By Apoorva Tomar
“Victimology, a burgeoning branch of humane criminal justice, must find fulfillment, not through barbarity but by compulsory recoupment by the wrong-doer of the damage inflicted, not by giving more pain to the offender but by lessening the loss of the forlorn.”
Victimology emerged as a new branch of criminal law in the late twentieth century and called for a shift from retribution to restitution and reparation in criminal law administration. The world, having witnessed gross human rights violations in the Second World War, was inclined to turn its attention towards the victims of crime in order to be more sensitive to their rights, needs and interests.
The term ‘victim’ has been defined in the Code of Criminal Procedure, 1973 under Section 2(wa) as a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged, and the expression ‘victim’ includes his or her guardian or legal heir.
A person against whom a crime is perpetrated suffers unpredictable physical, psychological or financial harm. This position is further worsened by insensitive criminal law processes and, in the common law system followed in India, the system has traditionally been more focused on protecting an innocent person from being punished than addressing the concerns of the victim.
In such a system, tilted in favour of persons accused of an offence, the position of victims of sexual offences is even more complex. In addition to physical, social and emotional trauma, they may be subjected to further harassment at the hands of police and lawyers during investigation and trial, leading to secondary victimization or re-victimization.
A victim-oriented approach therefore calls for adopting non-discriminatory practices starting from the stage when a crime is registered and investigated and continuing during trial until an order is made.
Victim Compensation Scheme
Although Section 357 of the Code of Criminal Procedure empowered courts to order payment of compensation to a person who suffered loss by reason of an offence, there was no legal provision whereby a victim could seek compensation from the State or perpetrator of the offence. Moreover, the award of compensation was limited by the capacity of accused persons ordered to pay and therefore often failed to provide meaningful recompense to victims of sexual offences.
In Delhi Domestic Working Women’s Forum v. Union of India (1994), the need to set up a Criminal Injuries Compensation Board for rape victims was recognized and the Supreme Court suggested that such a board should give compensation whether or not a conviction takes place.
The need for compensation and rehabilitation of victims of sexual offences was recognized in law in 2009 through Section 357A of the Code of Criminal Procedure. This Section provides that every State Government shall prepare a scheme for providing funds for compensation to the victim or his dependants who have suffered loss or injury as a result of the crime and require rehabilitation.
It ensures that the victim is compensated by the District/State Legal Services Authority even where the offender is not identified and the trial has not taken place. In 2013, Section 357B was introduced to provide that compensation payable by the State Government shall be in addition to the fine awarded by the court.
Protection granted to Victims of Sexual Offences
- 1. Mandatory recording of an FIR by a woman police officer where the informant is a woman against whom a sexual offence under the IPC is alleged to have been committed or attempted. This condition is also to be followed during investigation when the victim’s statements are recorded.
- 2. If a person who is a victim of sexual offences is mentally or physically disabled, the FIR is to be recorded at the victim’s residence or another convenient place of choice and in the presence of an interpreter. The recording is also to be videographed.
- 3. In cases of rape, the statement of the victim is to be recorded at the victim’s residence or a place of choice and in the presence of her parents or guardians or near relatives or a social worker.
- 4. Statements of victims of sexual offences are to be recorded by a Judicial Magistrate as soon as possible. In case the victim is mentally or physically disabled, assistance of an interpreter is to be taken and the process of recording is to be videographed. Such disabled victims need not repeat the statement at the time of trial.
- 5. Medical examination of the victim of rape is to take place within 24 hours of the police receiving information and only after consent is given by her or on her behalf.
- 6. In case of rape of a child, the investigation is to be completed within three months from the date on which the FIR was recorded.
- 7. A victim can engage an advocate of his or her choice to assist the prosecution with the permission of the court.
- 8. In cases of rape and other sexual offences, the court shall be presided over by a woman judge.
- 9. A victim of rape or other sexual offences below 18 years of age is not to be confronted by the accused while recording evidence.
- 10. The inquiry or trial in cases of sexual offences must be concluded within two months from the date of filing of the charge sheet.
- 11. Provision for in-camera trial in cases of rape and other sexual offences, to be conducted by a woman judge.
- 12. Confidentiality of the name and address of rape victims is to be maintained.
- 13. The victim shall have a right to prefer an appeal against an adverse order acquitting the accused, convicting for a lesser offence, imposing inadequate sentence or granting inadequate compensation.
- 14. Provision for free and immediate first-aid or medical treatment to victims of acid attacks, rape and other heinous sexual offences.
Current Trend
Despite progressive legislative amendments and an increasing trend to involve victims in investigation and trial rather than treating them as mere spectators, the will of the State Governments and lower courts has not matched the vigour of the Supreme Court.
The Supreme Court in Suresh v. State of Haryana (2015) observed that even though almost five years had expired since the enactment of Section 357-A CrPC, the award of compensation had not become a rule and interim compensation was not being granted by the courts. It also noted that upper limits of compensation fixed by some States were arbitrarily low.
Recently, in Tekan v. State of M.P. (2016), the Supreme Court called for uniformity in victim compensation schemes of different States. The Court noted that maximum compensation for rape ranged from Rs. 20,000 to Rs. 10,00,000.
The article notes that Delhi had amended its scheme in 2015 to enhance the upper limit of compensation for victims of rape from Rs. 3,00,000 to Rs. 5,00,000 and for victims of acid attacks from Rs. 3,00,000 to Rs. 7,00,000, although the amendment had not yet been notified.
In 2015, the Central Government set up a Central Victim Compensation Fund for women to support and supplement existing State/UT schemes, reduce disparities in compensation for similar crimes and encourage effective implementation of schemes under Section 357A CrPC.
The scheme was revised by the Central Government with a one-time grant of Rs. 200 crore under the Nirbhaya Fund in July that year.
India has taken laudable steps towards granting financial relief to victims of sexual offences. However, much remains to be done regarding their social, emotional and psychological needs, which the article states would require police reforms and bringing the present law in line with the relevant U.N. declarations on victims of crime and the right to reparation.