My Friend, The Enemy

That is why the unmerited acquittals in the Jessica Lall case have renewed calls for laws and practices to treat witnesses better, and to protect them. And also deter them from being bribed into changing their stories. Says former chief justice of India V.N. Khare, who ordered a retrial in the Best Bakery case, "Since Gujarat, especially, there have been renewed calls for a comprehensive law on witness protection, but nothing has come of it."

The term ‘witness protection’ conjures up Hollywoodesque images of witnesses being relocated into new lives and jobs with new names and backgrounds. But, in India, where every secret comes with a price-tag, such protection remains in the realm of celluloid fantasy. As lawyers, judges and human rights activists point out, basic issues must be sorted out first with respect to how witnesses are treated by the criminal justice system.

For a start, can they stop being treated at par with criminals? "Honest witnesses have deserted the criminal courts because the police and the courts often treat them as the accused. The police routinely doctor the testimony of witnesses and steamroll them," points out former additional solicitor-general K.T.S. Tulsi.

In its 2003 report, the Malimath Committee on Reforms of the Criminal Justice System details how shabbily the system treats witnesses: no facilities for long waits, a lack of courtesy, non-payment of allowances, repeated and unnecessary visits as legal proceedings drag on, and rude cross-examination by the defence while the judge "sits as a mute spectator". One of its recommendations: let the witness sit while testifying!

There are, of course, weightier items on the legal community’s wishlist for all witnesses, rather than just those linked to terrorist crimes: clear-cut directions for courts to provide witnesses and their kin police protection; in-camera proceedings, screening the witness from the defendant, protecting the witnesses’ identity; cross-examination of witnesses by video-conferencing to reduce psychological pressure and intimidation by defence lawyers in court; stronger imperatives for courts to act against those intimidating victims.

What about deterrents to witnesses changing their testimonies? While Parliament late last year amended some provisions of the CrPC and other laws to deter witnesses from turning hostile, the legal community feels the effort was half-hearted and weak.Several lawyers and judges want stronger measures to check flip-flops. One is that the initial statement by witnesses to a major crime should be made on oath before a magistrate so that it can be used as evidence in court. (At present it is recorded by police.) According to former law minister Arun Jaitley, the previous government was in favour of pushing through such a change, but it was not taken forward by the upa government.

A second is that punishment for perjurers be swifter and harsher. Observing that "the court’s response to the problem of perjury is one of indifference", the Malimath panel recommended that the law be amended to require courts to try cases of perjury summarily. The punishment for perjury, currently three months’ imprisonment, and/or a maximum fine of Rs 500, should be raised to two years’ imprisonment and/or a fine of Rs 10,000, it said.

However, human rights activist Teesta Setalvad—who was put in a spot of bother when Best Bakery witness Zahira Sheikh startlingly turned against her in court—says reforms relating to witnesses are meaningless if the rest of the criminal justice system remains unreformed: "Police are generally the via media through which the rich and powerful actively turn witnesses hostile, and those put in charge of protection of witnesses can often be informers to the ‘other side’. Also, taking steps for witness protection without ensuring time-bound trials and insulating the prosecution from the police will be a case of getting one more good law in without worrying about its implementation."