VICTIM IMPACT STATEMENT AND ITS IMPACT ON INDIAN LEGAL EDUCATION
Criminal justice system cannot survive without the relative concepts of victims and offenders. Even though many victimologists and criminologists have researched on victimless crimes, we cannot but ignore the presence of victims in all categories of crimes including victimless crimes. The term ‘victim’ derives from a Latin term “victima” which originally meant any creature that is sacrificed to god. Even if the term denotes a purpose which may be divine and which may be for a positive gain, the inherent meaning of this ancient concept may also denote pain and suffering that is undertaken for the purpose of certain human benefits. If we go deeper in this understanding we may also get to see that the creature/animal that may have been sacrificed may not have put the liability of its death, pain and suffering on anyone else because it is understood that the pain and suffering are for the divinely blessing for another or the community as a whole and the sacrificed has voluntarily accepted its duty to be sacrificed.
If we speak about sacrificing lives for the human benefits, India has several examples from ancient period: the Hindu god Lord Shiva could be considered to be a divine mythological character who sacrificed his sense of suffering and pain by consuming poison or halahal for saving the universe from destruction. Rishi Dadhichi, a Hindu mythological sage, voluntarily sacrificed his life to contribute his bones for making divine weapon Vajra that may be used to kill the Asuras. Apart from Hindu mythological examples, we also get to see the sacrifices Lord Jesus in Christianity for the sake of human race as a whole. All such examples would indicate that the pain and suffering taken up the by the “victimia” was for certain divine purposes. In reality, victims of crimes, abuse of power etc, also go through pain and suffering. But it is not voluntary. The modern understanding the term victim comes from UN declaration of basic principles of justice for victims of crimes and abuse of power which defines victims as:
"Victims" means 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 are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power………. 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…….. The provisions contained herein shall be applicable to all, without distinction of any kind, such as race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability.
Section 2(w) of the Criminal Procedure Code defines the term ‘victim’ quite on the same lines.
Eminent victimologists like Benjamin Mendelsohn, Hand-Von-Hentig, Izzat Fattah or John Dussich etc., have shown that there may be different reasons for people to be victimized: it may be due to their gender, age, race, their existence at dangerous places at wrong times etc. several victimological theories are built up on these arguments.
My concern here is on victim impact statements. No victim in the modern world may voluntarily undergo pain and suffering. Every victimization leaves impact on the victim, his/her family and society at large. This impact can be physical where we get to see the physical and/or mental impairment of the victim and emotional and financial which may deeply affect the family of the victims. In India, even though ancient texts like ArthaShastra or Manu smriti had indicated about the rights of the victims for compensation and restitution of justice, the modern criminal laws deeply influenced by colonial rules have reduced the position of the victims to mere ‘best witnesses’ who may be compensated in cases where their victimization is explicitly shown. Victims are generally represented by the State through the government appointed prosecutors. In India many gets confused with victim impact statement and statements made to the police by victims and witnesses under section 161 of the Criminal Procedure Code.
Even though such statements may have significant roles for the prosecution in the trial, they are not the typical victim impact statement. One of satisfactory and self-explanatory explanations that I could see about victim impact statement in the website of the United States Department of Justice is as follows:
“Victim impact statements describe the emotional, physical, and financial impact you and others have suffered as a direct result of the crime. Victim impact statements can be either written or oral statements.”
Victim Impact statements, as the above mentioned website suggests (especially in federal crime cases, felonies and misdemeanour cases etc,) need to be processed through the US attorney’s offence, and then the US probation office cases. Such statements facilitate the victims to express their condition directly to the judges and may also help the judges in deciding about the compensation, punishment to the offenders etc. In India the recent case of Karan vs NCT Delhi, the Delhi High Court held that filing of the victim impact reports should be made mandatory and courts shall order the accused to pay compensation to the victim especially in cases where fine does not form a part of the sentence. The victim impact report must be processed through the District Legal Services Authorities to verify the impact of the crime victimisation on the victims and payment capability of the offender. The point to be noted here is, the above mentioned case speaks about the victim impact report which has been construed quite similar to that of victim impact statement even though both are not the same. Victim impact statements may be a broader concept which may include a direct and raw statement by the victim about how he/she feels as a victim of the crime and the behaviour of the offender as well as the entire criminal justice system who had dealt with the case. This helps the court to decide upon the punishment and providing moral as well as compensatory support to the victim, especially victims of domestic violence, child victims, victims of cybercrimes and victims of elder abuse. Victim impact report may actually lead to understand where the ‘repairing’ is needed and what may be the cost of repairing the harm. But seeing from the perspective of the purpose of such victim impact statement and/or victim impact report, it must also be understood that victimology and understandings of compensatory jurisprudence for realizing the right to restitution of the victims have played significant role in fulfilling this long absent issue in the Indian criminal justice system. This is The role of victimology as a subject in mainstream legal education curriculum must also not be forgotten in this regard. As the concept of victim impact statement is comparatively new to the Indian judicial system, it is necessary to\ include the concept in the credit courses in legal education so that the future judicial officers, prosecutors and defendants would be made aware about this, who in turn may make the victims empowered in this regard and may also make the defendants ready to acknowledge their liabilities.
*The article has been written by Prof. (Dr.) Debarati Halder, Ph.D. She is working as Professor of Law at Parul Institute of Law, Parul University, Vadodara, Gujarat. She can be contacted at debaratihalder@gmail.com.