Abstract:

“For too long, the law has centered its attention more on the rights of the criminal than on the victims of crime. It is high time we reversed this trend and put the highest priority on the victims and potential victims^[1].” – President Gerald R. Ford

    The introduction of new Criminal laws in India ( Bharatiya Nyaya Sanhita,  Bharatiya Nagarik Suraksha Sanhita) has been a debate about its necessity. At this very outset, the notable fact is that these amendments led to a paradigm shift in the criminal justice system from perpetrator-centric to victim-centric. Fundamentally, every crime has great physical, mental, and psychological impacts on the victims. However, the existing criminal laws failed to recognise the rights of victims to that extent as recognised the rights of the offenders. As a result, the forfeiture of the victim’s rights turns into the forfeiture of justice. To remove all these arduous consequences, the new criminal laws were acquainted as a game changer. The victim-centric approach in the form of amendment in new laws guaranteed various rights of the victims.

Keywords: New criminal laws, victim-centric, Criminal Justice System.

INTRODUCTION:

      The criminal justice system can be defined as a system of policies and organizations to maintain social control, prevent and regulate crime, and penalize those who break the law^[2].  It aims to achieve its protection goal through enforcement by lowering crime risk and apprehending, investigating, convicting, and sentencing those who break society’s rules and laws^[3]. India’s criminal justice system is perpetrator-centric, which focuses on deterrence, punishments, and the rights of the accused rather than victim-centric, which aims at the empowerment and rights of the victims. This is because the foundation of the Indian Criminal justice system is based on retributive justice, not restorative justice. In retributive justice, the crime is considered as an act against the state thus considering victims external to the procedure whereas, in restorative justice, the crime is considered as an act against the individual thus victims are considered center to the procedure. Our criminal justice system has come a long way which evolved from the law of retaliation and conduct of Dharma in ancient^[4] to the present victim-centric statutes.

CONCEPT OF VICTIMS, TYPES AND THEIR RIGHTS:

       Generally, victim means an aggrieved person or person whose rights have been violated or the person who suffers harm or whose property has been damaged. Black’s Law Dictionary defines the term victim as a “person harmed by criminal acts, attack target”.^[5] The term “victim” includes a victim’s guardian or legal heir as well as anyone who has suffered loss or harm as a result of the accused person’s activities for which they have been charged^[6]. The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power defined the term in wider scope as “persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that violate criminal laws operative within the Member States, including those laws proscribing criminal abuse of power.^[7]” Further, victims are considered an indispensable element of the criminal justice system^[8].

         Victimology classifies victims into three categories namely: Primary victims (who are directly affected by the crime), Secondary victims (who are indirectly affected), and Tertiary victims (generally community, group of people, or society affected by the crime). Benjamin Mendelsohn, who coined the term victimology classifies victims into six categories namely: Completely Innocent Victims (No provocation or facilitating behavior), Victims with Minor Guilt (Victims unknowingly place themselves in compromising situations), Victims as Guilty as Offender (Assist others in committing crimes), Victims more Guilty than Offender (Victim provokes or instigates), Most Guilty victims (Started as offender and was hurt in turn), Imaginary Victims (Pretend to be a victim)^[9].

           The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power appreciated the need to have minimum standards internationally to protect the rights of the victims. The declaration recognised the rights of victims such as access to justice and fair treatment^[10], restitution^[11], compensation^[12], and assistance^[13]. The Hon’ble Supreme Court of India and law commission reports also guaranteed these rights in various precedents.

THE COMMITMENT TO VICTIM-CENTRIC REFORMS:

         The demand for victim-centric reforms in the Indian Criminal Justice System is advocated by lawmakers, social reformers, stakeholders, etc., The key pillars of such reforms are the 154th Law Commission Report (1997) and the Justice Malimath Committee Report (2003).

