The victim of a crime is an important player in the administration of justice
both as a complainant/informant and as a witness for the prosecution/state. His
or her role is vital both at the stage of investigation and at the trial stage.
Without the victim’s active support, the investigation of a crime may not come
to a logical end. At the same time, the victim’s testimony in court, especially
if the crime is a violent one, can be said to be the best piece of evidence that
can be used against the accused. But despite being an important component of the
criminal justice system, much attention has not been paid to the rights of
victims.
The word ‘victim’ has not been defined either in the Indian Penal Code (IPC)
or in the Code of Criminal Procedure, 1973 (CrPC). The General Assembly of the
United Nations in its 96th plenary meeting on November 29, 1985 made a
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power. The declaration defines victims 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 are violations of criminal laws operative within
member states, including those laws prescribing criminal abuse of power".
We can say that the word ‘victim’ means the person or persons who have
suffered physical, financial, social or psychological harm as a result of an
offence and in some cases it includes an appropriate member of the immediate
family of such a person.
The UN General Assembly affirmed the necessity of adopting national and
international norms in order to secure universal and effective recognition of
and respect for the rights of victims of crimes and victims of abuse of power.
It was also declared that offenders or third parties responsible for their
behaviour should, where appropriate, make fair restitution to victims, their
families or dependents. This declaration has been described as a "kind of Magna
Carta of the rights of victims" worldwide. The declaration recognised the
following rights of victims of crime:
(i) Access to justice and fair treatment – This right includes the mechanisms
of justice and to prompt redress, right to be informed of victim’s rights, right
to proper assistance throughout the legal process and right to protection of
privacy and safety.
(ii) Restitution – This right includes return of property for the harm or
loss suffered; where public officials or other agents have violated criminal
laws, the victims should receive restitution from the state.
(iii) Compensation – When compensation is not fully available from the
offender or other sources, the state should provide financial compensation, at
least in violent crimes which result in bodily injury, for which national funds
should be established.
(iv) Assistance – Victims should receive necessary material, medical,
psychological and social assistance through governmental, voluntary and
community-based means. Police, justice, health and social service personnel
should receive training in this regard.
In Europe, the Convention on the Compensation of Victims of Violent Crimes
incorporates the essential rights of victims as stipulated in the UN
declaration. The Council of Europe has recommended the revamping of criminal
justice incorporating victim’s rights in every stage of criminal proceedings.
Following this recommendation, many states in Europe and elsewhere enacted laws
aimed at providing increased participation and more substantive rights to
victims of crime. For example, the Criminal Injuries Compensation Act, 1995 of
the UK, the Victims of Crime Assistance Act, 1996 of Victoria, the Victim and
Witness Protection Act, 1982 of the USA, the Victims’ Rights and Restitution
Act, 1990 of the USA, are in this category.
In an informative report on "Criminal Justice: The Way Ahead" presented to
the British Parliament (February 2001) the UK home department made the following
recommendation for criminal justice reform:
"We will put the needs of victims and witnesses at the heart of the criminal
justice system and ensure they see justice done more often and more quickly. We
will support and inform them, and empower them to give them best evidence in the
most secure environment possible".
The Supreme Court of India in Zahira Habibulla Sheikh vs State of Gujarat,
2004 (4 SCC 158) has stated the importance of victims in the following words:
"Right from the inception of (the) judicial system it has been accepted that
discovery, vindication and establishment of truth is the main accepted
underlying existence of courts of justice. The operating principles for a fair
trial permeate the common law in both civil and criminal contexts. Application
of these principles involves a delicate judicial balancing of competing
interests in a criminal trial, the interests of the accused and the public
and to a great extent that of (the) victim have to be weighed not losing
sight of the public interest involved in the prosecution of persons who commit
offences".
(This) conference is mainly focused on victim/witness protection and on the
care and support for victims of trafficking and other forms of violence. The
term ‘trafficking’ is used to describe activities in which women and children
are forced into exploitative situations. In the USA, the Trafficking Victims
Protection Act came into force in October 2000, which provides the tools to
combat trafficking in persons both worldwide and within the country.
The Supreme Court of India in Gaurav Jain vs Union of India (AIR 1997
SC 3021) gave various directions for the rehabilitation and other welfare of
victims of such crimes. The Court said that three C’s, viz. counselling,
cajoling by persuasion and coercion as the last resort are necessary for
effective enforcement of rescue and rehabilitation of the victims of such
trafficking. The Immoral Traffic (Prevention) Act, 1956 and the Juvenile Justice
(Care and Protection of Children) Act, 2000 deal with these aspects. The apex
court in Vishal Jeet vs Union of India (AIR 1990 SC 1412) had also issued
directions on the subject.
