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Rights of Victims of Crime: A Human Rights Perspective

Introduction: The Paradigm Shift

Historically, criminal justice was viewed as a contest between the State and the Accused.1 The victim was often the “forgotten man” of the system, reduced to a mere prosecution witness.2 However, modern Human Rights jurisprudence, particularly “Victimology,” argues that the State’s failure to protect a citizen creates a secondary obligation to rehabilitate and empower them. This has led to a transition from Retributive Justice (punishment focus) to Restorative Justice (healing focus).

1. Statutory Framework

The legal architecture for victim rights is built on international norms and domesticated through the Code of Criminal Procedure (CrPC) and the new Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

A. International Framework

UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985):³ Known as the “Magna Carta” for victims.⁴ It categorizes rights into:
- Access to Justice and Fair Treatment.⁵
- Restitution (from the offender).⁶
- Compensation (from the State).⁷
- Assistance (medical/psychological).⁸

B. National Framework (India)

Right	Provison (CrPC 1973)	Evolution in BNSS 2023
Right to Compensation	Section 357/357A: Courts may order compensation; State schemes for victim funds.	Section 395/396: Retains compensation schemes but emphasizes clearer timelines and “witness protection” schemes distinctively.
Right to Appeal	Section 372 (Proviso): Victim can appeal against acquittal, lesser offence, or inadequate compensation.	Section 413: Retains the victim’s right to appeal, solidifying their status as a party to the dispute.
Right to Information	Section 157: Information to informant regarding investigation.	Section 173: Mandatory update to the victim on investigation progress within 90 days (a massive leap for transparency).
Right to be Heard	Limited recognition (mostly at trial/sentencing).	Section 360: Explicitly mandates that the victim must be heard before the prosecution withdraws a case.

2. Landmark Case Laws (Case Briefs)

Three transformative cases that altered the rights landscape.

Case 1: Mallikarjun Kodagali v. State of Karnataka (2019)

Context: The Right to Appeal.⁹
Facts: The victim (Kodagali), a Congress leader, was attacked.¹⁰ The trial court acquitted the accused. When the victim tried to appeal under the proviso to Section 372 CrPC, the High Court rejected it, stating only the State could appeal or the victim needed “Special Leave” (permission).
Issue: Does a victim have a substantive, independent right to appeal an acquittal without seeking the court’s permission?
Decision: The Supreme Court (3-judge bench) held that the proviso to Section 372 gives the victim a statutory right to appeal.¹¹
Analysis: This judgment decoupled the victim from the State.¹² The Court famously noted, “Justice is not only for the accused; it is also for the victim.” It cured the historical defect where a victim was helpless if the State Prosecution was incompetent or collusive.

Case 2: Jagjeet Singh v. Ashish Mishra (2022) [Lakhimpur Kheri Case]

Context: The Right to Participate (Right to be Heard).¹³
Facts: The accused (son of a Minister) was granted bail by the High Court in a high-profile murder case involving farmers. The victims were disconnected from the online bail hearing due to “technical glitches” and were not heard.¹⁴
Issue: Does a victim have a right to be heard at the stage of bail, or is bail solely between the Accused and the State?
Decision: The SC set aside the bail, establishing that a “Victim” has unbridled participatory rights from the stage of investigation till the culmination of proceedings.¹⁵ They are not to be “mute spectators.”¹⁶
Analysis: This is a watershed moment. It recognizes that the State may not always represent the best interests of the private victim. The “hybrid” nature of the Indian criminal trial (adversarial but with victim participation) was solidified here.

Case 3: Ankush Shivaji Gaikwad v. State of Maharashtra (2013)

Context: The Right to Compensation.
Facts: The accused killed the victim by hitting him with an iron pipe. The trial court convicted him but did not award compensation to the victim’s family, nor did it record reasons for not doing so.
Issue: Is the power to award compensation under Section 357 CrPC discretionary or mandatory?
Decision: The SC held that while awarding compensation is discretionary, application of mind is mandatory. Courts must record reasons if they choose not to award compensation.¹⁷
Analysis: This shifted compensation from being a mere “top-up” to a central component of sentencing. It enforces the concept of “Restorative Justice” where the harm to the victim must be acknowledged financially.

3. Critical Analysis & Conclusion

From a human rights lens, the “Right to Fair Trial” (Art. 21) is traditionally argued for the accused. However, the modern interpretation expands Article 21 to include the Right to Justice for the Victim.

While statutes like the BNSS 2023 have introduced progressive timelines (e.g., updating victims on investigation status within 90 days), challenges remain:¹⁸

Execution: Compensation funds (Nirbhaya Fund) often remain underutilized due to bureaucratic red tape.¹⁹
Witness Protection: Despite the Mahender Chawla guidelines, we lack a robust, statutory Witness Protection Authority independent of the police.

