Author: Naman Singla
Student, Rajiv Gandhi National university of Law
For too long the criminal justice system has been oriented towards the rights of criminals and has centred its policies for criminals rather than for the victims. Now the time has come to reverse the trend and emphasise upon the rights of victims. The Indian criminal justice system has disproportionately focussed on reforms for the accused and various committees have been instituted in this regard. However, in this exercise, the role of the victims and their protection has been neglected. Does mere imprisonment in an attempt to secure the rights of accused and criminals just for the victims? It has been observed that no real assistance is provided to the victims and criminal justice system is full of hurdles that impede fast delivery of justice and real redressal to victim's grievances. In the midst of all these problems, the need of the hour is to change the criminal centric approach to a victim centric approach.
The victim centric approach started becoming the major objective of criminal justice system all over world after 1985 when the UN adopted a Declaration of “The Basic Principles of Justice for the Victims of Crime and Abuse of Power.” This declaration gave comprehensive definition to victims and importance of their rights. These rights included the victim compensatory rights, protection rights and right to fair and dignified treatment. For the enforcement of these rights, it is important for the courts to know the impact a crime inflicts on a victim. In order to calculate this, the courts demand for the victim impact statements that describe the emotional, physical and financial impact that victim and family have suffered as a direct result of the crime. It can be either written or oral.
The intent of VIS:
Victim Impact Statements provides an opportunity to express what an impact a crime has inflicted upon the victim and the family. Additionally, it provides some measures for closure of the ordeal the crime has caused. For the judiciary as well, these documents can assist judges to decide adequate punishments that should be awarded to the guilty.
VIS includes a financial loss statement which is used to verify the financial consequences of the crime. Judges use it to determine the money needed by the victims and also to assess the “restitution” i.e., defendant’s money payable to victim.
All these purposes served by the victim impact statements can help to bring victims of crimes to the mainstream of criminal justice system and ensure a truly fair trial.
Position of victims in India:
In India, victim came to be defined in criminal law in 2009. Formally §2 (wa) of CrPC defines the victims as “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 and the expression “victim” includes his or her guardian or legal heir. Victim is still heard only as a witness rather than as a victim during the trial of the case. Many a times, this takes form of “Secondary victimization” wherein the agencies of the criminal justice system treat the victims as secondary, unfavourable and marginalise them. As lamented by Justice Krishna Iyer, “It is a weakness of our jurisprudence that victims of crime and the distress of the dependents of the victim do not attract the attention of law. In fact, the victim reparation is still the vanishing point of our criminal law. This is the deficiency in the system, which must be rectified by the legislature”. Therefore, the need for the victim impact statement is felt more intensely.
During the trial, courts decide on the quantum of discipline as per the scale in Indian Penal code as there is no fixed punishment in India. According to section 235 (2) of the CrPC, it is a duty of the courts to hear the accused on the question of sentence. While this is done to consider a specific quantum, in this whole procedure, courts end up neglecting the suffering of victims. The concept of Victim Impact Statement can help in mitigating such negatives. This statement can highlight the victim's sufferings before the court and can supplement accused’s statement thus providing victims with just space in the quantum decision. Another question on the forefront is whether or not imprisonment compensates enough for the victim's sufferings? In several cases, suffering cannot be compensated for with mere imprisonment of the perpetrator. Therefore, Victim Impact Statement can also help victims get the adequate compensation, on a case-to-case basis, from the Central Victim Compensation Funds.
The case of Mallikarjun Kodagil v State of Karnataka(2018) ignited the first discourse on extensive system of VIS in India. The Hon'ble Supreme Court identified the importance of a VIS and ever since, several jurisdictions are now embracing the inclusion of a VIS in their criminal justice system.
The VIS in foreign jurisdictions:
While VIS is still in its nascent stage in India, it is well-mechanised in several foreign jurisdictions:
1) U.S.A: The U.S. justice system has fully recognized VIS in the case of Payne v. Tennessee and recognized the statements to be extremely valuable for delivering “true justice.” In U.S. these statements are submitted to the United States’ Attorney’s office and then forwarded to the U.S. Probation Office to be included as part of the Presentence Investigation Report. It is then submitted to the judge prior to sentencing allowing judge to read and assess impact on the victim.
2) U.K: The Criminal Practice Directions (2013) EWCA CRIM 1631 talks about using VPS while deciding the matter. Victim Personal Statement is optional in UK; however, it provides an option to the victims to be a part of trial, helping judges to make better informed decisions. One cannot change an already submitted VPS but can submit subsequent VPS until decision is made.
3) Australia: Australian system gives choice to victims of crime to make a Victim Impact Statement and throughout the proceedings, victim can refer to the VIS.
Cons of the VIS:
There are several jurisdictions that are using VIS to make criminal justice more inclusive. But is VIS the best solution to bring victims on an equal footing? The answer varies on a case-to-case basis. Many researchers now believe that a conceptual institutionalisation of VIS can make victims a means to serve the end i.e., to decide more sentencing for the accused, thus, not altering the status quo of using victims as storehouse of information. There also exist wide apprehensions about use of VIS in arbitrary nature to decide the sentence as judges sympathize greatly with victims while deciding quantum of punishment on the basis of a VIS. Many a times these VIS are not reformative in nature but retributive leading to aggravated punishment even in trivial offences. It lets the judges assume the punishment on the harm suffered rather than on the basis of proportion. It has been revealed in several researches that judges feel angered while reading these VIS. Law Professor Janice Nadler and sociologist Mary Rose found that these statements make jurists angered that they often validate their sentencing on evidences against defendant’s favour.
The solution to these apprehensions can be found in the developing course. While the apprehensions cannot be removed suddenly, the solution can be relying on post-conviction VIS, on certain stages like bail or parole. VIS can also be used at time of quantum deciding by having a provision of maximum punishment vis’-a-vis defendant’s statement thus, providing equal consideration to both the sides.
Through this article it is tried to establish that victims and their rights have to be streamlined along with the rights of accused to make our criminal justice system inclusive and just. The impact a Victim Impact Statement can have on criminal trials and punishments is intense and this is a revolutionary step to make Indian justice system equitable. Though, there might be concerns regarding its applicability but it can be overcome through simple procedures, steps and due diligence. VIS, thus, is an excellent tool for reforming India's Justice System and a step towards the same can have revolutionising potential.
 Code of Criminal Procedure, 1973, §2 (wa), No. 2, Acts of Parliament, 1973 (India).  Rattan Singh v. State of Punjab (1979) 4SCC 719  Code of Criminal Procedure, 1973, §235 (2), No. 2, Acts of Parliament, 1973 (India).