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Political class must address legislative, executive inaction

More than 150 years after English philosopher and legal theorist Jeremy Bentham said “witnesses are eyes and ears of justice”, India has finally realised the importance of witnesses in criminal justice system.



By Satya Prakash

More than 150 years after English philosopher and legal theorist Jeremy Bentham said “witnesses are eyes and ears of justice”, India has finally realised the importance of witnesses in criminal justice system.

Last week, the Supreme Court approved the Witness Protection Scheme, 2018, prepared by the Centre. It directed all states and Union Territories to implement it forthwith “in letter and spirit”. A Bench headed by Justice AK Sikri declared that it shall be the ‘law’ until a suitable enactment comes on the subject.

The scheme aims to ensure safety of witnesses and expeditious completion of trial and provides for identity protection and giving a new identity to witnesses in appropriate cases. Vulnerable witness deposition complexes have to be set up by states and UTs in each district by 2019. Protection is not expected to go on for infinite time; rather it would be for a specific duration on need basis which is to be reviewed regularly.

The top court’s intervention was triggered by threat to witnesses in rape cases against self-styled preacher Asaram. But the Indian justice system is replete with instances of witnesses being threatened and even killed.

Witnesses often turn hostile in high profile cases, inflicting a body blow to prosecution case. Be it Vyapam scam of Madhya Pradesh or fodder scam of Bihar or the National Rural Health Mission scam of Uttar Pradesh – witnesses have been at the receiving end of the criminal-politician nexus with the police being a mute spectator, leaving courts with no option but to acquit the accused, at least the influential ones, for want of evidence.

Hostile witnesses are considered to be one of the main reasons for poor conviction rate in criminal cases, which stands at 46% in Indian Penal Code cases. But in many states it’s much lower.

Why do witnesses turn hostile? Primarily witnesses retract their statements before courts either due to threat or inducement as muscle and money power is used by accused to influence them to achieve a favourable outcome of trial. But what is ignored is the fact that protracted trials and hassles faced by witnesses during investigation and trial often play spoilsport in criminal cases. No wonder the SC termed the conditions of witnesses in the Indian legal system as “pathetic”.

In such a scenario, witnesses lose interest in the case. Also, due to inordinate delay they would fail to recollect exact details of the crime in question and their testimony may not be of the level of “beyond reasonable doubt” needed to convict an accused.

“The present legal system takes witnesses completely for granted. They are summoned to court regardless of their financial and personal conditions… they are not even suitably remunerated for the loss of time and the expenditure towards conveyance etc.,” the SC noted with concern.

It’s not that the problem of witness protection was unknown or that it was not deliberated upon. The SC, the Law Commission, Malimath Committee, various high courts and even NGOs have been highlighting the problem and suggesting remedial measures from time to time. Despite all this, the issue was not on the priority list of the government, which had no scheme to deal with witnesses turning hostile due to threat or inducement.

While the SC’s initiative on witness protection must be welcomed, it’s a sad commentary on the misplaced priorities of the Legislature and the Executive which often complain about judicial activism and overreach. If legitimate concerns of citizens are not addressed by the Legislature and the Executive, they are bound to approach the courts which in turn are obliged to intervene.

It’s never too late for the political class to take note of it and address the issue of legislative and executive inaction.

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