Yet Again, the Supreme Court Raps the Indian State on Witness Protection, But Is Anyone Listening

Written by Teesta Setalvad | Published on: November 28, 2016

Witness Protection Programme is a real need and States are expected to be pro-active, says the Supreme Court. Again. Despite these consistent and repeated judicial pronouncements, there has been scant response from across the political spectrum. Indian federalism and democracy boasts of different parties with ideological variants holding political power (in states and at the centre); but the restoration of faith in the criminal justice system, is obviously a low priority for all. Regardless of where and on which side you claim to be on the ideological metre or divide.


witness protection

Flagging, yet again, the crucial issue of witness protection to ensure substantive justice, the Supreme Court has exhorted governments to be pro-active on the issue of witness protection, PTI reports.

The State needs to play a definite role in coming out with witness-protection programme, at least in sensitive cases involving those having political patronage, muscle and money power so that trial does not get "tainted and derailed", the Supreme Court has said. Observing that threat and intimidation were major causes for witnesses turning hostile, it said when the witnesses are not able to depose correctly before the court, it results in low conviction rate and many times even hardened criminals escape the conviction."It shakes public confidence in the criminal justice delivery system," a bench of justices A K Sikri and Amitava Roy said.

"It is for this reason there has been a lot of discussion on witness protection and from various quarters demand is made for the state to play a definite role in coming out with witness-protection programme, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty," it said.

The bench noted in its verdict that it has become a common phenomenon and almost a regular feature that in criminal cases witnesses turn hostile.

The court's observation came while dismissing an appeal filed by four persons, who were convicted by the Punjab and Haryana High Court for the offences of murder and subjecting a married woman to cruelty. They were initially acquitted by a trial court but the high court had overturned the judgement and convicted them while relying on the dying declaration of the woman, who was set ablaze by the accused persons in 1999.

The husband and in-laws of the deceased woman had moved the apex court challenging the high court's judgement, saying there was no reason to rely on the dying declaration as there were certain infirmities in it. Police had registered the case against them based on the statement given by the woman, who was admitted to a hospital with 100 per cent burn injuries and had died during treatment.

Witness Protection, the Real Issue
The issue of witness protection has been high-lighted most recently in the cases related to the 2002 Gujarat genocidal killings. The famed Best Bakery Case, in which the  Supreme Court intervened and transferred the case out of Gujarat as also ordered re-trial of the case in Mumbai, the Court had flagged the issue critically.  Thereafter the Prevention of Communal and Targeted Violence Bill, 2011—an aborted promise of the UPA Government made in the Common Minimum Programme(CMP) of 2004- also specifically introduced victimology and witness protection as a statutory responsibility of the state.
 
In November 2005, then chairperson of the Law Commission, Justice M Jagannadha Rao had in his keynote address at a national conference in the capital, detailed the rights, needs and benefits of witnesses required to ensure effective victim testimony.
 
In this keynote address that may be read here he had said that:

“The victim of a crime is an important player in the administration of justice both as a complainant/informant and as a witness for the prosecution/state. His or her role is vital both at the stage of investigation and at the trial stage. Without the victim’s active support, the investigation of a crime may not come to a logical end. At the same time, the victim’s testimony in court, especially if the crime is a violent one, can be said to be the best piece of evidence that can be used against the accused. But despite being an important component of the criminal justice system, much attention has not been paid to the rights of victims.

“The word ‘victim’ has not been defined either in the Indian Penal Code (IPC) or in the Code of Criminal Procedure, 1973 (CrPC). The General Assembly of the United Nations in its 96th plenary meeting on November 29, 1985 made a Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. The declaration defines victims as "persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are violations of criminal laws operative within member states, including those laws prescribing criminal abuse of power".

“We can say that the word ‘victim’ means the person or persons who have suffered physical, financial, social or psychological harm as a result of an offence and in some cases it includes an appropriate member of the immediate family of such a person."

Judicial Precedents
There have been significant judicial pronouncements on Witness Protection by the Supreme Court and yet little has been done by successive governments to ensure an effective and sensitive Witness Protection Programme.
For example,

The Supreme Court of India in Zahira Habibulla Sheikh vs State of Gujarat, 2004 (4 SCC 158) has stated the importance of victims in the following words:
"Right from the inception of (the) judicial system it has been accepted that discovery, vindication and establishment of truth is the main accepted underlying existence of courts of justice. The operating principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of (the) victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences".

The Supreme Court of India in Gaurav Jain vs Union of India (AIR 1997 SC 3021) gave various directions for the rehabilitation and other welfare of victims of such crimes. The Court said that three C’s, viz. counselling, cajoling by persuasion and coercion as the last resort are necessary for effective enforcement of rescue and rehabilitation of the victims of such trafficking. The Immoral Traffic (Prevention) Act, 1956 and the Juvenile Justice (Care and Protection of Children) Act, 2000 deal with these aspects.

The apex court in Vishal Jeet vs Union of India (AIR 1990 SC 1412) had also issued directions on the subject.
The Supreme Court in State of Punjab vs Gurmit Singh,1996 (2 SCC 384) while dealing with a case of rape has said, "The courts should, as far as possible, avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim of (a) sex crime. The anonymity of the victim of the crime must be maintained, as far as possible, throughout". Though in some cases the identity of the victim is known to the accused, this is not so in all cases. Where the identity and all details of the victim are not known to the accused, maintaining anonymity would be quite helpful.[[ Anonymity of victim – Names and addresses of victims may be kept secret in criminal proceedings. Even in supplying copies of charge sheets to the accused, the identity of victims may be withheld.]]

In Delhi Domestic Working Women’s Forum vs Union of India, 1995 (1 SCC 14), the Supreme Court while indicating the broad parameters that can assist the victims of rape, emphasised that in all rape trials ‘anonymity’ of the victims must be maintained as far as necessary so that the name is shielded from the media and public. The court also observed that the victims invariably find the trial of an offence of rape a traumatic experience. The experience of giving evidence in court has been negative and destructive and the victims often expressed that they considered the ordeal of facing cross-examination in the criminal trial to be even worse than the rape itself.

Section 13 of TADA, the Terrorist and Disruptive Activities (Prevention) Act, 1987 and Section 30 of POTA, the Prevention of Terrorism Act, 2002 (now repealed) provides that the court may take such measures as it deems fit to keep the identity and address of witnesses secret.

Despite these consistent and repeated judicial pronouncements, across the political spectrum—despite different parties with ideological variants being in power—restoration of faith in the criminal justice system, is obviously a low priority for all. Regardless of where and on which side you claim to be on the ideological metre.