On October 17, 1991, at around 10:30 in the night, Head Constable Ramachari, who was posted at Bengaluru's Vijayanagar police station, was asked to visit the nearby Victoria Hospital to record the statement of a burns victim. Earlier that evening, Gowramma, a young housewife, was brought to the hospital with 35 per cent burns. The doctors had waited for her condition to stabilise before allowing the police to record her statement.
She told Ramachari that earlier in the day, she and her husband had had a fight. He wanted her to transfer her property on his name and when she resisted, he poured kerosene on her and set her on fire. Gowramma died soon after.
Based on her statement, the police arrested her husband, Anjanappa. But Anjanappa was acquitted by a trial court. His lawyers had managed to find two crucial witnesses: Gowramma's parents.
Contrary to the trial court's verdict, the High Court of Karnataka and later the Supreme Court found the husband guilty. In its judgment, the Supreme Court argued that Gowramma's parents were lying under duress. Shocked that even the victim's parents had succumbed to pressure, the court noted, "This appeal, once again like many other appeals, presents before us the plight of a woman who is burnt to death by her husband. Sadly, her parents turned hostile in the court. This raises the serious question of witness protection that is not addressed as yet."
The Supreme Court's judgment came in 2013 - 22 years after the victim was burnt to death. Since then, the demand for witness protection has only gathered force, especially after the recent deaths in the Asaram Bapu case and the Vyapam scam. So far, three witnesses in the Asaram case and around 50 witnesses and accused linked to the Vyapam case have been found dead.
Serving judges and practising lawyers interviewed by Business Standard for this report expressed grave concern over the rapidly collapsing edifice of the criminal justice system in the country because of the lack of witnesses who are willing to testify.
"At present, the rate of conviction in murder cases is 10 per cent, while in rape cases it is around 12 per cent," says KTS Tulsi, senior lawyer and Member of Parliament. "These low numbers exist because witnesses are too scared to come to the court… Justice is being severely compromised because of the absence of a programme that protects witnesses."
Tedious road to securing safety
Indian laws have provisions for witness protection, but there is no comprehensive legislation that provides standard operating procedures to ensure the safety of witnesses who feel threatened. At present, a witness who feels threatened has three avenues. One, he can approach the local police and ask for protection. But this is a laborious process because the police only provide security after carrying an audit of the threat perception. Two, the witness can file a writ petition in the High Court and ask for a directive to the police to provide protection. And three, the witness can ask the trial court judge to order the police to provide security.
Otherwise, in some "special laws", the legislature has made provisions to allow the witness to remain anonymous. The first such law was the Terrorist and Disruptive Activities Act, 1985 (commonly known as Tada). This Act states that if the witness desires, the court "may" take steps to keep the "identity and address of the witness secret". The Act fixed a fine of Rs 1,000 and punishment of up to one year in case of violation. A similar provision was made in the Prevention of Terrorism Act, 2002 (repealed in 2004), and continued in The Unlawful Activities (Prevention) Amendment Act, 2004. The provision for the protection of the identity of the victim and witnesses is also present in the Juvenile Justice Act and in laws that deal with sexual offences.
But these laws do not take into account any possible threat to the witness's relatives or property. Therefore, if a family member of a witness is threatened, the position of the law is unclear. Also, unlike in countries such as the United States, there is no provision for creating a new identity for the witness.
A serving judge with extensive experience in criminal cases in Delhi explains, "In court, we meet witnesses who are so scared that they don't want to speak. As a judge, I can order the police to ensure that a policeman guards the witness at all times. But, this is not a long-term solution. I cannot ensure the safety of the witness's family or provide an alternative identity for him so that he can resume his life in a new place, with less fear for his safety."
In the US, the US Marshal Service provides for security to the witnesses and their dependants. The department provides 24-hour protection to all witnesses while they are in high-trial environment, including pre-trial conferences, trial testimonials and other court appearances. The US Marshal Service claims that since 1971 (when the programme began), it has protected, relocated and given new identities to more than 8,500 witnesses and 9,900 of their family members.
Witness versus accused
The Delhi government has made a beginning with the notification of the Delhi Witness Protection Scheme on Wednesday. The scheme provides for ensuring anonymity of the witness and if the need arises, for changing the identity of the witness. It also provides for installing security cameras and providing escort vehicles to the witness.
The challenge remains in the implementation of the witness protection law. As the Law Commission's report illustrates, the right of protecting the identity of the witness has to be balanced with other provisions of law. For instance, will a law that conceals the identity of the witness compromise the right of the accused to demand a fair trial, as the accused would want to check the authenticity of the witness?
The Law Commission's answer is that unlike in some western countries, in India, neither the right to an open public trial nor the right of examination of the prosecution witness in the immediate presence of the accused is absolute. Therefore, where such a dilemma exists, the need for witnesses deposing without fear or intimidation should override the need for an open trial.
Price of protection
But even if a law is in place, will it be effective in the absence of adequate manpower to protect the witnesses?
No, says Y P Singh, a former senior police officer from Maharashtra. "The number of policemen is so less that it is very difficult to put them on duty to protect witnesses. It costs Rs 4-5 lakh to guard a man for a year. The state doesn't have that kind of money to spend on the police."
According to the home ministry, India has 136 policemen for every 100,000 people, whereas the sanctioned strength is 181 policemen for 100,000 people. As compared to India, developed countries have a much better ratio: Canada has 191, Japan 200, the US 224 and Italy 550.
Also, according to the latest data of the National Crimes Records Bureau, 51,000 complaints were received against policemen during 2013.
