Those who testify against the powerful need to be protected. But can this be done in the absence of a formal protection program backed by a law?
By Ajith Pillai
The multi-layered and sho-cking Vyapam scam in MP—in which over 40 witnesses have died so far under mysterious circumstances—has once again brought into focus the vulnerability of those testifying before the law. More often, extreme coercion (including death threats) and financial persuasion are used against witnesses to make them retract or alter statements made to the police.
Worse, if seen as obdurate or expendable, they are simply bumped off and spared the trouble of appearing in court. The people who come forward to testify are often targeted by the accused, who are economically and politically powerful, and very few manage to withstand the pressures put on them. Unfortunately, providing adequate protection and ensuring the safety of those who have to depose in court has never been given the priority it deserves. In fact, many jurists admit this is a serious blotch in our criminal justice system.
Several high-profile cases have had their share of hostile witnesses. The Jessica Lal murder, the Salman Khan hit-and-run case, the acquittal of Varun Gandhi for his hate speech in 2009 and the Nitish Katara murder trial are just a few examples. At another level, you have self-styled godman Asaram Bapu, who is the main accused in a rape case and currently lodged in Jodhpur jail. Nine witnesses have been reportedly attacked by his men and three key witnesses killed.
Those who deal closely with the legal system say that the targeting of witnesses and buying their silence is a problem that needs to be addressed in an urgent manner.
In the Asaram Bapu case, nine witnesses have been reportedly attacked by his men and three key witnesses killed. He is the main accused in a rape case and now lodged in Jodhpur jail.
India’s legal bodies have always been aware of the problem. Periodic law commission reports since the 1950s have emphasised the need to protect witnesses. The National Police Commission has underlined this fact. And the 2003 report of the committee headed by Justice VS Malimath, which addressed reforms in the criminal justice system, concluded that when it came to depositions in court, the “major problem is about the safety of witnesses and their family members who face danger at different stages. They are often threatened and the seriousness of the threat depends upon the type of case and the background of the accused and his family.” The committee recommended that “while many countries in the world have enacted laws for witnesses’ protection, there is no such law in India. The time has come for a comprehensive law being enacted for protection of the witness and members of his family”.
Judges of the Supreme Court and high courts have also pushed for better protection of witnesses. Justice Arijit Pasayat, who was part of the apex court bench that delivered the judgement in the Zahira Shaikh vs State of Gujarat case in April 2004, touches upon the urgent need to have a witness protection programme. One that attracted much attention pertains to the Best Bakery case in which the establishment run by the Shaikh family in Vadodra was torched by a mob during the 2002 Gujarat riots. Fourteen people died in the carnage. However, those accused were acquitted by a trial court after witnesses, including Zahira, turned hostile. She later filed affidavits alleging that she was forced to retract under coercion.
Pasayat’s observations in this case are noteworthy: “If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. Time has become ripe to act on account of numerous experiences faced by Courts of witnesses turning hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings…The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trials getting tainted and derailed and truth becoming
Those were indeed strong words. But lawyers point out that without a legal framework in place, providing protection to witnesses is the exception rather than the rule. According to rights activist and lawyer Vrinda Grover, as things stand, witnesses are seen as people who can be manipulated to gain easy acquittal for the accused. She cites the 2013 Muzzafarnagar riots cases. “The open talk in the bar among lawyers is about how cases will be dropped once the witnesses are persuaded or compromised to withdraw their testimonies. It almost seems as if the accused and their lawyers are waiting for witnesses to turn hostile.”
According to her, even when a request for protection is submitted, it is often rejected since no proof can be put forward to substantiate the apprehensions of a witness. The “power differential,” she says, between the accused and the person deposing is a crucial aspect which is never factored in. “When a powerful person is the accused, an ordinary citizen who witnessed a crime becomes vulnerable to various pressures and threats. How can one offer proof of coercion? It will be one person’s word.”
True, a threat says another lawyer, is not conveyed as a signed document admissible in court as evidence.
That said, everyone is agreed that providing protection is vital, but does the police have the infrastructure to ensure cover to every vulnerable witness? AA Khan former IG police, Maharashtra, who famously headed the Anti-Terrorist Squad of the state in the 1990s says the force simply doesn’t have the resources. “Even if protection is provided, all you get are two constables. There is no concept of looking after the witnesses and rehabilitating them as they do in the US in very sensitive cases. A new law must not only be enacted but there must be a dedicated force under a marshal to handle witness security. It must be a force that reports directly to the judiciary and should not be under the police. That is the only way out.” He feels that only the creation of such a judicial arm will be credible and it should be independent enough of the police, which more often than not, is the prosecuting agency.
