This article covers the webinar delivered by Mr. Pawan Kumar, Judge, Metropolitan Magistrate. Mr. Pawan Kumar, Judge, who is a Metropolitan Magistrate. Sir was the metropolitan judge who recorded the statements under the Nirbhaya Gang-rape case, under section 164 of the CrPC. He is also the Secretary for Delhi Legal Services Authority. Sir experiences these cases on a daily basis and hence, knows the police, prosecution, respondent and every other of the case thus is the best resource person to deliver a webinar session on this topic.
The topic of the webinar is “How evolved is Victimology in India: Victim Compensation in Indian Criminal Law”. In the webinar, Sir talks about the importance of victim compensation and how the society needs to stop the victimization of survivors or victims of sexual offences and acid attacks.
Under the Indian Justice System, the focus for long has been on the offenders. Right from the arrest of the offender, to his trial, the system and the citizens, whom this system caters to, have always been concentrated on what happens with the offenders. People usually forget about what happens to the victim after the trial. We, as a society, rarely think about the victimology. In cases such as those of rape and other sexual offences, we always talk about what has happened, and how unfortunate it is. We seldom talk about what should be the recourse for the victim, after such an offence against her has taken place.There is no proper victim compensation system in our country.
Sir started the webinar by noting his experience where he interacted with several lawyers and advocates, and upon such interaction, he realized that there are several members of the legal fraternity itself who do not know about “victim compensation”.
Sir then goes on to narrate his experience of horror and bewilderment when he had to go and record the statement of Nirbhaya. He notes that this case was significantly different from all other cases, as the victim was not even in the condition to speak. Sir notes that one of the main task designated to the judges while noting the witness statements is to judge the cognitive abilities of the victims. Since the victim was severely beaten and ravaged beyond recognition, Sir had to think of new ways so that the victim could give her statement. Sir then deduced the idea where he formulated that he would put the information in the form of Multiple-Choice Questions, and then the victim would raise her finger corresponding to the answer. For instance, the question would be “What is your name?”. The options for the same would be her name, along with other options. Then the victim would raise her finger as one, two or three and then that answer would be ticked. This way, the whole statement of the victim was taken, and this statement was held to be valid till the case went to Supreme Court.
Stakeholders under such procedures are the accused, police, victim, prosecution, defense and etc. But the most important stakeholder, who initiates such procedures and puts it into motion, is the victim and we tend to forget this stakeholder. A victim is a person who suffers, physical/mental and economical suffering.
Victimization are of two kinds:
- Primary Victimization: The one who directly gets affected by physical or mental injury.
- Secondary Victimization: The victim gets affected second hand, that is, by the police, prosecution, defense or court.
Victimology can be defined as the relationship between the victim and accused, it is the interaction between the two and it is the introduction and then interaction of the victim with the criminal justice system. There are many ways where a victim is victimized. Sir narrates an example where he had to take statement of a victim under the POCSO Act, who was allegedly assaulted by her father. While she was given interim compensation, when Sir asked what else she needed, she stated that many media news channels, both at the local and national level have reported her case. The reports included intimate details such as the relationship between the accused and victim, the locality where they lived and other information such as the total number of family members and mother’s job. Sir then notes that under the POCSO Act, it has been clearly stated that the identity of the victim and the accused should remain anonymous and it is the duty of police, prosecution, and the society at large. Due to this media reporting, the girl child had to stop going to school and could not even give exams because the school authorities then started asking her questions relating to the incident. Mother’s colleagues started asking her such questions because of which the mother had to take holiday. This shows that due to a small mistake of the media houses, the victim had to undergo so much humiliation and pain, and even had to leave her education.
When we talk about secondary victimization, the police authorities always come to mind. Right from FIR, recording statements to medical examination. Under section 173 of the Code of Criminal Procedure, an accused is to be provided with all documents including charge sheets and etc. but on a closer look we will find that there is no such provision for the victim. Most of the victims have the issue that they hardly know what is going on in the police investigation.