1. 154th LAW COMMISSION REPORT (1997) – The report submitted by Justice K.J Reddy accentuated the concept of victimology along with criminology, penology, and the reform in the criminal justice system. The sum and substance of the report are the victim’s compensatory and participatory rights. The compensation to victims is considered public assistance for the disadvantaged, a medium of fulfillment of a neglected state to its citizens, and a humanitarian responsibility to assist crime victims. The compensation also includes material, medical, psychological, and social assistance. The recommendations of the report include the obligation of the police to treat victims sympathetically and reassuringly, to inform the victims about the possibility of obtaining assistance and compensation, and to inform the outcomes of the investigation. This becomes the principal constituent in future amendments reassuring the victim’s rights.
2. JUSTICE MALIMATH COMMITTEE REPORT (2003) – The committee recognized that victims do not get at present the legal rights and protection they deserve to play their just role in criminal proceedings. The report deliberated two types of victim’s rights. Firstly the right to participation in criminal proceedings. Secondly, the right to seek and receive compensation from criminal courts. The report recommended adopting the strategies introduced in the United Kingdom for reforming the Criminal Justice System such as victim right to information, the establishment of a victim commissioner, and an online complaining portal for filing minor complaints. The ultimate idea of the report is to reduce victimization in the first place by reducing crime itself.

The Hon’ble Supreme Court discussed the need for reform in the Indian Criminal Justice system in various judgments.

1. Delhi Domestic Working Women’s Forum v. Union Of India And Others – The Hon’ble Court deliberated that steps have to be taken as regards framing a scheme for compensation and rehabilitation to ensure justice for victims of crimes of violence. The changes in the criminal justice system necessary to approximate more closely to the present expectations of victims are not major or structural. They are primarily attitudinal^[14].
2.  State of Himachal Pradesh v. Sanjay Kumar – The Hon’ble Court expressed its opinion that the criminal justice system process lacks a victim protection mechanism. This is the time to bring significant reforms to the criminal justice system and to have a survivor-centric approach toward the victims of sexual violence^[15].

VICTIM-CENTRIC REFORMS – A HOLISTIC APPROACH:

          The lacunae in the Indian Criminal Justice System have now dissipated with introducing new criminal laws Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Act. The new laws recognise the right of the victims including the participatory rights of the victims. The rights recognized are: Participatory rights u/s 360 of BNSS^[16], the  Right to Information u/s 173^[17], 193^[18], and 230^[19] of BNSS, and the Right to Compensation.

1. Right to participation – The most important aspect of this right is the concept of zero FIRs, which means the victims are allowed to file complaints in any police station irrespective of the jurisdiction where the offenses were committed which stamp out the hurdles faced by the victims. Another important aspect is the e-FIR system.
2. Right to Information – The inclusion of the victim in every aspect of the proceeding is a notable characteristic of BNSS. Section 360 mandates that no court shall allow withdrawal from prosecution without hearing the victim of the case^[20]. Section 193 (3)(H)(2) states that the police officer has the obligation to inform the progress of the investigation within a limitation period of ninety days^[21]. Thus granting information to the victim is guaranteed under the provisions of the Act.
3. Right to Transparency – The right to information of the victims is an inclusive factor of transparency in the matter of investigation and other proceedings. This right is assured by granting police reports, FIRs, and witness statements at every stage of investigation and trial. 
4. Right to Protection – Sections 65 and 70 of Bharatiya Nyaya Sanhita Act,2023 deal with dealing with medical expenses and rehabilitation of the victim and state that fines imposed shall be paid to the victim^[22]. Section 176 of BNSS^[23] highlights that the police officer shall record the statements of victims of rape shall be conducted in the place of her residence or her choice in the presence of parents or near relatives or any social worker of the locality. The provisions of BNS also seem more stringent in dealing with the offenses of voyeurism. The laws aim to protect the victims to the utmost.

Thus the new laws guaranteed various rights to the victims and this is considered as a paradigm shift to the victim-centric approach in India. The access to the victim is also insured. The compensatory jurisprudence in India is still evolving and lacks specific legislation. However, we have various provisions in statutes that grant compensation to the victims of crime, and the Indian constitution awards compensation for wrongful imprisonment, custodial death, and torture under Article 21 of the Indian Constitution. Since 2009, the central government directed every state to formulate a compensation scheme for the victims who suffered injury or loss. Accordingly, the participatory and compensatory rights of the victims have been secured. Notwithstanding these new reforms in our criminal law, our criminal justice system also requires various redress shortly.

