There are more issues that plague the criminal justice system of our country than I can probably even count on my fingers at the first instance. While tareekh pe tareekh given by courts has become a patent dialogue that resonated with mainstream cinema its treatment of criminal justice system has been more or less restricted to delivering long preachy sermons by the protagonist on various issues. These issues are often created by deliberate misrepresentation of the law. In a country with literacy rate as low as ours I am not sure if we can afford the luxury of cinematic liberty when it comes to depiction of law. Thankfully, there have also been the likes of Hazar Chaurasia ki Ma and Ek ruka hua faisal albeit far and few in between. Criminal law is not a subject I have ever been comfortable as since my first brush with the subject I have been intimidated by the lengthy and complex procedure involved. During a certain group assignment while pursuing L.L.M. I had to review the 268th Law Commission Report. Law Commission Reports are usually really long but more often than note they tend to be undiscovered troves of knowledge. The aforementioned report was no different. It traced the development of India’s rich legal heritage consisting of highly celebrated case laws in the field of criminal law and expansion of various fundamental rights, along with bits and pieces of information about international position and foreign jurisdiction. I was most fascinated by the concept of Victim Impact Statement. I am eager to initiate a dialogue about the same that can act as a catalyst for much needed change in the criminal justice system to ensure fair representation to victims. Someday I would like to see fiction taking the conversation forward. For now I am reproducing the article authored by me that first appeared on The Criminal Law Blog hosted by Centre for Criminal Law Studies NLU Jodhpur.
As is the case with most jurisdictions around the globe, victims of crime were lost in judicial oblivion for a really long time in India as well. The framers of the Constitution dedicated two long well drafted articles to the well being of the accused namely ; Article 20 and 22, whereas victims were left to fend for themselves under no specific fundamental right as such. Time and again the higher judiciary has come to the rescue of rape victims as by holding that right to privacy is available even to a sex worker and the two finger test is violative of right to privacy which is a facet of right to life. The original text of Criminal Procedure Code, 1973 envisaged the role of a victim as little more than that of a spectator who assists the state in criminal trial as a witness. On the international front, the UN 1985 Declaration of Basis Principles of Justice for Victims of Crime and Abuse of Power initiated a movement for victim empowerment around the world. Malimath Committee Report and Justice Verma Committee Report addressed the lacunae in the criminal justice system with regards to safeguarding the interests of victims and made recommendations for the same. For the first time in 2008 and then in 2013, provisions were incorporated which defined a victim, provided for victim compensation by the state, victim’s right to engage an advocate of his/her choice, victim’s right to appeal and specific directions to be followed in rape trial,etc. Over the years the Apex Court has delivered the following landmark judgments that went a long way in empowering victims:
- In Sakshi v. Union of India, the Supreme Court gave direction for conducting trials in cases of child sexual abuse and rape.
- In Nirmal Singh Kahilon v. State of Punjab, the Hon’ble Apex Court observed that the right to fair investigation and trial is a right of the victim under Article 21.
- In Bodhisattwa Gautam v. Subhra Chakraborty, the Supreme Court held that if the court trying an offence of rape has jurisdiction to award compensation at the final stage, the Court also has the right to award interim compensation.
- In Puran v. Rambilas, the Apex Court interpreted Section 439 (2) Cr.P.C. in a way that the victim has a say in the grant of bail to an accused.
- In Mallikarjun Kodagil v. State of Karnataka, the Supreme Court held that victims can file appeal under CrPC in superior courts to challenge acquittal of accused and stressed the need to have a victim impact statement (VIS).
Around the 13th Century, when civil torts and criminal actions first became distinguished in England VIS were permitted, as the Crown stood in the shoes of the victim of the offense in English adversarial proceedings. VIS comprise of written or oral statements by crime victims, about how the crime has impacted them. Family members are allowed to make such statements as well under certain circumstances. These statements provide information about the damage caused to victims by the crime, in their own words.
