The Indian judicial environment is loaded against those who depose in court against criminals
by COL R HARIHARAN
ON May 5, 2007, a mob of supporters of Alagiri, son of Tamil Nadu Chief Minister M Karunanidhi, torched the Madurai office of a Tamil daily, Dinakaran. Three employees of the newspaper were burnt alive. Police charged “Attack” Pandi, a criminal “history sheeter”, and 16 others with the crime. The case was transferred to the CBI on May 19, 2007. A Deputy Superintendent of Police, Rajaram, was included as an accused for his negligence when the incident occurred. The CBI filed a 32-page chargesheet and 85 witnesses testified before the court during the hearing. The prime witnesses were Sub Inspector Aladiyan, the first eyewitness, and the Dinakaran Deputy News Editor, the second eyewitness. They turned hostile while deposing before the court. On December 9, 2009 the Principal District Sessions Court, Madurai acquitted all the 17 accused for want of eyewitness evidence.
The story had a happy ending when the ruling first family patched up with Karunanidhi’s nephews, Kalanidhi Maran and Dayanidhi Maran, who own the newspaper. As in fairy tales, they are living happily ever after. It did not matter to anyone that the entire incident was telecast live, showing the criminals setting fire to the newspaper office while political bigwigs raised slogans to encourage them. The Dinakaran case was neither unique nor its verdict surprising. There have been scores of instances where those in power have systematically ensured cases against their interests are snuffed out in courts, using the very instruments of governance and law enforcement. The Best Bakery case in which 14 people were killed when a mob torched Best Bakery in Vadodara during the post-Godhra riots in 2002 is a well known example of the state’s misuse of all instruments of governance to obstruct justice. It is an outstanding example of the perils of giving evidence and how witnesses are used as pawns in the game.
There are hundreds of such instances where witnesses backtrack or turn hostile in appeal courts because of criminal intimidation or prosecution pressure. The reality in this country is that rule of law applies only to those who court the wrath of rulers. That is why such cases are ignored by everyone unless they involve prominent individuals. Even then the media is selective as it takes a risk in covering such cases and any muck-raking could be dangerous for them.
In most of these cases, nobody asks why the witnesses turned hostile or why the court did not take any follow-up action against them for perjury. The courts understand that giving evidence against the high and mighty can be a risky proposition. Witnesses’ reluctance to come forward to give evidence has created a thriving “false witness” business. Outside criminal courts, one can engage individuals for a few hundred rupees to depose as witnesses. This cosy arrangement has the connivance of unscrupulous policemen and lawyers. Judges also know this; so in many cases courts do not take the evidence of such witnesses seriously. But where it suits the judges, their evidence would be taken into reckoning.
Every citizen has a social responsibility to give evidence if he witnesses a criminal act. The law construes it as abetting the crime if he does not do so. But if an average citizen is asked, “Will you give evidence?” an emphatic “No” would be the immediate reply. It might be termed socially irresponsible. But in this country, people keep social responsibility for talk shows and use practical wisdom to survive one day at a time. I am not too sure that even I would readily volunteer to give evidence, although I am stepping into the last quarter of life. My instinct for self-preservation might take over. After all, I have only one life to live!
In the current scene of law enforcement and delivery of justice, witnesses probably run more risks than criminals under trial. The enormous number of witnesses turning hostile in appeal courts is testimony to this. Otherwise how do we explain the extraordinary phenomenon of criminals caught on live TV getting away with their crime?
The Indian judicial environment is loaded against witnesses. Witness protection is often proffered as a remedy for this. Witnesses are summoned to the court whether they have money or not. Nobody cares if the witness is the breadwinner of the family and cannot afford to be away from his work. Even if he reaches the court, there is a real possibility of the case being adjourned. And this story is often replayed any number of times as adjournments come one after the other. Meanwhile, he runs the risk of being bribed, intimidated, kidnapped, or even killed. The Supreme Court has aptly summed up the problem in one of its judgments: “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 judiciary has made efforts to improve the level of protection available to witnesses. In the Nitish Katara murder case, Delhi High Court spelled out witness protection guidelines as early as October 2003. It made the Member Secretary, Delhi Legal Services Authority the competent authority to administer the guidelines. According to the guidelines, the investigating officer has to inform the witness about the new guidelines and the police commissioner is responsible for protection of the witness. Presumably, even these guidelines provide the bare minimum for protection of witnesses; and witnesses deposing against the police hardly get confidence.
Witness protection has become crucial in cases of terrorist attack. Based on their experience in a series of terrorism related cases in Mumbai, the police have formulated a four-point plan which takes witness protection to a new level. The (Mumbai) police plan for witness protection:
• The witness will be transferred from his hometown to another location.
• The witness will be given a new name, identity and passport.
• The government will provide the witness with a job related to his occupation.
• The government will also assume responsibility for security of the witness’ entire family.
But, in the existing environment where politicization of criminals is a reality, can State governments ensure real protection for witnesses? With political considerations, rather than performance, overriding police appointments, the ability of the police to execute foolproof plans for witness protection is questionable. Moreover, with their ever-increasing commitments, at present the police do not have either the manpower or infrastructure to administer an effective witness protection system. And how long can the state provide for protection of a large number of witnesses when courts continue to groan under a huge backlog of cases that drag on for years?
The Indian Evidence Act, 1872, does not contain specific provision for protection of witnesses against threats, intimidation or any inducement that would prevent them telling the truth. This was probably why the Law Commissions had been considering mostly the soft aspects of allowances and administration of witnesses. The National Police Commission Report (1980) did no better. However, in 1996, the Law Commission recognized the need for protection and recommended: “Witnesses should be protected from the wrath of the accused in any eventuality.” However, it did not suggest any measures for physical protection of witnesses. Even after that, the 178th Report of the Law Commission dealt with the issue of witnesses turning hostile but not witness protection though the two are not related.
Courtesy: GFiles Volume 3 Issue 10, January 2010 URL http://gfilesindia.com/title.aspx?title_id=68
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