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Victims' Rights in India

Victims have few legal rights to be informed, present and heard within the criminal justice system. Victims do nothave to be notified of court proceedings or of the arrest or release of the defendant, they have no right to attendthe trial or other proceedings, and they have no right to make a statement to the court at sentencing or at otherhearings. Moreover, victim assistance programs are virtually non-existent.

The core rights for victims of crime include:* The right to attend criminal justice proceedings;* The right to apply for compensation;* The right to be heard and participate in criminal justice proceedings;* The right to be informed of proceedings and events in the criminal justice process, of legal rights and remedies,and of available services;* The right to protection from intimidation and harassment;* The right to restitution from the offender;* The right to prompt return of personal property seized as evidence;* The right to a speedy trial; and* The right to enforcement of these rights.

Victims RightsConstitutional AmendmentsIn addition to statutory victims rights, nearly two-thirds of the states in USA have adopted amendments to theirstate constitutions guaranteeing rights to victims of crime. Including crime victims rights in state constitutionsincreases the strength, permanence, and enforceability of victims rights.

Incorporating victims rights into constitutions also gives those rights a degree of permanence. Ordinary statutescan be changed at any time by the legislature. In contrast, it is relatively difficult to change the constitution of astate. In most states, a constitutional amendment must be passed by each house of the legislature by a two-thirdsmajority. This must usually be done at least twice, often with a legislative election between votes. Identicallanguage must be passed each time. In addition, giving victims rights constitutional protections generally makesthose rights enforceable. If an official or a state agency violates a constitutional right, a court usually has thepower to order that official or agency to comply with the constitution.

In general, the amendments give victims constitutional rights to:* be treated with fairness, dignity and respect;* be informed of proceedings and events, such as the release of the defendant;

* attend the trial and other proceedings;* be heard at critical points in the criminal justice system, such as sentencing or parole hearings; and* be awarded restitution from a convicted offender.

Who May Exercise Victims' RightsExactly who the law considers a "victim" entitled to a particular right. Victims of any violent crime, whether felonyor misdemeanor, victims of serious juvenile offences etc.

Victims' rights to be extended to the surviving family members of a homicide victim, or to the parent, guardian, orother relative of a minor, disabled or incompetent victim, a victim's legal representative or another persondesignated by the victim may also exercise rights on the victim's behalf.

Along with general rights for crime victims, special rights for certain groups of crime victims with unique needs area must. These include victims of sexual assault, domestic violence or stalking, or victims who are elderly, youngchildren, or victims with disabilities.

1.THE RIGHT TO ATTENDCrime victims and their families be given the right to be present during criminal justice proceedings. This right isimportant to victims, who often want to see the criminal justice process at work. They may want to hear counselsarguments and view the reactions of the judge, witnesses and the defendant.

Proceedings Victims May AttendThe victim's right to attend proceedings includes the right to attend the trial, sentencing, and parole hearing ofthe offender, but may include other proceedings as well.

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Exclusion of WitnessesA victims right to attend the trial is often limited in cases where the victim is also a witness in the criminal case.A longstanding rule of evidence provides for the exclusion, or sequestering, of witnesses during the trial. Thisrule was designed to prevent witnesses from being influenced by the testimony of other witnesses in the case.Some jurisdictions require any witness to be excluded on the request of a party while others leave exclusion to thediscretion of the judge. Increasingly, jurisdictions are changing this rule on witnesses to allow victims to remain inthe courtroom even when they will be a witness, or to require the court to first rule that the victims testimony is

likely to be influenced by the testimony of other witnesses before ordering the victim to be kept out of thecourtroom.

Presence of Support PersonsCrime victims must benefit from having a support person present during proceedings. The supportive presence of atrusted advocate or family member often enables a crime victim to exercise his or her right to be present duringproceedings.

2.THE RIGHT TO COMPENSATIONCrime victim compensation should be a government program designed to reimburse victims of violent crime fortheir out-of-pocket expenses relating to the crime. Surviving or affected family members may also be eligible forlimited compensation. Generally, victims apply to the compensation program of the state where they live or wherethe crime occurred. Compensation can be paid even when no one is arrested or convicted for the crime.

Eligibility

Direct victims of violent crime, or to their surviving family members. Victims of serious financial crime to seekcompensation for counseling expenses. Those who pay a victims medical or funeral expenses should be eligible fordirect reimbursement from the compensation program.

In order to be eligible, the victim must generally have reported the crime and cooperated in the prosecution of thecase. They must also file an application for compensation within a certain time period. Victims may be ineligible iftheir own misconduct contributed to their injuriesfor example, if they were injured while they were committinga crime.

Compensable ExpensesCompensation programs will be medical expenses, counseling expenses, lost wages, and funeral expenses.

3. RIGHT TO BE HEARDOne of the most significant rights for crime victims is the right to be heard during critical criminal justiceproceedings that affect their interests. Such participation is the primary means by which victims play a proactiverole in the criminal justice process. When a crime victim is allowed to speak at the sentencing hearing, or tosubmit a victim impact statement regarding the impact of the offence on the victim and the victims family, thereis an acknowledgment by the criminal justice system of the personal nature of the crime and of the harm suffered.

Conferral with ProsecutorProsecutor to obtain the views of the victim before a disposition is final, whether this involves a plea agreement,dismissal of charges, or a pretrial diversion of the defendant. The prosecutor to certify to the court that he or shehas consulted the victim before a plea can be accepted.

Communication with the Court or other AuthorityThe victims right to be heard by the court at sentencing.

