Global Advances in Victimology and Psychological Studies, 1(1) : 3-6; 2022
Online ISSN: Applied For
Global Advances in Victimology and
Psychological Studies
The Emergent Paradigm of Victim Justice
Recently, the Supreme Court of India in the case of Jagjeet
Singh v. Ashish Mishra1, recognised the “unbridled right”
of the victim to participate in a criminal trial at all stages
from investigation to appeal. e pronouncement of the
Court is emancipatory for the struggle for victim rights.
In observing that the victims with legitimate grievances
cannot be expected to sit on the fence and watch the
proceedings from afar, the Court has recognised the
fact that victims too deserve equal rights in the criminal
process. While the Court’s judgment and observation
may seem obvious and warranted to us in the context of
the day, the same was not always the case. e discipline
of victimology has travelled far in order to culminate into
such an understanding of victim justice.
1. From Victimology to Victim
Justice
Over the last four decades, victimology has emerged
as a discipline in its own right. It has witnessed drastic
shis in its focus, approach and contents owing to a
variety of factors including socio-political contexts of
concerned societies. In its rst wave, the focus was upon
the individual oender and individual victim; their
interaction and relationships and hardships experienced
by the victims. e wave studied victimology in its
‘positive’ sense. is era is characterised by the typologies
of Von Hentig, Mendelsohn, Garofalo etc. and concepts
such as victim precipitation, victim provocation, victim
facilitation, victimisation processes etc.
In the second wave, the focus shied from the positive
to the normative. From understanding the causes of
victimisation and conceptualising victimhood, an activist
stance of victimology became prominent which stressed
upon legal recognition, access to justice, access to victim
services, assistance and compensation. Understood
comprehensively, the shi was from victimology to
victim justice. e works of Nils Christie (1977) deserve
particular mention in this regard. At a time when
victimology was still arming its theoretical foundations,
(Christie, 1986) proered radically that our legal systems
were awed in two pertinent senses – rstly, that our
criminal justice system stole the conict from its rightful
owner and that in practise, our criminal justice system
refused to recognise unideal victims.
It is quite telling that even as Herbert Packer (1964)
studied the Criminal Processes from the point of view
of ‘Due Process’ and ‘Crime Control’, the issue of role of
victims in such processes was le unaddressed. Several
scholars attempted to ll this important gap by suggesting
and forwarding models of victim participation. ese
normative models both addressed and raised several
important questions regarding both the willingness and
Invited Article
1S.L.P. (Crl.) No. 2640 of 2022 (vide order dated 18.04.2022)
G. S. Bajpai
Vice-Chancellor, Rajiv Gandhi National University of Law, Punjab - 147001, India; vc@rgnul.ac.in
The Emergent Paradigm of Victim Justice
Global Advances in Victimology and Psychological StudiesVol 1 (1) | June 2022 |
4
On the judicial side, the growth of victim justice has
seen the realization of some substantive rights, but such
progresses have been marred by regressive observations.
For example, in the case of Maru Ram v. Union of India,
the Supreme Court observed as follows:
“While reformation of the criminal is only one side of
the picture, rehabilitation of the victims and granting relief
from the tortures and suering which are caused to them
as a result of the oences committed by the criminals is
a factor which seems to have been completely overlooked
while defending the cause of the criminals for abolishing
deterrent sentences”.
While the observations may, prima facie, seem
progressive to the cause of Victim Justice, the Court
eectively assumes that securing rights for victims of
crime must come at the cost of securing rights of the
accused. is assumption has for long acted as a barrier
to securing right for victims of crime because due process
safeguards have traditionally been understood solely
from the perspective of the accused. Anything which our
criminal justice system assumes is antithetical to such due
process is immediately rejected without much thought
or analyses. Such rejection, oen receives the assent and
support of the society and non-governmental actors as
well. erefore, in assuming that balancing victim rights
against the rights of the accused is a zero-sum game,
the Supreme Court may have made the realization of
substantive rights for victims of crime just that much
tougher. Such a balancing oriented understanding can
also be observed from other rulings of the Supreme
Court such as the case of Mallikarjun Kodagali v. State of
Karnataka,4 where the Court stated that:
“Today, the rights of an accused far outweigh the rights
of the victim of an oence in many respects. ere needs
to be some balancing of the concerns and equalising their
rights so that the criminal proceedings are fair to both”.
e need for victims to participate in the criminal
justice system through a legal representative has been
recognized by the Supreme Court in 1994 through the
case of Delhi Domestic Working Women’s Forum v. Union
capacity of our criminal justice to provide for an enabling
framework of rights for victims of crime. Douglas Beloof
’s (1999) model took into consideration key concepts
such as fairness, respect, dignity to the victim of crime2.
