Context

The recent judgment in Rekha Murarka vs The State Of West Bengal, the SC has held that the victims’ private counsel cannot orally examine or cross-examine the witnesses.

Place of the victim in the present criminal justice system

• Removed from the proceedings: Under our criminal justice system, victims find themselves removed from the proceedings.
  • Their identities are reduced to being mere witnesses.
  • The harm they suffer is reduced to being aggravating or mitigating factors at the time of sentencing.
  • Stage props in a larger scheme: With the state appropriating their victimisation, the actual victims become mere stage props in a larger scheme.
• Need of The victim-centric notion of justice-Law Commission suggestion: In 1996, the 154th Law Commission Report suggested a paradigm shift in India’s criminal justice system towards a victim-centric notion of justice.
  • Partial acceptance: The Code of Criminal Procedure (Amendment) Act, 2009 partially accepted the Law Commission suggestion and granted some rights to the victims of crime.
  • The Act introduced victims’ right to a private counsel under Section 24(8).
  • Move toward victim’s participation: The Code of Criminal Procedure already allowed for pleaders engaged by private persons to submit written arguments with the permission of the court under Sections 301(2) and 302 allowed a person to conduct the prosecution with permission of the court.
  • These sections were read together to partially secure the victims’ right to participation.

Steps take  towards securing justice for victims

• Right to legal assistance to victims of sexual assault: In the case of Delhi Domestic Working Women’s Forum v. Union of India (1994), the SC called for the extension of the right to legal assistance to victims of sexual assault at the pre-trial stages.
• The SC opinion over asymmetry in rights of victims and the accused: In Mallikarjun Kodagali (Dead) … vs The State Of Karnataka (2018), the Court accepted that under the criminal justice system, the rights of the accused far outweigh the rights of the victim.
• Introduction of victim impact statement right to appeal against the adverse order: The Supreme Court not only called for the introduction of a victim impact statement in order to guarantee the participation of the victim in the trial proceedings.
  • The SC also reinstated the victims’ right to appeal against an adverse order.

Provisions on the international level for the victim’s participation

• Despite these advances, the scheme of victim participation remains far removed from the ideals embedded in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; India is a signatory.
  • What does the declaration require? It requires that the views and concerns of victims should be allowed and considered at all appropriate stages without prejudice to the accused.
• Need to increase the victims’ advocate’s role: Presently, the victims’ advocate has an extremely limited role to play wherein he “assists” the prosecutor rather than represent the interests of the victim before the court.
  • The only substantial opportunity provided to a private counsel is after the closing of evidence when written arguments may be submitted to the court only after seeking the permission of the court.
• Contrast with ICC: In contrast, the International Criminal Court (ICC) provides for victim participation at the stage of-
  • First, a challenge to the jurisdiction of the ICC.
  • Second, framing of charges.
  • Third, opening and closing statements.
  • Fourth, making a written submission wherever the personal interests of the victims are affected.
  • And finally, for presenting witnesses to give evidence on issues relating to the personal interests of the victims.

What the SC judgement means

• Missed opportunity: The Supreme Court in Rekha Murarkahas missed the opportunity to forward the jurisprudence on victim justice and rectify the lacunae in our laws.
  • Instead, the judgment goes against the jurisprudential current specified above.
  • Indeed, the victim’s right to participation cannot be secured by restricting the rights of the accused.
• Why the victim’s advocate is not allowed the right to participate in the SC’s opinion: According to the judgment, a victim’s advocate cannot be allowed the right to participate because-
  • First- Insistence by the victim’s counsel to examine a witness deliberately left out by the prosecution may weaken the prosecution’s case;
  • Second– The trial will derogate into a “vindictive battle” between the victim’s counsel and the accused.
  • Third- A lack of experience on the part of the victim’s counsel may lead to lapses.
• The problem in the SC ruling: The judgment further assumes that prosecutions effectively take the victim’s needs into account.
  • SC ignored why the need for private counsel arise: The judgement ignores the fact that the need for a private counsel arises precisely because intentional or unintentional prosecutorial lapses directly lead to injustice to the victims.
  • The court expects the victim’s counsel to make the prosecutor aware of any aspects that have not been addressed in the examination of witnesses or the arguments advanced by the public prosecutor.
  • In the process, it assumes that the prosecutor will address such lapses.

Conclusion

Under the role currently envisaged in our criminal justice system, the public prosecutor cannot sufficiently take into account the interests, needs and requirements of the victims. The cause of victim justice would be greatly served if the Supreme Court decided to revisit its reasoning and assumptions to appropriately amend this provision in light of the above.

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