Managing Trade-off Between Crime Control and Justice

The ongoing debate concerning the execution of the four convicts of the 2016 Delhi gang rape case has brought many questions to the forefront. One of them being that in the trade-off between the need to efficiently control crime and to make the criminal justice system fair and just, so that it also protects the rights of the accused, which one should be given greater importance?

Considering the anatomy of Part III of the Constitution and the centrality it places on the idea of life, liberty, equality and justice, it becomes important to uphold the rights of the victims and that means providing a fair trial. This is the hallmark of making the criminal justice system fair, for both the victim and the accused.

The purpose of criminal law can be explained using various models like the crime-control model, due process model and the victim rights model.

The philosophical underpinning of the crime-control model is that the foremost purpose of the criminal justice system is to repress crime, as a failure to do so can lead to a collapse of public order and can put the freedom of the individual in jeopardy. The whole idea rests on efficiency of the criminal justice system, wherein it is capable of apprehending and convicting large numbers of criminal offenders quickly and can avoid needless formal ceremonies. The purpose of this model is to repress crime, even if this repression comes at the expense of disregarding the due process.

However, the due process model acknowledges that the crime control model allows the exercise of arbitrary and unbridled executive power. It also accounts for the fact that testimonies of witnesses can be factually inaccurate, the police can extract information by unlawful and inhumane means, and lastly that witnesses and the prosecution can be biased. Given all this, there is a need to back the informal factual fact-finding with a formal adjudicatory process which is also fair and reasonable so as to ensure that efficiency is not achieved by undermining the rights of the accused. Here, fairness is a greater consideration than finality.

This model limits the powers of the officials by placing a burden on them to prove the guilt of the accused before an impartial adjudicatory authority as per certain just and reasonable laws. This is why the due process model is better suited to protect the interests of the accused as opposed to the crime control model.

However, the mere application of these two models alone is not enough to address the concerns of the victim. This became clear from the recent lethal attack on the Unnao rape victim while she was on the way to the court to attend the proceedings. The accused was granted bail on 25 November and the attack took place on 7 December. The act of giving bail to the accused without ensuring the safety of the victim was a clear manifestation of the side-lining of the rights of the victim.

This shows that there is a need to ensure that the process is just, fair and reasonable for both the accused and the victim. This can happen when the due-process model is used along with the victim rights model while adjudicating criminal cases. It calls for greater participation of victims in the process of trial and sentencing of the accused. It also aims at placing the victim at the centre of the criminal justice system. The application of this model can help in achieving many fair outcomes.

For instance, as of now, victims in India are heard just as witnesses. Moreover, the personal appearance of the victim is restricted at all the crucial stages of the trial. Due to this, the interests of the victim are never ascertained properly.

An application of this model in India would provide a solution to the same. Section 235 (2) of the CrPC provides that the accused should be heard on the question of sentencing, however, the court is not legally bound to hear the victim while awarding punishment to the convict. However, the victims should also have a role to play in the sentencing of the convict which can be done by recording victim impact statements.

This model can also have other positive implications, such as laying greater emphasis on providing safety to the victim, counselling for the victim, making the accused to compensate the victim etc. The purpose of this model is to transform both the victim and the accused.

For all these reasons, a due process model along with a victim-centric approach can make the criminal justice system more just and it should be taken into account while adjudicating criminal cases because it is more inclusive for the victim and does not create a hierarchy of rights. If everyone is equal before the law and unequals are to be treated unequally, the procedural fairness needs to be equitable for the accused as well as the victim.

The author is a student at the National Law School of India University (NLSIU), Bangalore. The views are personal.