Kent Roach’s (1999) models cut across punitive and non-
punitive measures to increase victim participation within
the criminal process. Leslie Sebba’s (1982) models provided
for the varying degrees to which such participation could
be feasibly incorporated in our criminal justice system.
Such a shi was accompanied by a call for reforming
the traditional criminal justice system which had erected
signicant barriers to victim justice. Feminist scholarship
had an extremely important role to play in this regard.
e works of Susan Estrich (1988) help us identify how
the society tends to stereotype rape victims and how
such stereotypes actually deter successful crime report,
investigations and prosecutions. In this regard, the key
phrase is ‘burden of performance’ wherein the victim
must constantly compete with the hyper-simulated image
of the ideal victim in order to prove her victimisation
(Rayburn, 2006).
2. Victim Justice Indian Content
Victims of crime in India received legislative recognition
only in 2009 with the insertion of s. 2(wa) in the Code
of Criminal Procedure, 1973 vide the Amendment Act
of 2009. rough the same Act, the victims were granted
three other substantive rights. First was to hire a private
counsel, albeit with limited participatory rights2. e
second was the right to be compensated under section
357A. e third right was the right to le an appeal against
a judgment of acquittal, conviction for lesser oence and
inadequacy of compensation. Other than these legislative
provisions which grant some rights to all victims of crime,
a few special and local legislations provide for more
nuanced rights to victims of specic oences3. It becomes
clear upon examination that the legislative growth of
victim justice in India is marked by a compartmentalized
thought process on part of the law makers resulting in a
lack of a comprehensive legal framework which addresses
several important aspects of victim justice.
2Limited through section 301 and 302 of the Code of Criminal Procedure, 1973
3The POCSO Act and the SC/ST (Prevention of Atrocities) Act both provide for special procedures and rights for victims.
G. S. Bajpai
Global Advances in Victimology and Psychological Studies 5
Vol 1 (1) | June 2022 |
4(2019) 2 SCC 752
5(1995) 1 SCC 14
6(2001) 4 SCC 667
7(2019) 13 SCC 715
8(2019) 14 SCC 615
of India,5 wherein the Supreme Court held that the role of
the victim’s advocate would - “would not only be to explain
to the victim the nature of the proceedings, to prepare her
for the case and to assist her in the police station and in
court but to provide her with guidance as to how she might
obtain help of a dierent nature from other agencies, for
example, mind counseling or medical assistance. It is
important to secure continuity of assistance by ensuring
that the same person who looked aer the complainant’s
interests in the police station represent her till the end of
the case”. Nevertheless, the role of the prosecution vis-à-
vis victims as well as the right of the victim’s advocate to
participate substantively in the trial still awaits legislative
recognition.
Even as witnesses to a trial, the victims still nd trials
to be a traumatic experience. Such trauma occurs rst as
victims are subjected to repetitive adjournments. It is as
the Supreme Court observed in the case of State of U.P.
v. Shambhu Nath Singh6 – “it is a sad plight in the trial
courts that witnesses who are called through summons
or other processes stand at the doorstep from morning till
evening only to be told at the end of the day that the case is
adjourned to another day”. If this wasn’t enough, victims
are also subjected to intense cross examinations which
tantamount to character assassination in the name of
impeachment of character. In the case of Nipun Saxena v.
Union of India,7 the Supreme Court observed that:
“In Court the victim is subjected to a harsh cross-
examination wherein a lot of questions are raised about
the victim’s morals and character. e Presiding Judges
sometimes sit like mute spectators and normally do not
prevent the defence from asking such defamatory and
unnecessary questions”.
