What Rights do Victims Have in Criminal Cases? How SC Offered a Timely Reminder

A key reason why Supreme Court cancelled Ashish Mishra's bail was the HC's failure to give victims representation.

Ashish Mishra is the main accused in the case of the deaths of four farmers in October 2021.

(Photo: Altered by The Quint)

In its order dated 18 April setting aside the bail granted to Ashish Mishra , the Supreme Court of India took the Allahabad High Court for several flaws in their decision.

One of these points in particular deserves some consideration because it can often be forgotten by the courts and outside observers, who (not unreasonably) focus on the rights of the accused.

The apex court reminded us:

"...with the recognition that the ethos of criminal justice dispensation to prevent and punish ‘crime’ had surreptitiously turned its back on the ‘victim’, the jurisprudence with respect to the rights of victims to be heard and to participate in criminal proceedings began to positively evolve."

Ashish Mishra is the son of Union Minister Ajay Mishra Teni and the prime accused in the Lakhimpur Kheri violence, which had led to the deaths of four farmers. He was granted bail by the Allahabad High Court in February, which had been challenged by the family of the deceased victims in the Supreme Court.

Not only did the apex court cancel Mishra's bail, but they also laid emphasis, in their order, on the rights of victims, especially on a victim's right to be heard.

But who is a victim? What are the rights guaranteed to a victim in India? And why did the apex court need to consider the rights of victims in this case?

Who is a Victim?

While laws across the world, legitimately and reasonably enough, lay emphasis on the rights of the accused, the jurisprudence pertaining to the rights of the victim is still evolving. However, even in India, victimology has travelled a significant distance.

The apex court themselves pointed out in their order cancelling Mishra's bail:

"Repeated judicial intervention, coupled with the recommendations made from time to time...prompted the Parliament to bring into force the Code of Criminal Procedure (Amendment) Act, 2008, which not only inserted the definition of a ‘victim’ under Section 2 (wa) but also statutorily recognised various rights of such victims at different stages of trial."

According to Section 2(wa) of the Criminal Procedure Code (CrPC), a “victim” is a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged. The expression “victim” also includes their guardian or legal heir.

Thus, in simple terms, a victim is any person who has suffered an injury or incurred a loss (physical, monetary or emotional) in consequence of a crime.

Evolution of Victim's Rights in India

The pro-victim movement is believed to have globally found its inception in 1985, when the United Nations adopted the Declaration of the Basic Principles of Justice for the Victims of Crime and Abuse of Power. This declaration has been ratified by several countries, including India.

It recognised the following major components of a victim’s rights:

• Access to justice and fair treatment

• Restitution

• Compensation

• Assistance

The apex court itself, on Monday, gave a lowdown of the evolution of victim's rights in India, beginning with the 154th Report of the Law Commission, which made "radical recommendations" regarding compensatory justice for victims.

The next key step was the 2003 Report of the Committee on Reforms of Criminal Justice System, which sought to address the lack of confidence people had in the criminal justice system.

This report recommended the rights of the victim or their legal representative to be impleaded as a party in every criminal proceeding where the charges are punishable with seven years’ imprisonment or more, as well as to be represented by an advocate of their choice. If the victim is not in a position to afford an advocate, they were supposed to be entitled to get one on the State's expense

The committee also recognised victim's rights to participate in criminal trials, know the status of investigation, and be heard at every crucial stage of the criminal proceedings — including at the time of grant or cancellation of bail.

These reports and their recommendations eventually led to the Code of Criminal Procedure (Amendment) Act, 2008.

As the Supreme Court points out in its Ashish Mishra bail order, these amendments “not only inserted the definition of a ‘victim’ under Section 2 (wa) but also statutorily recognised various rights of such victims at different stages of trial”.

This act brought in a slew of victim-centric provisions, including:

• The court may permit the victim to engage an advocate of his choice to assist the prosecution.

• In relation to an offence of rape, the recording of statement of the victim is to be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or close-relatives or a social worker of the locality.

• It is also created a provision for a victim compensation scheme (Section 357A of CrPC).

Why Did the Apex Court Deal With Victim's Rights in Ashish Mishra's Case?

The first question that CJI-led bench looked into when reviewing the Allahabad High Court's decision to grant bail to Mishra was:

"Whether a ‘victim’ as defined under Section 2(wa) of the Code of Criminal Procedure, 1973 (hereinafter, “Cr.P.C.”) is entitled to be heard at the stage of adjudication of bail application of an accused?"

This was required because it was argued before them that the victims’ legal representative had been unable to participate in the proceedings before the Allahabad High Court.

They had been disconnected from the online proceedings and even after informing the court of this and asking for a rehearing, the high court had not considered any of this while granting bail to Mishra.

The top court noted that one of the key recommendations on victims' rights from the start had been the need to allow their involvement even at the stage of bail.

Thus, the Supreme Court said "...we are constrained to express our disappointment with the manner in which the High Court has failed to acknowledge the right of the victims."

But Concerns Abound...

Even as victim-centric jurisprudence continues to grow and find acknowledgement in India – for which the order in Ashish Mishra's case is a shot in the arm – the Indian Justice system, by itself, has miles to go before they can fully protect the rights of all victims of crime, irrespective of their social, political or economic status.

In an Ambedkar Memorial Lecture, delivered on 16 April this year, Dr S Muralidhar, Chief Justice of the Orissa High Court, had said:

“There are many barriers to accessing justice that a marginalised person faces. The laws, rules and processes are mystifying and befuddling even for an educated, literate person.”

He also quoted a Supreme Court bench of Justice DY Chandrachud and BV Nagarathna as noting that several members of the SC/ST community "face insurmountable hurdles in accessing justice from the stage of filing the complaint to the conclusion of the trial" and that they "specifically suffer on account of procedural lapses in the criminal justice system".

These top court judges had in Hariram Bhambhi vs Satyanarayan (2021) further noted:

“Due to the fear of retribution from members of upper caste groups, ignorance or police apathy, many victims do not register complaints in the first place. If victims or their relatives muster up the courage to approach the police, the police officials are reluctant to register complaints or do not record allegations accurately. Eventually, if the case does get registered, the victims and witnesses are vulnerable to intimidation, violence and social and economic boycott.”

Thus access to justice needs to be made more inclusive, less arbitrary and courts perhaps need to lay down guidelines in a bid to ensure that all victims are informed of their rights, including their right to be heard during the legal proceedings.

Further, all victims of crime must be accorded dignity by every officer they interact with in their quest for redressal, and mechanisms for their safety and compensation must, at every instance, must be made adequate.

The Ashish Mishra order is a good start towards informing victims of their rights and reminding the authorities and the courts of the need to keep these rights in mind, but the higher judiciary will need to continue to be vigilant about matters like this if they are to achieve the necessary results.