This series analyses the changes proposed by the Criminal Law Bills in 2023. This article was first published as part of Project 39A’s Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and Bharatiya Sakshya Bill, 2023: A Substantive Analysis, a complete version of which can be accessed here.
This post analyses the changes and insertion of additional procedures pertaining to victims’ rights under the Bharatiya Nagarik Suraksha Sanhita Bill, 2023.
Victim-centric reforms in the Indian criminal justice system have generally been in the form of three rights, participatory rights, right to information, and right to compensation for the harm suffered. The 154th Law Commission Report (1996)[1] and the Justice Malimath Committee Report (2003)[2] identified ‘justice to victims’ and victimology as crucial areas of reform and made recommendations, focussing on increasing victims’ participatory role and for better compensatory justice. These recommendations were incorporated by amendments such as the Code of Criminal Procedure (Amendment) Act, 2008 (‘Amending Act’), to strengthen the existing framework of victims’ rights. Thus, the extant structure of criminal law has been largely geared towards participatory and compensatory rights.
Reforms proposed in the BNSS build on this structure by primarily incorporating rights to information for the victim at various stages of the criminal procedure (see Cls.173, 193 and 230); and adding another participatory right through Cl.360. In addition to this, the practice of recording Zero FIRs has been institutionalised under Cl.173 BNSS whereby complainants may file an FIR, irrespective of the area where the offence was committed.
I. Participatory Rights
Participatory rights, or rights which provide the victim a say in the criminal process through the opportunity of hearing before a court, were incorporated into the criminal legal system principally through the Amending Act.
The Amending Act introduced s.2(wa) CrPC which, for the first time, defined ‘victim’. The definition was expansive and included any person suffering injury or loss due to the act or omission with which the accused was charged, including their guardian and legal heir. S.321 CrPC was also amended to grant the victim the right to appeal against an order of acquittal, conviction for a lesser offence or inadequate compensation. This participatory right is made meaningful by amending s.24(8) CrPC, which provides that courts may permit victims to engage an advocate to assist the prosecution. Further, for sexual offences the Amending Act introduced the right of the victim to have her statement recorded at her residence or in a place of her choice, by a woman police officer, in the presence of her parents, guardian, relatives or social worker. While the CrPC already provided for an in camera trial for such offences, the Amending Act introduced a proviso to this section providing that such a trial, as far as practicable, must be conducted by a woman judge or Magistrate. The privacy of the victim is also protected by prohibiting the publication of trial proceedings without the permission of the court and subject to maintaining the confidentiality of the name and address of parties. On the front of compensatory justice, s.357 CrPC empowers the court to order compensation to be paid to the victim by the accused, upon conviction. The Amending Act introduces s.357A CrPC which directs State Governments to set up victim compensation schemes. The District or State Legal Services Authority is vested with the power to decide the quantum of compensation and to order free first aid facility, medical benefits or any other interim relief.
This framework of rights has also been expanded by the judiciary on multiple occasions. For instance, s.439(2) CrPC which mandates the presence of the informant or any person authorised by him, at the time of hearing of the bail application, was extended to include victims who come forward to participate in a criminal proceeding.[3] The Court observed that the victim’s rights are independent, incomparable and not auxiliary to those of the State; she has a legally vested right to be heard at every step post the occurrence of an offence. Her participatory rights are described as unbridled from the stage of investigation till the culmination of the proceedings. Further, in Saleem,[4] the Delhi High Court sought to balance the participatory rights of the victim with the mandate to keep her identity confidential in cases of sexual offences, and held that the right to be heard does not entail a requirement to implead the victim (since such impleading could result in revealing the identity of the victim). S.439(1A) was also expansively interpreted to include the victim’s right to be effectively heard in anticipatory bail petitions as well as accused’s petitions seeking suspension of sentence, parole, furlough or other such interim relief. Further, the court noted that it may appoint legal-aid counsel when necessary; mere ornamental presence of the victim without being effectively heard, would not suffice.
A lacuna, in this regard, remains s.321 CrPC. It allows the prosecutor to withdraw the prosecution of a case, at any time before the judgment is pronounced, with the consent of the court. Neither CrPC allows the victim to be heard at the stage, nor have the judicially enunciated principles translated into reality for the victim.[5] Through Cl.360, however, BNSS plugs this lacuna. Cl.360 largely mirrors s.321 CrPC, with the addition of one important proviso that the victim must be heard before such withdrawal is allowed. This is a significant recognition of the victim as a stakeholder in the criminal trial.
II. Right to Information
The victim’s right to information has been expanded in the BNSS in three ways. Firstly, the victim has been granted the right to receive a copy of the FIR free of cost.[6] This is a crucial information right, since the FIR is an important piece of evidence that forms the basis for the trial. Secondly, Cl.193(3) BNSS requires the police to inform the victim of the progress in the investigation within ninety days and therefore allows the victim to be aware of possible lapses and delays in the investigation. At the same time, there exists no statutory mechanism for victims to hold the police accountable or seek redressal for such lapses or inordinate delays in investigations, which ultimately limits the utility of the right. Thirdly, Cl.230 BNSS provides victims with a crucial right to information about the details of their case through the mandatory provision of the police report, FIR, witness statements, etc., which is meant to enable effective and meaningful participation of the victim in the criminal process.
