Victimology -- The Weak Limb of Criminal Justice Delivery System

(By V.K. Babu Prakash, Munsiff, Nedumamgad)

“Everything said here has been said before.  As no one listens to the same, let us begin it again from the beginning”.  

-- Andre Gide, the French Thinker

The concept of victim’s right is gaining the ground now in India with the terrorist attacks and other criminal acts are on the rise. Much is talked about the rights of the terrorists as accused who must get fair trial, legal aid and equality before law. Yet, Indian Society should first and foremost recognise the rights of the victims of terrorism and other criminal acts. The victims also have right to live, something that the terrorists and criminals do not recognise. Nobody talks about the right of the victim and his sufferings, but every body shouts about the rights of the accused. The Honourable High Court of Kerala in a recent decision held that the accused need not even appear before the trial Magistrate during pre-trial, trial or at the stage of pronouncing Judgment. It has limited the scope of trial before a Magistrate which meant that trial is a process whereby the accused and victim participate to help the court to find the truth from false. As the accused need not appear in the Court, the trial has practically become a duel between the prosecution and defence lawyer. Inspite of the fact that Code of Criminal Procedure prescribes that what all evidence that the prosecution has to render, it has to be rendered in the presence of the accused, now the accused need not be present in Court to watch the evidence and participate in the trial. Everything now he can pass on the buck of the lawyer who will be the knight in shining garb protecting his rights all throughout. But what about the hapless victim? He has to run from the pillar of the Police Station to the post of the prosecutor’s office to move his grievance redressed before the court of law. Nowhere he gets any proper attention. His status is only that of a witness who laid the information or witnessed the incident. His status is not at all glorious unlike the status of an accused who has every privilege under the sun. The victim will be ridiculed in the police station. He will be ignored in the prosecutor’s office. His plight is in tedium and trauma every where. Even in the court he does not get any fair treatment. There he has to bear the brunt of the clever and skilled defence lawyer who will terrorize him to become mute. If the victim is not sophisticated he cannot withstand the onslaught. Court’s power is limited which cannot always protect the victim during the course of trial as it may attribute bias to the victim. So, victim is a victim everywhere.

The Indian Penal Code defines offence and prescribes punishment and its mode of sentence.   It does not recognize victim’s right and its mode of enforcement. Though Code of Criminal Procedure recognizes the right of victim in a pale and limited sphere, it is not at all comprehensive enough. S.357 Cr.P.C. though recognizes the award of compensation to the victim, it has not developed into the branch of victimology at all. The Law Commission in its 41st report has recommended that power of awarding compensation by Criminal Courts to the victim of crime must be exercised by the court in a sense of reality. The Supreme Court also in a number of decisions held that S.357 Cr.P.C. empowers the criminal Court to award compensation to victim which power should be exercised liberally so as to meet the ends of justice in a better way. Never the less, awarding monetary compensation does not uplift the right and status of the victim in par with the right and status enjoyed by the accused before the Criminal Justice Delivery System.

Justice Malimath’s Committee appointed to recommend measures to revamp criminal Justice Delivery System made so many recommendations in its report. Among them the most progressive and drastic suggestion was the recommendation to uplift the status and role of victim in the system. Unfortunately, it was not considered or implemented by the Government of India. What is the solution to get justice by the accused and victim equally? The United Nations in 1985 formulated certain basic concepts to render justice to the victim of crimes. It recognized four basic rights. Those are:-

(1) Access to Justice:- There must be immediate measure taken to redress the grievance-victim must be made aware of his legal rights. Free legal aid should be provided to conduct cases. Victim’s privacy and security should be protected.

(2) Wealth and property:- The property or wealth which is lost or destroyed should be restored to victim, or else adequate compensation shall be provided.

(3) Compensation:  If adequate compensation could not be realised from the accused, it must be realised from the Government. Government should formulate  a National Compensation Fund for victims for the same.

(4) Assistance:-   Victim should be provided with Individual help and   assistance-Government, NGOS and Society should be accountable for it.

