SIKSHA ‘O’ ANUSANDHAN UNIVERSITY

NATIONAL INSTITUTE OF LAW (SNIL)

ASSIGNMENT ON:
VICTIMOLOGY
PAPER CODE: SPIB 03

TOPIC: -
“Protection of Victim from Abuse of Power”

SUBMITTED BY: -
NAME: - AMRITA SATAPATHY
REG. NO.: – 2261811064
BATCH: - 2022-2023, 1ST SEMESTER, LL.M.(CSL)

UNDER THE GUIDANCE AND SUPERVISION OF: -

MR. GADADHAR MOHAPATRA
INTRODUCTION

The word “victim” comes from the early religious concepts of pain, sacrifice, and death. The
term victim was a well-known notion in ancient civilizations, particularly in Babylonia,
Palestine, Greece, and Rome. The law in each of these civilizations required that the victim be
regarded as a human being who deserved to be made whole by the criminal.

The term victim is defined by the United Nations Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power which is the Magna Carta on Victims’ Rights:

“Any person who has suffered any mental, physical, emotional, economic, or substantial
impairment of their fundamental rights, individually or collectively, as a result of acts or
omissions that are in violation of criminal laws operative within member states, including
those laws prescribing criminal abuse of power.”

A “crime victim” is someone who has been physically, financially, or emotionally wounded,
or whose property has been taken or damaged by someone who has committed a crime.

A “general victim” is someone who has been physically, financially, or emotionally

wounded, or whose property has been taken or damaged by someone, an event, an
organization, or a natural phenomenon.

If a person is harmed as a result of a government act, he is a “victim of an abuse of power”.

In the case of Rudul Shah vs. State of Bihar (1983), the Supreme Court, in dealing with
suffering of under-trial inmates and those in correctional institutions, referred to them as
victims of abuse of power, allowing them and their rights to be protected to a large extent.
Furthermore, in Alister Anthony Pareira vs State of Maharashtra (2012), the Court held
that the legal system owes it to such victims of crime and abuse of power to safeguard
them, thus expanding the state’s role in the justice system.

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Who is called victim in India?

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.
The following people can exercise a victim’s rights if the victim is dead or not able to act on
his or her own behalf:

• A victim’s spouse
• A common law partner who has lived with the victim for at least one year prior to the
victim’s death. A relative or dependant of the victim. Anyone who has custody of the victim
or of the victim’s dependant.
• A person who has been charged, convicted, or found not criminally responsible due to a
mental disorder for the offence that resulted in the victimization is not defined as a victim.
For example, if a parent has been charged with abuse of a child, that parent will not be
allowed to exercise the child victim’s rights or their own rights as a parent.

Within the Indian legal framework, the term victim is defined under Section 2(wa) of the CrPC,
1973 as a person who has suffered any loss or injury caused by reason of the act or omission
for which the accused person has been charged and the expression victim includes his or her
guardian or legal heir. The concept of victim adopted under this section is at odds with
international standards. For a victim to be involved, the accused must be identified and
charged; and despite the Supreme Court’s affirmative steps, victims of power abuse have
not been recognized. The definitional difference is the first step toward a miscarriage of
justice.

Victims of abuse of power

Etymologically, the word “abuse” comes from the Latin “abusus” meaning a usage which
is bad, excessive, or unjust. Mr. Ottenhof rightly pointed out that wherever there is power
there will be abuse of power. This is perhaps why it is difficult to define power other than
by the abuse to which it may be subject. Thus, we find common phrases speaking of “the

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inordinate thirst for power” and “misappropriations of power,” not to mention the famous
“recourse for excess of power.”

With time it became clear that the concept of abuse of power is both vague and vast. In a
general way, the abuse may lie just as much in the aims sought by the exercise of power
as in the means employed. One may speak of abuse when legitimate means are employed
to achieve unlawful ends or when bad means are employed to achieve unlawful ends or
when bad means are adopted in the pursuit of laudable objectives. Often, however, the
abuse lies in the use of violent, fraudulent, or corrupt means to achieve dishonest or
harmful objectives.

The practical operation of the concept of abuse of power should thus take basic account
of three principal elements:

1) the purposes for which the power is exercised;

2) the means by which the power is exercised; and

3) the limits within which the power must be exercised.

1. The Purposes

The abuse of power is often characterised by the unlawfulness of the purposes it seeks to
achieve. One might cite as typical cases the use of power to prevent the imposition of a legal
control or criminal sanctions upon certain types of behaviour which occur at the higher
echelons of socio-economic and political structures. Another example is the use of power to
halt or suspend proceedings or judgments against malefactors in high positions responsible
for conventional offences or simple breaches of the law.

