The Hindu : Opinion / Editorials : PROTECTING WITNESSES

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Tuesday, Nov 09, 2004

Opinion

Opinion - Editorials

PROTECTING WITNESSES

ZAHIRA SHEIKH'S FLIP-FLOPS may or may not have a bearing on the outcome of the Best Bakery case. But her shifting testimonies spotlight a larger issue — the urgent need to enact a comprehensive law on witness protection. The phenomenon of witnesses turning hostile during trial is not limited to high-profile cases such as Best Bakery, the BMW hit-and-run, and the Jessica Lal murder. It is a pervasive problem that has undermined public confidence in the criminal justice system and contributed to an abysmal rate of convictions in India. Successful law enforcement is predicated on the willingness of individuals to provide information and tender evidence. Experience around the world has shown that the extent of such willingness depends on the capacity of the state to protect people from threats and ensure their safety. The Supreme Court has stressed the importance of introducing a witness protection programme on a number of occasions, most recently in connection with the Best Bakery case. The Law Commission, which recently took up the subject suo motu because of its "immediate importance," has prepared a consultation paper on "Witness Identity Protection and Witness Protection Programmes." The object is to initiate public debate before drafting legislation.

Any comprehensive witness protection programme must have two distinct elements. First, it must have mechanisms to protect the physical safety and mental wellbeing of witnesses. The specific measures, based on risk assessment, are bound to vary from witness to witness. To be successful, these measures must be in force as long as needed. Further, the concept of personal protection must include the provision of funds to shift witnesses, when necessary, to a different location, and to maintain them there. The second and more problematic aspect of witness protection relates to the procedures for granting anonymity to witnesses. It is widely accepted that anonymity provides witnesses security to give evidence; in the absence of such security, vital information may not be forthcoming. However, as the Law Commission's consultation paper notes, it is important to strike a fine balance between "the need for anonymity of witnesses on the one hand and the rights of the accused, on the other." These rights include the right to an open trial, to cross-examine witnesses, and to know testimony details.

That justice should be meted out in open court is a fundamental principle of jurisprudence. However, most legal systems allow for exceptions to this rule where such waiver is necessary to achieve the ends of justice. For example, Indian criminal law provides for in camera trials for specific offences such as rape, and denies the accused the right to cross-examine a prosecution witness in certain exceptional circumstances. Special statutes dealing with terrorism, for example, the defunct Terrorism and Disruptive Activities (Prevention) Act and the recently repealed Prevention of Terrorism Act, permitted the identity of witnesses to remain a secret, the justification being that anonymity was required for the successful prosecution of those involved in terrorist offences. Different countries have variously addressed the conflict between the need to protect the identity of witnesses and the rights of the accused. While countries such as Australia have a comprehensive statute dealing with witness protection, the legal system in countries such as Canada allows non-disclosure of witnesses on a case-by-case basis. India has the dubious distinction of having no witness protection programme worth speaking about. The application filed by Teesta Setalvad in the apex court seeking a Central Bureau of Investigation inquiry into why Zahira changed her story offers yet another opportunity to bring effective witness protection on the national agenda.

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