The United States Supreme Court ended up striking down statutes allowing VIS in Booth v. Maryland and South Carolina v. Gathers on the basis that a more impactful VIS would result in an enhanced punishment and would be in violation of Eighth Amendment that provides protection against “excessively cruel and unusual punishments”. The VIS were eventually upheld to be constitutional in Payne v. Tennessee with the application of Doctrine of Proportionality in a favorable manner. It was further explained that if VIS is prejudicial to the point that it renders a capital defendant’s trial fundamentally unfair the Fourteenth Amendment’s Due Process Clause provides a basis for its exclusion. The introduction of “good character” evidence regarding the victims in these three cases was sharply contested on the basis that it did not play any role in the committal of the crime and considering such evidence would amount to placing greater value on some lives than others.
Under the Indian Penal Code, 1860 there is a scale of punishment and the court decides the quantum of punishment according to this scale. The Apex Court has held in Bachan Singh v. State of Punjab, that death penalty, as an alternative punishment for murder is not unreasonable and hence not in violation of articles 14, 19 and 21 of the Constitution and also enunciated the principle of awarding death penalty only in the ‘rarest of rare cases’. The Supreme Court further laid down the broad outlines of the circumstances when death sentence should be imposed in Machhi Singh v State of Punjab. In light of these judgments, if VIS are indeed introduced in India through legislative measures, they should be able to withstand any challenge made on the ground of constitutional validity.
Introduction of VIS to be heard by the bench during sentencing are essential for the well being of victims of crime as it has been found that victims who chose to make VIS are reportedly more satisfied with the sentencing. Therefore, they would go a long way in restoring the faith of public especially, during the trial of heinous crimes such as the Delhi rape case dated December 16th, 2012 and Ajmal Kasab who was involved in Mumbai terrorist attack on November 26th, 2008. Victims subjected to bodily harm, threat of violence or actual violence, motor vehicles accidents and sexual abuse should be eligible to make VIS. In case the victim is below the age of 12 or mentally unsound or incapacitated or dead because of the crime, a family member should be allowed to make VIS on behalf of the victim. VIS can be inclusive of the physical injury faced, details of medical fees, emotional distress, psychological impact, loss of earning and how has the crime impacted the victim’s relationship with his/her family and standing in the society.
VIS should be optional as is the case in Ireland and not making a VIS should not be prejudicial to the interest of the victim. Any disputed material upon which the victim does not wish to be cross-examined should not be put to the sentencing court. Discretion should not vest in the public prosecutor discretion to use or discard any parts of the statement provided by the victim without explicit written permission.
Certain procedural safeguards regarding the usage of VIS that are present in Canada can be followed in India such as it being mandatory upon courts to inquire of the prosecutor whether the victim has been advised of the opportunity to prepare a statement, adjourning proceedings to permit the victim to prepare a statement and considering VIS compulsorily if it has been submitted to the Court. The Victim Impact Statement is shared with the defense and when the statement has been entered into court it becomes a matter of public record in Canada and South Australia. In Queensland, permission needs to be sought from the court to keep VIS confidential. In order to encourage victims to file VIS unique legislative measures should be introduced in India owing to the extremely personal nature of VIS, such as the not letting VIS to be open to cross examination and holding in camera trial proceedings when VIS is being considered to avoid media circus. Factors such as gender, caste and religion of the victim should be taken into consideration only when they bear a direct relevance to the factual matrix of the case to ensure that higher value is not placed on some lives than others. Introduction of victim impact evidence should not relieve the state of its burden to prove beyond a reasonable doubt the existence of a statutory aggravating circumstance. Victims should not be permitted to make suggestions as to the type or length of sentence which should be imposed because a victim is not legally qualified: and is unfamiliar with the rules of evidence, the common law, sentencing guidelines, the purposes of sentencing, and is unlikely to be impartial.
Victim Impact Reports are prepared following a request by the court for a professional assessment and are prepared by professionals such as a psychologist or psychiatrist providing specialist opinion on the traumatic impact of the crime on the victim. Similar to VIS, the reports do not include comment about the offender or what a sentence should be and are not used until after a conviction has taken place. In India, the government needs to allocate funds for training professionals such as doctors, psychologists, psychiatrists and financial institutions in order to enable them to provide victims assistance in writing VIS and writing VIR.
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 AIR 2004 SC 3566
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