The Role Of Victim Impact Statements In The Trial Process

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Category: General Law

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THE ROLE OF VICTIM IMPACT STATEMENTS IN THE

TRIAL PROCESS

Ishwar Kapil, CT University

ABSTRACT

The role of the victim impact statements (VIS) during the trial process in India is an emerging trend within the criminal justice system. However, to this date, there is no formal provision within the Indian legal framework that mandates the filing of such statements, though a gradual trend of consciousness is being witnessed, especially in serious crimes like sexual assault and murder. Victim impact statements enable victims to describe their emotional, psychological, and financial impact of the crime in question which can influence the sentencing decision. In this context, this paper aims at discussing the history of victim rights in India, legal framework governing VIS in India, problems arising out of their implementation, and presenting a comparative perspective about other countries, that is the United States of America and the United Kingdom.

The paper would hence advise for the formal integration of VIS in India's criminal justice system but this would be done with a consideration of balance in regard to the suffering of the victim and rights of the accused. Keywords: Victim Impact Statements, Indian Criminal Justice System, Sentencing, Legal Framework, Victim’s Rights

1 INTRODUCTION

Victim impact statements are one of the most significant evolutions of the criminal justice system and represent a critical element in advocating for both the account of the victim in the trial process and also making the voices of victims heard when judgments are being delivered. Traditionally, criminal trials have focused more on establishing whether the accused is either guilty or innocent and adequate punishment while forgetting about the feelings and experiences of the victim. However, with the passage of time, a more victim-oriented approach has emerged that recognizes the vital role played by victims in a trial process and their voices should not be muzzled. In India, victim impact statements have assumed importance as an instrument that bridges the gap between the rights of an accused and the acknowledgment of the suffering endured by a victim.

1 A victim impact statement is a written or oral declaration in court by the victims to depict how the crime has affected them personally - be it physically, emotionally, or financially. It allows a victim to write down how the offense has affected his or her life so the court can have a more meaningful understanding of the crime's consequences beyond what is presented in factual testimony or evidence. This approach recognises that crime can have an intense and varied impact on victims beyond what may be expressed through objective evidence. The inclusion of VIS into the trial process helps provide for a more all-rounded view of the offense, thus assisting in tailoring a just and proportionate sentence to the court. 2 Legislative provisions and judicial pronouncements have highlighted the importance of victim impact statements in India.

There is no specific statutory mandate exclusively devoted to victim impact statements. Available legal frameworks under Bharatiya Nyaya Sanhita, 2023 and Bharatiya Nagarik Suraksha Sanhita, 2023 have provisions that give way for victim involvement in the justice process. With the entry of victim-oriented principles into Indian jurisprudence, it has now become possible to integrate VIS in the judicial process in an effective manner. The visions for the justice system have gained momentum with landmark judgments delivered by the Supreme Court and varied High Courts that made VIS relevant and had to 1 Available at: https://www. ijlra. com/paperdetails. php? isuurl=victim-participation-in-criminal-justicesystemstatus-quo-and-the-way-forward-by-debalina-roy (last visited November 08, 2024).

2 Priyanka Prasanth, “The importance of victim impact statements in criminal law” Bar and Bench - Indian Legal news, 21 October 2023. accept the need for a balanced justice outcome that would not overlook the victim's outlook either. 3 Victim impact statements are pivotal in ascertaining the scale of punitive action. Exposing the human experience of victims provides the courts with a crystal clear view of the scale of suffering that ought to be inflicted because of the crime under deliberation. Humanizing the trial, justice is not an abstract concept but one that accords recognition to the suffering by real people. Also, VIS would influence another side of the trial process, such as parole and remission decisions, in which the perspective of the victim would be considered in terms of early release or rehabilitation for the convict.

4 Although obvious benefits accrue from the use of VIS in the Indian trial process, their use is never without controversy. Critics have argued that admitting the use of emotional bias that may detract from impartial judicial decision-making undermines, to an extent, the very balance between the rights of the victim and that of the accused to a fair trial. The possibility of doing this on emotional grounds than factual poses a challenge that must, however, be approached with caution. With all this said, although VIS can further strengthen the voice of the victim in the judicial process, there must be safeguards to prevent their introduction from compromising the integrity of the trial. On this aspect, the victim impact statements are essential to be read during trial as victims are given the chance to voice the actual impact of the crime faced against them.

