By: Abhinav Sekhri
In a much-publicised judgment, the Supreme Court set aside the order granting bail to the main accused in the Lakhimpur Kheri incident from October 2021 [Jagjeet Singh & Ors. v. Ashish Mishra & Anr., Crl. Appeal 632 of 2022 (decided on 18.04.2022) (“Ashish Mishra“)]. At the outset, it would be necessary to clarify that the court has not cancelled bail, but set aside the order granting bail as it was found contrary to law (see, here, for the difference). As a result, the case has been sent back to the Allahabad High Court for reconsideration (with a relatively generous timeline to deliver a verdict within three months), and the accused has been directed to surrender within a week.
A primary reason for the Supreme Court to set aside the order was the High Court’s failure to honour the victims’ rights to participate in the hearing. The victims had been present for the online hearing before the High Court but could not participate due to technical woes. They had preferred an application seeking re-hearing, citing this reason, which was rejected by the High Court. Thus, it was argued before the Supreme Court that (i) victims had a legal right to be heard at the bail stage, and (ii) the impugned order was passed in contravention of this right. This contention was addressed cumulatively in favour of the appellants in “Section A” of the judgment in Ashish Mishra, and it is the primary focus of this post.
The Court has held that a victim (as defined under the Criminal Procedure Code, 1973) “has a legally vested right to be heard at every step post the occurrence of the offence. Such a ‘victim’ has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision.” (Para 24)
The logic behind the holding is expressed in the next paragraph (Para 25), where the Court notes that, first, “Indian jurisprudence is constantly evolving, whereby, the right of victims to be heard, especially in cases involving heinous crimes, is increasingly being acknowledged“. And, second, it was necessary to extend this to the stage of bail as it would result cause miscarriage of justice.
Is it a good idea for Bail?
As mentioned above, the Court notes that denying victims a right to participate in the bail stage will result in a grave miscarriage of justice. Given that bail hearings in India are peculiar and do not compare well with, say, the USA or Canada or South Australia for that matter, it is necessary to think a little more about this claim.
Traditionally, one of the key considerations for bail is the threat to a victim’s safety. The foreign jurisdictions which the Ashish Mishra judgment relies upon welcomed victim participation at even the bail stage to allay all concerns about this specific issue regarding a threat to their safety. In some contexts, victims do not have a right to get a full hearing but to file affidavits to ensure that no relevant information is left out for the court.
The problem is that in India, bail hearings tend to focus a lot more on the merits of the case than anything else. Allowing for a third party to step in and address the court might end up repeating a lot of submissions and extend the already lengthy timelines that bail hearings suffer from. So while in the abstract victim participation is a good idea, a lot depends on how courts regulate the process to ensure that no side can hold the process hostage.
How will this work in Practice?
The problem with the pronouncements of the highest court has often been that the view from the top often renders ground-level problems too mundane to notice and come in the way of grand statements. It’s very nice to say that all victims have a right to participate, but what does it mean in reality? Will an accused person have to always implead victims in bail applications now? Will courts have to wait for bail even in bailable cases before getting the perspective of a victim? Will the victim be entitled to a copy of the chargesheet even when the police is not closing the case? These are only some of the very real problems of execution that follow from the Court’s grand pronouncement in Ashish Mishra.
It is precisely because of this reason that extending participatory rights meaningfully within the criminal process ought to be a process which has active legislative cooperation. That the Court itself notes instances from India and also foreign jurisdictions where victims’ rights have been recognised through statutes. If the Court felt it was necessary to recognise this principle, nothing stopped it from recommending the matter to the legislature for consideration. Or, on the other hand, if the Court was serious, then nothing also stopped it from taking the issue to its logical conclusion and charting out the specifics (as it has done in the sphere of witness protection).
The Court did neither, which basically leaves this grand pronouncement subject to interpretation by the lower courts. Critical in this process might be one specific sentence in Paragraph 25 where the court notes that “where victims themselves have come forward to participate in a criminal proceeding, they must be accorded with an opportunity of a fair and effective hearing” (Emphasis supplied). Practicing lawyers know that many courts already allow victims to be heard at the bail stage when they enter an appearance. Thus, the Court may well be seen as having gone little beyond affirming the status quo.
Yet more rights without remedies?
Return to the manner in which the Court characterised the issue on victim participation at the bail stage — victims have a right to be heard at bail, and this right was violated by the High Court. There is an obvious follow-up question which is stark in its absence from the judgment — so what if this right was violated?
The judgment in Ashish Mishra is, then, the latest chapter in the Supreme Court’s remarkable tendency to create rights without remedies within the criminal procedure context (see, here, for a longer discussion on the theme). What makes a right meaningful is the remedy that ensues, but besides being “constrained to express our disappointment” with how the High Court dealt with the victim’s right to participate, there is literally no discussion on what legal consequences shall result in such circumstances henceforth and thus no guidance to either litigants or courts on how shall such problems be dealt with in the future.
If anything, the observation in Paragraph 25 extracted above suggests that this so-called right is little more than a token for those having the wherewithal to participate in the process. By placing the onus on victims to seek participation and thereby get an audience, the Court offers a path which is, in fact, diametrically opposite to the statutory schemes referred to within the judgment, where the entire idea is to invite the victim to participate by giving adequate notice (such as the amendment to Section 439 of the Codegiving victims of sexual offences adequate notice).
The lesson perhaps is that if you are a victim who has the ability to participate in the process, the judgment in Ashish Mishra has rubber-stamped your ability to do so by calling it a right. If you are not so lucky, then perhaps it is best to not get your hopes up.
[The author is a criminal lawyer based in New Delhi. This article first appeared on his blog, ‘The Proof of Guilt’.]