Less hostilityhttps://indianexpress.com/article/news-archive/web/less-hostility/

Less hostility

The trajectory of the Jessica Lall case frames the necessity of witness protection schemes

The trajectory of the Jessica Lall case frames the necessity of witness protection schemes

The Justice Malimath Committee’s 2003 report on the criminal justice system had opened with a gloomy quotation from Andre Gide: “Everything has been said already but as no one listens,we must always begin again.” Among the issues the committee highlighted was the rising incidence of perjury with impunity. This week,a decade after the report and its recommendations were delivered,and 14 years after the murder of Jessica Lall,her case has urged the Delhi High Court to recognise the problem yet again,thus proving Gide’s hypothesis. But this may well be the last time in the capital,since the court has directed the state government to frame a witness protection scheme within 10 weeks. For the interim,it has issued guidelines,including identity protection,to the police. De facto if not de jure,witness protection could become a reality in the capital.

While ordering the trial of actor Shayan Munshi and ballistics expert Prem Sagar Manocha for perjury,the court has let off 17 others on various grounds,distinguishing between wilful acts of perjury and lapses of memory. Most importantly,it has highlighted the “wrath of the accused”,a factor that is palpably at work in criminal courts. In all manner of cases,from financial impropriety to hate crime,the differential of power between the accused and witnesses has seen justice being subverted. When the Supreme Court had fined and jailed Zahira Sheikh for turning hostile in the Best Bakery case,it upheld the law but the human factor was missing — an acknowledgement of the reality that witnesses may feel threatened.

The utilitarian philosopher and jurist Jeremy Bentham had famously declared,“Witnesses are the eyes and ears of justice.” Reports going back to 1996 have observed that under duress,these senses of the courts may become unreliable. The Malimath Committee had mainly proposed courtesy towards witnesses coupled with minatory legal action to discourage perjury. Significantly,it had noted the gulf between the maximum sentence of three months under Indian law and 15 years in New York. Now,by ordering the police to protect witnesses,the Delhi HC has finally included the human factor and initiated a working solution.