In England a law was enacted in tune with the UN concepts in 1995. British Home Department conducted an enquiry in 2001 on Criminal Justice Delivery System in England. The result was shocking. In Criminal Cases, the interest of the accused alone was given much predominance than the interest of the victim. When each case ended in acquittal, the condition of the victim fell from bad to worst. Investigation process takes long time. Trial takes too long a time in Courts. The state agency does not care to inform the progress or the stage of the case to the victim. It does not care about the safety or security of the victim. When the victim contacts the state agency, he gets only an indifferent attitude. Thus England made some vital changes in its system. When an accused is enlarged on bail, it would be informed to the victim. Victim can approach the court and file affidavit setting forth his grievances. State agency should provide adequate safety and security to the victim and the witnesses. A Code must be made setting out the rights of the victim before the Criminal Justice Delivery System.

In France the System is more victim friendly. From the stage of investigation till trial is concluded, the victim has an important role to play. If the prosecution does not conduct the trial fair, the victim can conduct the case by his own chosen counsel. Victim can lay evidence other than that laid by the prosecution. But, what about the system in India? The victim does not have any role during the investigation other than giving a statement before the agency. There is no guarantee that the agency would record the true statement. The statement has no value before the Court. Victim does not have much roles to play in trial too. The Courts do not recognise the right of the victim to oppose the bail application of the accused. He is either an informant or a witness at the most. The status of rape victim is more sorrowful.   She has to narrate the incident of rape again and again, word by word to the investigating agency who would mostly packed by men. She will be hunted by the media to curry-favour their spicy stories. At last she has to stand the test of the trial ordeal in the court. When all these are over, she will be a crushed being who has to live the rest of her life with a ravished body and wounded psyche. When clever lawyers manage to get favourable orders for their accused clientele, it really enlarges the rights of the accused. The weak victim will in turn be pushed down and down into the deep pit of his miseries. The present Criminal Justice Delivery System is nothing but an acrobatic exercise between the prosecutor and defence lawyer, where the defence lawyer wins, for sure. The system has to change and it has to change drastically.

Paperless Courts -- A Revolutionary Concept

(By V.B. Hari Narayan, Advocate, High Court of Kerala)

The Courts in India are flooded with cases which in other words means, loads and loads of papers. Imagine a situation where the filing of cases are done and their judgments are delivered through e-system. The Herculean task of storing the case bundles containing important documents could be avoided and the amount spent on stationary can be utilized for other meaningful purposes.  Dubai Courts are setting an example by trying to emerge as a paper free Court. 

The Dubai Courts have recognized the importance of keeping pace with modern technology, to maintain leading position in judicial, legal and research services. The electronic systems that are in place in Dubai Courts are the most sophisticated of their kind in the world. 

Collecting petitions and deposits relating to suits or cases electronically through the website, in coordination with the e-government are benefiting hundreds of litigants, who can pay electronically for the petitions and deposits of more than ten type of cases such as Shariah cases, inheritance related cases, cases relating to minors, the civil/general civil execution cases etc. The e-payment system provides simplified payment solutions to serve clients and reviewers. 

Apart from the above, there are as many as 437 services provided by Dubai Courts for all its clientele. Perhaps the most prominent ones of these electronic services are those provided to Judges, such as making available the rules for deciding cases, and to lawyers including lawyer’s communication service through e-mail designed to know resolutions of the hearings for their cases held that day. Additionally, lawyers can get all the necessary information about dates and places of next day’s sessions, saving their time.  This is in line with Dubai e-government strategy to convert all services provided by the Departments to online services. 

One such unique but simple system adopted by Dubai Courts is relating to book borrowing. The Dubai Court Library has activated and developed an electronic service to follow up the borrowed books through introduction of electronic reminder notices. This system is characterized by accurate follow up of the borrowing process to ensure return of books in due time. 

Dubai Courts have been working to manage law suits through sophisticated and cohesive electronic systems which cover all steps of suit proceedings from registration process, litigation, issuance of judgments to following up of executions at all three court levels (First instance, Appeal and Supreme). For instance, informing the litigants/lawyers through SMS about the posting of cases is a very useful and friendly mechanism. 

