‘Victim Justice Is An Aspiration Of A Progressing Society’: Interview With Professor G.S.BAJPAI

PROFESSOR G.S.Bajpai serves as Professor & Registrar at National Law University, Delhi. He has authored eight books, of which, the latest, “Victim Justice: A Paradigm Shift in Criminal Justice System in India”, [Thomson Reuters, 2016, Pages 205, Rs.695] has been well-received by academics and practitioners of law.

The book, co-authored by Shriya Gauba carries Forewords in the form of messages by Justice A.K. Sikri of the Supreme Court, Chief Justice G.Rohini and Justice Gita Mittal of the High Court of Delhi. Another message by Professor Upendra Baxi put the significance of the book succinctly: “Action ensuring modicum of justice to the victims of crime and ongoing flagrant abuse of power may no longer wait, save with a great cost of human suffering and rights, in the antechamber of a future history.”

Prof. Bajpai’s second book, a tome, also published in 2016, is Judgments That Shaped The Indian Jurisprudence: Supreme Court Rulings In Perspective (1950-2016), co-authored by Naman Mohnot (Thomson Reuters, Pages 1529, Rs.1895). The book, as the Preface claims, aims to provide readers with pertinent information on all aspects of law at one place, and to give them “a holistic insight into the subject”.

More than what the authors claim, it is the structure of the book, that is likely to amaze the readers. Part A of the book comprises articles by eminent practitioners of law on different aspects. Thus we get to read Justice Sikri on human dignity, Justice Arijit Pasayat on ragging, and Justice Mukul Mudgal on the rights of prison inmates.

Other useful chapters are on the Collegium system (by Justice Rajindar Sachar), Intellectual Property Law (Justice Prabha Sridevan), Mercy Jurisdiction (By Sidharth Luthra), Cyber Security (by Pavan Duggal) and Right to Information (By Shailesh Gandhi).

Part B of the book includes the landmark cases since 1950 and is conveniently divided into civil cases, constitution cases, and criminal cases, which are presented to the reader, in a friendly format, in four sections: facts, issue, ratio, and held.

In this interview with LIVELAW, Professor Bajpai answers specific questions about these two books, and about his future projects:

LIVE LAW: Can you explain to the readers the sub-title of your book, Victim Justice? What is the paradigm shift in criminal justice system in India?

G.S.BAJPAI: Titling a book with the expression ‘Victim justice’ is a thrilling proposition in the Indian context for two reasons: one, no book, to our best of the knowledge in India did so; second, it heralds the shifting of a paradigm bringing much needed rebalancing in the criminal justice system in India. Victim justice is an aspiration of a progressing society.

Until recently, the adversarial system of criminal justice, in most cases, was heavily loaded in favour of the accused. Resultantly, crime victims scarcely had a sense of belonging to this kind of system. The neglect, apathy and indifference of the laws and institutions only added to the plight of victims in the form of what is known as secondary victimization in victimology circles.

Legislative and judicial endeavours in recent times, in the world over, have brought about reforms in the criminal justice systems to bring the victim back to the centre-stage.

Though criminal law in India has seen many a path-breaking changes in the past few years, including the right to appeal against decision of the court in a criminal trial, such and other rights bestowed on the victims continue to be deficient, in as much as the law does not accord crucial participatory rights to the victims at pertinent stages in the criminal processes.

It is now universally acknowledged that succour to a victim would enhance victim satisfaction, and this can be achieved if measures are offered to afford, inter-alia, the right to depose before the court, dignified treatment and protection are internalized in the criminal procedure.

Despite the amendments, whereby, inter alia, the power to award compensation under the Indian procedure has been liberalized as a generic right for victims, the hiatus interse promise and delivery remains apparent.

Victim justice is the other side of criminal justice. This connotation is a response to the over emphasis of accused and criminal in the justice system. Victim justice is about the arrival of the victim to the core of criminal justice system. As is known, that victim, for several decades, continued to be the ‘forgotten entity’ and the institutions in criminal justice system have been overlooking crime victims.

The focus on victim promises considerable balance in the operation of criminal justice process by ensuring the rights, participation, protection and assistance to the victims of crime. It is therefore apparent that victim justice is an emerging ideology and a fresh outlook in the criminal process which allows the agencies in criminal justice to be more sensitive and caring about the person who suffered the brunt of the crime.

LIVELAW: Which theory of punishment you favour, and why?

G.S.BAJPAI : I am of the view that punishment must meet the larger objectives of social order and peace in the society. Currently, there is a trend towards over criminalization which is on account of a large number of penal law sanctioning a vast range of human behaviour. Criminologists are of the view that punishing people alone doesn’t serve any creative objective.

A reliance on retribution is not the only answer for peace and order in the society. All objectives of punishment must be proportionally present in the punishment choices. A uniform punishment to all kinds of criminal act is not desirable as drug offences, arm trafficking and offences like human trafficking may invite stern sanctions whereas delinquency and day to day criminal acts may require a distinct response.