However, though these victims are more vulnerable, I would like to speak
about victim protection generally.
As stated earlier, every victim is an important witness. "Witnesses," as
Bentham said, "are the eyes and ears of justice." If a witness/victim himself is
incapacitated from acting as the eyes and ears of justice, the trial gets
putrefied and paralysed, and can no longer constitute a fair trial. The
incapacitation may be due to several factors, such as the witness/victim not
being in a position to speak the truth in court for reasons beyond the control
of the witness/victim or due to negligence or ignorance or some corrupt
collusion.
In respect of rights that are required to ensure effective victim testimony,
there are two important aspects. The first is to ensure that evidence or the
statement of a victim that has already been recorded at the stage of
investigation is not allowed to be destroyed by the victim resiling from his or
her statement while deposing on oath before a court. This phenomenon, of victims
turning ‘hostile’ on account of the failure to protect the victim, is one aspect
of the problem. It requires that the identity of the victim in some cases be
kept secret and anonymity be given. The second aspect is the physical and mental
vulnerability of the victim and taking care of his or her welfare in various
respects, which call for physical protection of the victim at all stages of the
criminal justice process till the conclusion of the case.
A Victims’ Identity Protection and Victims’ Protection Programme are the need
of the hour. In order to provide effective Witness Identity Protection and
Witness Protection Programmes, the Law Commission of India has circulated an
exhaustive consultation paper on the subject including a questionnaire. I am
very happy to inform you that this consultation paper has been appreciated not
only in India but abroad as well. The commission has received a large number of
responses from a cross section of society, viz. judges of the higher and
subordinate judiciary, state governments, director generals and inspector
generals of police, lawyers, various international and national organisations
and individuals.
As I stated earlier, since the testimony of the victim is a very important
piece of evidence in the criminal trial, it is essential that the victim should
be able to give his or her testimony in court freely and without any fear or
pressure. In many cases victims even turn hostile due to threats or pressure
from the offender or his associates. In certain cases the victim feels
uncomfortable about giving answers in the immediate presence of the offender. In
order to facilitate the victim giving his or her testimony in court freely and
without any fear or pressure, it is necessary that the victim is provided
certain protections and rights. These may include the following:
(i) Anonymity of victim – Names and addresses of victims may be kept
secret in criminal proceedings. Even in supplying copies of charge sheets to the
accused, the identity of victims may be withheld. The Supreme Court in State
of Punjab vs Gurmit Singh,1996 (2 SCC 384) while dealing with a case of rape
has said, "The courts should, as far as possible, avoid disclosing the name of
the prosecutrix in their orders to save further embarrassment to the victim of
(a) sex crime. The anonymity of the victim of the crime must be maintained, as
far as possible, throughout". Though in some cases the identity of the victim is
known to the accused, this is not so in all cases. Where the identity and all
details of the victim are not known to the accused, maintaining anonymity would
be quite helpful.
In Delhi Domestic Working Women’s Forum vs Union of India, 1995 (1 SCC
14), the Supreme Court while indicating the broad parameters that can assist the
victims of rape, emphasised that in all rape trials ‘anonymity’ of the victims
must be maintained as far as necessary so that the name is shielded from the
media and public. The court also observed that the victims invariably find the
trial of an offence of rape a traumatic experience. The experience of giving
evidence in court has been negative and destructive and the victims often
expressed that they considered the ordeal of facing cross-examination in the
criminal trial to be even worse than the rape itself.
Section 13 of TADA, the Terrorist and Disruptive Activities (Prevention) Act,
1987 and Section 30 of POTA, the Prevention of Terrorism Act, 2002 (now
repealed) provides that the court may take such measures as it deems fit to keep
the identity and address of witnesses secret.
The New Zealand Evidence Act of 1908 contains detailed provisions regarding
the maintenance of anonymity of victims and witnesses.
In the UK, the power of the court to withhold the name of the victim/witness
in a criminal trial is treated as inherent in the court. Section 11 of the UK
Contempt of Court Act, 1981 provides that the court may give directions to
prohibit the publication of names or other matter in connection with the
proceedings. In R. vs Murphy, 1989 it was held that the identity of the
witness should be kept secret not only from the accused but also from the
defence lawyer.
