Locating the victim in the criminal justice system

Locating the victim in the criminal justice system

Author: Anchal Bhatheja, NLSIU


The recent NCRB data reveals that crime rates have witnessed a 3% increase as compared to the previous year. This problem is aggravated by a low rate of conviction due to factors like underreporting, lack of legal literacy, judicial delays and executive inaction. On the flip side, as per the 2018 official data, the number of reported encounters in Uttar Pradesh alone was as high as 1142 in just 10 months.

This brings up a larger question that in the trade-off between the two competing interests of the need to efficiently control crime and the need to keep the procedure of administering justice consistent and just in order to protect the rights of the accused, which one should be given greater importance.

It is argued that the penultimate purpose of the criminal justice system should not be to strive for finality and efficiency by undermining the rights of the accused, but it should be to establish a proper balance between the rights of the victims and the accused so that procedural and substantive justice go hand in hand. In other words, the primacy should be given to fairness for the accused and the victim over efficiency and finality.

This can happen when the crime control model is discarded and a combination of due process model and victim rights model is employed in the process of administering criminal justice.

The crime control model:

The philosophical underpinning of this model is that the foremost purpose of the criminal justice system is to repress crime, as a failure to do so can inevitably lead to a collapse of public order and can put the freedom of the individual and the stability of the society in jeopardy. The whole idea rests on the efficiency of the criminal justice system, wherein it is capable of apprehending and convicting large numbers of criminal offenders quickly and can avoid needless formal ceremonies. The purpose of this model is to repress crime and protect the rights of the victims,   even if this protection comes at the expense of disregarding the due process.

However, the far-fetched presumptions of this model are highly questionable. Some of them being that the law enforcement authorities do not commit human errors, that they are impartial and that they are perfect at the job of eliciting the right information without subjecting the accused and witnesses to any physical or mental coercion.

The Due process model:

As per the due process model, all the aforementioned presumptions are blatantly fallacious and they allow for the exercise of arbitrary and unbridled executive power. This model acknowledges that the testimonies of the witnesses can be factually inaccurate, the police can extract information by unlawful and inhumane means and lastly, witnesses and the prosecution can be biased. Given all this, there is a need to back the informal factual fact-finding with a formal adjudicatory process which is also fair and reasonable so as to ensure that efficiency is not achieved by undermining the rights of the accused. Here, fairness is a greater consideration than finality.

The virtues of this model:

This model limits the powers of the officials by placing a burden on them to prove the guilt of the accused before an impartial adjudicatory authority as per certain just and reasonable laws. It has two implications. One, the presence of an impartial adjudicatory authority ensures that the officials do not abuse their power and they are held accountable for their actions. Second, the trial of the accused is carried out as per a posited just law which ensures predictability and consistency that are the virtues of law. 

This is why the due process model is better suited to protect the interests of the accused as opposed to the crime control model.

Case studies:

However, the mere application of these models is not enough to address the concerns of the most important player in the process of the criminal justice system that is the victim. The lacunas in both models can be understood by looking at two case studies.

An extreme manifestation of the crime control model was seen in Hyderabad wherein the 4 men who were accused of the Rape of Dr. Priyanka Reddy were sentenced to death by the executive for they wanted to quell the hunger of the exasperated public that wanted justice immediately.    This action was substantively unfair because it was a direct violation of article 20. A plain reading of this article raises certain questions. Did these four men violate some law? Is a mere accusation enough to attract a death sentence by an institution that is neither responsible for nor equipped to award punishments? Would these 4 men have been punished, had the case gone before a court? If yes, would that punishment have been a death penalty or something else?

Secondly, this action was procedurally unfair as it was a violation of article 21. The reading of this article also raises some questions. Was the procedure followed, established by law? Was this procedure in lines of the Maneka Gandhi interpretation that calls for the procedure to be just, fair and reasonable? Can such an arbitrary procedure ever lead to non-arbitrary and consistent outcomes?

Thus, this incident establishes that the crime control model is fallacious on many grounds.

The second incident is that of the mutilation of the union rape victim while she was on her way to the court to attend the proceedings. The accused was granted bail on 25th November 2019 and this incident took place on 7th December 2019.  such incidents call for the need to balance the rights of the accused and the victims.  Due process provides for the right to bail to the accused. But procedural justice would not lead to substantively fair outcomes unless the victim also gets a right to safety. This incident shows that the due process model is also incomplete as it does not give due importance to the victim.

Accused v. victim:

The rights of the victims should not be ignored in this process of protecting the accused. Rather, the process needs to be just, fair and reasonable for both the accused and the victim. This can happen when the due process model is read in conjunction with the victim rights model.

As per professor Roach, victim rights model calls for greater participation of victims in the process of trial and sentencing of the accused. It ultimately aims at placing the victim at the center of the criminal justice system. This model has two variations that is the punitive and the non-punitive victim rights model.

The two models:

The punitive victim rights model calls for the greater participation of the victim in the process of trial and sentencing. This model can help in making the system in India more inclusive. For instance, as of now, Victims in India have heard just as witnesses. Moreover, the personal appearance of the victim is restricted at all the crucial stages of the trial. The process of framing charges against the accused, discharging the accused, granting of the bail and while deciding punishment or compensation, the victim is nowhere to be seen. Due to this, the interests of the victim are never ascertained properly and they remain at the margins of the system.

An application of this model in India would entail allowing for victim impact statements. Section 235 (2) of CRPC provides that the accused should be heard on the question of sentencing, however, the court is not legally bound to hear the victim while awarding punishment to the convict. Since the principles of natural justice necessitate that both the parties ought to be heard. The victims should also have a role to play in the sentencing of the convict.  This can be done by recording victim impact statements.  Even the Supreme Court in the case of MallikarjunKodagil (Dead) v. State of Karnataka (2018) held a similar view.

Along with this, an application of the non-punitive model can help in the empowerment of the victim in many ways. It primarily focuses on the prevention of crimes in the first place. Once the crime has been committed, it lays great emphasis on aspects like providing requisite safety to the victim while the matter is pending before the court, proper counseling for the victim, making the accused to do good the losses borne by the victim, etc. The purpose of this model is to facilitate the transformation of both the victim and the accused.

For all these reasons, a due process model along with a victim-centric approach can make the criminal justice system more just and it should be taken into account while adjudicating criminal cases because it is more inclusive for the victim and does not create a hierarchy of rights. For, if everyone is equal before the law and unequal’s are to be treated unequally, the procedural fairness needs to be equitable for the accused as well as the victim.

Publish Your Research Paper in Our E-Journals

Last date for submission: 1st of March 2020

National Journal

International Journal