crime victims win

stating that Victims of a crime must be heard at all stages of trialSupreme Court’s decision, in Jagjit Singh Vs Ashish Mishra (2022), inevitably becomes a cause for celebration for victim rights advocates. It is historic in many ways because the courts in India have never given such fervent plea for victim justice. While denying bail to Ashish Mishra in the Lakhimpur Kheri case, the court made a scathing remark justifying the victim’s claims of participating in the criminal justice process. The court found that international documents and trends as well as the recommendations of the Law Reform Report were in favor of greater participation for victims of crime.

impact on victims

This decision has far-reaching victim-related implications. On a principled note, the court observed that our criminal justice system associates the presence of the state with the presence of the victim. Such confrontation is due to the traditional understanding of criminal process in which the trial is merely a competition between the state and the accused. In the terminology of sociologist and criminologist Nils Christie, if we consider conflict as property, the state claims ownership over it. Conflict as property, however, must be restored to its rightful owner – the victim.

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The court then observed that the victim cannot be asked to wait till the commencement of the trial so that he can claim his right to participate in the proceedings. The victim has a legally implied right to be heard at every step after the crime has been committed. The observations of this Court have the potential to affect many important aspects of the criminal process. Firstly, the victim, as defined in Section 2 (WA) of the Code of Criminal Procedure (CrPC), becomes a victim only after the accused has been accused of an offence. However, this judgment removes this hurdle to provide the victim the right to be recognized as a victim immediately after the commission of the offence.

Second, a victim, who is not a complainant, has been denied several genuine pre-trial rights under the CrPC, including the right to approach a senior police officer in the event of refusal to register an FIR, regarding progress includes the right to be informed. The decision to investigate or not to investigate, and the right to be informed upon filing of the final/closure report. While the judgment clarifies that the complainant and the victim are two separate entities in law, it also states that the victim has ‘rights of unbridled participation’ right from the stage of investigation. This means that the victim should have all the rights that a complainant has, and much more.

Third, the Court observed that the victim’s participation rights extend all the way up to the stage of appeal or revision. The Supreme Court has also observed that the rights of the victim should not be limited or restricted.

If they are widely applied, these comments have the effect of securing a number of rights for the victim at the trial stage, including the right to be informed of proceedings, the right to protection, the right to speedy justice, Includes the right to present an argument. and written submissions, the right to examine witnesses, the right to be heard at sentencing, and the right to be compensated and reinstated.

the road ahead

These progressive comments are sure to have an indelible impact on the way we view our criminal justice processes. Nevertheless, the implementation of the decision in its letter and spirit is bound to face challenges on two important fronts. The first challenge lies in the declaration of rights which the judgment seeks to secure. While the judgment provides the victims with participatory rights at all stages of the criminal process, it remains to be seen how the judgment is interpreted in the future and what rights are identified as a result. In the absence of such clarity, it also remains to be seen how the judgment by the lower courts will be implemented in practice. It is true that some of the practices conferring fundamental rights to the victim, such as the right to file a protest petition while filing the final report/closure report, have emerged from purely judicial precedents. However, these practices have evolved over time and need a lot of judicial discourse to settle them. In the light of the same, it seems that it will not be easy to implement the decision immediately. It was a high-profile affair and hence made headlines. One wonders how many victims have the capacity to approach the Supreme Court of the country for justice.

The second challenge is that at present there are many provisions and judicial precedents which stand in the way of comprehensive guarantee of such rights to the victims. For example, Section 301 limits the right of a victim’s participation in a trial to a court of sessions to present a written argument after the evidence in a case is closed. This position has got judicial confirmation in the case of Rekha Murarka Vs State (2019), in which the Supreme Court held that giving victims the right to participate in the trial could make the trial a ‘vindictive battle’ between the victim and the accused.

Perhaps the best way to address both of these challenges is to give legislative recognition to the principle of participation, which has received the judicial seal of approval. The CrPC of 1973 is largely based on the CrPC of 1898. Both these Acts have very few provisions in terms of access, participation, assistance, protection and compensation to victims of crime. Amendments that define the victim and grant them the right to legal representation are hardly enough to adequately secure internationally recognized rights for victims of crime.

There is an urgent need to amend the CrPC to create a statutory framework to facilitate and enable the recognition of victim rights. Such a need has been addressed in the recommendations of the Committee for Reform of Criminal Laws and is expected to work along these lines. Such legislative incorporation can recognize the rights of victims as well as secure their implementation by functionaries of the lower judiciary as well as the criminal justice system.

GS Bajpayee is the Vice-Chancellor of Rajiv Gandhi National Law University, Punjab, where Ankit Kaushik is Assistant Professor.