In Canada, anonymity of witnesses/victims is treated as a privilege granted
under common law. The European Court of Human Rights has in Kostovski (1990),
Doorson (1996), Fitt (2000) and Visser (2002) recognised the need to protect the
identity of witnesses/victims.
(ii) Trial of sexual offences in camera – Section 327 of the CrPC
provides that the trial of certain sexual offences shall be conducted in camera.
If a trial is conducted in camera, it would help the victim to give her
testimony comfortably. The presence of the public and the media produces a sense
of shyness in the mind of the victim and she may not give testimony freely. The
Supreme Court in the Gurmit Singh case said that if the witness or victim is
protected it "would enable the victims of crimes to be a little comfortable and
answer the questions with greater ease in not too familiar surroundings. Trial
in camera would not only be in keeping with the self-respect of the victim of
(the) crime and in tune with legislative intent but is also likely to improve
the quality of evidence of a prosecutrix because she would not be so hesitant or
bashful to depose frankly as she may be in open court, under the gaze of (the)
public. The improved quality of her evidence would assist the courts in arriving
at the truth and sifting truth from falsehood". In view of Section 327 of the
CrPC and the direction of the apex court, a victim of a sexual offence has a
right that trial be held in camera.
Section 13 of TADA and Section 30 of POTA provide that proceedings under
these Acts shall be held in camera.
Article 6(1) of the European Convention for the Protection of Human Rights
and Fundamental Freedoms speaks not only of the right to ‘open justice’ but also
of the need for exceptions in the interests of morals, public order, national
security and protecting the privacy of juveniles and others where publicity
could otherwise prejudice the interests of justice.
Following the ruling of the European Court of Human Rights in Chahal vs UK,
the Special Immigration Appeals Commission Act, 1997 and the Northern Ireland
Act, 1998 have been enacted which provide for courts to sit in camera
where it was necessary on national security grounds and for appointing special
counsel to represent individuals in those proceedings. Section 153 of the South
African Code of Criminal Procedure permits criminal proceedings to be held in
camera to protect privacy of witnesses.
(iii) Use of screen while recording of statement of victim – In
many cases, especially cases relating to women and children, victims are
hesitant to speak freely in the presence of offenders. Section 273 of the CrPC
provides that trials should be conducted in the presence of the accused. In this
regard the Law Commission in its 172nd Report (2000) has recommended the
insertion of a proviso below Section 273 to the effect that where the evidence
of a person below 16 years who is alleged to have been subjected to sexual
assault is to be recorded, the court may take appropriate measures to ensure
that such a person is not confronted by the accused. Recently the Supreme Court
of India considered the abovementioned recommendation of the Law Commission in
Sakshi vs Union of India, 2004 (6 SCALE 15). The observations that the
Supreme Court made in this case are worth recalling. The court observed:
"The whole inquiry before a Court being to elicit the truth, it is absolutely
necessary that the victim or the witnesses are able to depose about the entire
incident in a free atmosphere without any embarrassment… The mere sight of the
accused may induce an element of extreme fear in the mind of the victim or the
witnesses or can put them in a state of shock. In such a situation he or she may
not be able to give full details of the incident which may result in miscarriage
of justice. Therefore, a screen or some such arrangement can be made where
the victim or witness do not have to undergo the trauma of seeing the body or
face of the accused" (emphasis supplied).
The use of a screen as suggested by the Law Commission and also recommended
by the Supreme Court would make it comfortable to the victim to testify in court
where he or she may not confront the accused directly.
It is proper practice in criminal trials in the UK where children give
evidence about sexual abuse to allow a screen to be erected between the witness
and the defendant. If a defendant in person seeks to dominate, intimidate or
humiliate a complainant, or should it be reasonably apprehended that he will do
so, a screen can be erected. Sections 16 to 33 of the Youth Justice and Criminal
Evidence Act, 1999 require the court to consider special measures of various
kinds for protection of vulnerable and intimidated witnesses.
(iv) Recording of statement through video conferencing – There is another
method by which a victim may avoid direct confrontation with the accused while
giving testimony. That is recording through video conferencing. Recording of
evidence by way of video conferencing has been held to be permissible in a
recent decision of the Supreme Court in State of Maharashtra vs Dr Praful B.
Desai, 2003 (4 SCC 601). When a statement is recorded through this method,
the victim would feel more comfortable and will give answers without any fear or
pressure. Portuguese legislation (Act No. 93/99) of July 14, 1999 contains very
exhaustive provisions regarding this aspect.