I therefore think that restorative objective of punishment is a better option. Restorative justice tries to repair harm done and imposes accountability on the offender to repair the wrong done to the victim. I am of the firm view that it is high time to consider the civil dispute of minor nature which relate to family disputes, matrimonial, property disputes and land related matters which have a tendency to culminate into criminal acts.

It is therefore desirable to have strong disputes settlement mechanism as a part of district police functioning so that potentially criminal matters which are currently in the form of minor civil disputes could be effectively tackled. Preventive aspects of punishments theorization are in fact a highly neglected area which now needs attention.

LIVELAW: Chapter III of your book, Victim Justice, makes a comparative study of victim-oriented policies in select jurisdictions. Which one appeals to you and why?

G.S.BAJPAI: The present book carries a significant discussion on comparative description of victim oriented policies in many jurisdictions. Each country has its own peculiar characteristics. The countries like the U.S., Canada and Australia have been working very actively in bringing functional changes in the way criminal justice system operates. They have brought remarkable paradigm shift in streamlining the victim’s position in Criminal Justice System.

Remarkable amongst them is the system of Victim Impact Statement (VIS). Exclusive legislations for victims of crime have been passed in these countries which confer a range of rights and entitlements to the victims and also enable the participation of victim at the significant stages of trial process. Besides, the system allows the victim to be entitled for important services from the state-run agencies to alleviate his/her post victimization effects. Importantly, the victim activism has been made integral to the Criminal Justice System. In the U.K. a victim code has been set up which casts significant responsibilities and obligations to Criminal Justice System functionaries towards a crime victim.

LIVELAW: You have discussed the relevance of Victim Impact Statement (VIS) in arriving at just punishment for an accused. How far do you think the court can rely on it in individual cases?

G.S.BAJPAI: Victim Impact Statements (VIS) is a mechanism that allows the victim to present his/her statement of victimization before the court so as to make the judge understand the nature of suffering and the kind of response needed. VIS has been successfully working in many jurisdictions. It became a major vehicle of conveying the impact of victimization directly to the court in most objective manner. VIS has been a useful supporting tool to the judge in terms of taking important decisions like punishment or award of compensation. VIS is particularly significant in individual cases of victimization as victim is otherwise hardly heard as victim in the criminal process.

The constitutionality of VIS was debated in the US in Payne v. Tennessee and VIS was upheld as an instrument of victim participation rejecting the earlier positions in this regard. The Delhi High Court for the first time in Satya Prakash Vs. State invoked the discussion on impact of crime on the balancing of sentencing and compensation in this case. I think this is high time that the Indian courts must start experimenting with this idea of VIS to promote fair trial and fair play for both the parties who are entitled for equal treatment in the adversarial system of adjudication.

LIVELAW: When an accused in a case is acquitted because the prosecution is complicit and the victim is silenced through extra-legal means, can a public-spirited person without a locus, advance the interest of the victim by appealing? Can the Court come to the rescue of the victim in such cases? There have been cases in the Supreme Court, when such interventions through PILs have been looked at with suspicion by the Judges, and not entertained. What is your view on this?

G.S.BAJPAI: The idea of PIL in criminal cases is generally not entertained by the courts for various reasons. Especially in the individual cases of crime the thesis of PIL may not be very well fitting. However, the cases of wider social ramifications and consequences can be considered by the courts to the extent the public cause is successfully demonstrated. More pertinent is however the fact that there are many other pursuits which are not generally invoked in the event the acquittal on flimsy grounds. For instance, section 372 (proviso) in Cr.P.C gives a right of appeal to the victim of crime against acquittal, inadequate sentence and compensation order. It is generally seen this provision is rarely invoked. Similarly victim now has a right to engage a private lawyer to defend his case. Even this provision generally remains unexercised.   

LIVELAW: What, according to you, are the reasons for the lack of acceptability of plea bargaining in India among the litigants, despite its being legal?

G.S.BAJPAI: Prolonged litigation and not practices like pleas bargaining characterizes criminal justice system in India. Protracted trials serve various interests and hence it is allowed to continue. Plea Bargaining in India is yet to take off. Many factors can be attributed to the failures of plea bargaining in India. Plea Bargaining has not been properly institutionalized and the kind of training which the advocates require is completely missing. Besides, the litigants do not have sufficient understanding of this arrangement.

It is also found that Plea Bargaining contradicts the arrangement of compounding under section 320 of Cr.P.C where, if successfully compounded the case leads to acquittal. In the Plea Bargaining, even if it is successfully exercised, there are full chances that the accused will undergo reduced amount of punishment. Therefore the farmer is impacting the latter detrimentally.

LIVELAW: There is a view that for a sentencing Judge, to take into account the victims’ concerns, would result in the punishment being disproportionate to the crime. Do you disagree with this view, and if so, the reasons.