2. The Means

Power may be exercised by illicit and unlawful means. Their variety is great, extending from
conviction to constraint, from corruption to coercion, from threats to torture, from fraud to
murder. One can even speak of abuse of power through negligence or carelessness. Abuse of
power often takes the form of an omission, or a refusal or unwillingness to act (non-feasance).

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3. The Limits

Abuse of power occurs when power is exercised beyond its legal or normative limits. Happily,
there are certain widely known rules which assign fairly precise limits to power. Thus, for
instance, the “Human Rights” proclaimed by the United Nations represent a concept which in
its European version even has the force of law. They transcend national power and represent
a theoretical bulwark for the citizen.

The introduction of standards i.e., well established norms- can broadly assist in giving
practical effect to the concept of abuse of power. Thus, such standards might represent the
acceptable minimum of honest conduct in political, social, or economic life. Other standards
might be formulated to protect public health (against the sale and distribution of harmful
substances or technical and chemical products), the environment (against pollution seriously
and irreversibly harmful to the ecology), the consumer (against excessive prices, commercial
trickery, and unfair conditions), etc.

It goes without saying that the abuse of power is at the same time normative and relative. It
is normative because it is closely linked to the system of norms and values and because it
derives its content from the ideology to which people adhere. Thus, the differential criterion
between the normal exercise of power and its abusive exercise varies according to the
normative model adopted. According to whether you are a supporter or opponent of the
conflictual model or of the consensual model in political theory, one or another employment
of power will appear to you as good or bad.

The abuse of power is also a relative concept, both in time and space. It varies equally from
one country to another according to culture, ideology, political regime, and economic system.
That which is considered as abuse changes continually according to political, economic, or
social evolution. Emphasis is placed on the differences between capitalist and socialist
countries, countries with mixed economies and developing countries, also upon the
differences between what Mr. Malinverni calls the regimes of political freedom and those of
political subordination.

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Victim assistance

“Victim Assistance, Support, or Services” refers to the activities carried out in reaction to
victimization with the goal of alleviating suffering and easing recovery. Information,
assessments, individual interventions, case advocacy, system advocacy, public policy, and
program creation are all examples of this.

According to the United Nations Office on Drugs and Crime (UNODC), victim
assistance attempts to provide holistic help that extends beyond the criminal justice system.
It is not just about rescuing the victim. It primarily serves two purposes:

1. It recovers victims’ wholeness after they have been victimized;

2. It has procedures in place to lessen the danger of re-victimization.

As a result, it seeks to give victims a sense of agency and power. The goal of victim assistance
is to improve the victims’ quality of life, which has been harmed by the crime. Victim support
as a right begins when a crime is committed and continues until the victim’s previous position
is restored. The criminal justice system is merely one aspect of the overall picture.

Compensation for victims in India

Victims of any crime or violation of human rights (regardless of legal status) have the right to
be compensated for the losses incurred as a result of the crime perpetrated against them.
Compensation for material (such as unpaid wages and medical expenditures) and non-
material (such as pain, suffering, and trauma) damages can be sought through criminal, civil,
or administrative procedures.

In India, victim assistance is frequently misunderstood to mean just compensating victims.

The victim compensation scheme, which was enacted by a 2009 Amendment to the Criminal
Procedure Code, requires every state government to develop a plan for compensating and
rehabilitating crime victims. The National Commission for Women has recommended
establishing a Criminal Injuries Compensation Board to compensate rape victims.

The above idea is based on Supreme Court of India directives granted in the case of Delhi
Domestic Working Women’s Forum vs. Union of India and others (1994), which asked the
National Commission for Women to develop a “system to wipe out the tears of unlucky rape

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victims.” The SC stated that, in light of the Directive Principles contained in Article 38(1) of
the Constitution of India, it was necessary to establish a Criminal Injuries Compensation
Board, as rape victims frequently suffer significant financial losses in addition to mental
anguish, and in some cases are too traumatized to continue working. The Court further
ordered that compensation for victims be granted by the Court if the criminal is convicted,
and by the Criminal Injuries Compensation Board whether the offender is convicted. If a
woman becomes pregnant as a result of rape, the Board must consider her pain, suffering,
and shock, as well as her loss of earnings and childbirth expenditures.

“It would be appropriate if NALSA sets up a Committee of about 4 or 5 persons who can
prepare Model Rules for Victim Compensation for sexual offences and acid attacks taking into
account the submissions made by the learned Amicus,” the Supreme Court of India said
in Nipun Saxena vs. Union of India (2018). Both the learned Amicus and the learned Solicitor
General have pledged to help the Committee as needed. “The Chairperson of the National
Commission for Women, or a nominee for the Chairperson, should be a member of the
Committee.”

