Victimsjustice
Victimsjustice
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Subhradipta Sarkar
Jamia Millia Islamia
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by Subhradipta Sarkar*
I
n campaigning for criminal justice reform, human and civil
rights activists have historically paid considerable attention
to the rights of the accused, while neglecting to address to
the same extent the impact of crimes on victims. No responsible
authority or organization addressing violations of human rights
law, however, can remain oblivious to the substantial suffer-
ing of victims. Recognizing that the rights of victims had not
16
Unlike the accused, victims in India have virtually
no rights in criminal proceedings, supposedly
conducted on their behalf by state agencies.
When state agencies fail to successfully prosecute
offenders, as is oftentimes the case, victims are
left to either suffer injustice silently or seek personal
retribution by taking the law into their own hands.
Rights,8 the International Convention on the Elimination of All Investigations in India are exclusively a police function,
Forms of Racial Discrimination,9 and the Convention on the and therefore, victims play no role unless the police consider
Rights of the Child.10 Most recently, the Basic Principles and it necessary. Defective investigations are a serious problem
Guidelines on the Right to a Remedy and Reparation for Victims throughout the country. Oftentimes persons belonging to a
of Gross Violations of International Human Rights Law and higher caste or those with political patronage influence the
Serious Violations of International Humanitarian Law11 (Basic police to carry out sloppy investigations so that a charge sheet
Principles and Guidelines) makes it obligatory for States Parties is not filed within the statutory time limit. Police investigations
to the above mentioned treaties to “respect, ensure respect for raise considerable doubts, particularly in cases where the police
and implement” the treaties in such a way that “their domestic themselves are perpetrators. Such failures have often led to a
law provides at least the same level of protection for victims as call to entrust such investigations to agencies like the Central
required by their international obligations.”12 While it reiterates Bureau of Investigation, however its own investigations are not
provisions for the protection and redress of victims similar to above suspicion.
those mentioned under the Victims’ Declaration, it also empha-
As a result of faulty investigations, initiation of trials may
sizes the need to prevent repetition of the same offenses by pro-
be delayed for years because no charge sheet has been filed.
moting the observance of codes of conduct and ethical norms by
Furthermore, once a trial has begun, the prosecution can seek
public servants; strengthening the independence of the judiciary;
withdrawal at any time without consulting the victim.16 While
and reviewing and reforming laws in this regard.
the victim may proceed to prosecute the case as a private indi-
vidual, without the assistance of the state,17 this is a Herculean,
The Current Situation in India if not impossible, task.
India has largely ignored the protection of victims’ rights, In spite of constitutional and legislative protection to ensure
irrespective of whether the perpetrator is the state or a private a competent criminal justice system,18 one group particularly
individual. While it is impossible to describe all of the problems affected by such procedural lapses is the Dalits.19 Dalits, his-
faced by victims in a single paper, the following are several torically considered as “untouchables,” are discriminated against
notable examples that should help illustrate the nature of vic- and victimized every day in various ways, ranging from social
tims’ rights in the country. boycotts to grave criminal offenses. More often than not, the
Victims in India face significant, and sometimes insur- perpetrators of crimes against Dalits get away with absolute
mountable, hurdles during the investigation and prosecution of impunity.
crimes. The filing of an initial complaint, in and of itself, is a The Scheduled Castes and Scheduled Tribes (Prevention of
challenging endeavor. From 2006 to 2008, People’s Watch, a Atrocities) Act20 (SC/ST Act), enacted to ameliorate the suf-
national human rights organization, undertook fact-finding mis- fering of Dalits, ultimately failed in many respects. A study of
sions on police torture across 47 districts in nine states in the judgments delivered by various courts in Gujarat conducted by
country and came up with some startling revelations.13 Out of a voluntary organization in Ahmedabad reveals that in many
6,063 cases they monitored, almost twenty percent of the cases cases, offenders are acquitted and set free due to the sheer
resulted in police acquiescence, where the police failed to act negligence of police authorities and prosecuting advocates.21
upon victim complaints against other private individuals.14 In For example, in Gujarat approximately 95 percent of cases pros-
some states like West Bengal, the rate was found to be as high ecuted under the SC/ST Act have resulted in acquittal, mainly on
as 49 percent.15 account of defective investigations. Those Dalits that do attempt
to file complaints concerning crimes perpetrated by members of
17
teen people during a riot in Vadodara. Although at that time there
was reasonable suspicion that witnesses were being threatened
or coerced, the public prosecutor took no steps to protect the wit-
ness and made no request to hold the trial in camera. Afterwards,
in an application to the Supreme Court, Zahira alleged that she
was threatened and intimidated not to tell the truth and prayed
for the re-trial of the case outside Gujarat. In a distinctive judg-
Courtesy of Maria Marques.