G.S.BAJPAI: I disagree with it. Attending the concerns of victim by the court can hardly be a disadvantage to the accused. Accused already have enough due process entitlements and protection at all stages of adjudication. Victim justice is meant to balance the interest of victim vis-à-vis accused to display a process of fair trial. It would rather be more appropriate to hear the victim at the stage of sentencing mandatorily to assess the mitigating and aggravating factors presented to the court for deciding the quantum of punishment to the accused.

In catena of cases in the U.S., the victim’s involvement has not been found to be adversely affecting the justice to the accused. In fact, involvement of the victim and mandatory hearing by the court (section 235(2) Cr.P.C) at this stage would make sentencing more inclusive and comprehensive. How can the important decisions as to punishment and other orders at the stage of sentencing could be fair without hearing both the parties in person? Through this work, I advocate that the section 235(2) Cr.P.C needs to be amended to make it mandatory for the judge to hear the victim along with the accused. Justice and not the punishment alone would then be the outcome.

LIVELAW: There have been cases of compounding in rape cases. Is it legal?

G.S.BAJPAI: Compounding in rape cases is not allowed in the Law. There may be however cases where the parties intend a compounding. The nature of gravity of offence bars compounding. The cases where compounding is possible with or without the permission of court is provided in the section 320 of Cr.P.C.

On the contrary, restorative justice, to a significant extent, may be possible in sexual offences. It’s basically about making the offender realise the harm done to the victim and persuading him to own the responsibility.

LIVELAW: Recently, the Supreme Court declined to grant relief by awarding compensation to those acquitted by it in the Akshardham case, although they underwent imprisonment for several years, before their appeals against their sentences were accepted by the Apex Court. Can the acquitted, but wrongly imprisoned, qualify as victims?

G.S.BAJPAI: Acquittals resulting on account of wrongful prosecution is increasingly becoming a common phenomenon. There is no clear policy in this country about compensation and rehabilitation of wrongfully prosecuted and acquitted persons. There are cases where the accused underwent decades of imprisonment as under trial and finally acquitted as innocent. Their trails of victimization include loss of precious years, social stigma and psychological consequences. The compensation in such cases is highly called for.

All the cases including Akshardham where the court exonerated the accused deserve to be given reasonable compensation as there are enough constitutional and due process justifications for the same. In fact the state must work out a comprehensive assistance scheme to the acquitted persons as the same is happening in many other jurisdictions.

LIVELAW: What is the state of the witness-protection measures in India? Has there been any effort to strengthen the protection of the witnesses and the victims during the trial and appeal stages?

G.S.BAJPAI: Witness – Victim protection in India largely remains a non-starter. In sporadic cases, some states have initiated witnesses protection so that they could freely depose before the court and don’t turn hostile.

For instance, at the initiative of the Delhi High Court a witness protection scheme is currently functioning which may be followed by other states. Similarly, victim compensation scheme as entailed in section 357A is inadequate as it doesn’t create obligations on the part of police, prosecution and court officials to the extent of required sensitivity and services.

In India there is a need for a separate legislation making a victim entitled for certain rights relating to protection, services and rehabilitation. This also requires the setting of a network of institutions on lines of National Organization for Victim Assistance (NOVA) in the U.S.A.

Through the theme of victim justice, I argue that there is an urgent need to pass a Victims of Crime Act to confer certain rights to the victims of crime, namely, right to be heard, right to due process, right to protection, right to privacy, right to participate in criminal justice process and right to assistance, compensation and rehabilitation. This also needs to be supported by a network of support institutions and manpower.

LIVELAW: In your other book on Judgments That Shaped Indian Jurisprudence, how many landmark judgments have been included, and what was your criterion for selection? Can you also tell us how a student or a practitioner can use this book effectively? What, according to you, are its highlights?

G.S.BAJPAI: As far as the other book on “Judgments that Shaped the Indian Jurisprudence” is concerned this work purports to be a quick reckoner to facilitate legal research by the students and practitioners. To the best of our information this kind of threefold structure dividing the work into articles, case brief and citation of the recent Supreme Court Judgments is not available.

This book consists of an ambitious collection of 260 landmark judgments on various fields of private and public laws. The criterion for selecting the judgments was based on the opinion of experts, researchers and leading books on the subject. The users of this collection can benefit in many ways. Consultation of landmark case laws is the most frequent requirement of the Students and Researchers. Such consultation, in turn, requires a quick view of the cardinal features of landmark judgments.

Section A of the book provides some insightful readings on various subjects touching the landmark cases written by some eminent experts. Section C is a unique collection of more than 2000 case citations in almost all fields of law about the recent Supreme Court judgments. This section is user-friendly and searchable through subjects and case citation, giving easy access to a range of important matters decided by the Apex Court.

This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.