By Jagdeep S Chhokar
“Muzaffarnagar case: Families of boy, woman killed in 2013 riots turn hostile.” – Indian Express, February 10, 2016
“Moga molestation death- Victim’s mother turns hostile: ‘Not molested, can’t recall any detail.’” – Indian Express, February 10, 2016
One would expect two headlines, in the same newspaper, the same day, on the same issue to turn some heads and some notice being taken. But nothing of that sort happening even after a week is somewhat disconcerting. More so when the “issue” has to do with Justice and the Rule of Law. The capitalisation of the first letters of these two concepts is deliberate.
What does this almost complete lack of concern indicate? Have we, as a nation and people, become completely impervious, nay indifferent, to things like rule of law and justice? Sadly, the answer to this question appears to be “yes”. Does this answer reflect cynicism or exaggeration? Let us see.
It does not take much insight to decipher why witnesses turn hostile. Everyone knows. The reasons are broadly two: threats or inducement. Sometimes inducements are accepted because of the underlying threats.
Why do witnesses succumb? Because they feel helpless and alone. If this is considered exaggeration, think Ravindra Patil. If that does not ring a bell, think Salman Khan or read what the former Director General of Police, Julio Ribeiro, has to say on Ravindra Patil.
And what happens to those who do not succumb? Think of the Asaram Bapu case or the Vyapam case.
The standard response at this juncture of this piece would be that there is need for a witness protection law, so let us think about that.
The first formal mention of the expression “witness-protection” was in the 14th report of the Law Commission of India way back in 1958, more than 50 years ago. The Commission was headed by the legendary jurist, MC Setalvad and the report was titled Reform of Judicial Administration. This report had a separate section titled Attendance of witnesses and considered matters connected to witnesses in some detail. It observed that “it was by no means uncommon for the opposite party, as soon as he knew that certain witnesses were being called against him, to use all means within his power to dissuade them from assisting the opponent.” However, the Commission also felt that “there would be an attempt to tamper with the witnesses only in a minority of cases.” The Commission therefore confined itself to stuff like proper arrangements being provided in the courts for witnesses, scales for travelling and daily allowances, etc.
The National Police Commission headed by the famous civil servant, later Governor, Dhrama Vira, referred to the phenomenon of witnesses turning hostile, in its report submitted on 9 June, 1980, in the following words, “It has also been brought to our notice that the phenomenon of prosecution witnesses turning hostile is becoming increasingly common in the context of pressures and influences which operate from the side of the accused person and that it is becoming increasingly difficult to check this tendency.” It however did not suggest any concrete steps for providing protection to witnesses but limited itself to commenting on getting the statements of witnesses signed by them and to the inadequacy of the daily allowances of witnesses.
The 154th report of the Law Commission in 1996 contained a full chapter titled Protection and Facilities to Witnesses. While the major focus of the chapter seemed to have again been on allowances and facilities to be provided to witnesses, it also made the following observations:
“They have to incur the wrath of the accused, particularly hardened criminals which results in their life being in great peril.”
“In the Conference of Director Generals of Police held in 1974 it was recommended that witnesses should be provided sufficient protection.”
“Necessary confidence has to be created in the minds of the witnesses that they will be protected from the wrath of the accused in any eventuality.”
The report however did not go into any details of the mechanisms for providing such protection.
This was followed by the 178th Report of Law Commission of India submitted on 11 December, 2001. This report, titled Recommendations for Amending various Enactments, both Civil and Criminal also had a separate chapter titled Problem of hostile witnesses and the need to ensure a fair investigation. It referred to the fact of witnesses turning hostile in the following words:
“The experience shows that where the accused happens to be rich and/or influential persons or members of mafia gangs, the witnesses very often turn hostile either because of the inducements offered to them or because of the threats given to them or may be on account of promises that may be made to them. To protect public interest and to safeguard the interests of society, measures need to be devised to eliminate, as far as possible, scope for such happenings.”
After discussing several options, it finally recommended three steps:
Recording statement of witnesses by the police “at the earliest opportunity i.e. at the very inception of the investigation.” The rationale is, “It is well-known that generally witnesses stick to truth at the early stages but may change in course of time. If their statement has got recorded by a magistrate at the earliest opportunity, that will also furnish guarantee of the truth of the statement as well. This is the general belief, though this cannot be stated as a definite or universal proposition.”
This was recommended along with an additional provision that “if a witness whose statement … departs from that statement at the trial, it should be open to the trial judge (Sessions judge) to treat his statement recorded (earlier) as relevant evidence at the trial, subject to the provisions of the Evidence Act. It is obvious that the trial judge would do so only when he is satisfied, in the facts and circumstances of the case, that the statement of the witness … recorded (earlier) was true and that his statement at the trial does not represent the truth. Of course, he should also be satisfied that the statement (recorded earlier) was made voluntarily.”
The Commission also chose to admit that they were recommending something unusual. The report said, “We are aware that the measure suggested by us is rather radical, inasmuch as a statement, untested by cross-examination, is sought to be made admissible as evidence for all purposes – even in a case of murder. But the justification behind this measure is … ‘necessity’- a doctrine which is well-accepted in jurisprudence, examples of which are the several instances mentioned in clauses (1) to (8) of section 32 of Evidence Act.”
“Introduction of the procedure of ‘plea bargaining’ and increasing the number of offences which can be compounded, should be implemented without any further delay.”
“There is another very important measure, which too was recommended in the 154th Report of this Commission, which needs to be implemented without further delay. It relates to establishment of a separate investigating agency and an independent prosecuting agency set out in chapters 2 and 3 of the said Report. ... (W)e endorse and commend the said recommendations which would go a long way in ensuring fair and prompt investigation and would also contribute to the increase in the rate of conviction which is appallingly low at present.”
