This article is written by Shreya Prajapati, 4th Year B.A. LL.B. (Hons.) student, CMP Degree College, University of Allahabad.
The introduction of the Bharatiya Nyaya Sanhita, 2023 (BNS), Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and Bharatiya Sakshya Adhiniyam, 2023 (BSA) is indicative of a paradigm shift in the Indian criminal justice process. While victims’ rights, compensation schemes, and participation mechanisms were partially addressed by the law through provisions of the Code of Criminal Procedure, 1973 (CrPC), the current Indian criminal codes provide an extensive and more detailed codification of victims’ rights. In this context, this article explores the scope, content, and limitations of victims’ rights provided for in the new Indian criminal codes as compared to the CrPC and international norms.
Although the principles laid down under Sections 65A and 65B of the Indian Evidence Act continue to influence judicial understanding of electronic evidence, the Bharatiya Sakshya Adhiniyam, 2023, now governs the admissibility of electronic records. The BSA expressly recognises electronic and digital records as documentary evidence, thereby modernising the evidentiary framework for the digital era.
Keywords: Victim Rights, Bharatiya Nagarik Suraksha Sanhita, Criminal Justice Reform, Victim Compensation, Access to Justice.
Introduction
For over a hundred years, India’s criminal justice system was guided by the Code of Criminal Procedure, 1973, the Indian Penal Code, 1860, and the Indian Evidence Act, 1872 colonial-era legislations built primarily around a State-versus-accused framework. Victims, though central to the commission of an offence, were structurally peripheral to the justice process, recognized largely as witnesses for the prosecution rather than as independent stakeholders with enforceable rights.
This is not to say that the CrPC was entirely silent on victim rights. The Criminal Procedure Code (Amendment) Act, 2008 introduced Section 2(wa) into the CrPC, which defined “victim” as a person who suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged, and the term was extended to include the guardian or legal heir of such person. Similarly, Section 357 of the CrPC had long provided for victim compensation; Section 357A, inserted in 2009, established State-level Victim Compensation Schemes; and Section 372 (proviso) granted victims the right to prefer an appeal in certain circumstances. Participatory rights of victims were also recognized, though inconsistently applied across courts.
The Bharatiya Nyaya Sanhita, 2023, Bharatiya Nagarik Suraksha Sanhita, 2023, and Bharatiya Sakshya Adhiniyam, 2023, operational from July 1, 2024, built upon this foundation. Their significance lies not in creating victim rights from scratch, but in consolidating, expanding, and systematizing them within a modern statutory framework making rights more explicit, accessible, and procedurally enforceable than they had been under the CrPC regime.
As per the UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power,1985, victims are understood as any individual or group of individuals who have endured physical, mental, or economic injury, or any infringement of basic rights, due to acts that contravene criminal laws. The new codes represent India’s most ambitious legislative effort to align domestic criminal procedure with these international principles.
The Bharatiya Sakshya Adhiniyam, 2023, significantly strengthens the legal recognition of digital and electronic evidence. Sections relating to electronic records provide that digital data, including cloud-stored information, emails, server logs, and electronically generated records, may be treated as documentary evidence subject to prescribed evidentiary requirements. This is particularly relevant in cloud computing environments where crucial information may exist entirely in digital form without any physical counterpart.
Definition of “Victim” under the New Codes
Section 2(1)(y) of the BNSS defines “victim” as a person who has sustained any loss or injury resulting from the commission of the offence for which the accused person stands charged, and the expression includes the guardian or legal heir of such person. This definition is substantively similar to but slightly broader in framing than the definition introduced by Section 2(wa) of the CrPC through the 2008 amendment.
The significance of this provision lies in its explicit statutory placement within a new comprehensive code and the greater weight that accompanies it. The earlier CrPC definition, though legally operative, was not systematically applied across all stages of criminal proceedings, and courts often exercised significant discretion in determining the extent of victim participation.
Notably, the judgment of the Supreme Court in Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752, is relevant in this context primarily to understand the scope of victim appeal rights under the proviso to Section 372 CrPC, and to affirm that the rights of victims are not extinguished upon the death of the primary victim extending to guardians and legal heirs. While the case touches upon the identity of the “victim” in the context of standing to appeal, it is not the foundational authority on the statutory definition of victim under Indian law, which rests with the 2008 amendment to the CrPC and now finds reinforcement in Section 2(1)(y) of the BNSS.