Under English law, influencing or threatening a witness before or after evidence is given, amounts to contempt of court. The legal system also protects those helping with the investigation of a crime.
In the US, the law provides for relocation and other protection of a witness or a potential witness deposing in a case involving a serious offence or organized crime. The attorney-general decides on whether a person testifying requires protection from bodily injury and to assure his or her health, safety and welfare. In a large number of cases, witnesses have been protected, relocated and sometimes, even given new identities. The program assists in providing housing, medical care, job training and assistance in obtaining employment and subsistence funding until the witness becomes self-sufficient.
Several jurists in India have been recommending a similar witness safety program in India. Former chief Justice of India VN Khare has been calling for reforming the criminal justice system and protecting witnesses. He told India Legal: “I have been stressing the need for witness protection since 2004 but unfortunately nothing has been done—nothing whatsoever.”
In a signed article in a leading newspaper in 2006, he reiterated that like in the developed countries, “in at least some sensitive cases, witnesses should be provided protection. This is particularly desirable in India because of long pending trials in the courts. Under protection, the witness will not be fearful. It will be difficult to lure him or her by money and other allurements”.
In 2013, the Delhi government submitted a draft of the Delhi Witness Protection Scheme to the high court. This was in response to a court order that such a scheme be put in place following witnesses turning hostile in the Jessica Lall and Nitish Katara murder cases. The draft has to be approved by the state cabinet and the assembly. The Kejriwal government has agreed in principle to grant the necessary approval, notify the scheme and get the nod from the legislature.
Under the proposed scheme, witnesses can give their testimony before a judge or an investigating agency in camera without fear of being coerced or influenced. The threat perception analysis of the witness will be conducted by an additional commissioner of police and two senior officers. Their report will determine the level of security to be provided. Personal security cover will be arranged and their homes kept under 24×7 surveillance. A special cell of the police is to be set up for protection of witnesses.
According to lawyers, one of the key reasons why witnesses are susceptible to being influenced is the slow disposal of cases. The time taken, from recording of the witnesses’ statement to the eventual trial, could be several years, making it easy for vested interests to persuade the witness to back off. According to one lawyer, the entire business of coming to court becomes long-drawn and the witness becomes tired of this interfering with his normal life.
Some police officials believe a system must be evolved by which the statement of the witness is “secured” and cross-examination is completed within reasonable time after the statement is recorded.
The Fourth National Police Commission report touches upon the trauma of a witness by quoting an input sent to it by a senior district and sessions judge: “A prisoner suffers from some act or omission but a witness suffers for no fault of his own. All his troubles arise because he is unfortunate enough to be on the spot when the crime is being committed and at the same time ‘foolish’ enough to remain there till the arrival of the police.”
What’s worse is that witnesses are not even suitably compensated for the trouble they take to obey court summons. Grover says that the procedure for claiming even travel allowance is cumbersome. “The concept of paying for the travel of the witness does not exist among prosecutors or the police. It is presumed that those coming to court will fend for themselves or will be brought by the police or vested interests.”
Former CBI director Joginder Singh told India Legal that the treatment meted out to witnesses is pathetic and a new law is required to protect those who agree to testify. “If you ask me, many people would think that it is foolish to become a witness. You are not only treated shabbily and summoned to court and asked to wait all day to be told that the case will not be heard but you may also have to face threats from the goons of the person you are testifying against.”
But senior lawyer RK Anand says a new law to protect witnesses is not the answer. “More than a law, what is required is to bring in modern investigation practices that are not so reliant on witnesses. This would mean better collection of material evidence by the police from the crime scene. It would mean employing the services of capable and reliable forensic experts. We have to modernise the way we investigate cases.”
Anand says this is the trend one finds in the West and since evidence is gathered meticulously, there is no need to examine and cross-examine witnesses and cases are thus disposed off in no time.
That suggestion would certainly lessen the load on the courts. But the consensus is that a totally witness-free scenario is un-
likely—it has not even been achieved in the West. Therefore, when witnesses are invol-ved, it would be best to insulate them from outside pressure that prompts them to turn hostile. In sensitive cases like communal riots or acts of terrorism, witness protection, many feel, has to be formalized and not taken up in an arbitrary case-by-case manner. Today, it is often done to suit the convenience of the police and their political masters.