If the same wasn’t enough, the victim is oen
threatened and manipulated in many ways to deter them
from testifying and pursuing the trial. Little has been
achieved in way of witness protection in such regard.
In the case of Mahendra Chawla v. Union of India,8 the
Supreme Court observed that:
“It hardly needs to be emphasised that one of the
main reasons for witnesses to turn hostile is that they
are not accorded appropriate protection by the State. It
is a harsh reality, particularly, in those cases where the
accused persons/criminals are tried for heinous oences, or
where the accused persons are inuential persons or in a
dominating position that they make attempts to terrorise
or intimidate the witnesses because of which these witnesses
either avoid coming to courts or refrain from deposing
truthfully. is unfortunate situation prevails because of
the reason that the State has not undertaken any protective
measure to ensure the safety of these witnesses, commonly
known as “witness protection”.”.
3. The Way Forward
Highlighting the problems with respect to the realization
of victim justice in India is just one step in a long process.
In the true legacy of “Critical Victimology,” the ultimate
aim of developing an understanding crime victims,
victimization and victimhood must be to ensure that
the same translate into a concrete statutory and policy
framework for victims of crime in India. ere is an
urgent need in this regard, to develop and further the
concept of “victimological jurisprudence”. e legal
principles that predominantly consider the victim in the
centre to decide the applicability of laws and deciding the
fate of cases with a focus on victim must form the core of
such victimological jurisprudence.
Aside from legal principles, such victimological
jurisprudence must also draw from a more inter-
disciplinary understanding of victim justice. For example,
it is imperative for us to consider the gendered notions
of crimes and criminal law before we make any attempts
to amend the law from the perspective of victims.
Crimes impact each category of victims, dierently. e
The Emergent Paradigm of Victim Justice
Global Advances in Victimology and Psychological StudiesVol 1 (1) | June 2022 |
6
categorisation of these gendered crimes must naturally
based upon the places where the crimes occurred, the
motive behind the crimes, and culture specicity of
the crimes. Another perspective that requires much
interdisciplinary introspection is that of victimization of
the vulnerable/marginalized and the extent of their access
to justice. It is trite to say that marginalized sections of the
society are more prone to victimization and have lesser
access to justice. Studying the inter-relationship of these
key concepts is crucial if we want to secure victim justice
for a large section of our society.
Finally, there is a requirement for a greater victim
centric activism pushing for comprehensive reforms to
secure victim justice. e push must be to ensure that
rights, which have so far been granted only to a few select
categories of victims, must also be made legislatively
available to all victims of crime. Such a push must also
extend to developing an understanding of the victim as a
complete participant to the criminal process with rights
which are distinct and separate from that of the State’s.
It is as the Supreme Court observed in the Jagjeet Singh
case (supra):
e victim’s right, therefore, cannot be termed or
construed restrictively like a brutum fulmen. We reiterate
that these rights are totally independent, incomparable,
and are not accessory or auxiliary to those of the State
under theCr. P.C. e presence of ‘State’ in the proceedings,
therefore, does not tantamount to according a hearing to a
‘victim’ of the crime.
4. References
Beloof, D. (1999). ird model of criminal process: e victim
participation model.
Christie, N. (1977). Conicts as property, e British Journal of
Criminology, 17(1), 1-15.
Christie, N. (1986). e Ideal Victim, in Ezzat Fatah (ed.), From
Crime Policy to Victim Policy, pp. 17-30.
Estrich, S. (1988). Real Rape, Harvard University Press.
Packer, H. (1964). Two models of criminal process, University
of Pennsylvania Law Review, 113(1), 1-68.
Rayburn, C. (2006). To catch a sex thief: e burden of perfor-
mance in rape and sexual assault trials, Columbia Journal of
Gender and Law, 15.
Roach, K. (1999). Four models of the criminal process, Journal
of Criminal Law and Criminology, 89(2), 671-716.
Sebba, L. (1982). e victims role in the penal process: A theo-
retical orientation, e American Journal of Comparative
Law, 30(2), 217-240.