Right to Information and Status of Investigation
One of the important changes under the new framework is the explicit statutory codification of the victim’s right to information regarding the progress of the investigation. Section 193 of the BNSS imposes a duty on the investigating police officer to notify the informant or the victim of the progress of the investigation into a cognizable offence registered through an FIR within 90 days of the FIR’s registration. While Section 173 of the CrPC governed the submission of police reports, it did not contain a corresponding explicit obligation to periodically update the victim or informant on investigative progress, making the BNSS provision a meaningful procedural improvement.
The duty imposed under Section 193 of the BNSS to update the informant or victim on the progress of investigation is itself a form of statutory access to information, and victims may additionally seek recourse through the court for supply of relevant documents at the stage of cognizance. Moreover, Section 338(2) of the BNSS confers upon the victim’s advocate the right to make written submissions after the conclusion of evidence, while Section 230 of the BNSS facilitates access to the police report and related documents at the cognizance stage, thereby strengthening the victim’s ability to participate meaningfully in criminal proceedings. These provisions collectively strengthen victim engagement at various stages of criminal proceedings.
The BNSS also introduces provisions facilitating the registration of FIRs through electronic means under Section 173(2), which permits a person to send information relating to a cognizable offence by electronic communication. This has the potential to enhance accessibility for victims in geographically remote or underserved areas. As noted in the 154th Report of the Law Commission of India, the reluctance or refusal of police to register FIRs has historically been a persistent grievance, and digitization may serve as a partial check against such abuse of discretion. It is, however, important to note that the full realization of this mechanism is contingent upon robust implementation infrastructure, reliable digital connectivity, and trained personnel factors that presently vary considerably across States.
Right to Participation in Criminal Proceedings
Under the CrPC framework, victim participation in criminal proceedings was not entirely based on judicial discretion. Statutory rights such as the right to be heard on bail (recognized through judicial interpretation), the right to appeal under the proviso to Section 372 CrPC (as amended in 2008), and the requirement of victim consent in plea bargaining under Chapter XXI-A of the CrPC already existed. However, these rights were scattered across different provisions and were not always uniformly enforced, resulting in inconsistency in practice.
In Rekha Murarka v. State of West Bengal (2020) 2 SCC 474, the Supreme Court clarified that although a victim is entitled to engage an advocate and participate in criminal proceedings, such participation is primarily assistive in nature and cannot dilute the statutory role of the Public Prosecutor, who remains responsible for conducting the prosecution.
The BNSS consolidates and expands these participatory rights. Section 338(2) of the BNSS recognizes the right of the victim to engage an advocate of their own choice, who may assist the public prosecutor and submit written submissions after the conclusion of evidence. The proviso to Section 413 of the BNSS grants the victim the right to prefer an appeal against an order of acquittal, against a conviction for a lesser offence than that charged, or against a sentence imposing inadequate compensation a right that mirrors and codifies the proviso to Section 372 of the CrPC as amended in 2009.
Section 359 of the BNSS, corresponding to Section 320 of the CrPC, governs the compounding of compoundable offences. Under this provision, certain offences may only be compounded with the permission of the court, and victim participation in and consent to compounding proceedings is a necessary component, ensuring that such settlements cannot be effected without the victim’s voice being heard. Section 207 of the BNSS similarly requires the victim’s consent as a prerequisite for the completion of a plea bargain agreement, reinforcing what was already mandated under Chapter XXI-A of the CrPC, while introducing additional procedural safeguards.
Compensation and Restitution
The right to compensation represents one of the most practically significant victim rights. The compensation framework under the new codes builds upon foundations already established under the CrPC. Section 357 of the CrPC had long empowered courts to direct the payment of compensation to victims from fines or otherwise. Section 357A, inserted in 2009, mandated States to establish Victim Compensation Schemes in coordination with the Central Government to provide funds for the rehabilitation of victims or their dependents.
