The enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) has been accompanied by a consistent legislative narrative: that Indian criminal procedure is transitioning from a model preoccupied with the rights of the accused to one that gives comparable weight to the interests of the victim. Section 360 of the BNSS, which mandates that a court hear the victim before permitting the withdrawal of a prosecution, is frequently invoked as the clearest illustration of this shift.

This shift, however welcome, stops short at precisely the point where it matters most. Indian courts have long treated the victim as, in the words of the Supreme Court, a “forgotten soul” of the criminal process. While the defence retains an ample opportunity to place mitigating circumstances before the sentencing court — the offender's age, socio-economic background, dependants, and prospects of reform — no equivalent institutional channel exists through which the victim's post-conviction narrative of harm can enter the sentencing calculus. The BNSS, if it is to make good on its stated ambition, must codify a Victim Impact Assessment (“VIA”) as a formal step preceding sentencing.

A Victim Impact Statement (“VIS”) is a written or oral account, placed before the court after conviction and before sentencing, describing the physical, psychological, emotional, and financial consequences of the offence for the victim or the victim's surviving family. Its function is conceptually distinct from that of trial testimony, and the distinction is worth stating precisely, since conflating the two has been a recurring source of confusion in Indian commentary on victim participation.

Testimony given during trial is governed by the law of relevancy and admissibility under the Bharatiya Sakshya Adhiniyam, 2023 (“BSA”), and its sole legal purpose is to assist the court in determining whether the accused is guilty beyond reasonable doubt. It is not, and cannot be, an occasion for the victim to describe how the offence altered the trajectory of their life; such an account would ordinarily be irrelevant to the question of guilt and may in fact prejudice a fair determination of it. A VIS, by contrast, operates entirely in the post-conviction phase. It does not ask whether the offence occurred; it asks what the offence did. In doing so it supplies the sentencing court with information that the trial record, structured as it is around the elements of the offence, is simply not designed to capture.

Under the erstwhile Section 235(2) of the Code of Criminal Procedure, 1973 (“CrPC”) — now reflected in Section 258(2) and Section 271 of the BNSS — a court is statutorily obliged to hear the accused on the question of sentence. In practice, this stage is dominated by mitigating submissions on the offender's behalf: youth, family circumstances, absence of prior antecedents, and the prospect of reform. These are legitimate and, in a system genuinely committed to proportionate sentencing, necessary considerations.

The difficulty is not that the offender is heard; it is that the victim is not. A sentencing court is required by law to examine the person who committed the offence, but has no corresponding statutory prompt to examine the ongoing consequences of the offence for the person against whom it was committed. Has the victim lost a sole source of livelihood? Is the victim managing a permanent physical or psychological injury? Has the victim's family been displaced or fragmented? Absent a Victim Impact Assessment, these questions are not systematically before the court at all; they surface, if at all, incidentally through the prosecution or through victim-compensation applications under Section 357 of the CrPC (now Section 395 of the BNSS), which are themselves concerned principally with quantifying pecuniary loss rather than with informing the sentence itself.

This asymmetry carries a normative cost. A sentencing exercise that hears only the offender's account of mitigating circumstances, without any structured account of the offence's continuing human cost, risks treating the victim as what one might call a statistical bystander to their own case — present in the chargesheet, absent from the sentencing hearing.

This legislative gap persists despite historical policy interventions; both the Malimath Committee on Reforms of Criminal Justice System (2003) and the Law Commission of India in its 268th Report (2017) proactively recommended a more robust, institutionalised space for victims within criminal processes. In the continued absence of such legislative codification, the Supreme Court and the Delhi High Court have, over the last decade, developed an incremental jurisprudence that consistently gestures toward the need for a structured account of victim harm at the post-conviction stage — even where the immediate question before the court was compensation rather than sentencing as such.

In Ankush Shivaji Gaikwad v. State of Maharashtra (2013), the Supreme Court held that the power to award compensation under Section 357 of the CrPC is not ancillary to the sentence but a duty independent of it, and that a court's failure even to apply its mind to the question of compensation defeats the object of the provision. The Court observed that the victim would otherwise remain forgotten within a system that had, on paper, already legislated for their relief. The judgment is significant for present purposes not because it establishes a VIS — it does not — but because it establishes the principle that judicial silence on the question of victim harm is itself a failure of statutory duty, a principle that extends naturally to sentencing.

Further, in Mallikarjun Kodagali v. State of Karnataka (2019), a three-judge bench held that a victim, as defined under the CrPC, has an independent and unfettered statutory right to appeal against an order of acquittal under the proviso to Section 372 of the CrPC, without first seeking leave of the appellate court. The case did not concern sentencing or a victim impact statement; its holding is confined to the victim's standing to appeal. Its jurisprudential value here lies in the Court's broader characterisation of the victim as an independent stakeholder in the criminal process rather than a mere witness for the State — a characterisation that supplies, at the level of principle, part of the foundation on which a statutory VIS could be built, even though the decision itself stops well short of creating one.

The most consequential doctrinal development to date is the Delhi High Court's decision in Karan v. State (NCT of Delhi) (2020), where a full bench, assisted by an amicus curiae appointed specifically to advise on victimology, directed that a 'Victim Impact Report' (“VIR”) be prepared by the Delhi State Legal Services Authority in every criminal case after conviction, to ascertain both the impact of the offence on the victim and the paying capacity of the accused, for the purpose of determining compensation under Section 357 of the CrPC.

