The criminal justice system in India has de-generated into a systematic criminalisation of justice. The mediocrity and depravity of the investigating agencies and the prosecution, coupled with an excruciatingly slow court process, has thrown the entire justice system out of gear. But one of the biggest casualties of our criminal justice system — which relies more on witness accounts rather than scientific investigation — have been the witnesses themselves, quite literally.
Witnesses assist the court to arrive at justice, but today, in India, either they turn up dead or turn hostile. The way witnesses are dying — mostly in “mysterious circumstances” — in the National Rural Health Mission scam in Uttar Pradesh, Vyapam scam in Madhya Pradesh and the Asaram Bapu case is shocking to say the least.
In criminal cases, the prosecution collapses as soon as a witness turns hostile. It usually means that the accused will walk free. Witness protection, thus, is crucial if we seek the truth and want to see justice being delivered in these and other cases.
Many countries have specific laws for it. In the United States, witness protection is taken very seriously. Once someone is willing to come forward and depose before the court, all threats are taken seriously. They are kept in safe houses, incommunicado, during the trial, and after the case is over, depending on the threat, they are settled in different cities with new identities and jobs. Their family members are also provided security. Mobster To-maso Buschetta, Italy’s best-known “pentito’’ (Italian word for a penitent that’s used to describe mafia informers), changed his names 180 times during his long retirement as he was hunted by mobsters.
A formal programme of witness protection, run by the US Marshal Service, was established under the Organised Crime Control Act of 1970. Prior to it, a similar programme had been started under the Ku Klux Klan Act of 1871 to protect witnesses testifying against members of the Ku Klux Klan. Many states have their own programmes to protect witnesses for crimes not covered by the federal scheme. Officially called the Witness Security Programme, it provides protection for government witnesses who may face a danger to their lives because of testimony they have given about terrorists or criminals. Till February 2013, 18,400 men, women and children have participated in it. And, according to the US Marshal Service, not one of the 8,500 witnesses or the 9,900 family members has been harmed. It is not easy for anyone to agree to change their identity, but it is the most effective tool to ensure justice gets delivered, while ensuring their financial and physical security.
The United Kingdom too has such a system managed by the UK Protected Persons Ser-vice. It’s currently responsible for the safety of approximately 3,000 people. Canada has had the Witness Protection Programme Act since 1996. Hong Kong, Thailand, Ukraine, Ireland, Israel, New Zealand, China, Switzerland, etc. all have special laws for protecting witnesses. But India does not have any such law, nor is any protection provided to witnesses ordinarily despite clear directions by the court.
The fact is that courts are as much responsible for the protection of witnesses as the police. And in India, where trials goes on and on for years, even decades, the issue of the physical security of the witness is as important as their financial security. The long-winding, arduous pro-cess provides an opportunity to the accused to allure or threaten witnesses or even kill them if they don’t give in.
The Jessica Lall murder case is a glaring example of how witnesses perjure. Most of the witnesses in the case turned hostile. It was a case in which even the judge, S.L. Bhayana, was allegedly influenced. He got elevated to the High Court the day he delivered judgement in the case acquitting all the accused. In appeal, the Delhi High Court reversed the trial court’s judgement and passed a severe stricture against Judge Bhayana. The High Court launched prosecution against one witness, Sayan Munshi, for perjury, but it is not known what happened to it.
In this case, the High Court also directed the government to frame a comprehensive plan for witness protection. The Law Commission made a recommendation to the government in this regard in 2006, but it kept hanging fire. On July 31, 2015, the Delhi government announced that it would create such a programme.
In India, the government does not give any protection, nor does it settle witnesses. Often, scared witnesses are themselves forced to leave and migrate to unknown locations.
In 1980s in Begusarai, Bihar, Prof. Abha Sinha was murdered; then her father Prof. Krishna Nandan Prasad, who was the main witness, was gunned down in broad daylight in a market. The family left the city for a secret location, and the accused walked free as no one deposed against him in the court. It is a common feature. The terrorised family will either strike deal with the accused or disappear. It will be pertinent to mention the case of Zahira Sheikh, the main witness of the Best Bakery case. She lost 14 members of her family in the Gujarat riots.
She often changed her statements in the court. Thus, the Supreme Court sentenced her to one year of imprisonment with a fine of Rs 50,000, though the maximum punishment under the contempt of court law is six months judicial custody. Though she faltered morally by changing her statements, it must not be forgotten that she is essentially a victim, and cannot be compared with general hostile witnesses.
India needs a strong witness protection law. Section 303 of the Indian Penal Code, which was struck down by the apex court as unconstitutional, provided for mandatory death sentence if a person convicted in a murder case committed another murder. A strong law with a well-defined programme is the need of the hour if we want to protect people who want to speak the truth.
The writer is a senior TV journalist and author