Sir notes that while an accused is always prepared before his cross examination by the defense lawyer, a prosecution witness never goes through same. They hardly know any possible that they can be face with by the defense, unlike the accused who is always prepared beforehand. Sir further states, that this is one of the leading causes of high acquittal rate and he doesn’t blame the prosecution for this as he tells that the prosecution in our country is not well equipped. Victim is never counselled before chief-examination and cross-examination. Hence, Sir points out the fact that victimization is not just limited to police authorities but goes beyond that includes much minor aspects also. The victim does not get any notification in case of bail or parole.
Malimath committee pointed out that the increasing number of victims is due to the inadequacy of protection by law. While Delhi started the first Witness Protection scheme, but other than that there are no schemes or Acts for the protection of the victim.
WITNESS PROTECTION SCHEME:
In a recent SC judgement, it was stated that every state shall have a Witness Protection Scheme. The Apex Court has released certain guidelines with respect to the same:
- The Scheme was drawn up by the Centre in 2018 with inputs from states/Union Territories, National Legal Services Authorities, civil society, High Courts and police personnel.
- The aim and objective of the scheme are to ensure that the investigation, prosecution, and trial of criminal offenses is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal recrimination.
There is a need to protect these witnesses as there are chances of them being intimidated by the accused. There is provision in Delhi courts, where the court room is divided in three part and this way, they do not place victim and accused in the same room, in front of each other.
Sir notes that under the criminal laws in our system, when compensation is being payed, factors such as nature of the offence, degree of injury to the victim, the capability of the accused to pay the victim, etc. needs to be considered. Now we have concept like social investigation reports and etc. which caters to the victims. But before recent times, victims were hardly taken care of. Even though we have the provision of “order to pay compensation” under section 357 of the CrPC, there are several lacunas. The section contains the word “may” and thus it does not make compensation mandatory. Its upto the judge, whether compensation shall be awarded or not. Now, the question arises is what about in the case where there is no conviction? Section 357 only caters to victims in case there is a conviction.
Sir points out that while money cant replace the problems faced by a victim, compensation acts as a solace to the victim and lets them know that they are very much a art of the system, and have not been forgotten.
Sir talks about Delhi Victim Compensation Scheme also.The new scheme, that is the Delhi Victim Compensation Scheme, 2018 which was replaced by the Delhi Victim Compensation Scheme 2015 by virtue of the Nipun Saxena v. Union of India. In the case, the Court also detailed out the establishments of “One Stop Centers”, by taking inspiration from “BHAROSA” in Hyderabad which can be used as a model for other one-stop centers in the country.
Sir then elaborates that compensation are of two kinds, namely compensation for general offences and for sexual assault. The victims of sexual offences are usually awarded interim compensation for immediate need, but if during the sentencing and judgment, the court comes to the conclusion that the award given to victim is not sufficient, then more compensation may be asked to be paid. Also, it should be kept in mind that another factor which the court looks at it is whether the accused is capable enough to pay compensation and if not, the court directs authorities like the Delhi Legal Service Authority of the same. Advocates can also request court to refer the matter to the DLSA if the compensation is not apt. Although, it should be noted that no trial court has the power to quantify compensation.
When compensation is given to adult victims, 25% of the compensation will be given immediately while 75% will be given as FD for 3-year, interest of which will be credited to their savings account. In case of minors, 20% will be given immediately and 80% will be given as FD after the victim gains majority. Further, Laxmi v. Union of India, the SC court had released several guidelines for hospitals and other institutions on how to deal with rape victims.
Hence, it is safe to say that the judiciary of our country has taken several steps in order to curb exploitation of victims of sexual offences and acid attacks.
Sir points out that we as a society, also victimize the survivors. For instance, acid attack survivors are ostracized while rape survivors are discriminated and treated worse than the perpetrators. Such schemes and landmark judgements are very significant for the betterment of the conditions of the victims. Sir encouraged the practicing advocates to make sure that if they are faced with situations where their clients are victims of such gruesome offences, they must ask and request court for appropriate compensation of the victim. It is very essential for us to understand that the well-being of the victims is of great importance and it is our duty to ensure that as much as the accused is in the loop of the system, the victim is also in the loop and is always updated about cases pertaining to them. Introduction of such victim compensation schemes are a positive way forward.