India too has understood the importance of modernisation in the legal front. Infact the Supreme Court of India has constituted a committee for monitoring the Computerisation of Law Courts throughout India. The simple but efficient methods followed by the Dubai Courts could be adopted in the Indian Legal field also if necessary amendments are made to the procedural laws. For eg. serving of summons/notice through electronic media, including SMS as an alternative mechanism needs serious consideration. The procedural laws based on Anglo-saxon jurisprudence, hitherto followed by Indian Courts have necessarily to change according to the changing times. 

Section 19(2) of the Prevention of Food Adulteration Act,

1954 -- Protection for Whom ?

(By P. Rajan, Advocate, Thalassery)

S.19(2) of the P.F.A. Act 1954 speaks of the defence, a vendor or retail dealer can take, in the event of prosecution launched against such person, under the provisions of the P.F.A. Act, if the article sold to the Food Inspector is purchased from a wholesale dealer or manufacturer with a cash bill or warranty. This provision, though appears to be introduced to protect the purchasers of food items from distributors and dealers even with proper warranty; often the requirements necessary under S.19(2) of the Act are not able to be proved by the vendor. The conditions postulated to get the benefit of S.19(2) are (1) the article was supplied by or purchased from a licenced dealer or manufacturer with requisite warranty, (2) Stored the food item till sample is taken by the Food inspector, properly and given by the dealer in the same condition, as purchased. Rule 50 of the Act mentions about the conditions relating to licence. Needless to say, to get the benefit of S.19(2) to the person concerned, in the event of prosecution under this Act, he has to prove the twin legal mandate detailed under sub-cl. (a) and (b) of S.19(2). 

Term warranty, being not defined in the P.F.A. Act, definition available in the Sale of Goods Act, 1930 is important in matters under the P.F.A. Act so also explanation in the Act. S.14 of the Act imposes an obligation on the manufacturer or distributor of any food item, to give a written warranty relating to the quality and nature of the item, to the purchaser. Thus the vendor should be aware of two things while buying the goods; distributor’s licence and required warranty in any form as contemplated under the Act, to establish the quality or purity of the commodity. The point to ponder is how far a retail dealer or vendor can succeed in knowing about the licence details to prove the same on a future date, when he is prosecuted under the Act relating to the food article he purchased.

Successive warranty is permissible under the Act, as articles may pass though several dealers, before reaching the final stage of sampling by the Food Inspector. In a State like Kerala, pulses, food grains and different varieties of packed food articles are being brought from other States. Dealers are made to believe the label declaration, regarding the licence details of the wholesale dealer while purchasing articles shown in the cash memo or Bill and when prosecution is initiated, to prove the defence under S.19(2), he has to prove the licence also, by depending solely on the bill details. When summons is issued to the wholesale dealer, in many cases it remains unserved if the place of business is in some other State; case is not different, even if the wholesale dealer is also impleaded at the primary stage itself, licencing authority is directed to furnish the licence details, either no response from the official who is bound to produce it or no licence during the relevant time. The futile exercise of the innocent vendor paves way for escape of the real offender.

The provision of law is stringent, the only solace hitherto is the ruling reported in (AIR 1995 SC 1983) (Unnikrishnan v. State). This ruling is rendered probably, considering the special circumstances and facts of that case, by the Apex Court, though no licence of the manufacturer was proved by the retail dealer. In another decision reported in (2005 (1) KLT 635) Varghese v. State of Kerala, Kerala High Court has held that, it is obligatory for the vendor to prove that manufacturer, distributor or dealer from whom the indictee purchased the article, is duly licenced to deal with such product and the Supreme Court ruling mentioned earlier, remains explained by the learned Judge.

Parrot cry, from different corners relating to prosecutions under the P.F.A. Act against petty vendors and their conviction; is in the air for long and the same cannot be in wilderness; deserves redressal. It is no secret that minnows are being caught - big sharks escape, even if caught, by piercing the net, laments many Manufacturer or wholesaler, though expected to obtain licence - even if obtains, does not disclose as needed under law, subsequently becomes bete noire of the purchaser when prosecution commences. The sentence portion of the Act is concerned, minimum jail sentence is provided and any deviation is impermissible for the trial courts, paradox of the penal laws is strange - for eg. drunken driving, unless the vehicle becomes a death machine on the road, invites only fine as sentence often, considering the percentage of alcohol in the blood of the offender, likewise some offences involving moral turpitude or public tranquility do not demand minimum mandatory jail sentence under the Penal Code. A milk vendor selling milk; a pint of it even, sans added, water - but difference in fat and milk solid not fat, gets minimum three months jail sentence for no fault of the milkman - but of the animal, as no device or method to detect the defficiency, for such hapless person. Adulteration of food item is no doubt a social menace but the relevant law -most of the sections need necessary change, to be made by the State Government atleast, to punish the actual culprit and also to exonerate the innocent and ignorant; invoking the relevant articles of Constitutional Law, at the earliest.

