It is for the State to protect witnesses

Rajbir Deswal
Retired IPS officer and an advocate

WHY is Mahender Chawla, a Panipat resident and former aide of and witness against Asaram, asking for additional security? The Asaram conviction case has once again prompted the common citizenry, more than the legal minds, to push for the need to have a witness protection law in this country. In the criminal justice delivery system, a witness has a crucial role to play in securing conviction for an accused, or letting him be acquitted. Hence, vested interests take to witness intimidation, ensuring that either he doesn't depose because of the threats extended, or is allured and won over, or, if found ‘unbending’, murdered. 

Crimes against Asaram case witnesses 

Right from the registration of a case against Asaram and his son Narain Sai, alleging rape and molestation and through the trial, a series of crimes were witnessed, having had been committed to browbeat and threaten the witnesses. The timeline reveals a certain pattern and raises reasonable suspicion against the perpetrators. There was a stabbing incident in Surat of one of the rape survivors on February 28, 2014. In the same case, 16 days later, two unidentified men attacked a witness with acid. The same year on June 11, a witness and a former aide of Asaram, Amrut Prajapati was shot. In January, 2015, Asaram’s cook Akhil Gupta was shot dead in Muzaffarnagar, UP. The same year in February, Jodhpur rape case witness Rahul Sachan was stabbed outside the local court. On May 13, 2015, prime witness Mahender Chawla was shot at in Panipat.

These figures exclude the witnesses who turned hostile. Another self-styled godman is cooling his heels in a Haryana jail. He is facing trial in his alleged involvement in the murder of a journalist, who seemed “to know more than what should have been enough for him.” All this points to the necessity of  witness protection. 

Law on witness protection

The Criminal Procedure Code does not specifically define a witness, who, broadly speaking, is a person having knowledge about a certain fact, and when he deposes, it is the attestation of that particular fact. A witness is the cornerstone of justice and is an indispensible part of the criminal justice system. Professional criminals understand the nitty-gritty of arrests, bails, investigations, judicial processes and trials. Circumventing the norms by hook or crook, by armtwisting and intimidation, by using money power and political contacts and ensuring delays, they influence the witnesses in various ways, including through seductive allurements. Hence, the need for protection of witnesses, lest they should be eliminated or they turn hostile, thereby telling upon the conviction of accused persons.

The Supreme Court has on many occasions called for the enactment of laws relating to witness protection. In the matter of Swaran Singh versus State of Punjab, the apex court observed, "A witness has to visit the court at his own cost. Every time the case is deferred for a different date. Nowadays it has become more or less fashionable to repeatedly adjourn a case. Eventually, the witness is tired and gives up.” The court further observed, “While adjourning a case without any valid cause, a court unwittingly becomes party to miscarriage of justice too. Most witnesses have to wait their turn out. And when their time for deposing or the giving of evidence comes, the lawyers examine and cross-examine them as if they themselves are the perpetrators of the crime.”

The unfortunate part in our system is that the State does not owe it upon itself to be responsible for witness protection. In cases of rape and molestation, terrorism, gang wars, communal violence, and organised crime, it is most incumbent to depend on the testimony of witnesses. 

Criminal Law Amendment Acts in India have addressed this issue of late. There are various Law Commission Reports suggesting the idea of having a witness protection programme. The Malimath Committee report endorsed the need for the same, but unfortunately, without specifying it in abundant terms. The Law Commission’s 198th report on ‘Witness Identity Protection’ and ‘Witness Protection Programmes’ of 2006, was forwarded to the states for their inputs. Unfortunately, the states did not respond positively. The Centre in 2016 then tasked the Bureau of Police Research and Development to study the issue and its financial implications. In a way, the issue seems to have been brushed under the carpet one more time. 

However, some news of cheer has come from the national capital. In 2015, the Delhi Legal Service Authority came out with a ‘Witness Protection Scheme’ for which separate funds have been provided and the Police Commissioner has been vested with the task of implementation of the scheme.  Senior police officers keep in touch with the witnesses on a regular basis. Threat analysis is done on individual cases and whenever a reference in this regard is made. 

The last word is in appreciation of officers like Ajay Pal Lamba, who was made overall in charge of the investigation into the case against Asaram. The officer received innumerable threats but the braveheart did not dither from his duty and ensured the conviction of the immoral baba. Likewise, the forensic science and medical experts and prosecutors are people who make a case strong for bringing the culprits to justice.

How US and UK protect witnesses

• Countries like the US and the UK have witness protection programmes to fight crimes. America’s WITSEC (Witness Security) has its roots in the Ku Klux Klan vigilante's actions. This programme guarantees protection to the witness and his/her family, their relocation, providing job, funding, during the trial and even after the trial, till the family is rehabilitated, even financially. In cases of terrorism, this programme has provision of taking the witnesses even to a holding area before their relocation.
• This programme provides for the witness's screening faces or blurring, even to the judge and the jury, as also adopting pseudonyms, and giving different voice modulation, during the trial, to secure the identity of the witness and not compromise the same. In the US, while tackling the gang war cases, the WITSEC gives a new witness identity to the approvers and relocates them.
• The English law even sanctions plastic surgery of the witness to conceal his identity. In England, a child victim of sexual abuse is never made to confront the perpetrator of the crime during trial and the victim’s deposition.