remedial State Appendages

This was a first-of-its-kind proposition and further laid the foundations of a new approach. Bentham’s theory might have some shortcomings, but no one can deny his importance in shaping the positivist approach of the Modern English law and laying the bedrock for the emergence of new schools of thought, the Analytical school being one of the most important of them. Needless to say, John Austin also owed much to Jeremy Bentham for his works on Analytical Positivism.

JOHN AUSTIN’S CONTRIBUTION

English legal theorist John Austin has extensively used the analytical method in his works, and hence the analytical school founded by him became famous with different names like positivism or analytical-positivism. For his significant contribution in this field, he came to be known as the father of the analytical school of thought (the law of positivism). Austin believed the law to be the command of the sovereign (imperative concept of law), imposed by politically superior to politically inferior. Austin was the first one who had set out to differentiate between positive law and positive morality through his works. A positive morality, according to him, is a law by analogy and hence not an appropriate subject matter to be discussed under jurisprudence. In his theory, Austin did not include laws of inanimate objects or improper laws. 

He had a firm idea of law being rules set by men for men. He divided law into two parts:

  1. Human law
  2. Laws of God

Human law can be further divided into two kinds:

  1. Positive law – Laws set by persons acting as political superiors in pursuance of legal rights. (According to Austin, positive law was the proper subject matter to be dealt with under jurisprudence.)
  2. Other laws – Several rules or opinions which have moral and sentimental undertones. (International law is classified under this category by John Austin.)

Austin’s theory was clear, simple, and consistent in regards to what it wanted to explain.

This made his proposed school of thought quite famous, and many other jurists and schools of thought have followed after it. However, many theorists have later classified John Austin’s school as the Imperative school. This is because positivism is a term that failed to define the idea of Austin’s school single-handedly. Similarly, the word ‘analysis’ was not confined to this school and hence could create confusion.

Austin is given the credits for opening a new era of approach to law. Even the flaws of his theory paved the way for new ideas to follow. Later many jurists and philosophers such as Salmond and Gray took inspiration from his thoughts and improved upon his approach.

CONCLUSION

In conclusion, we can say, the analytical school of jurisprudence believes that the most significant feature of the law is its relationship to the state. As a result, the school is also known as the obligatory school. In the United States, prominent jurists like Gray, Hohfeld, and Kocourek supported the school, as did Kelson, Korkunov, and others in the Continent. Analytical Jurisprudence is a methodological approach to law that views law as a collection of actual interlinked principles rather than a random collection of rules intrinsically linked to the transcendental Law of Nature. It aims to describe, classify, identify the key characteristics, and establish a yardstick by which all laws may be judged.

The article has been written by Debasmita Nandi, a first-year law student of Christ (Deemed to be) University Lavasa.

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Hart on Jurisprudence

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The present article is written by Vanshika Samir.

Jurisprudence is the name given to a specific form of legal study, one that is abstract, general, and theoretical in nature and aims to reveal the fundamental principles of law and legal systems. The word jurisprudence comes from the Latin word jurisprudentia, which meaning “legal understanding.” Juris is the Latin word for law, and Prudentia is the Latin word for skill or knowledge. Jurisprudence so denotes legal knowledge and application. The study of fundamental legal principles is known as jurisprudence.

Professor H.L.A. Hart (Herbert Lionel Adolphus Hart) is a well-known legal scholar. Hart made a significant contribution to jurisprudence and legal philosophy. He wrote ‘The Concept of Law’ and contributed significantly to political philosophy. He is recognized as the most prominent representation of British positivism in the modern era. He is a linguist, philosopher, barrister, and jurist, according to his book. Law, according to Hart, is a set of rules. “Where there is law, human behavior is non-optional or obligatory,” he claims. Obligation rules are backed by strong social pressures because they are thought to be vital for society’s survival. The legal system, according to Hart, is identical to the concept of law. According to Hart, rules of law are divided into logical categories with distinct legal and social functions. He divided basic rules from subsidiary rules, as well as duty-imposing rules from power-granting regulations. Primary rules are those that direct the behavior of individuals and other legal entities, whereas secondary rules are those that govern how primary rules are produced and recognized. Rules such as the Income Tax Act, the Wealth Tax Act, and others that compel taxes to be paid are examples of duty imposing rules. Power to enter into a contract, form a will, and so on are instances of power bestowing rules. 

Hart examines the relationship between law, coercion, and morality in his book The Concept of Law, as well as the question of whether all laws are correctly understood as coercive orders or moral precepts. According to Hart, there is no rationally required relationship between law and compulsion or law and morality. He believes that categorizing all laws as coercive orders or moral commandments simplifies the relationship between law, coercion, and morality. He further explains that viewing all laws as coercive mandates or moral commandments creates a deceptive impression of uniformity by imposing a deceptive appearance of uniformity on diverse types of laws and social roles that laws may serve. This will lead to the misplaced characterization of the application of laws. There are laws that prohibit people from doing certain things and put a variety of obligations on them. Some laws may impose penalties or punishments for damaging others or failing to fulfill various types of tasks or obligations. 

Law can be broken down into rules, which is based on Hart’s theory of law. Rules, he claims, are concerned with what should be done rather than what happens. Rather than being indicative or descriptive, rules are mandatory or prescriptive. Rules have a self-legitimizing or independent quality to them. Rules are not the same as orders. Rules have a broad application and require recurrent activity, whereas commands typically call for a single unique performance. In certain circumstances, such as rules of a game, rules are constitutive and define the action in question, whereas, in others, such as rules of grammar, morals, and law, rules regulate activities that would occur regardless of whether the rules existed or not. Insofar as they are formal in nature, open to revision by authorities authorized for this purpose, and have some sort of adjudicating process when there is any dispute with the meaning or implementation of these rules, rules of game, clubs, and societies have the feature of rule of law. Rules of morality cannot be changed by legislation and cannot be resolved by adjudication. As per Hart, law consists of rules and it is mandatory for individuals to follow the law. At the same time, the law can be subject to amendment and adjudication. Law consists of rules and rules can be divided into two- primary rules and secondary rules. The behavior of men in society is governed by primary rules. These rules either confer privileges or impose obligations on society’s members. Secondary rules specify how and by whom main rules may be made, acknowledged, updated, or repealed. Human beings are obligated to conduct or refrain from specific activities under basic rules; secondary rules are parasitic on or secondary to the first. People are bound by basic rules whether they like it or not, whether they wish it or not; secondary rules provide them with opportunities to realize their wishes. Primary rules are vital for social interaction, whereas secondary rules are required for growth.

Hart’s depiction of a legal system as a combination of main and secondary rules is unquestionably useful as a tool for analyzing many issues that have perplexed both jurists and political theorists. The rule of recognition is a secondary rule, according to Hart, although it appears to some jurists to be more like the acceptance of a special kind of rule than a power. Hart’s approach is predicated on the distinction between laws that create responsibilities and rules that create powers on a legal system being established by their union, while others believe that such a strong separation is unnecessary.

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