Judicial Review in India -- Why March to British Tunes?

(By Jayasankaran Nambiar A.K., M/s Menon & Pai, Advocates)

Administrative law in India has been largely influenced by developments in the United Kingdom, where the law has evolved over different time zones to keep in step with changing political scenarios. This is rather surprising when one considers that, unlike in the United Kingdom where the concept of Parliamentary supremacy prevails, India has a written Constitution which serves as a Grundnorm from which all other laws derive their legal validity. The laws enacted by our legislative bodies - The Parliament and the State Legislatures - are not immune from judicial scrutiny and their validity must stem from a conformity to the Constitutional mandate. If a law offends the provisions of the written Constitution, it will be struck down as unconstitutional by the “sentinels” specified in the Constitution - The Supreme Court and the High Courts.

The reference to the “long arm of the law” is particularly relevant in the Indian context since our constitutional courts, armed with the powers under the Constitution, can strike down any legislative or executive action on the ground that they offend the rights guaranteed under the Constitution to a citizen or person. The Constitution does not recognise any “sphere of immunity” in respect of discretionary acts of an administrative authority - whether functioning under a statute or otherwise. If its action, albeit in exercise of a discretion validly conferred by law, offends the provisions of the Constitution, then such action must fail as opposed to the Constitution. In this sense, therefore, much of the law governing judicial review of administrative action in India can be traced to one central principle - that of ultra vires.

The law relating to judicial review in the United Kingdom has been forged out of necessity - one that arose from the need to check arbitrary action of administrative and quasi-judicial authorities, who were conferred with discretionary powers under a law which itself was deemed supreme. The concept of Parliamentary Supremacy ensured that if the decision of the administrative authority was within the boundaries of the discretion granted to him by the statute, then that decision could not be unsettled by the judiciary whose role was limited to that of an interpreter of the law laid down by the Parliament. It was, therefore, that in their role as interpreters of the laws that Courts in the United Kingdom developed the concepts of “unreasonableness”, “illegality”, “irrationality”, “procedural impropriety” and now “proportionality”, although the last mentioned concept has still not found its way into the domestic law of UK as a ground for judicial review. These concepts were virtually read into the laws enacted by the Parliament by the judiciary which reasoned that it could not have been the intention of the Parliament to confer a discretionary power that enabled the authority exercising it to act in a manner that was illegal, irrational, unreasonable or procedurally unfair or improper. The enquiry of the courts while testing administrative decisions against the said criteria are broadly as follows:

Illegality -whether the decision maker strayed outside the purposes defined by the governing statutes;

Procedural Impropriety - whether the decision was procedurally unfair;

Irrationality - whether the power conferring a broad discretion on the decision maker has been improperly exercised. This head also takes within its fold a wide range of decisions such as those taken in bad faith; those based on considerations which have been accorded manifestly inappropriate weight; those that are apparently illogical or arbitrary or supported by inadequate evidence or by inadequate or incomprehensible reasons; those which ignore substantive legitimate expectations; those which ignore the principles of equality and oppressive decisions.

The Wednesbury test which basically requires the court to find out if the administrative decision was one taken without taking into account relevant factors or one arrived at by taking into account irrelevant factors or if it was such that no sensible decision maker could have arrived at, is in effect a particular application of the irrationality test.