This is in consistency with the general aim of justice outcomes as they are supposed to be fair as well as balanced in terms of indicating the interest of all parties involved. However, the kind of legislative and procedural amendments needed to weigh sympathy towards victims against rights of the accused would be sufficient to see that the promise of VIS is not a route of introducing yet another tool for biasing judicial outcomes. Victim impact statements do present a new facet of justice systems in which the humanity of victims and that of the defendants are equal. 5

3 Ibid.

4 “Unravelling the Question of Victim Impact Statements at Sentencing,” P39A Criminal Law Blog, 2022

available at: https://p39ablog.com/2022/03/unravelling-the-question-ofvictim-impact-statements-at-sentencing/ (last visited November 08, 2024). 5 Devansh Dubey and Payas Jain, “Introducing Victim Impact Statement in India: Reconceptualizing Victim Status,” 3 Journal of Victimology and Victim Justice 147–63 (2020).

1.1. Objectives

of the Study

1. To Analyze the Legal Framework and Implementation of Victim Impact Statements in

India.

2. To Understand the Influence of Victim Impact Statements on Sentencing and Trial

Outcomes.

3. To Identify Challenges and Propose Recommendations for the Effective Use of Victim

Impact Statements

1.2. Research Methodology

The study uses a primary doctrinal approach to research methodology. A doctrinal approach is basically a critique and examination of legal principles, statutes, judicial decisions, and other writings on the subject matter relevant to understanding the position of VIS in the Indian legal system. It would be much about analyzing the original and secondary sources of law, such as the Constitution of India, Bharatiya Nagarik Suraksha Sanhita, 2023, judgments, and research articles that discuss the evolution of VIS and its use in the criminal jurisprudence. Through case-law, the research will be able to infer what exactly VIS are and how they are applied and interpreted in practice through provisions of statutes.

Doctrinal research approach also helps evaluate critically the prevailing legal norms and it's possible to identify areas where gaps or inconsistencies exist, and maybe areas that require reform. This also makes the conclusions drawn on a very thorough review of the relevant legal documents and judicial practices of the country concerned.

2. RELATED WORK

1.

Kunst,

M., de Groot, G., Meester, J., & van Doorn, J.

(2021). https://www. sciencedirect. com/science/article/pii/S1359178920302160 6This paper elaborates upon the increasing use of victim impact statements during the sentencing stage of a criminal trial in different jurisdictions, such as India. The authors 6 Kunst, M. , de Groot, G. , Meester, J. , & van Doorn, J. (2021). The impact of victim impact statements on legal decisions in criminal proceedings: A systematic review of the literature across jurisdictions and decision types. considered comparative effectiveness of VIS in the United States and the United Kingdom and assess how such practices might be adapted to the Indian legal system. Some of these would include: the accused gaining an advantage from a comprehensive appreciation that might be provided to the court about the emotional, psychological, and financial impact of crime on the victim.

The article confronts the difficulties in using VIS in India, which effectively identifies the fact that the process is biased with emotions, the issue of fairness, and how the tales of the victim can influence judicial verdicts. The paper concludes with a cautious and structured plan for VIS incorporation into the Indian criminal justice system. 2. S. , Darshan (2022), https://heinonline. org/holcgibin/get_pdf. cgi? handle=hein. journals/injloitd2&section=2207 The changing dynamics of rights in victims in India are researched through this article, which highlights this development with regard to the legal status granted to voice for victims in criminal trials.

It traces the legal evolution of victim protection laws in India back to one landmark following significant incidents of sexual violence, like the setting up of the Victim Compensation Scheme and the Criminal Law (Amendment) Act in 2013. The author, therefore, evaluated how the Indian legal system has gradually recognized the rights of victims, especially as it relates to restitution and compensation, in contrast with international norms. One needful aspect arising from this article is further reforms to prevent victims' silencing within judicial processes and to take into account their experiences while sentencing.

3. Singh, A.S. (2022). https://journals.sagepub.com/doi/abs/10.1177/251660692211171868

An author article brought forth the practical challenges that may arise in the process of giving effect to victim impact statements in India. The paper discussed what little framework exists in India's criminal justice system in regards to collecting, submitting and evaluating VIS based on existing legal provisions. This identifies one concern that is the determination of the victim's statement might be skewed in favor of the defendant, practical challenges in ensuring the Aggression and violent behavior, 56, 101512. https://www. sciencedirect. com/science/article/pii/S1359178920302160 7 S. , Darshan. (2022). Victim Rights under Criminal Justice System in India-An Analysis. Part 1 Indian J. Integrated Rsch. L. , 2, 1. https://heinonline. org/hol-cgibin/get_pdf. cgi? handle=hein. journals/injloitd2&section=220 8 Singh, A. S. (2022).