Commentators have rightly noted that the Delhi High Court's VIR is only loosely modelled on a genuine VIS: it is prepared by an institutional authority rather than presented in the victim's own words, and its stated purpose is to quantify compensation rather than to directly inform the quantum or nature of the sentence. It is, in that sense, closer to a victim impact assessment mechanism for restitution than a full sentencing-stage VIS. Even so, the Karan formula demonstrates two things of direct relevance: first, that an institutional body such as a State Legal Services Authority can feasibly conduct a summary post-conviction inquiry into victim harm within a defined timeline; and second, that in the absence of legislative codification, courts will continue to improvise jurisdiction-specific solutions — producing exactly the kind of geographical inconsistency in victim participation that a national statutory VIA would avoid.

India's legislative hesitation is not for want of a workable template. Several common-law jurisdictions have long treated a structured account of victim harm as a routine, statutorily anticipated part of sentencing. In Payne v. Tennessee (1991), the United States Supreme Court held that the Eighth Amendment does not bar a sentencing authority from considering evidence of the victim's personal characteristics and the impact of the crime on the victim's family, overruling its own earlier decisions to the contrary. Following that decision, victim impact statements have become a routine feature of federal and state sentencing practice in the United States, generally admitted as part of the pre-sentence report and, in many jurisdictions, permitted to be delivered orally by the victim or a family member directly to the sentencing judge.

Similarly, England and Wales operate a Victim Personal Statement scheme, which allows a victim to describe, in a statement taken by the police alongside the evidential statement, the way in which the offence has affected them physically, emotionally, psychologically, financially, or otherwise; the statement is placed before the court prior to sentencing. Several Australian states provide for victim impact statements by statute, with courts empowered to receive them as part of the sentencing hearing subject to rules on relevance and admissibility. In both jurisdictions, the assessment or statement is understood as an input into judicial discretion on sentence — not a departure from proportionality, but a more complete account of the harm proportionality is meant to answer to.

The comparative picture is instructive less because Indian courts should mechanically import a foreign template, and more because it demonstrates that structured victim input at sentencing has, in each of these jurisdictions, coexisted comfortably with the rights of the accused, provided the process is bounded by clear procedural safeguards.

The recurring judicial improvisation described — from Ankush Shivaji Gaikwad to the Karan formula — is, on close examination, an argument for legislative codification rather than a substitute for it. Judge-made rules of this kind bind only the jurisdiction in which they are made, are vulnerable to being narrowed or distinguished in later litigation, and in the case of the Delhi High Court's directions, are confined to compensation rather than sentencing proper.

If the BNSS is to be victim-centric in substance rather than in framing, Parliament should introduce an express provision, situated within the sentencing procedure presently found in Section 258(2) and Section 271 of the BNSS, mandating a Victim Impact Assessment. Three design features would be necessary to make such a provision workable and resistant to misuse:

First, independent preparation. The VIA should not be drafted by the prosecution, which has an institutional interest in the outcome, but by an independent body such as the District Legal Services Authority (“DLSA”), staffed by trained social workers and, where required, forensic psychologists, following the institutional model already tested (for compensation purposes) in Karan.

Second, a holistic scope. The assessment must extend beyond the pecuniary loss presently addressed under Section 395 of the BNSS to capture long-term psychological trauma, ongoing medical needs, and any structural displacement of the victim's household or livelihood.

Third, a judicial safeguard for the defence. Consistent with the guarantee of a fair trial under Article 21 of the Constitution, the accused must retain a genuine opportunity to contest specific factual claims in the assessment before it is allowed to influence the sentence, so that the VIA operates as an evidentiary input into judicial discretion rather than as a freestanding instrument of retribution.

These safeguards are not incidental. A VIA introduced without them risks precisely the objection that has historically been raised against victim impact evidence in adversarial systems — that it invites sentencing to be driven by the eloquence or social standing of the victim rather than by the proportionality of the sentence to the offence. An institutionally prepared, independently verified, and adversarially testable assessment is designed to guard against that risk while still closing the evidentiary gap.

The transition from the CrPC to the BNSS has been presented as a moment of victim empowerment, and in certain procedural respects — Section 360 chief among them — that characterisation is accurate. But empowerment that stops before the sentencing hearing is empowerment that stops before the moment it matters most. Indian courts have spent the better part of a decade signalling, through Ankush Shivaji Gaikwad, Mallikarjun Kodagali and Karan, that the absence of a structured account of victim harm at the post-conviction stage is a gap the judiciary can only partially fill.

Comparative practice in the United States, the United Kingdom and Australia shows that the gap is not an inevitable feature of adversarial criminal procedure, but a choice — one that those jurisdictions made differently, and one that India's Parliament has not yet made at all. Codifying a Victim Impact Assessment within the BNSS, bounded by independent preparation, a holistic scope, and a fair opportunity for the defence to respond, would allow Indian sentencing courts to weigh what the offender did against what the offence cost, without disturbing the constitutional guarantees owed to the accused. Until that step is taken, the promise of a victim-centric BNSS will remain, in the fullest sense, unsentenced.

Author is an Assistant Manager at Training & Capacity Building at India Child Protection. Views are personal.