The fact that states have sole authority over compensation systems creates challenges not
only in terms of implementation but also in terms of victim discrimination. Regardless of the
matter at hand, where they seek justice, victims have the right to be treated equally.
Furthermore, compensation is not available to victims until the appeal’s limitation period
expires or the appeal is underway in Court. In an already overburdened legal system, this
creates a substantial hindrance to destitute victims’ ability to support themselves, negating
the entire purpose of compensations. Compensations, on the other hand, are only one of the
victim’s many rights. Compensation is insufficient in circumstances where the victim dies or
becomes handicapped. Victim assistance is a multifaceted system aimed at easing the victim’s
situation, with compensation being only one component.

In India, the actual obstruction to victim help is twofold. To begin with, there is a lack of a
structural legal framework for supporting crime victims. Section 357C of the Criminal
Procedure Code, 1973, inserted by the Criminal Law (Amendment) Act, 2013, and
the guidelines and protocols on medico-legal care for survivors/victims of sexual
violence prepared by the Ministry of Health and Family Welfare are the only two major

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 legislative actions that refer to victim assistance and except for this, there are no other
legislative frameworks that supports the crime victims.

Types of assistance

• Emotional assistance

Criminal activity can have a negative impact on the victim’s mental and emotional health. If a
person has been impacted by a crime, one of the ways the victims may be assisted is, by
providing them with the emotional assistance that they require. Counselling is a sort of
treatment in which skilled specialists examine a person’s entire life and background in order
to help them better understand themselves.

• Financial assistance

As noted above, financial assistance is also required by the victims of crime and hence, the
Government of India provides compensation to the victims of crime under Section 357C of
the CrPC. It helps the victims and their families who were dependent on them for the
livelihood of the household to sustain a living for them.

Stakeholders for victim assistance

• Police

Because the police are the initial point of contact in the criminal justice system, they must be
well-equipped to deal with victims. Section 154 of the Code of Criminal Procedure
(1973) obliges a police officer to write an FIR. They must collect evidence while keeping the
victim’s dignity in mind and treating them with respect regardless of the offence. The police
must subsequently refer the victim to lawyers, non-governmental organizations, and other
support systems that can provide the greatest possible assistance. The police shall act
according to the role prescribed under the CrPC under
Section 173, 301, 421, 164, 342 and 364. These are delicate matters of victim assistance and
police should handle them in such a way only.

• Lawyers and prosecutors

Lawyers and prosecutors play a role that is similar to that of the police. Prosecutors should
be taught to strive for justice rather than conviction. Lawyers serve as a link between the
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 police and the victim, and by collaborating with the prosecutor, they should ensure that the
victim’s best interests are represented in Court. Victims of hurtful, threatening, or violent
situations can seek support from the victim advocacy program. Victim Advocates are specially
trained staff who offer:

1. Personal assistance and an opportunity to talk about what happened.

2. Information on options and resources, as well as answers to frequently asked

questions.

3. Assistance in deciding on a plan of action and thinking it through.

4. Accompanies the victim to meetings, Court hearings, and other events, or acts as a
liaison.

5. Connection to resources on campus, in the community, and at the state level for
counselling, advising, and reporting.

6. A link to the university’s offices (when appropriate, advocates can work with faculty
and staff).

• Judiciary

The judiciary must be a fair and unbiased body that monitors the course of a criminal case.
All parties participating in criminal procedures should have their rights considered and
protected by judges. Victims should be afforded crucial protection by judges. Special
arrangements, such as permitting the victim to testify through closed-circuit television, can
be authorized in cases involving children, if applicable and possible.

Individual rights are solely protected by the judiciary. The courts play an important role in
victim protection, from accelerating trials to including victims in all phases of the proceedings.
However, there have been a few cases when the judiciary has openly overlooked the victims’
rights and interests. The judiciary has failed the victims by issuing orders such as granting bail
on the condition of tying a rakhi to the rapist (which was later scrapped by the SC) or asking
a rapist to marry the victim based on the accused’s assertions. Despite being the guardian of
the rule of law, the judiciary has maintained a limited and discriminatory attitude towards
victim relief.