Procedural limitations of victim impact statement in India: a critical analysis. Journal of Victimology and Victim Justice, 5(1), 100-113. https://journals. sagepub. com/doi/abs/10. 1177/25166069221117 victims can effectively testify, and the need for special training for judges and prosecutors to understand the impact of a crime on a victim. The author also discussed cultural and societal elements involved that might hinder the embracing of VIS, such as victim reluctance to speak about their trauma in a court setting. The paper even provides prescriptions for ways to overcome these challenges. For example, it suggests the standardization of a procedure for VIS and enhanced victim support at all stages of the judicial process. 4. Gull, H.

(2022). https://heinonline. org/holcgibin/get_pdf. cgi? handle=hein. journals/ijlmhs18&section=669 It is an article by authors campaigning for including Victim Impact Statements in the judicial decision-making process in India so that there might be a change in the sentencing process in India. Here, the author pleaded that there is a failure on the part of sentencing in India to address at least consider emotional and personal impact resulting from the crime for victims as well as their families. If VIS were to be included, it would understand just how much suffering resulted from the crime in question and then make much more personalized and appropriate sentences. The author compares sentences across jurisdictions, such as the United States, where VIS plays a significant role, and suggests ways these practices could be moulded into Indian legal traditions.

He makes a case for changing the law so that VIS could be integrated in formal hearings in sentencing, ensuring that victims have their say in the determining of penalties. 5. Roy, A.

(2023). https://heinonline. org/holcgibin/get_pdf. cgi? handle=hein. journals/injlolw10&section=39410 This article presented the in-depth study of victimology in the context of Indian law, with particular concentration on how criminal law interlinked with the rights of the victim. The paper was an analysis of how the Indian legal system has fared in time regarding addressing the needs of victims. The author has critically analysed all extant victim compensation, protection, and participation in legal proceedings of India, stating that although there is some amount of legal protection available to the victims, India lags far behind in providing the voice of victims during the process of sentencing. The article reviews the benefits conferred through the introduction 9 Gull, H. (2022). Crime Victims and Criminal Justice System: A Comparative Analysis. Issue 4 Int'l JL Mgmt. & Human.

, 5,762. https://heinonline. org/hol-cgi-bin/get_pdf. cgi? handle=hein. journals/ijlmhs18&section=66 10 Roy, A. (2023). Understanding of Victimology on the Lens of Criminal Law. Issue 1 Indian JL & Legal Rsch. , 5, 1. https://heinonline. org/hol-cgi-bin/get_pdf. cgi? handle=hein. journals/injlolw10&section=394 of victim impact statements at trial, keeping in mind that such statements will greatly enrich judicial understanding of crime's impact and lead to a wider scope of justice.

6. Sharma, A. (2024). https://books.google.com/books?hl=en&lr=&id=2M8VEQA

AQBAJ&oi=fnd&pg=PP9&dq=Victim+Impact+Statements+in+International+Jurisdict ions:+Lessons+for+India&ots=HEjMqchsmQ&sig=ETY7QmnxDXasMv3EnIXHNK- Uc0Q11 This paper does an author article focused on a comparative analysis of victim impact statements across international jurisdictions, with special attention paid to both the United States and the United Kingdom. In it, the paper looks at how these countries have incorporated VIS into their legal systems and presents evaluations of the advantages they have enjoyed as well as disadvantages they have faced. The writer discusses the procedural mechanisms applied in these jurisdictions to ensure that victim statements are given due weight in the sentencing decision while protecting the rights of the accused.

Drawing lessons for India, the article says while VIS can play a very valuable role in Indian jurisprudence, careful consideration must be given to the procedural safeguards so that bias is not conceded and fairness is ensured.

3. HISTORICAL

BACKGROUND

3.1. Evolution of Victim Rights in India

Victim rights in India have developed gradually through various stages of the Indian Criminal Justice System. In its early periods, it focused mainly on the victim when the rights and welfare of the accused and the state were much a priority. Victim's positions have been treated more or less as passive participants in the trial process. They mostly received exclusion from the trial after their testimonies were taken. In recent years, though, there has surfaced this growing appreciation that justice is partial without it redressing the wrong done to the victims.12 11 Sharma, A. (2024). Implementation of Rights for Crime Victims in Theory and Practice: Lessons from India. Taylor & Francis. https://books.google.com/books?hl=en&lr=&id=2M8VEQAAQBAJ&oi=fnd&pg=PP9&dq=Victim+Impact+Sta tements+in+International+Jurisdictions:+Lessons+for+India&ots=HEjMqchs mQ&sig=ETY7QmnxDXasMv3EnIXHNK-Uc0Q

12 “Victim Rights in India: Is the Focus of the Criminal Justice

System Shifting from the Accused to the Victim?,” International Journal of Law Management & Humanities, 2021 available at: https://ijlmh.com/paper/victim-rights-in-india-isthe-focus-of-the-criminal-justice-systemshifting-from-theaccused-to-the-victim/ (last visited November 09, 2024).

It is from this stage that the shift towards the recognition of the victim's rights gained its momentum on the international platform in the post 1980s scenario. International human rights frameworks thus emerged as a reason for this change. It was after the adoption of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) that protecting dignity and effective participation within the judicial process came forward as a key premise for victims. This recognition led to several reforms in India, too, in the areas of victim compensation, witness protection, and the right to be heard at sentencing.

Some of the important landmarks in the journey of victims' rights developments were such as the BNSS amendment to the Criminal Procedure Code that came into effect in 2008-the most significant comprehensive approach towards participation of victims in criminal trials. 13

3.2. Legislative and Judicial Milestones Related to Victim Impact Statements

Victim impact statements are the newest developments in the legal scenario of India, as they are yet to be fully integrated into the processes of the law. A few legislative and judicial developments have paved the way for the consideration of such statements in criminal trials in India. Legislative Milestones: Bharatiya Nagarik Suraksha Sanhita, 2023: The BNSS had initially not made any provision of victim impact statements. However, the recent amendment has acted particularly to enhance a role of the victim into judicial process. According to Section 396 of the BNSS, provision for compensation payment to the victim is made, because the Law accepts the truth that in many instances, it is only through restitution that a victim can receive justice from criminal activities. 14 The NALSA Act 1987: It had the establishment of a scheme providing compensation to victims of crime.

This was also the beginning of the precedents for victim-centric legal provisions. 15

13 Ibid.

14 “The Bharatiya Nagarik Suraksha Sanhita, 2023,” PRS Legislative Research available at:

https://prsindia.org/billtrack/the-bharatiya-nagarik-surakshasanhita-2023 (last visited November 09, 2024).

15 “NALSA’s Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes - 2018,”

National Legal Services Authority!, 2019 available at: https://nalsa.gov.in/services/victim-compensation/nalsa- Protection of Children from Sexual Offences (POCSO) Act 2012: The legislation includes provisions for allowing the voice of minors and other victims to be heard in legal proceedingsan effort in step with the wider campaign on rights for victims. These developments point to the dawning of a more victim centric justice system in India, where the rights of victims are starting to become the central idea in the discourse of jurisprudence. Even though victim impact statements are still emerging, this type of landmark legislative and judicial reforms indicates that overall there is a shift toward victim-centric practice in the trial process.

4 LEGAL FRAMEWORK

GOVERNING VICTIM IMPACT STATEMENTS IN INDIA VIS is not discussed in the Bharatiya Nyaya Sanhita, 2023 as it is still focused on defining crime and the punishment for crimes. However, indirect influence on the treatment of victims in criminal justice could be taken from various provisions of the BNS. Sections narrating the punishments in relation to the offense committed, like murder, rape, and grievous bodily harm, show the gravity of the offense and the injury to the victim, giving a background against which relevance during sentencing of VIS makes sense. 16 Indirectly supportive of the concept that courts should take into account the harm caused to the to the victim in cases where there is personal injury or property damage.

Though it is more focused on monetary relief, it shows a recognition of victim harm in the process, which opens up ways for the consideration of victim impact statements in determinations. 17 The BNS has focused more on the harm and result of criminal actions that are exposed by VIS because it will give a legal framework to the consideration of suffering of the victims themselves. However, there lacks a more explicit reference to the specific role of victim statements in determining the process of criminal justice in the BNS. 18 scompensation-scheme-for-women-victims-survivors-of-sexualassault-other-crimes---2018 (last visited November 09, 2024).

16 “The Bharatiya Nyaya Sanhita, 2023,” PRS Legislative Research available at:

https://prsindia.org/billtrack/thebharatiya-nyaya-sanhita-2023 (last visited November 09, 2024). 17 Manupatra, “Articles – Manupatra” available at:https://articles.manupatra.com/article-details/Compensationto-victims-under-Indian-criminal-justice-system (last visited November 14, 2024). 18 Editor, “Key Highlights of the three new criminal laws introduced in 2023” SCC Times, 2023 available at:

4.2. Provisions under Bharatiya Nagarik Suraksha Sanhita, 2023

The BNSS has more relevant and direct provisions with regard to the participation of victims in the trial process, including provisions laying down groundwork for the acceptance of victim impact statements. Even though the BNSS is not mentioned with regard to victim impact statements, it includes a number of key provisions which would provide strength to the position of the victim in the criminal justice system. 19 Section 396 (2023 amendment): This is the provision of BNSS regarding the concept of victim compensation and enlists the scheme for giving relief to victims against crimes. That is, the victim cannot be only a participant but also entitled to restitution for the harm resulting from the offence. Though it mainly deals with compensation, it indirectly endorses the notion of gauging the victim's experience and influence in the court process.

20 Section 485: This section enables the consideration of the victim's statement when deciding whether or not to grant parole or remission. It cannot be said that this has a direct relationship with victim impact statements in sentencing, although it does reflect the broader context within which victims' views are increasingly incorporated into the judicial process. Section 338: The victim and his representative must also be heard in serious offenses. Though this is more about the right of the victim to be present and involved in the case, it is a basis on which aspects relating to victim input can be established in the process of judgments. 21 These provisions help ensure that victims have a more active role in the criminal justice process, thus providing a framework for the possible introduction of victim impact statements in sentencing.

These provisions enact a legal recognition of the rights of victims. This, in turn, forms the basis for the consideration of victim impact statements within the criminal justice process. The status https://www. scconline. com/blog/post/2023/12/31/key-highlights-of-the-three-new-criminal-laws-introduced-in- 2023/ (last visited November 09, 2024). 19 PTI, “BNSS makes it hearing of victims mandatory before withdrawal of case” Deccan Herald, 1 July 2024.

20 Chintan Shah, “How to Apply for Victim Compensation Scheme Under BNSS 2023” Bharat Law AI, 2024

available at: https://www.bharatlaw.ai/post/how-to-apply-for-victimcompensation-scheme-under-bnss-2023 (last visited November 10, 2024). 21 EDITORIAL BOARD, “The victim has the right to participate in every stage of the trial from investigation to the culmination of the trial in appeal or revision.” CaseMine, 11 July 2022. in the role of the victim can be seen to shift within the legal framework of India; judiciary and legislative reforms continue to move towards greater justice as centered around the victim.22 5.

COMPARATIVE

ANALYSIS

5.1. Victim Impact Statements in Other Jurisdictions (e.g., United States, United

Kingdom) Victim impact statements play a crucial role in many countries' criminal justice system, especially during the sentencing process. In the United States, the most significant jurisdictions where VIS is now incorporated into their respective legal procedures are found here. In the U. S. , it is already in the jurisprudence and met with uniform judicial recognition by the Supreme Court that victims are entitled to submit impact statements at the time of sentencing. The Victim and Witness Protection Act of 1982 also allows the victims to present written or oral statements to the court about the effects they have experienced due to the crime in relation to emotional shock, physical impact, or financial difficulties. The statements are utilized by the judges to impose appropriate sentences on culprits. Even parole decisions or sentences will sometimes be influenced by VIS.

