With two recent developments, some crucial questions relating to witnesses came to the surface. First, the Supreme Court (SC), while hearing a PIL in Mahendra Chawla and Ors, approved the Centre’s draft Witness Protection Scheme (WPS). Second, all accused in the Sohrabuddin case were acquitted. In the latter, 88 witnesses out of a total of 212 who were examined by the court turned hostile.
The SC has asked the states to implement the WPS till Parliament comes out with legislation in this matter. In principle, this measure is laudable. However, the scheme falters with respect to the core concerns and issues that witnesses face in their day-to-day interactions with the courts. The draft scheme, prepared by the National Legal Services Authority (NALSA) and Bureau of Police Research and Development (BPRD), does not seem to be premised on any empirical study and, therefore, the deeper insights about the varied sufferings and consequences of being a witness remain unaddressed.
The core of the WPS remains the security to witnesses. An almost crude estimate suggests that not more than 20 per cent of all witnesses require this kind of a protection measure. In cases involving terrorist acts, organised crime and powerful people with connections and resources, there may be a dimension of security. However, a vast majority of cases in the lower courts wherein witnesses refuse to be present or become hostile involve certain other factors which need to be appreciated.
The WPS relies heavily on concealing the identity of witnesses and undertaking a detailed threat analysis report, to be prepared by the police. Both things look quite uncertain in the present context. Given the way the police and prosecution work in this country, the idea of hiding the identity of a witness as a measure of protection does not seem to be practical. Overworked and understaffed, the police are also unlikely to make any meaningful threat analysis for a witness. A police force which roughly devotes only 20 per cent of its time to investigative work would be justifiably right in avoiding this task. Therefore, ensuring and “executing a “Witness Protection Order” under the WPS by the police appears to be unlikely. The lower courts, where all the witnesses have to appear, do not have the infrastructure to satisfy the mandate of the present WPS. Nor can they do much to avoid contact between the witness and the accused. The in-camera trial arrangements in all such cases also have the same issue. The most problematic and unrealistic factors in this scheme are the arrangements to change identity and relocate witnesses. Even in the rarest of rare cases, the witnesses would perhaps not like this to happen to them. This borrowed idea — devoid of empirical understanding — does not fit Indian conditions.
This brings us to the search for the real picture based on hard data and a workable arrangement rooted in the Indian conditions.
What we actually need is a “Witness Assistance Programme”. A study conducted by this author based on 800 witnesses in the premises of courts in Madhya Pradesh, Uttar Pradesh, Rajasthan, Maharashtra and Karnataka clearly revealed that a vast majority of witnesses do not need protection — they require more assistance, care and dignity. Moreover, the need is to understand and take into account the fact that witnesses are also a harassed lot, who at times are dealt with much like the accused.
The major source of harassment for the witnesses stemmed from the frequent adjournment of cases, which was confirmed by 65 per cent witnesses in the said study. As many as 80 per cent of witnesses also reported monetary loss and other kinds of deprivation due to their repeated appearances in the courts. Around 65 per cent of the witnesses reported frequencies of adjournments.
The profile of witnesses also offers crucial insights. A majority of witnesses before the courts are wage-earners, agriculturists, the not so well-educated, or belonging to Scheduled Castes. Many have health issues. In most cases, they were unaware of the consequences of being a witness. In 40 per cent of the cases, they were persuaded through social or caste-related pressure to assent to being witnesses. Most crimes in India take place amongst people known or related to each other and, consequently, the witnesses also shares some relationship with both the victim and the accused. Thus, giving statements in favour or against a particular party casts tremendous pressure on the witness, generally of a social or caste-related nature.
While in around 40 per cent cases the witnesses reported threats or being manhandled, this was not of a magnitude that would imply the need for police protection or relocation. A vast number — 44 per cent — complained of an unfair deal meted out to them by agencies like the police, prosecution or the courts. The admissible allowance for the appearance of witnesses before the court was not only meagre but also was difficult to claim, as reported by a majority of the witnesses in this study. In view of this, the present WPS needs a complete shift in focus to make it rights-based rather than security-centric.
The writer is chairperson, Centre for Criminology & Victimology at National Law University, Delhi. He is the president of Indian Society of Victimology