AN ANALYSIS OF EUROPEAN LAW:

      Europe has made its law efficient to establish a victim-centric criminal justice system. The Victim’s Rights Directive of the European Parliament and the Council is a substantial element in specifying various roles of the victim in European jurisprudence. The Directive characterize minimum standards for the rights, support, and protection of victims and includes various rights such as the right to be heard and to provide evidence (Art. 10), the right to review a decision not to prosecute (Art. 11), the right to safeguards in the context of restorative justice services (Art. 12), the right to legal aid (Art. 13), the right to receive reimbursement of participation expenses (Art. 14), the right to have seized property being returned (Art. 15), the right to obtain a decision on compensation within a reasonable time (Art. 16), and the right to secure the rights for victims that are from another country than where the crime was committed (Art. 17).^[24]The European law categories the need of victims under five categories namely, respectful treatment, protection from harm and intimidation, support, access to justice, compensation, and restoration. And various specific laws were created to safeguard, protect, and promote the same. Specific rules were also created to discourse various needs of the victim of child trafficking, sexual assault, exploitation, pornography, and terrorism. The law aims at fair, effective, and victim-centered investigation and

prosecution to prevent impunity of perpetrators. However, challenges to implementing exist, and various efforts were taken to rectify them.

CONCLUSION:

           The speculation behind the introduction of new criminal laws is to ensure victim-centric reforms, to deliver swift and timely justice, and to have a transformative impact by replacing the core of the colonial mindset and its law. The former Home Minister Amit Shah comments that the new laws represent and embody the full Indian justice system which liberates us from the colonial mindset for the first time after independence. Prime Minister Narendra Modi comments that the criminal laws will reflect a paradigm shift in the justice system and in line with informing our global profile, the police should transform itself into a modern force to realize the version of developed India^[25]. India is preparing itself for an upcoming transition in the Criminal Justice system with an additional modern approach, securing human rights. India is stepping ahead to have justice-centric reforms and laws and these victim-centric reforms are just stepping stones.

References:

^[1] Ahmad Siddique. Criminology problems and perspective (Lucknow: Eastern Book Company, 2001) 504

^[2] Bhupinder Singh, CRIMINAL JUSTICE SYSTEM AND GOVERNANCE IN INDIA, 3 JICL. 9, 11 (2022)

^[3] Singh, B. (2022). ‘CRIMINAL JUSTICE SYSTEM AND GOVERNANCE IN INDIA’, Journal of International Criminal Law, 3(1), pp. 10-21. doi: 10.22034/jicl.2022.14469

^[4]Chaudhuri, Dr. Mrinmaya . Languishing for Justice, 4

^[5]Victim, black’s law disctionary, 11 2019

^[6]Code of criminal procedure, 1973, § 2(wa), No. 2, Acts of Parliament, 1974 (India).

^[7] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power , Article 1, 29 November 1985,General Assembly resolution 40/34

^[8] United Nations Human Rights office of the high commissioner, https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-basic-principles-justice-victims-crime-and-abuse, last visited on 15.06.2024 at 11.40 pm

^[9] Dr.  Hunny Matiyani, Victimology and Victim Justice.

^[10] Supra note 7 at 4,5

^[11] Supra note 7 at 11

^[12] Supra note 7 at 12

^[13] Supra note 7 at 14

^[14] Delhi Domestic Working Women’s Forum v. Union Of India And Others, 1995 SCC CRI 7

^[15] State of Himachal Pradesh v. Sanjay Kumar, 2017 SCC 2 51

^[16]Bharatiya Nagarik Suraksha Sanhita, 2023, § 360, No. 46, Acts of Parliament, 2023 (India)

^[17] Ibid at 173

^[18] Ibid at 193

^[19] Ibid at 230

^[20] Ibid at 360

^[21] Supra at 17

^[22] Bharatiya Nyaya Sanhita, 2023 § 65, No. 45, Acts of Parliament, 2023 (India)

^[23] Supra 15, At 176

^[24] Holder, R.L., Elbers, N. & Antonsdóttir, H.F.’ Introduction: Europe as a Comparative Site on Victim Participation in Criminal Justice. Springer Link,  accessed on 17.06.2024 at 06.15pm, https://doi.org/10.1007/s43576-024-00120-w

^[25] The New Indian Express, https://www.newindianexpress.com/nation/2024/Jan/17/victim-centric-laws-to-ensure-swift-and-timely-justice-amit-shah, last visited on 17/06/2024 at 07.00 pm