The recent judgment in Rekha Murarka vs The State Of West Bengal (November 2019) has held that the victims’ private counsel cannot orally examine or cross-examine the witnesses. A deeper examination of the Court’s reasoning shows that the judgment is bound to have serious consequences for the victims’ right to participation. It is a setback to the developing jurisprudence on victim justice.
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. With the state appropriating their victimisation, the actual victims become mere stage props in a larger scheme.
In 1996, the 154th Law Commission Report suggested a paradigm shift in India’s criminal justice system towards a victim-centric notion of justice. The Code of Criminal Procedure(Amendment) Act, 2009 partially accepted this suggestion and granted some rights to the victims of crime. The Act introduced victims’ right to a private counsel under Section 24(8). 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.
Some hits but more misses
A slow but steady progress has been made towards securing justice for victims in this country. 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. 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. The Supreme Court not only called for the introduction of a victim impact statement in order to guarantee participation of the victim in the trial proceedings, but also reinstated the victims’ right to appeal against an adverse order.
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. The Declaration requires that the views and concerns of victims should be allowed and considered at all appropriate stages without prejudice to the accused. 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. This is manifest from Section 301(2) under which the advocate can only air his views and concerns, not to the court, but to the prosecutor and must act under his directions thereafter.
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. This stage, after the closing of evidence therefore, is the only stage legislatively recognised as “appropriate”. In contrast, the proceedings under 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.
A lost chance
Effective and meaningful participation still eludes victims of crime. The Supreme Court in Rekha Murarka has 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. The right to participation, however, can be realised at appropriate stages without any such prejudice. Instead of exploring such a normative balance between the rights of the accused and victim, the judgment limits the rights of the victim by proceeding on a flawed understanding of the role and responsibilities of the victim’s advocate. 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; and third, a lack of experience on the part of the victim’s counsel may lead to lapses.
The success of prosecution is dependent largely upon the victim’s participation in the trial. The primary role and responsibility of the victim’s advocate therefore, is to represent the personal interests of the victim by cooperating with the prosecution.
Instead, the court assumes that unless the victim’s advocate is subservient to the prosecutor, either the prosecutor will be rendered ineffectual or the victim’s advocate will take over the role of the prosecutor.
The judgment further assumes that prosecutions effectively take the victim’s needs into account and 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 press is replete with instances of “failure of prosecution” leading to dismissal of the case or acquittals. Ingenuously, 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.
In any event, 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 need instead, is to strengthen victim participation by providing private counsels with a greater say in the conduct of the trial without prejudicing the interests of the accused. The cause of victim justice would be greatly served, if the Supreme Court decide to revisit its reasoning and assumptions to appropriately amend this provision in light of the above.
G.S. Bajpai is Professor and Chairperson of the Centre for Criminology and Victimology at the National Law University (NLUD), Delhi. Ankit Kaushik is a Research Associate at the NLUD. The views expressed are personal