Introducing Victim Impact Statement in India: Reconceptualizing Victim Status

DOI10.1177/2516606921991757
AuthorDevansh Dubey,Payas Jain
Publication Date01 Oct 2020
SubjectArticles
Introducing Victim
Impact Statement in
India: Reconceptualizing
Victim Status
Devansh Dubey1 and Payas Jain1
Abstract
The right to fair trial is inherent in the concept of due process of law, which now
forms part of Article 21 of Indian Constitution after the Maneka Gandhi judge-
ment. Pertinently attached with the same comes the responsibility of the criminal
system to treat victims with increased awareness and sensitivity. However, the
established convention shows that in planning and developing administration of
criminal justice, proper attention is not given to the victims of crime in achieving
goals of criminal justice; the major cause of it being that a victim is heard only as
a witness not as a victim. A credible response to the said issue has emerged in
the form of victim impact statement (VIS) in the modern legal system across the
world. With that being said, the researchers through this article try to deduce the
need for incorporating a VIS in India through the various jurisprudential under-
standings of what it means to be a victim, including the gap between the subjec-
tive experience of the sufferer and the interpretation of the same by others, and
what restorative justice would mean to heal a victim. Establishing upon the same
premise of victim status, the researchers try to suggest that the introduction of
VIS, with the primary purpose of it being a therapeutic tool and not an instru-
ment of changing the course of justice, will serve to make us reconsider our
contours of a ‘victim’.
Keywords
Victim, victim impact statement, crime, justice, law
Article
Journal of Victimology
and Victim Justice
3(2) 147–163, 2020
2021 National Law
Universit y Delhi
Reprints and permissions:
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DOI: 10.1177/2516606921991757
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1 Institute of Law, Nirma University, Ahmedabad, Gujarat, India.
Corresponding author:
Payas Jain, Institute of Law, Nirma University, Ahmedabad, Gujarat 382481, India.
E-mail: payasjain101@gmail.com
148 Journal of Victimology and Victim Justice 3(2)
Introduction
For too long, the victims of crime have been the forgotten persons of our criminal
justice system. Rarely do we give victims the help they need or the attention they
deserve. Yet the protection of our citizens—to guard them from becoming victims—is
the primary purpose of our penal laws. Thus, each new victim personally represents an
instance in which our system has failed to prevent crime. Lack of concern for victims
compounds that failure.
—President Ronald W. Reagan
The right to fair trial is one of the fundamental guarantees of human rights and
rule of law, aimed at ensuring administration of justice. Every person charged
with a crime has an absolute and fundamental right to a fair and impartial trial.2
Regardless of his or her apparent guilt,3 or the magnitude of the crimes he or she
may have committed,4 a fair trial guarantee is in no degree impaired or diminished
by the strength or compelling character of the evidence against the accused.5 It has
been said that as, applied to a criminal trial, denial of due process is the failure to
observe that fundamental fairness which is essential to the very concept of justice.6
Implied with the same comes the sequitur that principles of rule of law and due
process are closely linked with human rights protection.7
On the aforesaid point, it won’t be wrong to say that the right to fair trial is
inherent in the concept of due process of law.8 After the Maneka Gandhi
judgement,9 due process of law is now a part of Article 21 of Indian Constitution.
Indeed, it is the duty of such other branches of government to facilitate the
administration of justice by the judiciary.10 However, in planning and developing
administration of criminal justice, the trends have gone a long way to show that
proper attention is not given to the victims of crime in achieving goals of criminal
justice. There is a remarkable consensus that our criminal justice system, which in
a way consists only of police, prosecutors, courts and prison, has been performing
badly in dealing with criminal law since its inception.
In order to come out with an answer to the same, legal scholars have recognized
the need to reform criminal law system so as to make it cater to victims with an
increased awareness and sensitivity. Following the path to the solution of the said
problem, one of the most pertinent concepts that have emerged in the modern
legal system across the globe is that of a victim impact statement (VIS), which has
been adopted by many countries owing to the long prevalent trend of the passive
participation of the victim in the process of the trial.
2 Holbrook v. Flynn, 475 U.S. 560 (1986).
3 Pruett v. Norris, 153 F.3d 579 (1998).
4 Thompson v. State, 690 N.E. 2d 224 (1997).
5 People v. Rega, 207 Ill Dec 674 (1999).
6 California v. Trombetta, 467, U.S. 479 (1984).
7 Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158.
8 The State of Assam v. Moslem Mondal, 2013 (2) AKR 82.
9 Maneka Gandhi v. Union of India, 1978 SCR (2) 621.
10 State ex rel. Foster v. Board of County Com’rs of Lucas County, 242 N.E. 2d 884 (1968).

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