4. THE RIGHT TO BE INFORMEDThe criminal justice system is often required to provide general information of interest to victims. Give victims or

their families the right to be notified of important, scheduled criminal proceedings and the outcomes of thoseproceedings. Notify victims when hearings have been cancelled and rescheduled.

General Information to be provided to VictimsVictims may must have the right to be informed of various legal rights, including the rights to: attend a proceedingand/or submit a victim impact statement; sue the offender for money damages in the civil justice system; have acourt order that they be protected from the offender and/or the offender's family and associates.

Notice of Events and Proceedings in the Criminal Justice ProcessThere are dozens of events or proceedings in the ordinary criminal justice process for which notice may berequired by statute. These commonly include:

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* Arrest of the accused;* Arraignment of the defendant;* Bail release and related proceedings;* Pretrial release and related proceedings;* Dismissal of charges;* Negotiated pleas and entry of plea bargain;

* Trial dates and times;* Sentencing hearings;* Final sentence or disposition;* Conditions of probation or parole;* Post-trial relief proceedings;* Appeals process and related proceedings;* Parole release and related proceedings;* Pardon/commutation of sentence and related proceedings;* Cancelled and rescheduled proceedings;* Final release from confinement, including from a mental institution; and* Escape and subsequent recapture of offender.

5 .THE RIGHT TO PROTECTIONGive crime victims the right to protection during the criminal justice process. This right may take the form of agenerally stated right to protection, or may include specific protective measures. Most defined are criminal

offences of intimidation of victims or witnesses.

Protective MeasuresMeasures to protect crime victims take various forms. Some examples include:* Police escorts to and from court;* Secure waiting areas separate from those of the accused and his/her family, witnesses and friends during courtproceedings;* Witness protection programs;* Residence relocation; and* Denial of bail or imposition of specific conditions of bail releasesuch as no contact ordersfor defendants foundto present a danger to the community or to protect the safety of victims and/or witnesses.

6) THE RIGHT TO RESTITUTIONThe term "restitution" generally refers to restoration of the harm caused by the defendant, most commonly in theform of payment for damages. It can also refer to the return or repair of property stolen or damaged in the courseof the crime.

Courts to order restitution by convicted offenders as part of their sentences.

Losses to be CoveredRestitution should cover any out-of-pocket losses directly relating to the crime, including:* medical expenses;* therapy costs;* prescription charges;* counseling costs;* lost wages;* expenses related to participating in the criminal justice process (such as travel costs and child care expenses);* lost or damaged property;* insurance deductibles; and

* other expenses that resulted directly from the crime.

Restitution will not cover such things as pain and suffering or emotional distress, but may cover reasonablyexpected future losses, such as ongoing medical or counseling expenses.In calculating the restitution owed, a courtshould look at the victims losses.

7. RIGHT TO RETURN OF PROPERTYA victim of crime may suffer the loss of property in two ways: by theft or when property is seized and held asevidence.

8. THE RIGHT TO A SPEEDY TRIAL

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Give crime victims the right to a speedy trial or disposition of the case free from unreasonable delay.

In practical effect, and often in the law, the right to a speedy trial takes the form of a limitation on continuances.Continuances are court-ordered delays of court proceedings. The court must also consider the impact of thedelay on the victim.

9. THE RIGHT TO ENFORCEMENT/REMEDIES OF VICTIMS

Since crime victims have been afforded legal rights, there is need to ensure that those rights are enforced.

Enforcement Mechanisms The victims must have legal standing to assert their rights. Because a crime victim isnot a party to the casethat status is limited to the defendant and the prosecuting jurisdiction (such as thestate)legal standing for victims must be automatic and must be provided by statute or court ruling.

Aside from general standing to assert rights, some jurisdictions have other limited court options forenforcement. They may permit a victim to seek a writ of mandamus, a court order directed to an agency tocomply with the law, or allow other limited actions.

Creation of a designated entity to receive, investigate, and attempt to resolve crime victim complaints. Theremust be an ombudsman or state victim advocate; in others, it may be a committee or board. Give the investigatoryagency the ability to impose consequences on offending agencies or officials found to have violated a victimsrights.

Victims Right and the PoliceVictims have right to demand for improved service. Victimized members of the general public are pressuring policeadministrators to reorder institutional priorities, reallocate resources, and redeploy officers. Law enforcementdecision-makers find it difficult to openly oppose these calls for greater responsiveness by the people, to whomthey are sworn to protect and serve. When these decision-makers resist pro-victim initiatives, they argue thattheir department doesnt have the manpower or money; or that not enough cases arise to justify suchredeployments; or that the demands are impractical or unreasonable in terms of additional workloads.

ConclusionThe struggle by victims to gain formal rights within the criminal justice system continues on many fronts. And, asthe analysis presented above demonstrates, the obstacles that the victims encounters come from many quarters.Resistance from the victims ostensible allies within the criminal justice system tends to be low profile, and takesthe form of foot-dragging, cooptation, and objections on pragmatic grounds.

The criminologists and victimologists had discovered through their research and evaluations that the newly-gainedrights have little impact, and that business goes on as usual. Two reactions are possible, to all these pains ofVictims. The first reaction, both threatening and highly undesirable, could be the abandonment of the campaignfor formal rights within the system and a turn towards a subtle endorsement of illegal, vigilante street justice. Thesecond option, much more promising, could be that a growing number of victims will redirect their attention andenergies into exploring the potential of the emerging field of informal justice. Practiced at the neighborhoodlevel, this alternative to formal adjudication relies upon the principles of conflict resolution, using the techniquesof mediation to achieve the goals of victim restitution, offender rehabilitation, mutual reconciliation, andcommunity harmony.