The Legal Analyst ISSN: 2231-5594 Volume 1, 2011, pp.

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ACCESS TO JUSTICE FOR CRIME VICTIMS IN INDIA: ISSUES AND CONCERNS

Kim Couto*
Abstract: Access to justice is a fundamental human right, guaranteed under various international, regional and national instruments. Victims of crime su ffer tremendously with the commission of a crime. Access to justice for victims of crime is far from easy in India. Such victims suffer all the more on account of a lack of access to justice. The UN Declaration on the Basic Principles of Justice for Victims o f C rime and Abuse o f Power 1985 and the Handbook on Justice for Victims encompass various rights of victims which deserve special attention. Among other rights, access to justice for victims involves two components. Firstly, provision of means of access to justice for victims and secondly, prompt redressal for wrongs done. The existing criminal justice system does not adequately address both these essential components. Crime victims have to approach the police, prosecutors and the court for setting the criminal law in motion but they have to face a number of impediments in doing so. Besides the insensitivity of the law enforcement officials, the inordinate delay in the conclusion of the trial, heavy legal expenses and anxiety, all contribute to create a second victimization of the crime victim. Victims participation in the criminal proceedings is very minimal causing the victim to feel ignored in the entire process. Various measures have been suggested by which crime victims can be empowered, so that they can approach the criminal justice system with greater confidence. Key Words : Crime, Justice, Vict im.

Victims of crime are those who have suffered some loss, injury or harm on account of the commission of a crime. In most cases, physical /bodily injury caused to victims of crime is accompanied by psychological and emotional harm as well as economic loss. Ideally, immediate assistance and swift police action should have been the appropriate response. But in India, the commission of the crime leaves the victim in a state of helplessness and hopelessness. Seeking justice for the wrong has done become an ordeal for them1 . The reason being that a speedy, straightforward and, inexpensive redressal for the wrong done is practically impossible. Thus while still undergoing the trauma of the crime committed, crime victims are subject to a second kind of victimization. A number of factors inhibit easy access to justice for victims. Simply put, access to justice for a victim of crime in India, is far from easy. Conventionally, access to justice was thought to be associated mainly with the ability to vindicate legal representation 2 . In more recent times, the principle of access to justice has implied that affirmative steps have to be taken to give practical content to the laws guarantee of formal equality before the law. This means the transformation of the aggrieved individuals formal right to litigate into a right of effective access to the legal system.3 This would thereby imply that the justice system should be just in the results it delivers; fair in the way it treats litigants; deals with cases at reasonable speed, is affordable, accessible, fair, efficient, effective and understandable to those who use it. 4 Ultimately, the analyses of access to justice reveals that it is important that the justice system is seen to be and is a) accessible and affordable b) readily easy to understand c) fair, and efficient. 5 The word access to justice generally connotes the ability to reach the process of law in order that justice is done. According to Professor Upendra Baxi, access means an ability to participate in the judicial process6 . In so far as a person is unable to obtain access to a court of law for having his wrongs redressed,

*Assistant Professor, V.M. Salgaocar College of Law, Panaji, Goa, INDIA.

1 2

Hess Karen and Orthman Christine, Introduction to Law Enforcement and Criminal Justice. Ninth Edition, (Wadsworth: USA) www.lawfoundation.net.au/access/sackville/html. 3 Ibid. 4 http://www.lawfoundation.net.au/access/index.html 5 Ibid. 6 M . G. Chitkara, Accessibility of Justice, Nyaya Path Souvenir 2000, at 81

