The rewritten criminal code leaves the victim behind

The government’s approach to victim rights in the BNSS follows a familiar pattern: visible reform, invisible deficit. Give victims the right to be heard before the State drops the case — but give them no power to ensure the case is prosecuted competently in the first place. Give them the right to appeal an acquittal — but leave them defenceless against the institutional failures that produce wrongful acquittals. It is the legal equivalent of installing a ramp at the front of a building while leaving every door inside too narrow for a wheelchair. The gesture is made. The barrier remains.

Whenthe Indian Parliament replaced the old Code of Criminal Procedure — a relic of the British colonial era — with the Bharatiya Nagarik Suraksha Sanhita in 2023, it did so with considerable pride. This was not merely a Legislative exercise. It was framed as an act of ‘civilisational renewal’. Out with the colonial machinery of criminal justice; in with a framework built for the Indian citizen. The Ministry of Home Affairs described it as “victim centric.” The government announced it as transformative.

It is neither. Or more precisely-it is transformative at the edges, where symbolism is visible, and stubbornly status quo at the core, where real injustice lives.

The fanfare was real and so is the gap:

To give the BNSS its due, it does move the needle in meaningful ways. Under Section 360, no court can permit the withdrawal of a criminal prosecution without first giving the victim an opportunity to be heard. Under the old law, the State could simply walk away from a case — cut a quiet deal, abandon a prosecution — and the victim had no statutory right even to object. That has changed.

Section 413 expressly gives victims the right to appeal against an acquittal, an inadequate sentence, or insufficient compensation. Section 397 mandates free medical treatment for victims of crimes. Section 396 strengthens victim compensation schemes. These are not cosmetic changes — they represent a genuine expansion of the victim’s footprint in the criminal justice process.

And yet, these gains are gains at the margin. They tell the victim: you can speak before the State drops your case; you can appeal after you lose. What they do not tell the victim is the one thing that could make a difference at the critical, live, everyday stage of a criminal trial: you have the right to ensure that your case is prosecuted adequately.

The one reform that wasn’t made:

Here is the structural problem the BNSS had the opportunity and the mandate to fix but did not.

In every session’s court trial — which is where murder, rape, organised crime, and the most serious offences are heard — the prosecution is conducted exclusively by a public prosecutor. Not a lawyer that the victim chose. Not someone the victim can hold to account. A government appointee, drawn from an overworked, underpaid, often under-resourced cadre of prosecutors, handling hundreds of cases at once.

The victim can engage a private lawyer to “assist” the prosecution. But that word — assist — is not generous. The Supreme Court, in Rekha Murarka v. State of West Bengal (2020), made clear that assisting does not mean conducting. The victim’s lawyer cannot argue. Cannot cross-examine. Cannot address the court independently. They can whisper to the judge and hope something comes of it.

When the prosecution falters — when a witness goes unexamined, when a critical argument goes unmade, when a compromised or negligent public prosecutor simply fails the case — the victim has one formal recourse: approach the government and request the appointment of a Special Public Prosecutor, a dedicated, qualified lawyer for the case.

The government may say yes or even no. And the victim cannot compel it either way.

This was the gap the BNSS could have closed. It did not even try.

Parliament knew what it was doing-That is the problem:

The most damning aspect of this omission is not that Parliament was unaware of the problem. It is that Parliament demonstrably knew exactly how to solve it — and consciously chose not to.

The SC/ST (Prevention of Atrocities) Act provides a clear statutory model. Under its rules, the government is obligated to appoint a Special Public Prosecutor for cases under the Act, and victims or their families have a recognised right to recommend their choice of lawyer. Parliament built that protection into a specific law because it understood that certain victims — by reason of their vulnerability and the power dynamics at play — needed more than the goodwill of the State machinery. Rape survivors need that protection too. So do the families of murder victims. So do acid attack survivors. So does every citizen who has suffered a heinous crime and is now entirely dependent on an overburdened public system to deliver justice on their behalf.

Parliament knows how to write this protection. The Law Commission, as far back as 2003 in its 154th Report, recommended that victims be made parties to serious criminal proceedings. The Supreme Court, in the landmark Jagjeet Singh v. Ashish Mishra (2022), arising from the Lakhimpur Kheri killings, declared emphatically that victims have “legally vested, unbridled participatory rights” from investigation all the way through to appeal.

The intellectual scaffolding for reform was fully built. The political will was the only missing brick — and the BNSS confirmed its absence.

Reform stops at the courtroom door:

The government’s approach to victim rights in the BNSS follows a familiar pattern: visible reform, invisible deficit. Give victims the right to be heard before the State drops the case — but give them no power to ensure the case is prosecuted competently in the first place. Give them the right to appeal an acquittal — but leave them defenceless against the institutional failures that produce wrongful acquittals.

This is reform as optics. It is the legal equivalent of installing a ramp at the front of a building while leaving every door inside too narrow for a wheelchair. The gesture is made. The barrier remains.

What was needed — what the BNSS should have contained — is simple: a statutory provision obligating the government to pass a reasoned, written order on every victim’s request for a Special Public Prosecutor. Not a rubber-stamp rejection. A genuine, documented decision, subject to judicial review. If the government refuses, the court can examine whether that refusal was arbitrary or made in bad faith.

That one change would cost parliament nothing except honesty.

The clock is ticking:

The BNSS is now in force. A generation of criminal trials — for rape, murder, organised crime, terrorism — will be conducted under its provisions. Every day that passes without this reform is a day on which a victim somewhere in India sits in a courtroom, watching a prosecutorial process they cannot control, dependent on a system that may be failing them, with no statutory lever to pull.

The government had a once-in-a-generation opportunity to write a genuinely victim-centric criminal procedure code. It wrote something good enough to be praised. But good enough is not justice — not for the mother attending every hearing for five years, not for the rape survivor who watches the accused walk free on a technicality that a better prosecutor might have prevented.

A law that changes the name of the code but not the reality of the victim’s powerlessness in the courtroom deserves to be called out for exactly what it is.

(The writer is with the Cholleti BlackRobe Chambers, Hyderabad, and writes on economy, politics and law)