23, Nov 2017 | Teesta Setalvad
That the Indian Criminal Justice System suffers from multiple sores, affecting the deliverance of justice has been acknowledged by all. While large numbers of pending cases and delays are the simplest manifestations of this malaise, broken down, case by case, trial by trial there are four areas that need citizens attention and campaigns for reform. CJP has centered its initiatives in correcting these maladies. Without a sustained and robust campaign the system, with vested interests will not allow correction.
Time bound trials, Independent Investigation, Witness Protection and Independent Prosecution are these four areas.
After 67 years of a Constitutionally driven Criminal Justice System, indicators about the state of the rule of law, a vital ingredient in a democracy, are frightening:
- Criminal Trials take an average of 10-15 years to reach completion
- Convictions are as low as 4 per cent, in mass crimes, and about 33 per cent in individual crimes
- In over 70 per cent of our cases witnesses turn hostile
In 95 per cent of the cases where the criminal cases fall flat because of the malady of the witnesses turning hostile, the State does not play a positive role, remains passive, and does not appeal the acquittal. The state in fact does little or nothing to reassure the witness and provide adequate security cover. Therefore a disturbing trend that has come to light is that the state has become the major defaulter in the failure of the rule of law.
Time Bound Trials: These are, therefore, the first steps needed in the reform of the criminal justice system. [The unholy nexus between the advocates, policemen, investigative agency and the judiciary] resulting in judicial delays has to stop.
Police Reform: An Independent police force professionally investigating all cases is a ore-requisite to justice. This requires radical police reform (as directed by the Supreme Court in the Prakash Singh Case but not yet implemented by various states). Police Reform is crucial as the Police are generally seen to be under the influence or control of the government in power or the powerful and the rich in society. Typically the defence use the police, or sections of it, to turn witnesses hostile. Having a witness protection programme in place without addressing the issue of independence of the police force would be like putting in place a half-baked reform. Through an independent police force we would be assured thorough, timely and professional investigations, too.
Witness Protection Programme: It is highly overdue that the system addresses the issue of witness protection and brings in a viable witness protection programme that is suitable to our local cultural norms.
Independence in Prosecution: As important as all other issues is the issue of independence in prosecution where the judiciary through independent assessments appoints those men and women as prosecutors who are able and ready to function without being under the influence of the executive or police. Today despite sharp recommendations on an Independent Directorate of Prosecution, most states resist this reform.
The experiences of the Best Bakery Case (Zahira Habibullah Shaikh v/s State of Gujarat, 2004, the Sakshi case, (Sakshi v/s Union of India, 2004) the Domestic Working Women’s Case (Delhi Domestic Working Women’s Forum v/s Union of India, 1995) have all pointed to the need for urgent witness protection.The experiences in all these cases show that only when non state players, citizens, back witnesses that the struggle for justice become meaningful and in some degree successful. It is only in such situations that witnesses have found the courage to speak out.
Hence this is not just an imaginary wish list. The system needs to be compelled to make a legitimate space for citizens intervention to assist victims. The amendment that the legislature put in place in 2009 was in some measure a recognition of this acute lacunae.
Witnesses are the eyes and years of justice. They, she or he, must have a stake in telling the truth. Today, the message the the system sends out is that they (witnesses) are better off telling lies.
More than anything else, CJP will initiate and back any citizens group or voices who raise the issue of reforms in the criminal justice system. Who speak out for
- Time Bound Trials
- Police Reform
- Independent Prosecution
- Witness Protection
Major Rulings on Witness Protection and Victims Rights
The Supreme Court of India in Zahira Habibulla Sheikh vs State of Gujarat, 2004 (4 SCC 158) has stated the importance of victims in the following words: “Right from the inception of (the) judicial system it has been accepted that discovery, vindication and establishment of truth is the main accepted underlying existence of courts of justice. The operating principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of (the) victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences”.