These, along with many such legislative acts, include the Crime Victims' Rights Act of 2004 that entitles a victim to be brought forward in the court and present his feelings before the sentencing, hence better orienting the role of a victim in the judicial process. 23 In Britain, the application and integration of victim impact statements have been more structured and included as part of the framework for sentencing by the Criminal Justice Act

2003. The Act permits judges to consider the statement of the victim when deciding to give

stiffer sentences. The UK has also established the Victim Personal Statement (VPS) that allows the victim to narrate how the crime has affected them in both physical and emotional terms. The VPS is considered at the time of sentencing; however, its adoption is not legally binding. Introducing the Victim Impact Statement Scheme combines the results of the court's verdict 22 Priyanka Prasanth, “The importance of victim impact statements in criminal law” Bar and Bench - Indian Legal news, 21 October 2023. 23 Marleen Kragting et al., “Understanding the Relation Between Agency and Communion and Victim Impact Statements,” 4 International Criminology 66–78 (2024). with regard to the victim's view as well, thereby balancing the rights of the accused.24

5.2. Lessons India Can Learn from International Practices

One of the international practices from which Indian judiciary can learn a lot about victim impact statements is formal integration of VIS into the judicial process where victims are certainly heard; their sufferings are understood and considered within the judicial process. One such power given to a victim so that he or she can be an active participant in the process of justice, rather than a mere passive bystander, is one. The legal body of India could thus have a structured approach similar to that as discussed above, where victims not only have the opportunity to be heard while sentencing but also are given a chance to express the emotional, financial, and social effects of such crime. The standard and regularized application of VIS, like the one in place in the United States and the United Kingdom, ensures that the application of the principles of sentencing is uniform.

If the court were to consider VIS uniformly, then the sentence would be indicated by it; thereby mirroring the seriousness of the injury and at the same time transmitting clarity in judicial decision-making. The guidelines in India regarding the regulation of how VIS are made and applied could ensure reduction of inconsistencies between courts. Beyond that, the formal acknowledgment of victims' rights in these countries might even serve to guide India in developing legislative provisions pertaining to victim impact statements more holistically and ensuring that the voice of the victims is heard without the violation of the accused's rights to a fair trial. 25 24 Julian & V. Roberts, “Listening to the Crime Victim: Evaluating Victim Input at Sentencing and Parole,” 38 Crime and Justice 347–412 (2009).

25 Devansh Dubey and Payas Jain, “Introducing Victim Impact Statement in India: Reconceptualizing Victim Status,” 3 Journal of Victimology and Victim Justice 147–63 (2020).

Table: Key Jurisdictions and Their Provisions for Victim Impact Statements Country Legislation/Provisions Role of Victim Impact Statements United States Victim and Witness Protection Act, Crime Victims' Rights Act VIS considered during sentencing and parole (2004) hearings. United Kingdom Criminal Justice Act 2003,Victim VPS considered during sentencing, Personal Statement Scheme reflects the victim’s harm. Australia Victims’ Rights Act, Sentencing VIS used to highlight emotional and financial impacts Act 1991 on victims. New Zealand Victims’ Rights Act 2002 Victim statements considered during sentencing.

6 CHALLENGES

AND CRITICISMS

6.1. Potential Bias and Its Effect on Judicial Impartiality

One of the very major issues about victim impact statements in legal proceedings, however, is bias. Victim statements, as those usually filed with emotional language, create an emotional atmosphere that may likely influence the decision of the judge in sentencing a defendant. There is an expectation of impartiality from the part of judges, and although it is possible for them to show sensitivity concerning the victim's suffering, emotional statements may unduly determine the outcome of the case. This may lead to excessively harsh sentences based more on emotional appeals than on the facts of a case. To this effect, courts must design guidelines so that VIS are considered within a greater and objective discernment and not overlay the legal principles guiding sentencing.26

6.2. Concerns regarding Victims’ Rights and the Accused’s Rights

While the introduction of victim impact statements has been seen as the step forward to recognize the role of the victim in the process of justice, it casts concerns also about balancing the rights between victims and those of the accused. A fair right to a trial is the foundation of criminal justice, and the inclusion of emotional victim statements would create the risk of prejudice to an accused person. Victim's testimony would easily influence the jury or the judge's mind to give a more sympathetic judgment than the guilt would demand for the crime. For this reason, proper precautions need to be in place so that a fair trial is not threatened for the defendant.27

6.3. Practical Challenges in Implementing Victim Impact Statements

The practicality of victim impact statements in India is contentious. Probably, one of the main issues here is a standardized process for submission as well as review of VIS. Though a number of courts may accept VIS, there is no uniform protocol regarding its structure or its integration into sentencing. A third challenge is that there are not enough sensitizations and trainings conducted by legal practitioners on the appropriate use and interpretation of VIS. The statements made by the victims also have a tendency to be emotional calls for help that require special training for judges and practitioners on how to evaluate them without being influenced. There is also the issue of ensuring VIS is not then a vehicle for emotional blackmail or abuse. This means that there is a need to have safeguards and regulations in place to ensure their just application.

