Witnesses need to be protected from the criminal justice system, and then from the culprits

Saurav DattaOne cannot be faulted for wondering if there would be any witness for the prosecution left by the time the critical stage for cross-examination arrives in Asaram’s trial. Even though lodged in jail, the “godman” seems to be having a dream run in so far as ‘building up’ his case (for acquittal) is concerned. Since March last year, one after the other, all the crucial witnesses who could depose against him are either being killed, or threatened in a manner which can only coerce them into silence. It started with an acid attack on a witness in Surat, one in Ahmedabad bumped off (by “unknown assailants”, who else?) in June, and Asaram’s cook,  shot dead in Muzaffarnagar is only the latest, but might, in all probability, not the last. Not to mention that in December last year, a doctor and a key witness, was left bereft of protection by the Palghar police despite a court order.

But the criminal justice system and its allied executive institutions’ sustained apathy to the acute vulnerability of witnesses is nothing new, and time and again, after presiding over yet another travesty of justice, judges have bemoaned this. For instance, in March 2013, while ordering Sayan Munshi’s prosecution for perjury in the Jessica Lall murder case, the Delhi High Court’s Justices Bhat and Mittal lamented how the powerful were going about in their pursuit of impunity: “The perception of such power being wielded liberally and without compunction, to harass, intimidate, or often win over witnesses, is widespread. There is no gain saying that such perception is borne out in case after case, when witnesses who are considered bulwarks of the prosecution version turn turtle and do not support the state.” For every Sayan Munshi who pleads inconvenience and harbours vested interests in order for lying on oath and shying away from his legal obligation, there is a Zaheera Shaikh who stands the risk of being prosecuted for perjury because of being intimidated into lying at the first instance. Only when the Supreme Court intervened, could she muster sufficient courage to reveal the brutalities inflicted on her family members, which she had witnessed.

The crux of the problem with witness protection (rather the lack of it) in the Indian legal system isn’t the fact that those who hold one of the main keys to the guilty being punished are vulnerable to injuries, often fatal, to life and limb. It is the very criminal justice system which places an onerous burden on them, and even criminalises them. Here’s how the law places an individual in an inexorable quandary — one witnesses a crime, reports to the police, and also gives a detailed statement regarding the culprits and their deeds. But the journey from lodging an FIR to a case going for trial is a long one, and it is at this
stage of investigation, where a witness’s travails begin.

The pressure to retract or “modify” statements is exerted immediately, and keeps mounting by the day. This takes the form of threats, and even inducements which are mostly coercive in nature. One applies for protection — but in the absence of statutory provisions, the fate of such an application is contingent entirely upon the whims and caprices of courts, and especially the police. It must be mentioned that the latter, sometimes in cahoots with the culprits, have their own axe to grind, and hence act accordingly. But when a person is formally arraigned as a witness in the trial, the law expects him to be a reckless braveheart. If he changes his testimony, or says something contrary to the original statement, the law brands him a liar, and metes out punishment.

The Maharashtra government, vide a Government Resolution of April 11, 2014, did put in place some scheme for protecting witnesses, but left out the protection of identity, during, and even after conclusion of the trial. Contrary to the recommendations of the Law Commission’s 198th Report, such protection wasn’t made available at the investigation stage, even before recording of statements under Section 162 of the CrPC had started. In October last year, the Bombay High Court directed the government to fill up these glaring lacunae by November 30, but a robust policy is yet to see the light of day.

So long as the government keeps dragging its feet, and judges keep only exhorting, cases will keep falling apart, and the bodies shall keep piling up.

Saurav Datta is associated with the Commonwealth Human Rights Initiative, Delhi, which works towards better policing. You can follow him on Twitter @SauravDatta29

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