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the project is a research work and based on victim compensation scheme and inter-relation of human trafficking and disaster management
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Gandhi National University of Law, Punjab is a bonafide record of her original work carried out under my supervision. To the best of my knowledge and belief, the dissertation: (i) embodies the work of the candidate herself; (ii) has duly been completed; and (iii) is up to the standard both in respect of contents and language for being referredto the examiner.
Place: Punjab Prof. (Dr.) Ivneet Kaur Walia
Date : 10. 11. 21
Court also expressed the view that criminal procedure should aim to strike a fine balance between individual rights and the rights of society at large. 3
(^3) Ruparelia, Rakhi. “All That Glitters Is Not Gold: The False Promise Of Victim Impact Statements.” Sexual Assault In Canada: Law, Legal Practice And Women’s Activism , Edited By Elizabeth A Sheehy, University Of Ottawa Press, 2012, Pp. 665–700, Available at Http://Www.Jstor.Org/Stable/J.Ctt2jcb92. .(Last Accessed 3 Novemeber,2021)
The primary as well as secondary sources of information have been utilized to collect data. The other sources of information shall include standard reference books, law reporters (AIR, SCC, Cri.LJ, RCR (Cri.)), Committee and commission reports, journals, magazines and newspapers. The method of research used in the proposed study is analytical, comparative, critical and empirical in nature.. The present study also takes into account, the report of Law Commission of India and various other committees’. The study draws upon a combination of doctrinal and case-study research techniques, including Indian Criminal Procedure, Law Commission Reports, Amendment Acts, Supreme Court rulings, and various other jurisdictions' procedural codes. The submission of arguments and arguments has also been based on secondary data.
Doctrine, which has been utilised to understand the doctrinal development of these topics, has been employed to determine the legal situation of these subjects. In the cases of doctrinal analysis, legal cases have been reviewed to trace the jurisprudential development in these areas.
VI. SCOPE OF STUDY i. The jurisprudential assessments of victim status, the gap between subjective experiences and the way others interpret them and what restorative justice is for healing the victims. ii. To examine loopholes which need a fresh look in modern prospective in the light of other developed countries.
I. Introduction The Victim Impact Statement is a crucial viewpoint in the justice process. It fortifies the participatory model of criminal justice framework, wherein both the charged and the victim are a vital and integral part of the equity conveyance component.^4
1.1 Victim Impact Statement (VIS): A Conceptual Brief
(^4) Dubey, Devansh, And Payas Jain. “Introducing Victim Impact Statement In India: Reconceptualizing Victim Status.” Journal Of Victimology And Victim Justice , Vol. 3, No. 2, 2020, Pp. 147–163., Available at Https://Doi.Org/10.1177/2516606921991757 .(Last Accessed 3 Novemeber,2021)
Today's adversarial legal system is often at odds with the welfare of victims of crimes. When a crime happens, the victim is often blamed for it. In turn, the victim has little say in how the crime is investigated, prosecuted, and punished. As a result, victims can suffer significant emotional and psychological trauma, as well as the sense that they are being treated unfairly. This makes it hard for them to reintegrate into society after the criminal justice system has worked through their case. There is a call for increased victim participation in the criminal justice process. But how can this happen? One answer is to make sure victims are heard when they come forward to report a crime. Another answer is to make sure they have a voice during court proceedings, so they can testify on their own behalf. These ideas can help make sure that the criminal justice system works for victims.^8 People believe that the public interest is paramount. But the victim lacks the power to influence the prosecution. Because of the public interest, cases are often won and lost before trial. When the accused pleads guilty, the prosecutor may not always tell the judge how much money the victim lost.
Reasons are that he wants to avoid prejudicing the court against the defendant, who may have been offered a lesser sentence. The sentencing authority is supposed to make decisions based on the impact on the victim, but the victim is not always allowed to say what he or she suffered. The public interest has little to do with the victim's wishes or his or her recovery. A family member may be allowed to say something about the victim, but the public interest doesn't really come into play. If the accused pleads guilty, it's up to the judge to decide the amount of punishment.^9
(^8) Dept. of Justice (Govt. of Can.), The Role of the Victim in Criminal Process : A Literature Review 1989- 1999 (2013), Available at http://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rr00_vic20/p422.html (last visited Nov.8, 2021). 9 K. Chockalingam, Measures for Crime Victims in the Indian Criminal Justice System , 99, Available at http:// www.unafei.or.jp/english/pdf/RS_No81/No81_11VE_Chockalingam.pdf. (last visited Nov.8, 2021).
