Victim

1. What is a ‘Victim’

A victim is a person who suffers from a destructive or injurious action or agency. Moreover, a victim is someone who has been hurt, or has suffered, either because of the actions of someone or something else, or because of illness or chance.

2. Official Definitions of Victim

2.1 Victim defined in official documents:

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985 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 violate criminal laws operative within member states, including those laws proscribing criminal abuse of power."

The declaration further clarifies that, “a person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term 'victim' also includes, where appropriate, the immediate family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.”

2.2 Victim defined in government report

The Government Report titled ‘Guideline & Protocols - Medico-legal care for survivors/victims of sexual violence,’ issued by the Ministry of Health and Family Welfare, defines a person suffering harm including those who are subjected to non-consensual sexual act which could be sexual assault, rape or sexual violence. It also means a person requires compassion, care, validation, and support.

3. Rights of Victims in India

General Rights

• Right to approach the Supreme Court or High Court invoking writ jurisdiction.
• Right to approach special commissions and tribunals like National Human Rights Commission, Women’s Commission, Scheduled Caste and Schedule Tribes Commission.
• Right to get legal assistance
• Right to get medical assistance in certain cases
• Right to receive restitution and compensation under different laws.
• Right to participate in a criminal trial.
• Right to file an appeal against acquittal or passing of less sentence or non-payment of compensation.
• Right against exploitation.
• All the rights available in Part III & Part IVA of the Constitution.
• Right to non-disclosure of identity in rape cases.

Constitutional Rights

• Article 14 and Article 21 incorporate fundamental rights that must be read with the Directive Principles of State Policy listed in articles 39A and 46.
• As per Article 39A, the State offers free legal assistance and a guarantee for promoting justice on the grounds of equal opportunity.
• Article 46 states that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
• Article 20 and Article 22 of the Constitution of India together constitute the elements of “procedural fairness” in Criminal Law.

Statutory Rights

Rights under the Code of Criminal Procedure and Bharatiya Nagrik Suraksha Sanhita

1. Section 372 of CrPC / Section 413 of BNSS: A victim of crime whether in a police report or a private complaint case has a statutory right to appeal against the acquittal of the accused, convicting for lesser offences or imposing inadequate compensation.
2. Section 301 of CrPC / Section 338 of BNSS: The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.

Rights under SC-ST (Prevention of Atrocities) Act, 1989

Section 15A of the Act provides that it shall be the duty and responsibility of the State to make arrangements for the protection of victims, their dependents, and witnesses against any kind of intimidation, coercion, inducement, violence or threats of violence. Moreover, it asserts that a victim shall be treated with fairness, respect and dignity and with due regard to any special need that arises because of the victim's age, gender, educational disadvantage or poverty.

With regards to the victim's dependents, it stipulates that they are entitled to a notice from the court about hearings and appeals, and to be heard at any proceeding under the Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing.

Rights under Juvenile Justice Act, 2015

Section 74 stipulates that "No report in any newspaper, magazine, news-sheet, audio-visual media or other forms of communication regarding any inquiry, investigation, judicial procedure, shall disclose the name, address or school or any other particular, which may lead to the identification of a child in conflict with law or a child in need of care and protection or a child victim or witness of a crime, involved in such matter, under any other law for the time being in force, nor shall the picture of any such child be published."

Rights under the Protection of Children from Sexual Offences Act, 2012

• Section 23 prohibits reporting on a child victim (in a way that lowers its reputation/infringes upon its privacy) or disclosing its details
• Section 27: In case the victim is a girl child, the medical examination shall be conducted by a woman doctor. The medical examination shall be conducted in the presence of the parent of the child or any other person in whom the child reposes trust or confidence.
• Section 36: The Special Court shall ensure that the child is not exposed in anyway to the accused at the time of recording of the evidence, while at the same time ensuring that the accused is in a position to hear the statement of the child and communicate with his advocate.
• Section 37: Trials to be conducted in camera.—The Special Court shall try cases in camera and in the presence of the parents of the child or any other person in whom the child has trust or confidence.
• Section 39: Model Guidelines framed by the Ministry of Women and Child Development provide the following rights during trials of offences.
  • Every child has the right to life and survival and to be shielded from any form of hardship
  • Every child has the right to have his/her best interests given primary consideration.
  • The right to be treated with dignity and compassion.
  • The right to be protected from discrimination.
  • The right to special preventive measures.
  • The right to be informed.
  • The right to be heard and to express views and concerns.
  • The right to effective assistance.
  • The right to privacy.
  • The right to be protected from hardship during the justice process.
  • Right to safety.
  • Right to compensation.

4. Types of Victims

3.1 Completely Innocent Victims: This category includes victims who don’t share any responsibility for the crime with the perpetrator.

3.2 Victims with Minor Guilt: This typology includes all those victims who could have expected danger with some thought, planning, awareness, information or consciousness and avoided or at least minimized the harm.

3.3. Victims as Guilty as Offender: This includes those victims who share equal responsibility with the offender for the victimization.

3.4 Victims more Guilty than the Offender: Victims who actively participated in the interaction where there is a likelihood of them getting hurt.

3.5 Most Guilty Victims: Victims who are exclusively responsible for their victimization. The victims themselves initiated the contact and committed an act which in turn led to their injury.

3.6 Imaginary Victims: This typology includes victims who suffered no victimization but accuse others of the same falsely.

5. International Experiences

The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (GA 40/34) provides the following guidelines in furtherance of the victims' rights of access to justice, restitution, compensation and protection from abuse of power:

1. Victims should be treated with compassion and respect for their dignity.
2. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.
3. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible.
4. Victims should be informed of their rights in seeking redress through such mechanisms.
5. Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims.
6. Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants.
7. In cases of substantial harm to the environment, restitution, if ordered, should include, as far as possible, restoration of the environment, reconstruction of the infrastructure, replacement of community facilities and reimbursement of the expenses of relocation, whenever such harm results in the dislocation of a community.
8. When compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to: (a) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes; (b) The family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization.
9. Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community-based and indigenous means.
10. Victims should be informed of the availability of health and social services and other relevant assistance and be readily afforded access to them.

6. Victim Compensation Schemes:

As per India Justice Report 2022, despite comprehensive guidelines, the implementation of various victim compensation schemes remains sub-par. Between 2016–17 and 2021–22, State Legal Aid Service Authorities altogether received 97,037 applications seeking compensation. Of these, they disposed of only 64,333 (66 per cent) applications across all states.