In the UK, video recorded evidence is admissible in certain cases: (a) an
offence which involves an assault on or injury or threat of injury to a person
(b) an offence of cruelty to persons under the age of 16 years (c) offences
under the Sexual Offences Act, 1956 and 1967, Indecency with Children Act, 1960,
Protection of Children Act, 1978, etc.
(v) Cross-examination through questions handed over by the defence to the
judge – Victims often feel embarrassment due to the questions put by the
defence counsel during cross-examination. A suggestion has been made that in
some cases, instead of directly putting questions to the witness by the defence
counsel, a set of questions may be handed over to the judge by the defence in
advance. And the judge may ask these questions to the victim or other witnesses.
The Supreme Court in the Sakshi case has stated, "often the questions put in
cross-examination are purposely designed to embarrass or confuse the victim of
rape and child abuse. The object is that out of the feeling of shame or
embarrassment, the victim may not speak out or give details of certain acts
committed by the accused. It will therefore be better if the questions to be put
by accused in cross-examination are given in writing to the presiding officer of
the court, who may put the same to the victim or witnesses in a language which
is not embarrassing". The Law Commission in its questionnaire has posed a
question as to whether it be kept in mind that the right of the accused to
cross-examine a witness effectively will not be jeopardised, as this is part of
a "fair trial" as guaranteed and recognised under Article 21 of the
Constitution.
(vi) Change in venue of trial – In certain circumstances, the venue of
the trial may be shifted if the witnesses or victims are not in a position to
depose freely due to various reasons. The Supreme Court in Zahira Sheikh’s case
ordered a shift in the venue of the trial from Gujarat to Maharashtra. There are
other instances as well. The Code of Criminal Procedure, 1973 contains
provisions (Section 406, 407) in respect of transfer of cases. It has been done
in cases in the UK and Northern Ireland also.
(vii) Providing physical and other protection to victims/witnesses –
If required, victims/witnesses may be provided with physical and other
protection. To provide such protection, witness/victim protection programmes may
be established. Under such a programme, various protections such as police
protection to victims and family members, providing new places for residence,
monetary support, transport facilities and other facilities may be provided. The
Law Commission in its consultation paper has discussed this aspect in detail,
along with the schemes prevalent in various countries.
Article 24 of the United Nations Convention against Transnational Organised
Crime contains provisions for witness protection.
In Australia, the Parliament of Victoria has enacted the Witness Protection
Act, 1991, which contains provisions regarding a witness protection programme.
For the Australian Capital Territory a separate legislation, namely, the Witness
Protection Act, 1996 is in force. In Queensland, the Witness Protection Act,
2000 is in force.
In South Africa, the Witness Protection Act, 1998 is applicable for the
purpose of protection of witnesses.
In Hong Kong, the witness protection programme was established under the
Witness Protection Ordinance of 2000. In Canada, the Witness Protection
Programme Act, 1996 has been enacted.
Portuguese legislation (Act No. 93/99) deals with the provisions governing
the enforcement of measures on the protection of witnesses in criminal
proceedings where their lives or physical or mental integrity, freedom or
property are in danger.
In the USA, the Victim and Witness Protection Act of 1982 contains several
provisions to aid victims and witnesses of federal crimes.
(viii) Compensation to victims – In India, Section 357 of the
Code of Criminal Procedure, 1973 provides for order to pay compensation to the
victims of crimes. The Law Commission of India in its 142nd and 154th Reports
has recommended the insertion of a new section in the code for a Victim
Compensation Scheme. Provisions for compensation to victims are specified in
many countries.
(ix) The Indian Evidence (Amendment) Act, 2002 has inserted a proviso below
sub-section (3) of Section 146 of the Evidence Act, 1872 thereby giving
protection to a victim of rape from unnecessary questioning about her past
character. The Law Commission in its 185th Report (2003) recommended the
insertion of a broader provision by way of a new sub-section (4) in Section 146.
The Code of Criminal Procedure (Amendment) Act, 2005 has inserted a new
Section 164A in the CrPC for medical examination of a victim of rape by a
registered medical practitioner employed in a hospital run by the government or
local authority.
(Justice M. Jagannadha Rao is the chairman, Law Commission of India. This
paper was presented as the keynote address at a recent National Consultation on
the Protection of Victims of Trafficking and other Forms of Violence, November
19, 2005.)