The Jessica Lal case had raised many important debates on the working of our Criminal Justice System. However the views are inappropriate and demanding. The Criminal Justice System in its entirety has become outdated and its growth stagnated. The Supreme Court too observed in Swaran Singh v State of Punjab, AIR 2000, that the procedures being followed is one of reasons for a person to abhor becoming a witness. It has been observed that several high profile cases including an Andhra film actor’s shootout case, Best Bakery Case (while under trial at Gujarat), a blast in a former Andhra minister’s case, etc had all ended in acquittals due to the witnesses turning hostile. In such scenario we need to introspect whether the implementation of Witness Protection Program is a remedy for bringing about a change. We need to understand whether its suitability in Indian situations is ascertained and the lawmakers are prepared to provide its various implications, including bringing together several various agencies. Therefore it is imperative for everyone to know the different aspects of the Witness protection programme as being practiced in USA successfully, in order to make us ready for its implementation.
In the USA, agencies such as The United States Marshals Service, the Office of Enforcement Operations (OEO) and the Federal Bureau of Prisons (BOP) and The U.S. Attorney General's office, are associated with the programme. Protection is provided only for those witnesses whose testimony is essential to the successful prosecution of a criminal case and in which the witness's life or the life of his family is at risk. The witness and family members sign a Memorandum of Understanding. This is coordinated by multiple government agencies, good timing and total secrecy. The most important rule of the programme is that witnesses must not make contact with former associates or unprotected family members. They also must not return to the town from which they were relocated. Once assimilated into their community, contact with the government is only required once per year or if they move. Compare this with Indian situations where we have so many social obligations and relatives to attend to, in our town of origin. Whereas in the USA, the witness receives a pre-admittance briefing by Marshals Service personnel and agrees to enter the program, he/she and his/her family are immediately removed from their current location and taken to a temporary, secure holding area. Later the Government makes sure that the witness obtains one reasonable job opportunity. Further assistance in the form of finding a house and payment of a subsistence payment on average of $60,000 per year (approx Rs 33 lakhs) is paid out. Further the witness is provided identity documents for him/her and family members where names are changed for security purposes. The agencies also arrange for counseling and advice by psychologists, psychiatrists or social workers when the need has been substantiated
Once in the program, the Marshals Service provides 24-hour protection while they are in a high-threat area, including pre-trial proceedings and court appearances. At present in India even the expert witnesses of the various forensic disciplines do not have any protection. Even the experts asking for a weapon for self-defense is a luxury. We need to work out whether the local Police can give 24 hour protection to a witness, from the date of filing of charge sheet in a case to the date of his deposition in the Court taking into consideration that on an average the duration of trial, in India, is anything between 3-10 years. The entire purpose of the witness protection program, in the US is to keep the witnesses safe so that they can testify at trials that could convict members of organized crime, dangerous criminals, gangs or terrorist networks. At trial, even witnesses no longer in the program are given protection if they are testifying in cases for which the witness originally entered the program. Taking such drastic measures to protect witnesses has paid off for American prosecutors. Since the program's inception in 1970 in the US, it has achieved an overall conviction rate of 89 percent as a result of protected witness testimony, and more than 10,000 criminals have been convicted, according to the Marshals Service.
Once the trial is over, it is time for the witness and his family to enter their new life. If implemented in India we could face immense problems finding employment for the witnesses because we are already hard pressed for suitable jobs. What I fear is about a witness in Indian situation, drawing a handsome salary, his/her children studying in a decent public school and his/her spouse having his/her own livelihood in a metro city intending to undergo such drastic changes in his life for the sake of being a witness in a Court of law. How well can the Indian administration make a witness succumb to the Witness Protection Programme, is a big question mark. Even in the USA, from the beginning of the program, there has been some concern that the government could be helping witnesses too much. Further, protected witnesses are expected to find employment and become self-sufficient as soon as possible. The Marshals Service, in the USA, assist witnesses with finding employment -- however, if a witness fails to aggressively seek employment, subsistence payments will be terminated. At that point, the relocated witness can enroll in public assistance if he or she chooses. At present, in India, we do not have such public assistance programmes.
With such backdrop can our Criminal Justice System in India be amended for protection of witnesses. Whether the implementation can cross the bureaucratic red tapism, the deficient Police Infrastructure, the deceitful government officials to become a success in our Country. Many would agree that it would not be so. More importantly the Government needs to allocate hundreds of crores of rupees to pay for the Witness Protection Programme despite it being essential to the prosecution of lakhs of cases. We are all aware that without it, many witnesses would never come forward or would be threatened if they did. With the protection provided in full earnest, witnesses can testify and then disappear when the trial is over, and the criminals they testify against would almost get convicted. Taking at face value that the Witness Protection Programme being implemented in our Country, in comparison with USA, we can safely increase our conviction rate.
The possible alternative for all the above steps could be by getting Sections 161 and 162 of Criminal Procedure Code amended to include the signatures of atleast two independent witnesses, say retired police officials or senior citizens, on the statements while the witness deposes before the Police. Unfortunately the growing doubt between the two arms of the Criminal Justice System i.e., the Judiciary and the Police is an obstacle. The other areas of deliberation are whether the statements of the witnesses could be recorded by a Judicial Magistrate. It is practically not viable in the present set-up with the low number of Courts and staff deficient Judiciary. Mere changing our Criminal Justice System does not solve the problem, but changing our mindset too is important. After all we are having a rich heritage of creating problems to solutions, instead of the other way around.
By Dr G V Rao
DNA Analyst and Medico-legal Expert
E-mail: drgvrao@hotmail.com