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justice becomes unequal and laws that are meant for his protection have no meaning and to that extent fail in their purpose 7 . Justice being dear to the human heart, access to justice holds the pride of place among the many rights enjoyed by men by virtue of being human. Several international human rights instruments have sought to safeguard the right to access to justice although not in specific terms. The Universal Declaration of Human Rights promulgated on 10th December 1948 and the Covenant on Civil and Political Rights of 1966, guarantee that any person whose rights or freedoms are violated would have an effective remedy and further have the right determined by competent judicial, administrative or legislative authorities 8 . While both these international law instruments emphasize access to justice for every aggrieved person, the General Assembly of the UN adopted The Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power on 29th November 1985 which specifically recognizes the rights of victims of crime to access to justice among others. A fair, effective and humane criminal justice system is one that respects the fundamental rights of suspects and offenders, as well as those of victims, and which is base d on the principle that victims should be adequately recognized and treated with respect for their dignity 9 . In May 1996, the United Nations Commission on Crime Prevention and Criminal Justice adopted a resolution to develop a manual or manuals on the use and application of the Declaration 10 . As per the Declaration and the Handbook on Justice for Victims, besides compensation and reparation for the harm suffered by them, victims are also entitled to mechanisms of access to justice and to the prompt redressal for the harm that they suffer. What is clearly envisaged by the Declaration then is that a crime victim should have means of access available to them to secure justice. Secondly, the Declaration also envisages that a victim should obtain prompt redressal for the wrongs he has suffered .In short, the noble aim and purpose of the Declaration is to ensure that impediment to the attainment of justice by victims of crime are nil or only minimal. The Constitution of India rich in human rights jurisprudence mandates equal justice to all. By constitutional amendment, a new Article namely, Article 39 A, has been added to the Constitution 11 , which directs the State to ensure that operation of the legal system promotes justice, on the basis of equal opportunities for all and in particular provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities 12 . The right of access to justice does not expressly find place in the fundamental rights laid down in the Indian Constitution. Yet, the Apex Court has in a way, envisaged this right in the context of certain constitutional provisions 13 . The Indian judiciary has shown utmost respect for the protection and promotion of human rights especially the right to access to justice 14 , making significant pronouncements while interpreting various Articles of the Constitution in the light of the international treaties on human rights. Highlighting the need to provide an effective remedy to those aggrieved, the Supreme Court has time and again expressed: If a man has been wronged, so long as it lies within the power of human machinery of administration of justice that wrong must be remedied. Justice, we must do justice to him 15 . Viewed against this background, victims of crime in India suffer a number of hardships in the pursuit of justice, under the existing criminal justice system. The criminal justice system, the cornerstone of every civilized society, has at heart, the protection of rights of citizens and the delivery of justice to those
7 8

B.N.M . Tripathi, An introduction to Jurisprudence. (Faridabad: Allahabad Law Agency) at 357 Article 2 Para 3, International Covenant on Civil and Political Rights; Ian Brownlie, Basic documents on Human Rights. Third edition, (Oxford: Clarendon Press) at 126 9 http://www.unodc.org/documents/justice-and-prison-reform/hb_justice_in_matters_professionals.pdf 10 http://www.restorativejustice.org/articlesdb/articles/4465&sa=U&ei=fFLsTficG5DorQed4OjeBQ&ved=0CB8QFjAF&usg=AF QjCNE7AyDiJzriLzASLCuHSFlDIM e7Yg 11 Inserted by the Constitution (Forty Fourth Amendment) Act, 1976 12 See: Article 39 A of the Constitution of India 13 Article 21 and Article 39 A 14 Right to speedy trial, Right to free legal aid raised to status of fundamental rights through various Supreme Court decisions . 15 A.R. Antulay v. R.S. Nayak and others, 1988(2) SCC 602 at 672

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wronged. These goals are achieved with the involvement of the four important pillars of the criminal justice system namely the police, the prosecution, the courts and the prison systems/correctional agencies. Of these, the victim has to necessarily interact with the police, prosecution and the courts in order to set the criminal law in motion. While these are available within the present system, yet, they are far from being accessible. The existing system denies most crime victims the opportunity to seek justice freely and fearlessly. In the first place, upon the commission of a crime, a victim under the law is expected to approach the police to lodge his complaint. Thus, the victims first contact with the criminal justice system is with the police. Approaching the police and remaining in contact with them until investigation into the offence is over, is an ordeal for most victims. The often callous, over -bearing and non -cooperative attitude of the police towards the victim/his family at the inception of the criminal law process itself, make the police inaccessible to victims of crime. Investigation being a police function, the victim is often neglected and forgotten, unless the police consider it necessary to call on the victim. The victim on the other hand, is put through untold hardship and trouble at the hands of the investigating authorities, having to run from pillar to post only for the purpose of gathering information regarding the status of his own complaint. Victims of crime are thus subject to a second victimization at the time of seeking redress against the offender. While police are trained to deal with criminals, their lack of expertise is evident in their dealing with victims. This results in a rather negative image of the criminal justice system for the victim. Often this experience is responsible for many crimes going unreported by several genuine victims. Moreover, victims also feel greatly victimized by the lack of communication from the police. They are often unaware about whether the offender has been released on bail and such other significant details. To sum up, police in India are till today not sufficiently oriented to meet the various guidelines laid down in the UN Handbook on Justice for Victims and in the UN Declaration. Clearly, victim participation at this juncture, is far from satisfactory. Secondly, once it is decided to prosecute an offender, the Pubic Prosecutors and the Judges take over the case from the police. At this stage also, the victim has no say in any matter as the State takes over the prosecution and appoints the prosecutor. According to the law of criminal procedure, the prosecution has the task of presenting the case before the criminal court by bringing the evidence on record16 . In Thakur Ram v. State of Bihar17 , the Supreme Court ruled, that barring a few exceptions, in criminal matters, the State as the aggrieved party is the custodian of social interests of the community at large, and so it is necessary for the State to take all steps necessary for bringing the person who has acted against the social interests of the community, to book. The role of the prosecution in this regard therefore, is of great significance and consequence. Except for making himself available for being examined by the court, the crime victim himself has no further role. Often however, he has to interrupt his normal routine to visit the court being interested that justice is done to him. Without any appropriate mechanisms for disclosure of information nor communication of essential information to the victim, the means available for seeking justice cannot be said to be accessible to the victim. In a study conducted, D.P. Kelley, found that rape victims felt they were denied of participation and information about what they saw as their case18 . This position can be said to be true of other crime victims as well. The criminal courts form the penultimate stage of the criminal justice system. Despite several visits to the courtroom, crime victims generally find it difficult to comprehend the proceedings. At the end of the trial, the judge passes the judgment and sentence which in a way seals the fate of the offender. Even at this stage, the victim does not have any say in stipulating the punishment for the perpetrator of the crime against him. The length of time to conclude the trial often varies considerably from case to case. The extremely long and unexplained delays in concluding the trial result in what is commonly said to be a denial of justice not just to the accused but also to the victim. The cumbersome and lengthy legal procedures coupled with the
16 17

Section 301 Criminal Procedure Code, 1973 AIR 1966 SC 911 18 Bharat Das, Victims in the Criminal Justice System. (New Delhi: APH Publishing House) at 129

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adversarial system of trial result in great injustice to the crime victim. Further, a victim and his family have to bear a great deal of expenditure as well as anxiety on account of procrastinated trials. The mandate for prompt redressal of wrongs committed against the victim goes unheeded. It is pertinent to note that the Supreme Court read in the provision a procedure established by law19 , as also including a procedure which is just, fair and reasonable. This remarkable interpretation by the Supreme Court in Maneka Gandhi v. Union of India 20 resulted in a catena of decisions beginning with Hussainara Khatoon (No.1) v. Home Secretary21 . The main observations of the Supreme Court in this case were on a speedy trial. The Court declared speedy trial as a fundamental right. Likewise, in various other cases namely, Sunil Batra v. Delhi Administration22 , Khatri v. State of Bihar23 , Sukh Das and another v. Union Territory of Arunachal Pradesh, 24 the Court has accentuated the importance of securing for the citizens a speedy hearing. The Court observed, There can be no doubt that by speedy trial, we mean a reasonably expeditious trial as an integral and essential part of the fundamental right to life and liberty. This observation of the Supreme Court holds good not only for the accused but also for the victims of crime. In conclusion, access to justice for crime victim can become meaningful merely when the victim has opportunity to access the mechanisms of justice which must be easy devoid of their complexities and technicalities. What is important is that not only the victims complaint should be recorded promptly but the investigations should commence without undue delay. Secondly, the State must take remedial steps to enhance the competence and skills of the police while dealing with victims. Thirdly the law enforcement agencies involved in criminal investigation should understand and appreciate the role of a victim and his/her sufferings. Finally, the victims right to be heard and the right to be informed should be given prime importance in criminal jurisprudence. Legal recognition and protection to the rights of the victim would help to empower the crime victim to access justice with greater confidence.

19 20

Article 21 of Constitution of India AIR 1978 SC 597 21 AIR 1979 SC 1360 22 AIR 1980 SC 1579 23 AIR 1981 SC 928 24 AIR 1986 SC 991