28 These challenges point to the challenges of inducting victim impact statements into India's legal framework. However, despite the difficulties presented by these challenges, there is a significant benefit that can be reaped in making victims an integral part of the judicial process and, with the right checks and balances, can certainly be an important tool for furthering the 26 A. Sanders et al. , “Victim impact statements: Don’t work, can’t work” Sweet and Maxwell, 2001 available at: https://www. researchgate. net/publication/288293051_Victim_impact_statements_Don’t_work_can’t_work (last visited November 12, 2024). 27 Priyanka Prasanth, “The importance of victim impact statements in criminal law” Bar and Bench - Indian Legal news, 21 October 2023. 28 Sashwat Gupta, “Victim Impact Statement: Relevance in the Indian Criminal Justice System” available at: https://papers. ssrn.

com/sol3/papers. cfm? abstract_id=4810216 (last visited November 12, 2024). contours of a more inclusive and victim-centered justice.

7. JUDICIAL INTERPRETATION

Emphasizing that a statement recorded under Section 164 is not substantive evidence, the Hon'ble Apex Court in State of Rajasthan v. Kartar Singh29 reiterated that an important formal statement taken before a competent authority forms part, but evidence produced before the trial court and recorded becomes evidence. That said, however, it may be resorted to also for purposes of contradiction under Section 145 of the Bharatiya Sakshya Adhiniyam, 2023, or for corroboration of the witness who made such a statement. Budai v. State of Orissa30 In this case it was further clarified as to why statements under Section 164 should be allowed in the court, as those statements can be cross-examined of the witness who produced them in court and used for impeachment purposes for his testimonial credibility.

Importantly, the judgment drew attention to the fact that such statements could be admitted without compelling the magistrate, who recorded it, to come to the court for crossexamination. This reduces the procedural complexity while allowing flexibility in their use. In the Ramesh Singh v. State of A. P31. Case, it further held that the Supreme Court made it very clear that it was not permissible to brand a witness hostile merely because his statement was under Section 164 BNSS. Such statements carry cautionary value, but merely because they do not necessarily render the witness unreliable, they do not become inadmissible merely on the ground that the witness is speaking upon some record or document. Once there is other evidence to support what he or she says, the witness's statement can be used efficaciously.

This serves to preserve testimony integrity by witnesses and dispel dismissal on the basis of method alone. In Ramanand Pandey v. State32, this is the Bombay High Court case, where a witness retracted what he stated under Section 164. The Court laid down that such a statement cannot provide an exclusive basis for conviction, and the requirement of this is in order to maintain the integrity of trials, as no one should be penalized unduly for their statements made.

29 State of Rajasthan v. Kartar Singh, MANU/SC/0198/1970

30 Budai v. State of Orissa, MANU/OR/0337/2009

31 Ramesh Singh v. State of AP, MANU/SC/0278/2004

32 Ramanand Pandey v. State, MANU/MH/0376/2007

In Santosh Prasad v. State of Bihar33, the Supreme Court tackled the absolutely critical issue of corroboration of a victim's statement in cases of severe allegations like rape. Citing this necessity, this court also reflected upon the rights of the accused and trauma suffered because of such crimes. As the Court accepted the fact that rape is one of the most horrible crimes that ultimately causes serious pain and humiliation to the victim, the Court gave emphasis to the fact that justice should also be maintained on the side of the accused. This case further consolidated the reality that false accusations of rape can lead to serious consequences for the accused too, and hence, appropriate protection must be provided to them against such probable lies. In Karnel Singh v. State of M. P.

34, it is on an issue of great importance with respect to the treatment that should be accorded the testimony of a victim in sexual assault cases, that the Supreme Court observed: "It can hardly be doubted that a woman who has become a victim of sexual assault is certainly not the criminal; she is the victim of another person's lust. And hence her testimony should not attract the same level of suspicion as that of an accomplice. ". An accomplice is defined as a person involved in committing a crime whose testimony generally lacks credibility unless corroborated. A raped victim should not be included in the same category as an accomplice since he or she is the victim of such an offense.