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But there has been a positive response also from the judiciary. The Supreme Court required
the use of cameras during trials, particularly where the victim is a child or a rape victim,
in Sakshi v. Union of India (2004). The Supreme Court held in Nirmal Singh Kahlon v. State of
Punjab (2008) that the right to a fair investigation and trial applies to both the accused and
the victim, and that this right is guaranteed under Article 21 of the Indian Constitution. As a
result, a victim of a crime has the same right to a fair investigation. The Supreme Court
concluded in Bodhisattwa Gautam v. Subhra Chakraborty (1995) that if a Court trying a rape
case has jurisdiction to award compensation at the end of the case, the Court also has the
authority to give interim compensation. After determining the accused’s prima facie guilt, the
Court ordered him to pay a monthly sum of Rs. 1000 to the victim as interim compensation,
as well as compensation arrears dating back to the date of the complaint. The Madras High
Court, based on the report of a commissioner appointed by it to assess the losses, ordered
payment of varying amounts of compensation for the loss of property of the Sikh community
in Coimbatore in R. Gandhi v. Union of India (2020).

In Hari Singh v. Sukhbir Singh & Others [(1988) 4 SCC 551: 1998 SCC (Cri) 984] Supreme Court
lamented:

"Sub-section (1) of Section 357 provides power to award compensation to victims of the
offence out of the sentence of fine imposed on accused. In this case, we are not concerned
with sub-section (1). We are concerned only with sub-section (3). It is an important provision
but courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers
the court to award compensation to victims while passing judgment of conviction. In addition
to conviction, the court may order the accused to pay some amount by way of compensation
to victim who has suffered by the action of accused. It may be noted that this power of courts
to award compensation is not ancillary to other sentences but it is in addition thereto. This
power was intended to do something to reassure the victim that he or she is not forgotten in
the criminal justice system. It is a measure of responding appropriately to crime as well of
reconciling the victim with the offender. It is, to some extent, a constructive approach to
crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend
to all courts to exercise this power liberally to meet the ends of justice in a better way.

In Nilabati Behra v. State of Orissa (1961), the Supreme Court stated that the state must
compensate the petitioners for the harm caused by its officers. As a result, strict liability for
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 violations of fundamental rights is a remedy available in public law to which the principle of
sovereign immunity does not apply, such as awarding compensation in a proceeding
under Article 32 or Article 226.

• Mediators

Mediation programs bring the perpetrator and the victim together in person to work out a
restitution agreement. The goal is to improve the victim’s social condition, which has been
harmed by the offender. The entire mediation method differs from regular criminal
proceedings in that a mediation session can only be scheduled with both the victim and the
offender’s cooperation. Participants in a reconciliation session can bring up any social
conflicts that may have contributed to the delinquent behaviour. However, critics of the
employment of informal procedures (such as mediation, arbitration, conciliation, and applied
therapeutic techniques) have raised concerns about potential risks, such as the application of
undue pressure to one or both sides.

• Non – Governmental Organisations (NGO)

Victim support services must be accessible in order to help as many victims as possible. This
accessibility will be expressed in a variety of ways, including availability in both urban and
rural locations, offices that are relaxing and pleasant, and victims’ privacy and anonymity.
Victimization is a one-of-a-kind, individualized experience in which victims’ needs change over
time and are influenced by personal and environmental circumstances. The ability of
organizations and institutions to respond to the unique circumstances of victims is a critical
prerequisite that can aid particularly vulnerable victims in seeking and receiving assistance.

Helplines, emotional, practical, administrative, and psychological support, legal aid, and
accompanying are all services that NGOs frequently give. Because of the nature of these
services, their effectiveness will be determined by their accessibility and availability, as well
as the capability, aptitude, and attitude of employees who interact with victims. Cost-cutting
is a critical component of any business. Decisions on how and who will deliver a service are
frequently influenced by the financial implications.

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Opinion

After the adoption of the Declaration of Basic Principles of Justice for Victims of Power Abuse
and Crime, a considerable amount of change was brought in many countries. However, there
remains a general lack of policies for the assistance of victims of crime. One reason for this
could be the lack of political will to do anything in this regard. While framing policies for the
assistance of the victim the policy-makers should ensure certain essential aspects are not left
behind. This should include measures ensuring that while seeking justice victim’s privacy,
dignity or personal liberty is not attacked. Once the case begins the victim is left to his own
mercy. Victimization of such a person does not stop with the accused being punished but it
gets extended to all the social alienation and judgments that come his way. Societal pressure
is often seen as one of the primordial reasons why people don’t report crimes. Steps should
be taken to secure that the victim is not treated differently by society. For this apart from
creating legal provisions punishing such acts by the society, awareness camps too can prove
to be helpful. Under the Indian criminal justice system, there is no difference made between
restitution and compensation. Whereas restitution is a way of reparation which is made by
the offender, compensation is made by the State. The victim should be allowed to recover all
his expenses including but not limited to those incurred on his by way of medical expenses,
emotional expenses, loss of any property etc. by the offender or the State or both. This calls
for a clear demarcation between reparation and compensation.

