A spectator with a gown: Advocate for the victim

Our century-old criminal law begins with a presumption that all crimes are “against the state.” The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), just like its predecessor, ensures that the “State” is the de jure complainant in every case. But somewhere in the process claiming to be protective of victims and bringing a public prosecutor to be fair and unbiased, the voice of the victim is muted. They are mere witnesses.

The Criminal Law (Amendment) Act, 2008 inserted a proviso to Section 24(8) of the Code of Criminal Procedure (CrPC), allowing the victim to engage a counsel. But the implementation has been half-hearted. Courts read “engage” as “exist,” not “intervene.”

When a citizen is assaulted, cheated or raped, this century-old common law criminal system rises majestically to declare: “The State v. Accused.”

But what is the field reality?

The survivor of a rape and the family of someone who was killed deserves justice. Yet, the legal system allows them only to be comforted. Nothing more.

Witness examination may have been revamped by the new criminal laws, but when it comes to the role of the victim through their counsel, it’s still the same old legal drama. The public prosecutor (PP) still commands the prosecution.

The BNSS could have fixed this imbalance. It didn’t. Section 18(8) BNSS, dealing with victim participation, largely restates the CrPC’s timid language. A silent message that the State’s trust towards its public prosecutor is greater than trust towards its citizens' pain.

The victim’s counsel? They are just polite appendages, permitted to “assist” provided they don’t get too enthusiastic to cross-examine the witness or make any oral arguments. But they can get the victim a free FIR copy.

Their role is to merely give emotional support, enlighten the victim of their legal rights and to stand after filing vakalat with the leave of the court with fingers on lips, while the case is happening before the court.

In Rekha Murarka v. State of West Bengal, the Supreme Court generously held that a victim’s counsel can assist the prosecution, but not lead it. The Court, in its infinite constitutional grace, feared that allowing the victim’s lawyer to actively cross-examine could “derail the trial.” As if derailment was a privilege reserved only for adjournments and missing case diaries.

Article 39A of the Constitution assures equal access to justice. Article 21 guarantees the right to fair trial. But in practice, the State reserves exclusive control over criminal litigation.

In crimes like custodial torture, encounter killings or sexual violence by public officials, the victim’s case is technically “State vs. State.” The prosecutor argues on behalf of the same entity that employed the accused.

In every trial court, there’s a ritual the defence knows by heart. A witness arrives early morning, nervous, clutching the summons and waiting for their turn to speak truth.

By noon, the accused’s counsel requests time and a recall petition is “under preparation.” The cross-examination will be done “some other day.”

The witness waits. Another date is fixed. Another delay.

It’s legal theatre performed so often that it no longer shocks anyone. The court staff shrugs. The prosecutor sighs. And the victim’s counsel who cannot speak unless permitted just watches helplessly.

A police officer’s “reward” for a successful conviction, even in a sensational case, might barely cross a few thousand rupees. But a powerful accused facing a serious charge can spend ten times that amount in a single day to make a witness “unavailable,” a constable “forgetful,” or a file “misplaced.”

Everyone knows this, but no one names it. The prosecutor is overworked. The judge is cautious. The victim’s counsel is voiceless. And the defence knows the game better than anyone. They will smile, shake hands and whisper, “We’ll see you on the next date.”

In Protection of Children from Sexual Offences (POCSO) Act and rape cases, the courtroom becomes a battlefield for dignity. Defence strategies are often not about disproving guilt, but about destroying the credibility.

A survivor’s testimony is treated as cross-examination material, not a human experience. Questions about their consent, character, past conduct and relationships are brought in not for clarity, but for humiliation.

And the victim’s counsel? Their legal right is to “assist the prosecution.” They can’t interrupt a degrading question. They can’t object unless the public prosecutor does. They sit watching, as the defence systematically dismantles the spirit of the person they came to protect.

Outside the court, the family is stalked, threatened and mocked. “This complaint is only to get money,” they’re told. “You’ll compromise anyway.” Sometimes, even local police echo the same tone.

For the defence, it’s performance. For the victim, it’s trauma. For the counsel, it’s quiet humiliation.

The accused gets a full defence. The State gets a prosecutor. The victim gets permission to “assist.” That is not access, that is mere tokenism. And if by some miracle the case reaches judgment, conviction is celebrated as “State success,” not “victim justice.”

We need a legal system that trusts victims as participants, not props. The BNSS could have been the chance. But It wasn’t. It could have granted the victim’s counsel an independent right to cross-examine or make submissions. Instead, it repeated the same paternalism. The State knows best.

It’s time to acknowledge that in every “State vs. Accused,” there is also an invisible “Victim vs. System".

The public prosecutor’s allegiance is to procedure, not emotion. The defence’s loyalty is to the client, not truth. And the victim’s counsel - the one person with both moral and factual investment - is reduced to a logistical assistant.

Neethi Devatha or Lady Justice is said to be blind and the new criminal laws claim to open her eyes. But in India’s trial courts, it’s also selectively mute. The one who bleeds still cannot speak.

The offence may be against the State. But the blood, the trauma and the silence belong to the victim. Until the law acknowledges that difference, justice will remain as it too often does - a government monopoly.

Aswin Rome Pon Saravanan is an advocate practicing in Tamil Nadu.