II. Pitfalls Within the Indian Criminal Justice System
It provides an overview of the evolution of the law on compensation, among other substantive rights, towards the end of the proceedings. It would also look at the extent to which the courts have effectively delivered on the liberalised law on compensation.
Currently, there are no effective rehabilitation programs available to the victims of crime; however, police departments are attempting to develop better ways to protect victims. 10
Victim compensation is now a statutory right though the implementation scheme varies from State to State, which is again a concern of disparity with the victim status of the victim
The statutory rights which are available for the victim remain a concern that whether such rights, for instance, the right against appeal against acquittal, inadequate compensation, and lesser punishment is duly exercised by the victim.^11
2.1 Grievances of the Victims in Indian System
India's victims have the following main grievances 12 :
(^10) Fenwick, Helen. “Procedural ‘Rights’ Of Victims Of Crime: Public Or Private Ordering Of The Criminal Justice Process?” The Modern Law Review , Vol. 60, No. 3, [Modern Law Review, Wiley], 1997, Pp. 317– 33, 11 Available at Http://Www.Jstor.Org/Stable/1097239. (last visited Nov.8, 2021). Edna Erez, Victim Impact Statements, 33 Trends & Issues In Crime And Criminal Justice, Australian Institute Of Criminology (1991), , Available at Https://Www.Aic.Gov.Au/Publications/Tandi/Tandi (last visited Nov.8, 2021). 12 Deepak Bade, Concept Of Victimology In India, Available at Http://Www.Academia.Edu/1787492/Concept_Of_Victimology_In_India (last visited Nov.8, 2021).
III. Global Standpoint on VIA Victim Oriented Policies in Select Systems of Criminal Justice Having a brief understanding of how the role of the victim is being enhanced and how his interests are being brought to the forefront in considerations and delivery could facilitate a more complete understanding of how the role of the victim is being reinforced. This is fundamental as in many countries there have been significant path-breaking movements for victims' rights that have ushered in a new wave of thinking and a victim-centric approach in practice..^15
In the international context, VIA plays a crucial role for tending to the needs of the victims:
3.1 The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985^16
From arrest to sentencing, victim rights are intended to give victims a voice in the criminal justice system. This issue is addressed in the Victim Bill of Rights, which states that victims deserve respect and have a voice in court. In the VBOR, offending parties' rights are not to be violated nor are their rights to be accorded priority over victims' rights. The VBOR protects the rights of the victim as well as the^17
3.2 United States Of America
VIA was held to be constitutional even in the United States in the case of Payne v. Tennessee^18 , in consonance with the principle of proportionality.^19 The Congress, in
(^15) State Of Punjab V. Saurabh Bakshi, (2015) 5 SCC 182 (^16) Declaration Of Basic Principles Of Justice For Victims Of Crime And Abuse Of Power, G.A. Res. 40/34, United Nations (November 29, 1985). 17 Declaration On Justice For Victims, Principles 8-11 (1985), Http://Www.Un.Org/Documents/Ga/Res /40/A40r034.Htm. 18 19 Payne V. Tennessee, 501 U.S 808, 808–10 (1991). Georgia State University Law Review, Sentencing: Victim Impact Statement , 1 Ga. St. U.L. Rev. (2012).
2004, had passed the Crime Victims’ Rights Act, which recognized and dignified the rights of the victims to act as complete participants in the justice system.^20
3.3 Canada
Both the victims have a right to narrate their victim impact statement (VIS), and the court may inquire about the provision of a reasonable opportunity to prepare a VIS. Courts may also postpone the proceedings to sanction the victims if they fail to submit a VIS.^21
3.4 Scotland
In 2009, VIS, an initiative in Scotland to combat crime, was launched. This process permits victims of serious crimes to write out their feelings about the harm they have endured. Yet, data should not be given in the VIS; for example: how the crime influenced others or what sentence the victim figures the accused ought to receive.^22
3.5 In England and Wales
a VIS is referred to as the Victim Personal Statement (VPS), which fulfils the purpose of providing an account of the severity of the crime’s impact upon the victim.^23 The Code of Practice for Victims of Crime is the grundnorm for the development of guidelines of VPS submission and its utilization in court proceedings.^24
The fact that the Indian justice system fails to provide justice for the victims of crimes makes it necessary to introduce a mechanism for victims’ rights. This mechanism would make the victims aware of their rights and would increase their confidence in the system, thus enabling them to seek justice.
