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.
What is the issue?
- Under our criminal justice system, victims find themselves removed from the proceedings. Their identities are reduced to being mere witnesses.
- 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.
Legal background –
- 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.
Securing rights of victims –
- 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.
International practices –
- The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (of which India is a signatory) requires that the views and concerns of victims should be allowed and considered at all appropriate stages without prejudice to the accused.
- 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.
Way forward –
- The primary role and responsibility of the victim’s advocate is to represent the personal interests of the victim by cooperating with the prosecution.
- There is a need for a private counsel because intentional or unintentional prosecutorial lapses directly lead to injustice to the victims.
- Currently, the public prosecutor cannot sufficiently take into account the interests, needs and requirements of the victims. The need 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.
Source – The Hindu
QUESTION – The Indian criminal justice system limits victim participation in the proceedings of the court. Examine the recent court judgements and suggest a way forward.