“Free and fair trial is sine qua non of Article 21 of the Constitution. It is trite law that justice should not only be done but it should be seen to have been done. If the criminal trial is not free and fair and not free from bias, judicial fairness and the criminal justice system would be at stake shaking the confidence of the public in the system and woe would be the rule of law.” [Justice H.K. Sema in K. Anbazhagan v. Supdt. of Police, (2004) 3 SCC 767]

The rate of commission of crime in India continues to soar incessantly whilst the conviction rate remains abysmally low.

The sorry state of affairs with respect to the police investigation, and the subsequent court procedures which takes an agonizingly long time to meet any logical end, are adding to the dismal state of the criminal justice system of India.

A walk into the recent past, such as in the infamous BMW Hit and Run case, the Best Bakery case, and the Jessica Lal murder case, poignantly illustrates an increasing and lamentable tendency among witnesses to turn hostile.

Don’t blame the cops

This tendency of witnesses turning hostile is leaving the system as a whole in a bizarre condition.

However, it would be naive to blame the police for all the menace within the system. Considering the volume of cases pending in the courts all over the country, it would clearly be foolhardy to expect the police, who are supposed to be the traditional guardians of witnesses, to shield crucial witnesses at all possible times.

The reasons for hostility of the witnesses include, inter alia, the frequent adjournment of cases, absence of physical protection, absurdly minimal allowance and lack of adequate facilities in courts.

The disinterest exhibited by crucial witnesses and the excruciatingly long time taken by the courts in deciding the cases are, in effect and for the worse, choking and clogging up the entire justice delivery system.

Therefore it is imperative that an exhaustive and wholesome witness protection programme is taken up in the country to infuse a fresh life within the system.

Protecting our witnesses

Much deliberation has been done on the issue of adoption and effective implementation of a witness protection programme in the country. However, no concrete statutory implementation of the same has materialized despite the Law Commission of India submitting a comprehensive report on the subject in 2006 advocating for implementation of witness protection schemes.

It is not that the Courts themselves are not concerned with the protection of witnesses.

The Supreme Court for instance in the Best Bakery case, while comprehensively dealing with issues surrounding witness protection, observed that the State has a definite role to play in protecting the witnesses so as to avert the trial getting derailed and the truth becoming a mere casualty, to start with at least in sensitive cases involving those in power, those who have political patronage and those who could wield muscle and money power.

As a protector of its citizens, the State has to ensure that during a trial, the witness safely deposes without any fear of being haunted by those against whom he wishes to depose.

The witness protection guidelines framed by the Delhi High Court in the Nitish Katara case could well prove to be the starting point to achieve the cherished goal of protection of witnesses.

Go West

Today, the government is evaluating American laws on witness protection where gang men, upon turning approver, are given a completely new identity and rehabilitated to a new place.

This methodology was conceived in response to the threats faced by witnesses testifying against mobsters. In a high threat environment including pre-trial conferences, trial testimonials and other court appearances, a round the clock protection is provided to all witnesses through the US Marshall Service.

Recently, in Canada, a Sikh woman, Satnam Kaur Reyat, was accorded protection under the Witness Protection Act of 1996, when she deposed and threw fresh light in a bombing case.

Even though certain positive measures have been incorporated in the Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010, with respect to the protection of witnesses and protection of the identity of complainants, the same would be effective only after being implemented as a law, since the Bill is yet to receive the assent of the President of India though it has been passed by both the Houses of the Parliament.

It is high time that the recommendations of the Law Commission are implemented keeping in mind the drastic change and upheaval that is imminently required in the criminal justice system.

Concentrated efforts to avoid delay in disposal of cases and frequent adjournments, adequate care and protection of witness, sufficient and swift payment of allowances and proper facilities within the court premises can collectively contribute immensely to revive the faith of the witnesses in the justice delivery system of the country.

Moreover, reforms in the investigation by the police so as to cause minimum hassle to witnesses, could well see a stark change in perception of the police in the eyes of the common man and thus encourage more and more witnesses to come forward and depose before the halls of justice.

Some solutions

The following suggestions can be drawn in order to curb the hostile tendencies among witnesses:

1. The issue of fairly long time consumed in a criminal case, which is a breeding ground for witnesses to turn hostile, must be checked. Therefore, delay in disposal of cases and frequent adjournments should be avoided, especially when the case is fixed for examination or cross-examination of witnesses the judges should exercise reluctance to adjourn the case i.e. the procedural laws must be streamlined in favour of the witnesses and the victims.
2. Due to ignorance by the prosecution, witnesses have been feeling insecure and do not get any motivation to come to the court to depose. It is suggested that the prosecution should take adequate care of the witnesses by properly explaining the details of the cases. The prosecution needs to understand and empathize with the hardships of witnesses on issues related to language problem, court procedures, etc. so that the witnesses do not get petrified coming to court.
3. Witnesses should be provided proper protection. Merely keeping the identity a secret is not enough. The enactment of a comprehensive legislation dealing with witness identity and witness protection should be the way forward in line with the international practices being adopted regarding the same.
4. The provisions pertaining to payment of allowances to the witnesses must be strengthened and revamped in order to facilitate smooth payment of allowance for each day a witness comes to the court to testify.

   

5. Proper facilities and a cordial environment should be provided within the court premises to facilitate the witnesses to testify rather than being harassed and dropping out of the case forever. The conduction of in-camera proceedings could well prove to be effective in creating a comfortable environment for witnesses.
6. There is an imminent need for reforms in the police in the manner the investigations are conducted. The police needs to have an empathic attitude towards the witnesses and safeguard the evidence rather than harassing witnesses and equating them to the status of the accused through an indifferent attitude towards them.
7. Meticulous action against the hostile witnesses needs to be taken and for the same to happen, the perjury proceedings need to be actively invoked against the hostile witnesses.

To sum up, it is only through a positive and symbiotic relationship between every pillar of the criminal justice system that a witness would feel comfortable to fearlessly depose in court.

And bear in mind that when the lives and the rights of citizens are at stake, there must be no silent witnesses.

Kshitiz Karjee, advocate is an associate at Economic Laws Practice (ELP), New Delhi. The views expressed in this article are personal.