In the Indian context, one wonders why, in the face of the express provisions of our Constitution and the wide interpretation given by the courts to its central precepts, Courts have to strain to see whether the administrative decision offends the concepts of legality, procedural fairness and rationality, before interfering with the said decisions in exercise of the power of judicial review. The concept of “reasonableness” and “non-arbitrariness” are now so firmly entrenched in the Constitutional guarantee of fundamental rights that any administrative action which offends these concepts are automatically deemed unconstitutional or “ultra vires the Constitution”. In fact, when our courts strike down an administrative decision as violative of the fundamental rights of a citizen or person, they are literally applying the doctrine of proportionality (albeit, for reasons which are not so clear, not admitting to it) since they consider the merits of the decision taken by the administrative authority. They determine whether the action was really needed as also whether the action was within the range of courses of action that could reasonably be followed by the administrative authority. The actions of the administrative authority are tested against the fundamental rights available to the subject under the Constitution. This is the very essence of the doctrine of proportionality and it was rejected by the courts in UK, as part of its domestic law, because the doctrine lowers the threshold of judicial intervention and involves the courts in a consideration of the merits and facts of the administrative decision. In a country where the laws made by Parliament are Suprema Lex, nullifying a discretionary power conferred by Parliament would border on heresy.

In Union of India v. G.Ganayutham(1997) 7 SCC 463() the Hon’ble Supreme Court after an exhaustive review of the authorities in U.K. and India summed up the position in India at para 31, as follows:-

“(4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will play only a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the Court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.

(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of “proportionality” and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will then be necessary to decide whether the courts will have a primary role only if the freedoms under Art.19, 21 etc are involved and not for Art.14.”

The issues left open for further discussion in Ganayutham, were considered in Om Kumar & Ors. v. Union of India (JT (2000) Supp. 3 SC 92 = (2001) 2 SCC 386.) where Justice M. Jagannatha Rao, speaking for the court, held at paras 65-67 of the judgment, as follows:

“65. ..in India where administrative action is challenged under Art.14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the Constitutional courts as primary reviewing courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator. Here the court deals with the merits of the balancing action of the administrator and is, in essence, applying proportionality and is a primary reviewing authority.

66. But where, an administrative action is challenged as “arbitrary” under Art.14 on the basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is “rational” or “reasonable” and the test then is the Wednesbury test. The courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary....

67.  Thus, when administrative action is attacked as discriminatory under Art.14, the principle of primary   review   is for   the   courts   by   applying  proportionality.   However,   where administrative action is questioned as “Arbitrary” under Art.14, the principle of secondary review based on Wednesbury principles apply.”

The court then went on to hold that while reviewing punishment and it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases, can the court substitute its own view as to the quantum of punishment.

The importance of the aforementioned decision of the Supreme Court lies in the fact that it recognises that proportionality was always applied in our country as a principle to check administrative action affecting fundamental freedoms. It also demonstrates that the tests laid down in English cases are only facets of the larger concept of non-arbitrariness which goes to the root of Art.14 of our Constitution. What remained unsaid, but follows as a necessary corollary from the judgment, was that judicial review of administrative action in India is almost entirely based on the principle of ultra vires. This is because those administrative decisions which are found to be discriminatory, unreasonable or arbitrary (as explained in E.P. Royappa v. State of Tamil Nadu^₁ would be violative of the fundamental rights guaranteed under Part III of the Constitution and therefore ultra vires the Constitution.

In conclusion, it might be stated that the law governing judicial review of administrative action in India has evolved through the bold strides taken by our courts in the matter of constitutional interpretation. Through a wide interpretation of the provisions of Part III of the Constitution, our courts have ensured that almost any administrative action that is either arbitrary or unreasonable or illegal - in the sense of being ultra vires the statute, is unconstitutional and hence amenable to judicial review. The tests propounded by courts in the UK, while relevant in the context of the legal system there, need not necessarily be adopted in our country, where, owing to a written constitution, we are not constrained in the same manner as courts in that country. Judicial review of administrative action in our country rests on firm constitutional principles and hence we don’t need to apply the tests of illegality, irrationality, procedural impropriety or proportionality to justify judicial intervention.

Our Army may still march to the rhythmic beats of “Colonel Bogey” but does the march of our law have to be to British tunes?

1. ((1974) 4 SCC 31) - where Bhagwati, J stated that if the administrative action was arbitrary, it could be struck down under Art. 14. Arbitrary action by the administrator was described as one that was irrational and not based on sound reason. It was also described as one that was unreasonable. See also para 58 of judgement in Om Kumar - (2001) 2 SCC 386.