However, the rights under Cls.193(3) and 230 are available to victims only if they are represented by an advocate. While s.24(8) CrPC allows for victims to engage an advocate of their choice, the actualisation of this right becomes difficult for victims who are socio-economically disadvantaged and cannot afford to engage an advocate of their own. Thus, in the absence of a vested right to free legal aid and assistance for victims, a large portion of victims will not have recourse to these rights.
In Delhi Domestic Working Women’s Forum,[7] the Supreme Court emphasised the importance of legal representation for victims of rape at every stage of the process – to support her while she is being questioned, explain the nature of the proceedings, prepare her for the case, assist her in the police station and help her seek relief from various agencies. Yet, no centralised mechanism has been created to implement this. While the BNSS has enshrined important rights to information, the intended purpose of these information rights, which is to ultimately enable active and meaningful participation in the criminal process, may not be achieved in the absence of a corresponding system of free legal aid.
Further, s.157(2) CrPC requires the police to notify the informant about the fact that he will not be investigating the case, if he does not find sufficient grounds to investigate the case. No amendment has been proposed in the BNSS to expand this right to the victim. However, it is likely that judgments which have judicially extended informants’ rights to the victim in other instances will guide the interpretation of this clause as well.[8]
III. Other Rights
The BNSS has institutionally recognised the right to register Zero FIRs under Cl.173.[9] Therefore, the Bill prohibits the police from using a lack of territorial jurisdiction as a reason to avoid their duty to record first information and helps to eliminate one of the hurdles faced by victims in registering an FIR. While being an important safeguard, this is not an innovation of the BNSS and has been previously mandated by the Central Government[10]and substantially enforced by the judiciary in various instances.[11] In Lalita Kumari, the Supreme Courtheld that the police have a mandatory duty to register an FIR when the information given discloses a cognizable offence.[12] Despite multiple judicial pronouncements of this nature, non-registration of FIRs remains a pervasive issue that needs to be addressed by the State.[13] Therefore, if it becomes the law, it remains to be seen if the BNSS will actually address this concern.
Further, despite the judicial recognition of the right to compensation,[14] victims have been inadequately and inconsistently compensated by the courts[15] and through state victim compensation schemes.[16] At the same time, beyond monetary compensation, the need for rehabilitation of victims has also been judicially recognised. For instance, in Mallikarjun Kodagali,[17]the Courthas highlighted the importance of facilities like psychosocial support and counselling to victims, depending on the nature of the offence. These suggestions do not find a place in the scheme of CrPC or BNSS.
[1] Law Commission of India, ‘One Hundred and Fifty Fourth Report on the Code of Criminal Procedure, 1973’, (Law Commission of India Report No. 154, 1996).
[2] Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice System Report, Volume 1 (2003).
[3] Jagjeet Singh v. Ashish Mishra (2022) 9 SCC 321.
[4] Saleem v. State (NCT of Delhi) (2023) 2023 SCC OnLine Del 2190.
[5] State of Kerala v. K. Ajith 2021 SCC OnLine SC 510.
[6] Cl.193(3) BNSS.
[7] Delhi Domestic Working Women’s Forum v. Union of India (1995) 1 SCC 14 [15].
[8] Jagjeet Singh; Saleem.
[9] Cl.173 BNSS.
[10] Ministry of Home Affairs, ‘Advisory on comprehensive approach towards crimes against women’, No. 5011/22/2015 – SC/ST – W, 12 May 2015.
[11] State of Andhra Pradesh v. Punati Ramulu 1994 Supp (1) SCC 590; Kirti Vashisht v. State 2019 SCC OnLine Del 11713.
[12] Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1.
[13] Ramesh Kumari v. State (NCT of Delhi) (2006) 2 SCC 677; Aleque Padamsee v. Union of India (2007) 6 SCC 171; Lallan Chaudhary v. State of Bihar (2006) 12 SCC 229.
[14] Dr. Jacob George v. State of Kerala (1994) 3 SCC 430; Maru Ram v. Union of India (1981) 1 SCC 107.
[15] Hari Singh v. Sukhbir Singh (1988) 4 SCC 551; Utkarsh Anand, ‘No Compensation for 99% Minor Rape Victims: SC Fumes Over National Survey’ (CNN-News18,15 November 2019), last accessed on 11.09.23.
[16] Tekan Alias Tekram v. State of Madhya Pradesh (2016) SCC OnLine 131; Gang-Rape Ordered by Village Kangaroo Court in West Bengal, In re, (2014) 4 SCC 786.
[17] Mallikarjun Kodagali v. State of Karnataka (2019) 2 SCC 752.