19
Endnotes: The Quest for Victims’ Justice in India
1 Declaration of Basic Principles of Justice for Victims of Crime 20 SC/ST Act, supra note 18.
and Abuse of Power, G.A. Res. 40/34, U.N. Doc. A/RES/40/34 21 See generally S.H.Iyer, Atrocities Act – An Orphan Act, Combat
(Nov. 29, 1985). Law, Apr.-May 2005, at 48-55, available at http://www.indiato-
2 A.S. Anand, Victims of Crime — The Unseen Side, (1998) 1 gether.net/combatlaw/vol4/issue1/index.htm.
S.C.C. (Jour) 13, 3-13. 22 See generally Annie Zaidi, Casteist assault, Frontline, Jan.
3 N.R. Madhava Menon, Victim’s rights and criminal justice 28, 2006, available at http://www.flonnet.com/fl2302/sto-
reforms, The Hindu, Mar. 27, 2006, available at http://www. ries/20060210003703300.htm.
thehindu.com/2006/03/27/stories/2006032703131000.htm. 23 See Delhi Domestic Working Women’s Forum v. Union of India,
4 See K.D. Gaur, Commentary on Indian Penal Code 1569 (1995) 1 S.C.C. 14.
(Universal Law Publishing Co. 2006). 24 Vishaka v. State of Rajasthan, A.I.R. 1997 S.C. 3011.
5 Jan Van Dijk, Officer-in-Charge, Human Security Branch, UN 25 Id.
Office on Drugs and Crime in Vienna, Lecture delivered on the 26 Id. (A cursory survey of various provisions of the Indian Penal
occasion of the presentation of the Hungarian National Strategy for Code, the principle criminal law of the country, protects women
Social Crime Prevention at the Hungarian Embassy, Vienna: Crime from such offences, but none of them directly and explicitly deal
Prevention and Human Security: a United Nations Perspective with the problem.).
(Feb. 25, 2004), available at http://www.crime-prevention-intl.org/ 27 Sexual harassment at workplace: States told to set up pan-
Racial Discrimination art. 6, entered into force Jan. 4, 1969, 660 in Custody (1989); Law Commission of India, 152nd Report on
U.N.T.S. 195. Custodial Crimes (1994); Law Commission of India, 198th Report
10 Convention on the Rights of the Child art. 39, entered into force on Witness Identity Protection and Witness Protection Programs
Sept. 2, 1990, 1577 U.N.T.S. 3. (2006).
11 Basic Principles and Guidelines on the Right to a Remedy and 31 See India Code Crim. Proc. §§ 154, 190.
Reparation for Victims of Gross Violations of International Human 32 See Id. § 157(2).
Rights Law and Serious Violations of International Humanitarian 33 See generally Gaur, supra note 4, at 1575–76.
Law, G.A. Res. 60/147, annex, U.N. Doc. A/RES/60/147 (Mar. 21, 34 See generally Rudul Shah v. State of Bihar, A.I.R. 1983 S.C.
2006). 1086; Nilabati Behera v. State of Orissa, A.I.R. 1993 S.C. 1960;
12 Id., ¶ 2(d). Chairman, Railway Board v. Chandrima Das, (2000) 2 S.C.C. 465.
13 The author himself was involved with this project from its 35 National Human Rights Commission, Special Leave Petition
inception in July 2006 until February 2008. For the purpose of (Criminal) of 2003 in the Manner of National Human Rights
this project, the organization took into account the definition of Commission v. State of Gujarat (2003), available at http://www.
“torture” under the Convention against Torture and Other Cruel, ielrc.org/content/c0302.pdf.
Inhuman or Degrading Treatment or Punishment. According to 36 The Scheduled Castes and Scheduled Tribes (Prevention of
Article 1of the Convention, “severe pain or suffering” caused due Atrocities) Rules, R. 8, 1995, Gen. S.R. 316(E).
to “the consent or acquiescence of a public official or other person 37 See generally P.S. Krishna, Walls in minds, Frontline, Nov. 21,
acting in an official capacity” also amounts to torture. Incidentally, 2009, available at http://www.hinduonnet.com/fline/fl2624/sto-
India signed the Convention in 1997, but has yet to ratify it. ries/20091204262402500.htm.
14 People’s Watch, Torture and Impunity in India Annex (2008), 38 See Theo van Boven, The Perspective of the Victim in The
available at http://www.pwtn.org/tortureandimpunitybook.htm. Universal Declaration of Human Rights: Fifty Years and Beyond
15 Id. 14 (Yael Dnaeli et al. eds., Baywood Publishing Co. 1999).
16 See India Code Crim. Proc. § 321. 39 Basic Principles and Guidelines, supra note 11, ¶ 18.
17 Id. § 190. 40 Rattan Singh v. State of Punjab, A.I.R. 1980 S.C. 84.
18 E.g., India Const. art. 17; The Protection of Civil Rights Act, 41 See J. Venkatesan, Cr.P.C. amendments come into effect, The
1955, No. 22, Acts of Parliament, 1955; The Scheduled Castes and Hindu, Jan. 2, 2010, available at http://www.hindu.com/2010/01/02/
Scheduled Tribes (Prevention of Atrocities) Act, 1989, No. 33, Acts stories/2010010253101200.htm.
of Parliament, 1989.
19 “Dalits” literally means “broken people.” They belong to the low-
20
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