By Prerna Deep
Introduction to victim advocacy
The Criminal Justice System (CJS) in India is mainly adversarial. Victims play a fundamental role in forming criminal law and justice on both procedural and substantive levels. However, they were side-lined as mere prosecution witnesses after the emphasis on criminal law shifted to state sovereignty, criminal (protection and rehabilitation) and social control.
In the past few decades, the discipline of victimology has experienced explosive growth and revolutionised the way in which many nations treat victims of crime. In India, however, victims are still not acknowledged as such, and their position in the criminal justice system remains essentially unchanged, i.e. a mere prosecution witness. The Indian Criminal Justice System (CJS) does not appear to be victim-centric but accused-centric, calling for a need for Victim Advocacy.
Need for victim advocacy
The principle of restorative justice provides the objective of victim assistance. As a concept, it entails that stakeholders of an offence should come together to deal with its aftermath collectively. It focuses on a balanced justice delivery system where the victim and offender are represented equally. A promising victim advocacy scheme could solve the miscarriage of justice faced by victims in the CJS.
Article 39A envisions Equal Justice and Free Legal Aid for all its citizens. Contrary to the provision, there is little that the CJS does to secure justice for victims in a comprehensive sense of the term. When they become involved in the CJS, victims of crime are frequently left helpless. Legal disability compounds other disabilities economic or otherwise – ensuing justice eludes the victims at all investigation and trial stages. Victims need to feel safe and heard.
Types of victim advocacy
Victim advocates under both delivery methods must understand the criminal justice process, its complexities, strengths and weaknesses to contribute towards victim justice administration effectively.
Victim advocacy can be broadly separated into two categories, first Community Advocacy, wherein advocates assist victims regardless of whether they have filed a police report. They are accessible through shelters, hotlines, and charitable organisations. The sole responsibility of community advocates is to aid the victim throughout the recovery process and maintain the confidentiality of all information.
While the second category is Systemic Advocacy, wherein advocates within the system assist victims in navigating the criminal justice system. They may work in police departments or legal offices. Their task is to assist victims in comprehending their legal rights and case statuses, and they are typically required to share pertinent information with their agency or office.
Role of victim advocates
A victim advocate can connect victims with counselling services, support networks, legal rights information, medical care for physical and mental healing, financial and employment support, housing that’s secure and convenient, legal and emotional support in court, assistance with compensation claims, assistance interacting with attorneys, family, and employers, offering assistance when required, and assisting victims in making important choices during the legal and rehabilitation process. Victim advocates can play a variety of responsibilities in various work environments.
Judicial evolution in victim’s advocacy
Among other recommendations, the Malimath Committee in 2003 advocated for establishing the victim’s right to be represented by an advocate of his discretion. Reflecting the same opinions as the Malimath Committee, the Madhav Menon Committee created a draft of the National Policy on Criminal Justice in 2007. These recommendations led to the articulation of the Criminal Procedure Amendment (Act) of 2008. In Nirmal Singh Kahlon v. State of Punjab, the Supreme Court specifically ruled that everyone, including the victims of the case, has a constitutional right to a fair trial. The Supreme Court ruled in Rekha Murarka v. The State of West Bengal that while a victim may hire an independent lawyer to aid the prosecution, that advocate cannot be granted the authority to present oral arguments or examine and cross-examine witnesses. The court’s rulings are empowering the fight for victim rights.
Challenges in victim advocacy
Although the Supreme Court has played a very innovative role in helping victims of crime through some landmark judgments, CJS still appears to be accused-oriented, not victim-oriented. The definition of “Victim” in Indian CJS appears to be considerably narrower than in the United Nations. Now, the greatest challenge facing the justice system in India is determining the extent to which police, prosecutors, defence attorneys, judges, and the general public understand the most recent amendments mentioned above.
The best way to tackle the challenges is to give legislative recognition to the principle of participation, which has received the judicial stamp of approval.
The Code of Criminal Procedure (“CrPC”) 1973 is primarily based upon the 1898 CrPC. Both these enactments carry scant provisions in terms of access, participation, assistance, protection, and compensation to victims of crime. The amendments delineating the victim and granting them the right to legal representation are insufficient to substantively guarantee internationally recognised rights to victims of crimes.
There is an imperative need to amend the CrPC to facilitate the recognition of victim rights and establish a legal framework for the same.
Some of the challenges discussed above could be addressed through Victim Impact Statements, which “describe the emotional, physical, and financial impact you and others have suffered as a direct result of the crime. Victim impact statements can be either written or oral statements.” Victim impact statements could provide the courts with information that would not otherwise be available concerning the harm that the crime caused to the victims.
In Mallikarjun Kodagali, the Supreme Court emphasised the idea of a victim impact statement “so that an appropriate punishment is awarded to the convict”. In Karan v. NCT Delhi, the Delhi High Court ruled that courts should require filing victim impact reports and order the offender to compensate the victim, particularly in situations where a fine is not part of the sentencing.
Victim impact statements are now an international standard. It is time for India to adopt the same too. The victim has a right to speak, and the nation has a responsibility to listen. In the context of victim advocacy, the term “advocacy” encompasses not only the discharge of statutory or legal obligations but also the provision of voluntary services to the victim or, more generally, actions in favour of the victim.
A victim advocacy scheme should distinctly encompass legal frameworks for victims, rights of the victims, victim assistance at various stages of the CJS, emotional and psychological needs of the victims, and financial assistance to the victims of crime, including interim compensation, restitution of the victims, and victim protection.
Prerna is an Academic Fellow at National Law University Delhi. She is a former Law Clerk-cum-Research Associate at the Supreme Court of India. She is the recipient of the British Council GREAT Scholarship (2019) for pursuing an LLM in Criminal Law and Criminal Justice at the University of Edinburgh. She holds LL.B. from Campus Law Centre, University of Delhi, and English Honours from Miranda House, University of Delhi.
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