8 CONCLUSION

The Indian criminal justice process is still evolving with the understanding in a trial process about consideration of the victim impact statement. Even though Indian jurisprudence has not been fully formalized like some other jurisdictions, the need for incorporation of the victim's perspective in the process of judicial endeavour is still considered as of great importance. Victim impact statements provide the courts with this insight into the emotional, psychological, and financial costs of crime to victims. They can influence how the judge sentences the perpetrator. With proper application, victim impact statements allow the judiciary to pass sentences that not only reflect the severity of the crime but also the actual harm they have caused to a victim, their family, and community. In India, the traditional approach of criminal justice was offender and offense centric. Victims

33 Santosh Prasad v State of Bihar, MANU/SC/0192/2020

34 Karnel Singh v. State of M.P., MANU/SC/0497/1995

have often played a passive role in these processes. However, in the recent past, there have been increasing concerns being voiced to focus more on vindicating the voice of victims in the judicial process. Although Bharatiya Nagarik Suraksha Sanhita, 2023 accommodates the right of victims to be heard in the form of witness testifying of their testimony against the defendant, there is no particular provision requiring such victim impact statements to be submitted at the time of trial or sentencing. Although this is so, there are indications that victims' voices also carry a lot of weight, especially in egregious crimes like rape and murder. In such crimes, influence over the victim is pretty obvious and palpable.

Such incorporation of victim impact statements into Indian law would promote the role of victims in the criminal justice process, and most importantly, would enhance the balance of sentencing through a just approach. In addition, a victim's statement can provide the court with crucial insights into the personal consequences of the crime, be it emotional, physical, or longterm financial or social repercussions that may arise. Such statements can allow the court to tailor the appropriate sentence by highlighting how grave the crime is to the victim. Although victim impact statements often generate controversies concerning the impact of emotional judgments, there is also a question about the fairness brought by their use in judgements. Underlying the final suggestion is the problem that victim impact statements raise with regard to the threat to the rights of defendants.

Victim suffering should indeed be recognized, but the rights of the accused should not be put at risk by emotional appeals. Crassly, the victim's statement should not play a dominant role in overshadowing the facts-finding process of the trial, which should be to determine between guilt or innocence of the defendant. At all costs, safeguards should be put in place to ensure that the victim's statement is rendered with all other evidence and that no injustice in sentencing was promoted through emotional justice than the true hard law. Pragmatic Problems There are pragmatic problems with implementing victim impact statements within the Indian judicial system. For example, procedures for how to present and analyze victim impact statements are not well defined, so their use varies between courts.

There is also a problem of ensuring that victim impact statements are not an avenue to present manipulation or exaggeration of victims' suffering. For instance, the effective implementation of victim impact statements calls for training on the part of the judges and lawyers who preside over legal cases. Guidelines should be instituted to guide the courtroom on the presentation of the statements and the weight that should be accorded them in the sentencing processes. Despite all this, victim impact statements can greatly improve the quest for justice in India. Appropriate usage of them proves beneficial for the complete recognition of consequences of crime and for ensuring that the sentence ought to be reflective of the actual impact of the crime.

A cosmopolitan, evolved variant of the Indian legal system, wherein the induction and utilization of victim impact statements become something that is formalized and standardized, in turn bringing equality to the rights of a victim, equality of rights with the accused, and makes the approach towards justice holistic and human-centric.

9. SUGGESTIONS/LIMITATIONS

Inculcating the Indian criminal justice system with victim impact statements requires a careful consideration of both benefits and limitations of VIS. Formalizing VIS, wherein victims may express their statements before or during the trial or in the sentencing phase, could be one of the main suggestions: to provide a structured process to the victims for expressing a clear articulation on the emotional, psychological, and financial impact of the crime. The courts should also establish standardized procedures regarding the submission of such statements so that uniformity would abound across jurisdictions. Training for the judges, lawyers, and other players in court on how to interpret and relate with VIS without allowing emotional feelings or judgement to influence the judicial process would also be very important.

The statement should serve to complement, not dominate the objective evidence coming out of the case. Still, there are constraints in effectively integrating VIS into sentencing decisions. Emotional bias could enter the sentencing process with resultant unfair justice. Victim impact statements could also be handled manipulatively through overestimation of the harm caused or by affecting the court's emotional decision making. Additionally, there is a possibility that poor infrastructure and other necessary components for uniformly dealing with such statements may challenge the execution of the process. Therefore, the introduction of VIS is promising, but it has to be balanced with much caution so that both the rights of the victim and accused parties are protected.

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