(^20) Riley M.B., Victim Participation In The Criminal Justice System: In Re Kenna And Victim Access To Presentence Reports, 21 Utah L. Rev.(2007). 22 The Criminal Code Of Canada, 1985, §722.2. Mygov.SCot, Make A Victim Impact Statement , January 8, 2020, Available At: Https://Www.Mygov.SCot/Victim-Statement/(Last Visited On September 1, 2020). 23 J.V. Roberts And M. Manikis, Victim Personal Statements: A Review Of Empirical Research, Report For The Commissioner For Victims And Witnesses In England And Wales, 2011. 24 Cps.Gov.Uk, Joint Agency Guide To The Victim Personal Statement , Available At: Https://Www.Cps.Gov.Uk/Sites/Default/Files/Documents/Legal_Guidance/Joint-Agency-Guide-Victim- Personal-Statement_0.Pdf (Last Visited On August 31, 2021).
adequate guidelines need to be proposed by the state so as to procure a proper and standardized form of VIA reports for future adjudication.^31
VI. Scope Of Vis In India In Alister Anthony Pareira v. State of Maharashtra^32 , In a car accident where a driver was driving drunk and killed seven people and wounded eight others, the high court convicted the blamed under Section 304A of the Indian Penal Code and sentenced him to three years of imprisonment. In his appeal before the Supreme Court, the accused argued that he should be acquitted since the victim's mother (who lost her son) had no complaint against him and asked for an amount of 8.5 lakh rupees as compensation. While ruling that the accused deserved a severe punishment, the court noted that the accused's behavior warranted disciplining, and the accused's actions were too deplorable to be ignored. Thus, the court upheld the sentence given by the lower court and said that the accused would receive the punishment he deserved, namely, three years of imprisonment..^33
VII. The Gains and Losses of Implementing VIA in India
6.1 Arguments in favour of victim impact statement (VIS)
(^31) State Of Gujarat V. Raghu And Ors., Air 1965 SC 1467. (^32) Alister Anthony Pareira v. State of Maharashtra (2012) 2 scc 648 (^33) Chockalingam, Measures For Crime Victims In The Indian Criminal Justice System, 99, Http:// Www.Unafei.Or.Jp/English/Pdf/Rs_No81/No81_11ve_Chockalingam.Pdf. 34 Julian Roberts, Victim Impact Statements: Lessons Learned And Future Priorities , Victims Of Crime, 1 Research Digest, Department Of Justice Canada (2008).
understanding of the case which doesn’t merely revolve around the accused. Victims with VIA reports will be more gratified by the sentencing of the court and may also develop sustained faith towards the judiciary.
(^35) Barbara E. Smith, Non-Stranger Violence: The Criminal Court’s Response (1983). (^36) Erez E., Kilchling M., Jo-Ann Wemmers (Eds.), Therapeutic Jurisprudence And Victim Participation In Justice- International Perspectives Ix-X (2011). 37 Raineri A.S., Re-Integrating The Victim Into The Sentencing Process: Victim Impact Statements As An Element Of Offender Disposition 38 , 1queensland U. Tech. L.J. (1995). Dubber M.D., Victims In The War On Crime: The Use And Abuse Of Victims’ Rights336 (2002).
to those desires of the victim which were in sync with the court's own take as regards the appropriate sentence in the concerned factual matrix. Another Australian study, though broad enough to cover and examine all felony offence categories found that even if a victim goes overboard with his feelings of retribution and its related demands, that doesn't really influence the court's ultimate choice of sentence, since the Court needs to look at a broader spectrum of factors of which victim impact is just one. The decision remains guided most often than not by legal considerations. However one conclusion of this study did point towards an increased likelihood of an imprisonment, where such statements are made permissible. An Australian survey among judges confirmed that judges attach greater relevance to 'objective' information such as financial or physical impact, as opposed to 'subjective' fragments of information, such as social effects and the victim's opinions.
6.2 Arguments Against the VIA / Losses
emotional extremes and have a diminished recollection of what actually happened.
VIII. Judicial Precedents
7.1 Karan v. State N.C.T. of Delhi^43
The Delhi High Court is a powerful advocate of restitution for victims of crime. This verdict will undoubtedly revolutionize victim jurisprudence and will set a precedent for other high courts.^44
The Karan case represents a first in the use of victims impact reports (VIRs) by a High Court to determine compensation amounts. They use a variation of the Victim Impact Statements (VISs), which allow victims to express their feelings, to describe the impact of the crime in his or her own words. While the VIR format differs from the original VIS in some ways, it is based on the same concept. The Court primarily considers the impact of the rape on the victim, and VITACS (Victim Impact Statement on Court Sentence) is a
(^42) Bandes S., Empathy, Narrative And Victim Impact Statements , 63(2) U. Chi. L. Rev.(1996). (^43) Karan v. State N.C.T. of Delhi 1999 DGLS (SC) 1062 (^44) Naval Kishore Mishra v. State of U.P., (2019) 13 SCC 182
