Annual Report - National Human Rights Commission

Annexure 12
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expense and inconvenience. It was also held by the apex court that recording of evidence by
video conferencing was a ‘procedure established by law’ under Article 21 of the Constitution
and did not violate the rights of the accused. The court observed that although the rights of the
accused must be safeguarded, they should not be overemphasised to the extent of forgetting that
the victim also has rights. Therefore, the ITPA should make it mandatory to provide video
conferencing facility at the place where the victim would find it comfortable. The victim’s best
interests should be the deciding factor in choosing the place and time of video recording/
conferencing. The recent order of the Delhi High Court could be taken as a model.
Victim’s Legal Representation in the Criminal Justice Process
The direction of the Supreme Court in Delhi Domestic Working Women’s Forum vs Union of
India (1995 1 SCC 14, 18-21) with respect to rape victims needs to be extended to trafficked
victims — ?they should also be given the facility for legal representation from the very beginning
itself. In order to secure continuity of legal assistance, the services of the same lawyer should be
extended till the conclusion of the entire process and he should be allowed to collaborate with
the prosecutor. Moreover, the victim should have the option of choosing her own advocate.
This might be a radical change in the existing situation and may amount to supplementing the
existing system of prosecution. However, the experiment has proved to be workable, as a case
study from West Bengal has shown.
Compensation
The law should make specific provisions for compensation to the victim. Section 357 CrPC
allows for limited compensation to victims, to be recovered from the convicted offender. In cases
of custodial rape, by invoking the obligation of the state to protect its citizens, the Supreme Court
has directed the state to pay compensation [P. Rathinam vs State of Gujarat, 1994 SCC (Cri)
1163, Arvinder Singh Bagga vs. State of U.P. 1994 6 SCC 565]. The Supreme Court has also
directed the setting up of a Criminal Injuries Compensation Board in Delhi Domestic Working
Women’s Forum vs Union of India (1995 1 SCC 14). The High Courts have inherent powers
under Section 482 CrPC to make such orders as necessary to secure justice. The compensation
should include not only monetary expenses incurred, but also exemplary compensation for the
harm done, as well as compensation in the form of health care, education facilities, job
opportunities, etc. The US law on victim protection referred to earlier also have provisions of
compensation.
Providing Safe Asylum, if the Victim is a Foreign National
The law should have special provisions for giving temporary residential permits to trafficked
victims/survivors till their presence is required to complete the judicial proceedings and till they
are properly repatriated to their native countries. The recent US law provides for such temporary
nationality. Article 15 of UDHR says that no person shall be arbitrarily deprived of his or her
nationality. A case study contained in the report has shown how a trafficked victim was charged
with offences under the Foreigners Act. In such situations, once it is confirmed that the victim
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