The trajectory of Indian criminal jurisprudence is undeniably shifting from State-centric to Victim-centric. The victim is no longer a passive object of the crime but an active subject of rights. True justice is achieved not when the offender is punished, but when the victim is reintegrated, heard, and healed. As future custodians of the law, we must ensure that “Procedural Due Process” does not become a tool to silence the very voice that the system was built to protect.

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The analysis of “Rights” is incomplete without examining the Gap Analysis—the chasm between statutory promise and ground reality. While the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 has codified many victim-centric provisions, serious logistical and jurisprudential challenges remain.

Here is a critical breakdown of the contemporary challenges and strategic suggestions for reform.

I. Contemporary Challenges (The Implementation Gap)

Despite the progressive shift in black-letter law, the following hurdles obstruct the realization of victim justice:

1. The “Witness Protection” Paradox

Challenge: The Witness Protection Scheme, 2018 (approved in Mahender Chawla v. Union of India) exists, and the BNSS (Sec. 398) mandates states to prepare such schemes. However, it remains a “paper tiger.”
Reality: Protection is often left to the local police—the same force that might be colluding with the accused or under political pressure. There is no independent “Witness Protection Authority” in most districts.
Result: Hostile witnesses remain the norm, leading to high acquittal rates.

2. The “90-Day Update” Logjam (Section 173 BNSS)

Challenge: The BNSS mandates that the police must inform the victim about the progress of the investigation within 90 days.
Reality: With a severe shortage of police personnel (India has approx. 150 police per 100,000 population vs. UN recommended 222), this administrative burden may lead to “template updates”—generic, automated messages that provide no real information, merely ticking a procedural box.

3. Compensation: The Bureaucratic Maze

Challenge: Section 396 BNSS (formerly 357A CrPC) allows for victim compensation.
Reality: Accessing these funds is notoriously difficult. Victims often have to wait for the trial to conclude (which takes years) to receive “final” compensation. “Interim” compensation is rarely awarded sua sponte by courts despite the provision. Furthermore, the Nirbhaya Fund remains largely underutilized due to complex disbursement guidelines.

4. The Digital Divide & e-FIRs

Challenge: The BNSS pushes for digitization (e-FIRs, audio-video recording of statements).
Reality: For a rural victim with no smartphone or internet access, this “convenience” can become an exclusionary barrier. If the system relies too heavily on digital portals, the illiterate or unconnected victim may be further marginalized.

5. Secondary Victimization

Challenge: The adversarial trial itself is traumatic.
Reality: Defense counsels often use aggressive cross-examination techniques (especially in sexual offence cases) to humiliate the victim. While Section 146 of the Evidence Act (now BNSS equivalent) bars questions on character, enforcement by trial judges is inconsistent.

II. Strategic Suggestions (Policy & Legal Reforms)

To move from “Symbolic Justice” to “Substantive Justice,” the following reforms are advocated by legal scholars and human rights bodies:

1. Institutionalize “Victim Impact Statements” (VIS)

Proposal: Currently, Indian courts hear the victim mostly on facts. We need to formalize Victim Impact Statements at the sentencing stage for all serious crimes (not just capital offences).
Why: This allows the victim to explain the psychological and financial toll of the crime to the judge, directly influencing the quantum of punishment or compensation, independent of the prosecutor’s arguments.

2. Independent Witness Protection Agency

Proposal: Remove witness protection duties from the local police. Create a statutory, independent “Witness Protection Bureau” (similar to the US Marshals) that reports directly to the High Court or a District Judge.
Why: This eliminates conflict of interest and ensures witnesses are not intimidated by the very officers investigating the case.

3. “One-Stop” Justice Centers

Proposal: Expand the “One Stop Crisis Center” (OSCC) model beyond just crimes against women.
Why: A victim of any violent crime should find medical aid, legal aid, police recording, and psychological counseling under one roof. This prevents the “shuttling” of victims between hospitals, police stations, and courts.

4. Victim Counsel as a Right (Not Privilege)

Proposal: Section 2(wa) of CrPC (and BNSS equivalent) defines a victim, but the right to a private lawyer is often limited to assisting the Public Prosecutor (PP).
Why: The PP represents the State, not the victim. The law should explicitly grant victims the right to a State-funded private counsel who can argue on bail, discharge, and sentencing independently of the PP.

5. Mandatory “Victimology” Training

Proposal: Judicial Academies must introduce mandatory modules on “Trauma-Informed Judging.”
Why: Judges need to understand that a victim’s fumbling or memory lapse is often a sign of trauma, not a sign of lying. This shift in mindset is crucial for fair adjudication.

Conclusion: The Road Ahead

Legislation is the skeleton, but execution is the soul. We have successfully built the skeleton through the BNSS and progressive Supreme Court judgments. The challenge for the next decade is to breathe life into it by funding the infrastructure and sensitizing the gatekeepers (police and judges). Until a victim feels as empowered as the accused in a courtroom, the scales of justice remain imbalanced.