Section 396 of the BNSS corresponds to Section 357 of the CrPC in providing for court-ordered compensation. Section 396 of the BNSS continues the legislative commitment to victim compensation by empowering courts to award compensation in appropriate cases, thereby reinforcing the rehabilitative and victim-centric objectives of the criminal justice system. Section 397 of the BNSS consolidates and replaces Section 357A of the CrPC, mandating State Governments, in coordination with the Central Government, to prepare schemes for providing compensation to victims or their dependents who have suffered loss or injury from crimes and require rehabilitation. As the Supreme Court held in Suresh v. State of Haryana (2015) 2 SCC 227, Section 357A must be given a liberal and purposive interpretation in keeping with its rehabilitative object.
The Bharatiya Sakshya Adhiniyam, 2023, while primarily an evidence statute, reinforces the dignity and protection of victims in proceedings. Section 124 of the BSA corresponds to Section 146 of the Indian Evidence Act, 1872, and maintains the prohibition on questions regarding the moral character of a prosecutrix in cross-examination, thereby protecting victims of sexual offences from secondary victimisation in court. The Supreme Court, in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, had already underscored the importance of such protections in reinforcing victim dignity and judicial sensitivity in sexual assault cases.
ADDITIONAL PROTECTIONS FOR VULNERABLE VICTIMS
The new codes provide enhanced protections for victims belonging to vulnerable categories, including women, children, and persons with disabilities. Section 176 of the BNSS mandates that the statement of a rape victim be recorded by a lady police officer, and in appropriate cases, in the presence of a woman Magistrate. Section 183(6) of the BNSS provides that the statement of a child below twelve years of age shall be recorded at the place of residence of the child or at any other convenient place of the child’s choice, in order to minimize trauma associated with attending a police station or court.
Section 530 of the BNSS provides for in-camera trials in cases involving offences under Chapter V of the BNS pertaining to women and children. The BNS, 2023 continues the legislative framework against trafficking (Sections 143), sexual assault (Sections 63–70), and child exploitation.
The new codes also facilitate the expanded use of audio-visual electronic means for recording the evidence of vulnerable witnesses, thereby reducing the burden of physical appearance in court. Under Section 535 of the BNSS, evidence may be recorded through video conferencing, following the precedent set by the Supreme Court in State of Maharashtra v. Dr Praful B. Desai (2003) 4 SCC 601, where the Court affirmed the admissibility of evidence collected via video conferencing.
Limitations and Critical Approach
Despite the forward-looking nature of the new legislation, certain structural and implementation challenges merit careful consideration.
First, the right to information codified in Section 193 of the BNSS is not accompanied by a specific penal sanction or enforcement mechanism against an investigating officer who fails to comply. The absence of a corrective remedy for the victim in the event of non-disclosure renders the provision potentially hortatory in practice without adequate administrative reinforcement.
Second, the victim compensation schemes under Section 397 of the BNSS remain dependent on State implementation, which is uneven across the country. Despite the establishment of victim compensation schemes and the Central Victim Compensation Fund, concerns continue to be expressed regarding delays in disbursement, uneven implementation, and practical difficulties faced by victims in accessing compensation across different States.
Third, the right of appeal under the proviso to Section 413 of the BNSS may remain illusory for a large proportion of victims owing to financial and procedural barriers to litigation. Victims, especially those from economically marginalised sections of society, are often unable to retain legal counsel to pursue appellate proceedings. A stronger statutory linkage between the BNSS and the Legal Services Authorities Act, 1987 is desirable to make this right substantively accessible.
Conclusion
Taken together, the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita, and the Bharatiya Sakshya Adhiniyam represent a significant legislative effort to consolidate, expand, and modernize the framework of victim rights in India’s criminal justice system. The new codes build upon rights that were already nascent under the CrPC including the definition of victim under Section 2(wa), the compensation mechanisms under Sections 357 and 357A, and the appeal right under the proviso to Section 372 and give them greater statutory coherence, visibility, and procedural content.
Statutory recognition of victim rights is, however, a necessary but not sufficient condition for substantive justice. For these reforms to translate into meaningful relief for victims, sustained investment will be required in police training, legal aid infrastructure, monitoring of victim compensation schemes, and victim support services. The ultimate test of India’s criminal justice reform is not the quality of its legislation alone, but whether the victims it seeks to protect can, in practice, access the rights it promises them.