Overall, we see how in the Indian criminal justice system, the State plays a pivotal role.
However, to guarantee justice is properly delivered it is essential to give the victim a central
role in the whole proceeding and even after the proceedings are completed.

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Case Analysis of Rudul Sah vs. the State of Bihar (1983)

Facts:

1. The case involves a man who was imprisoned for a period exceeding his sentence. The
petitioner, who was Rudul Sah, submitted a writ jurisdiction based on the principle of
habeas corpus (to have a body), which demanded his liberation from jail.

2. The petition of habeas corpus was based on the grounds that the petitioner was
detained beyond the period of imprisonment, and his detention was considered illegal
by the session court in June 1968.

3. The petitioner further demanded collateral relief under the constitutional remedies
available to the citizens of India under the ambit of the heart and soul of the Indian
constitution, which is Article 32.

4. Rudul Sah, the petitioner, was arrested for the murder of his wife. He was acquitted
on June 3, 1968, by the Sessions Court of Muzaffarpur, Bihar, after serving his
sentence. He was, however, freed from prison in October 1982, after serving a 14-year
term.

5. The petitioner, in his application, demanded redressal from the court for his unjust
detention.

6. Additionally, he requested medical treatment to be sponsored by the state of Bihar. -

funded. On November 22nd, the petition was presented before the court; however,
he was already released from jail before.

7. However, with reference to supplemental remedy, the court served the state with a
show-cause notice.

8. The jailor drafted an affidavit on behalf of the state and put forward two documents.

• To begin, despite his acquittal, an order was issued by the extra session judge,
which required the petitioner to remain behind bars until further notice by the
state government of Bihar.
• Secondly, he was declared incapable of facing prosecution at the time the order
was made by the Sessions Court. In response to the medical treatment, the

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 petitioner was deemed to be normal in a medical test conducted by a civil surgeon.
The medical reports were submitted to the law department in February 1977 and
were issued in October 1982.

Issue of the case

• The court was faced with the question that whether the petitioner is entitled to
compensation under the ambit of Article 32 of the Indian constitution?

• Does the right to compensation for unconstitutional detention fall under the provisions of
Article 21 of the Indian Constitution?

• Can the citizen of India avail the defence against the arbitrariness of the state?

Rules in the case and challenge before the court

Several rules and challenges were laid down before the court in the aspect of both the
appellant and the defendant. The entire case revolved around Article 32 and Article 21 of the
Indian Constitution.

On the part of the petitioner

The petitioner's counsel contended that he was held in prison despite being acquitted by the
appropriate authority. The appellant was compelled to remain behind the bars for 14 years
before being released.

The case was a direct violation of the prosecution's right to be guaranteed under Article 21 of
the Constitution, which asserts that every citizen is entitled to the fundamental right of life
and personal liberty. Additionally, the petitioner claimed payment to be borne by the
government of Bihar for anticipated medical care. Further, he sought reparation for his unjust
detention and an ex-gratia payment to assist with his recovery.

On the part of the defendant

The Respondent's counsel contended that the petitioner was imprisoned because of an order
issued by the authorities through the Additional Sessions Judge, which stated he would be

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acquitted only after the order is cleared from the Government of Bihar and IG of Prisons in
Bihar.

Additionally, the Respondent asserted that the applicant was declared unsound but was later
released after one civil surgeon conducted medical tests and declared him to be fit.

Judgement by the court

The Judge issued the petition, concluding the imprisonment of Mr. Rudul Sah (the petitioner)
beyond the term of imprisonment was completely illegal. Article 32 empowers the apex court
to issue orders and implement the writs if the fundamental rights mentioned under part III of
a person are violated.

This Court's jurisdiction is restricted to restraining unlawful detention, Article 21, which
guarantees the right to liberty.

Compensation is a curative for the wrongdoing of instrumentalities operating in the public

good and utilizing the State's authorities to hide.

Moreover, someone could not be detained for a longer length of time if he had been mentally
ill just at the time he was freed. The rationale is simple. Even a madman has rights under the
law during his or her trial. The Court determined that the State's conduct was
disproportionate and lacked supporting facts. Consequently, the Court found the petitioner's
imprisonment to be unreasonable.

The Tribunal then assessed if it was appropriate to grant the plaintiff's application for interim
relief founded on its entitlement to relief. Article 21, which guarantees individual freedom,
would be worthless if the Court were limited to ordering the release of unlawful detainees
without addressing their plight.

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