The Supreme Court of India in Gaurav Jain vs Union of India (AIR 1997 SC 3021) gave various directions for the rehabilitation and other welfare of victims of such crimes. The Court said that three C’s, viz. counselling, cajoling by persuasion and coercion as the last resort are necessary for effective enforcement of rescue and rehabilitation of the victims of such trafficking. The Immoral Traffic (Prevention) Act, 1956 and the Juvenile Justice (Care and Protection of Children) Act, 2000 deal with these aspects.
The apex court in Vishal Jeet vs Union of India (AIR 1990 SC 1412) had also issued directions on the subject.
The Supreme Court in State of Punjab vs Gurmit Singh,1996 (2 SCC 384) while dealing with a case of rape has said, “The courts should, as far as possible, avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim of (a) sex crime. The anonymity of the victim of the crime must be maintained, as far as possible, throughout”. Though in some cases the identity of the victim is known to the accused, this is not so in all cases. Where the identity and all details of the victim are not known to the accused, maintaining anonymity would be quite helpful.
In Delhi Domestic Working Women’s Forum vs Union of India, 1995 (1 SCC 14), the Supreme Court while indicating the broad parameters that can assist the victims of rape, emphasised that in all rape trials ‘anonymity’ of the victims must be maintained as far as necessary so that the name is shielded from the media and public. The court also observed that the victims invariably find the trial of an offence of rape a traumatic experience. The experience of giving evidence in court has been negative and destructive and the victims often expressed that they considered the ordeal of facing cross-examination in the criminal trial to be even worse than the rape itself.
In State of Maharashtra vs Dr Praful B. Desai, 2003 (4 SCC 601) the court dealt with the issue video conferencing for witnesses.
Recording of statement through video conferencing – There is another method by which a victim may avoid direct confrontation with the accused while giving testimony. That is recording through video conferencing. Recording of evidence by way of video conferencing has been held to be permissible in a recent decision of the Supreme Court in State of Maharashtra vs Dr Praful B. Desai, 2003 (4 SCC 601). When a statement is recorded through this method, the victim would feel more comfortable and will give answers without any fear or pressure. Portuguese legislation (Act No. 93/99) of July 14, 1999 contains very exhaustive provisions regarding this aspect.
In the UK, video recorded evidence is admissible in certain cases: (a) an offence which involves an assault on or injury or threat of injury to a person (b) an offence of cruelty to persons under the age of 16 years (c) offences under the Sexual Offences Act, 1956 and 1967, Indecency with Children Act, 1960, Protection of Children Act, 1978, etc
In Sakshi vs Union of India, 2004 (6 SCALE 15). The observations that the Supreme Court made in this case are worth recalling. The court observed:
“The whole inquiry before a Court being to elicit the truth, it is absolutely necessary that the victim or the witnesses are able to depose about the entire incident in a free atmosphere without any embarrassment… The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witness do not have to undergo the trauma of seeing the body or face of the accused” (emphasis supplied).
International Law and Case Law
The New Zealand Evidence Act of 1908 contains detailed provisions regarding the maintenance of anonymity of victims and witnesses.
In the UK, the power of the court to withhold the name of the victim/witness in a criminal trial is treated as inherent in the court. Section 11 of the UK Contempt of Court Act, 1981 provides that the court may give directions to prohibit the publication of names or other matter in connection with the proceedings. In R. vs Murphy, 1989 it was held that the identity of the witness should be kept secret not only from the accused but also from the defence lawyer.
In Canada, anonymity of witnesses/victims is treated as a privilege granted under common law. The European Court of Human Rights has in Kostovski (1990), Doorson (1996), Fitt (2000) and Visser (2002) recognised the need to protect the identity of witnesses/victims.
Following the ruling of the European Court of Human Rights in Chahal vs UK, the Special Immigration Appeals Commission Act, 1997 and the Northern Ireland Act, 1998 have been enacted which provide for courts to sit in camera where it was necessary on national security grounds and for appointing special counsel to represent individuals in those proceedings. Section 153 of the South African Code of Criminal Procedure permits criminal proceedings to be held in camera to protect privacy of witnesses.
Here are some exclusive Legal Resources on Witness Protection to enable citizens to launch a campaign: