The Forgotten Party: Victim Jurisprudence and the Unfinished Business of Criminal Justice

Open almost any criminal statute and you will find two parties: the State and the accused. The victim, the person to whom the harm actually happened, usually appears as a witness, a complainant or a statistic. Victimology, the study of victims, set out in the 1940s to correct that omission. Indian law has been catching up ever since, in fits and starts, and the work is not finished.

§ 1A short history of the missing party

The word “victimology” is associated with Benjamin Mendelsohn, and Hans von Hentig’s The Criminal and His Victim (1948) was an early landmark. The first generation of research was not always kind. Studies of “victim precipitation” asked what the victim had done to bring the harm upon themselves, a habit that still echoes in courtrooms and police stations. The second generation turned to rights. The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985)¹ set out access to justice, fair treatment, restitution, compensation and assistance as things victims are owed, not favours they may request.

In India, the Malimath Committee’s 2003 report² argued that the criminal process should give victims a real role and a right to compensation. Parliament acted in 2008, and the Bharatiya Nagarik Suraksha Sanhita, 2023 has largely carried those reforms forward.

§ 2What Indian law now gives the victim

• A definition. Since 2009 the Code of Criminal Procedure has defined a “victim” to include the person’s guardian or legal heir. The BNSS keeps the concept.
• A right to appeal. The proviso to Section 372 CrPC lets a victim appeal against an acquittal, conviction for a lesser offence or inadequate compensation. In Mallikarjun Kodagali³ the Supreme Court treated this as a right in its own name, not a favour that depends on the State’s decision to appeal.
• Compensation. Section 357 allows courts to order compensation, and in Ankush Shivaji Gaikwad⁴ the Court said they must consider doing so in every case. Section 357A, now Section 396 of the BNSS, requires state schemes for victims whose offenders are unknown or acquitted.
• Constitutional foundations. In Bodhisattwa Gautam⁵ and Delhi Domestic Working Women’s Forum⁶ the Court read compensation and rehabilitation for rape survivors into Article 21.
• Information and dignity. The BNSS requires police to update the informant or victim on the progress of an investigation within ninety days. Identity protection in sexual offences has been strengthened, and Nipun Saxena⁷ extended it and pushed for a national compensation scheme.

§ 3Where the promise runs out

On paper, this is a respectable list. In practice, three gaps recur. First, participation: the public prosecutor controls the case, and the victim’s views are often sought late or not at all. Second, compensation: schemes vary from state to state, awards can be modest, and the route to them can be long and unclear. Third, the experience of the process itself. Repeated retelling, delay and hostile cross-examination can cause what scholars call secondary victimisation: the court’s process wounds the person it exists to protect.

A justice system that asks victims to testify, but not to be heard, has solved only half the problem.

§ 4Victim-centred, not victim-driven

It would be a mistake to treat any of this as a case for private vengeance. The accused remains presumed innocent, the State prosecutes in the public interest, and punishment is not an instrument of the complainant’s wishes. The aim is a system that is victim-centred, in that it treats the victim as a person with legitimate interests, without becoming victim-driven in a way that undermines a fair trial. Restorative practices, where the parties consent and the offence permits, can sit alongside the trial and not replace it.

§ 5What a victim-centred process needs

1. Information. Tell victims, early and in plain language, what is happening in their case and what their rights are.
2. Participation. Let them be heard at key stages such as bail, plea and sentence through a victim impact statement or through counsel.
3. Protection. Safeguard identity, safety and dignity, including during cross-examination, with screens, video links and trained handling where appropriate.
4. Reparation. Make compensation timely and predictable, with interim relief available early for serious offences.
5. Support. Provide counselling, medical care and legal aid as part of the process, not an afterthought to it.

§ 6Compensation as acknowledgement

Compensation is often described as a price for harm. That is the wrong frame, because no sum can undo an injury. Its better meaning is acknowledgement: a public statement that the harm mattered and that the community will share its cost. Read that way, delay is itself a harm. A single window through the District Legal Services Authority, fixed timelines for decision and disbursal, and published data on how many claims are made and paid would turn a promise into a practice.

§ 7Conclusion

The victim was once the forgotten party of criminal justice. That is no longer strictly true, because the statutes and the case law now remember. The remaining task is to make the remembering real, so that the person who was harmed leaves the system better informed, better protected and better supported than they entered it.