Then came the Malimath Committee Report in March 2003, officially called the Committee on Reforms of Criminal Justice System, headed by Dr Justice VS Malimath, former Chief Justice of Karnataka and Kerala High Courts. Interestingly, the report begins with a quotation by a French thinker and writer, Andre Gide: “Everything has been said already, but as no one listens, we must always begin again.”
The report describes the predicament of a witness very well:
“Another major problem is about 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 the case and the background of the accused and his family. Many times crucial witnesses are threatened or injured prior to their testifying in the court. If the witness is still not amenable he may even be murdered. In such situations the witness will not come forward to give evidence unless he is assured of protection or is guaranteed anonymity of some form of physical disguise. Sometimes holding of in-camera proceedings may be sufficient to protect the interest of the witness. If, however, the circumstances indicate that the life of any particular witness is in danger, the court must take such measures as are necessary to keep the identity of the witness secret and make arrangements to ensure protection to the witness without affecting the right of the accused to cross-examine him. The threat from the accused side may be before he gives his statement before the police officer or evidence before the court or after the conclusion of the trial. There is a growing tendency of subjecting the witness and his family members to serious threats to life, abduction or raping, or damaging the witnesses’ property or harming his image and interest in other ways. The witness has no protection whatsoever. Many countries in the world have enacted laws for witnesses’ protection. There is no such law in India. Time has come for a comprehensive law being enacted for protection of the witness and members of his family” (Italics added) (Para 11.3).
Then the report goes on to discuss the “menace of perjury”, concluding with the recommendation, “As the menace of perjury is shaking the very foundation of the Criminal Justice System it is necessary to curb this menace and the sentence prescribed should be enhanced” (Para 11.7.7).
Since the Malimath Committee Report mentions that, “Many countries in the world have enacted laws for witnesses’ protection”, it is worth pointing out that the countries that have laws for providing protection to witnesses include Australia, Canada, Germany, Hong Kong, Italy, the Netherlands, the Philippines, South Africa, United Kingdom, and the US.
In the US, witnesses have been protected, relocated, even given new identities in several cases. Often housing, medical care, job training and assistance in obtaining employment and subsistence funding are provided until the witness becomes self-sufficient. This is done under the Organised Crime Control Act, 1970 and later the Comprehensive Crime Control Act, 1984 which authorise the Witness Security Program. The Witness Security Reform Act, 1984 provides for relocation and other protection of a witness or a potential witness in an official proceeding concerning an organised criminal activity or other serious offence. Protection may also be provided to the immediate family of, or a person closely associated with, such witness or potential witness if the family or person may also be endangered on account of the participation of the witness in the judicial proceeding. Of course there are detailed provisions so the extent of protection depends on the nature of the risk to the security of the witness, the value of the evidence and the importance in the matter.
South Africa has an office called the Office for Witness Protection within the Department of Justice, set up under the Witness Protection Act, 1998. Any witness who has reason to believe that his safety is threatened by any person or group or class of persons may report such belief to the Investigating Officer in a proceeding or any person in-charge of a police station or the Public Prosecutor etc. and apply for being placed under protection. The application is then considered taking into account factors such as the following for deciding whether a person should be placed under protection or not:
The nature and extent of the risk to the safety of the witness or related person.
The nature of the proceedings in which the witness has given evidence or may be required to give evidence.
The importance, relevance and nature of the evidence, etc.
The Indian Experience
It is sad but not surprising to note that though the issue of witnesses turning hostile and providing protection to witnesses has been around for more than half a century, and despite many recommendations, no government has shown any inclination to do anything about it.
The reasons are not far to seek but recently an unexpected source has provided the reasons. And that is Raghuram Rajan, the Governor of the Reserve Bank of India (RBI). A letter he wrote to the staff of the RBI at the end of 2015 contained the following paragraph:
“We do not punish the wrong-doer—unless he is small and weak. This belief feeds on itself. No one wants to go after the rich and well-connected wrong-doer, which means they get away with even more. If we are to have strong sustainable growth, this culture of impunity should stop.”
While Rajan was presumably referring to financial wrong-doers, what he said seems to apply equally to the accused in the Muzaffarnagar and Moga Molestation Death cases too. And also to the kind of accused that the Law Commission reports, the National Police Commission report, and the Malimath Committee report refer to. All such accused are “after the rich and well-connected wrong-doer” as described by Rajan.
This still leaves open the question as to why successive governments have chosen not do anything about witness protection. Interestingly, Rajan also explained that in an earlier speech, at the 20th Lalit Doshi Memorial Lecture in Mumbai on 11 August, 2014, this is what he said:
“The crooked politician needs the businessman to provide the funds that allow him to supply patronage to the poor and fight elections. The corrupt businessman needs the crooked politician to get public resources and contracts cheaply. And the politician needs the votes of the poor and the underprivileged.”
The operative word in the above paragraph is “crooked”. If the “the rich and well-connected wrong-doers”, as mentioned by Rajan, are not crooked, who is?
Obviously not all politicians are crooked but it does seem that the political class has come to be dominated by the crooked. That is why there is no witness protection law in the country. It is not that the political class is unaware of the need to protecting witnesses, particularly in sensitive cases which can have a far reaching impact on society, but they find it expedient not to enact it. The non-crooked part of the political class, regardless of how small or large it is, does not seem to have the courage to take on the crooked part.
Unless this can be managed, it is safe but sad to say that witnesses will continue to be in wilderness.
Jagdeep S Chhokar is a former professor, dean, and director-in-charge of IIM, Ahmedabad. Views are personal.