A serving judge in Delhi recalls a case, "I ordered the police to guard a witness. Later, we discovered that the policeman assigned to protect the witness had a murder case against him. The police department had simply been sitting on his file."
She told Ramachari that earlier in the day, she and her husband had had a fight. He wanted her to transfer her property on his name and when she resisted, he poured kerosene on her and set her on fire. Gowramma died soon after.
Based on her statement, the police arrested her husband, Anjanappa. But Anjanappa was acquitted by a trial court. His lawyers had managed to find two crucial witnesses: Gowramma's parents.
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The parents told the trial court that their daughter accidentally caught fire while boiling water. They argued that their daughter's statement should be ignored as she might have been hallucinating under the influence of medicine.
Contrary to the trial court's verdict, the High Court of Karnataka and later the Supreme Court found the husband guilty. In its judgment, the Supreme Court argued that Gowramma's parents were lying under duress. Shocked that even the victim's parents had succumbed to pressure, the court noted, "This appeal, once again like many other appeals, presents before us the plight of a woman who is burnt to death by her husband. Sadly, her parents turned hostile in the court. This raises the serious question of witness protection that is not addressed as yet."
The Supreme Court's judgment came in 2013 - 22 years after the victim was burnt to death. Since then, the demand for witness protection has only gathered force, especially after the recent deaths in the Asaram Bapu case and the Vyapam scam. So far, three witnesses in the Asaram case and around 50 witnesses and accused linked to the Vyapam case have been found dead.
Serving judges and practising lawyers interviewed by Business Standard for this report expressed grave concern over the rapidly collapsing edifice of the criminal justice system in the country because of the lack of witnesses who are willing to testify.
"At present, the rate of conviction in murder cases is 10 per cent, while in rape cases it is around 12 per cent," says KTS Tulsi, senior lawyer and Member of Parliament. "These low numbers exist because witnesses are too scared to come to the court… Justice is being severely compromised because of the absence of a programme that protects witnesses."
Tedious road to securing safety
Indian laws have provisions for witness protection, but there is no comprehensive legislation that provides standard operating procedures to ensure the safety of witnesses who feel threatened. At present, a witness who feels threatened has three avenues. One, he can approach the local police and ask for protection. But this is a laborious process because the police only provide security after carrying an audit of the threat perception. Two, the witness can file a writ petition in the High Court and ask for a directive to the police to provide protection. And three, the witness can ask the trial court judge to order the police to provide security.
Otherwise, in some "special laws", the legislature has made provisions to allow the witness to remain anonymous. The first such law was the Terrorist and Disruptive Activities Act, 1985 (commonly known as Tada). This Act states that if the witness desires, the court "may" take steps to keep the "identity and address of the witness secret". The Act fixed a fine of Rs 1,000 and punishment of up to one year in case of violation. A similar provision was made in the Prevention of Terrorism Act, 2002 (repealed in 2004), and continued in The Unlawful Activities (Prevention) Amendment Act, 2004. The provision for the protection of the identity of the victim and witnesses is also present in the Juvenile Justice Act and in laws that deal with sexual offences.
But these laws do not take into account any possible threat to the witness's relatives or property. Therefore, if a family member of a witness is threatened, the position of the law is unclear. Also, unlike in countries such as the United States, there is no provision for creating a new identity for the witness.
A serving judge with extensive experience in criminal cases in Delhi explains, "In court, we meet witnesses who are so scared that they don't want to speak. As a judge, I can order the police to ensure that a policeman guards the witness at all times. But, this is not a long-term solution. I cannot ensure the safety of the witness's family or provide an alternative identity for him so that he can resume his life in a new place, with less fear for his safety."
In the US, the US Marshal Service provides for security to the witnesses and their dependants. The department provides 24-hour protection to all witnesses while they are in high-trial environment, including pre-trial conferences, trial testimonials and other court appearances. The US Marshal Service claims that since 1971 (when the programme began), it has protected, relocated and given new identities to more than 8,500 witnesses and 9,900 of their family members.
Witness versus accused
The Delhi government has made a beginning with the notification of the Delhi Witness Protection Scheme on Wednesday. The scheme provides for ensuring anonymity of the witness and if the need arises, for changing the identity of the witness. It also provides for installing security cameras and providing escort vehicles to the witness.
The challenge remains in the implementation of the witness protection law. As the Law Commission's report illustrates, the right of protecting the identity of the witness has to be balanced with other provisions of law. For instance, will a law that conceals the identity of the witness compromise the right of the accused to demand a fair trial, as the accused would want to check the authenticity of the witness?
The Law Commission's answer is that unlike in some western countries, in India, neither the right to an open public trial nor the right of examination of the prosecution witness in the immediate presence of the accused is absolute. Therefore, where such a dilemma exists, the need for witnesses deposing without fear or intimidation should override the need for an open trial.
Price of protection
But even if a law is in place, will it be effective in the absence of adequate manpower to protect the witnesses?
No, says Y P Singh, a former senior police officer from Maharashtra. "The number of policemen is so less that it is very difficult to put them on duty to protect witnesses. It costs Rs 4-5 lakh to guard a man for a year. The state doesn't have that kind of money to spend on the police."
According to the home ministry, India has 136 policemen for every 100,000 people, whereas the sanctioned strength is 181 policemen for 100,000 people. As compared to India, developed countries have a much better ratio: Canada has 191, Japan 200, the US 224 and Italy 550.
Also, according to the latest data of the National Crimes Records Bureau, 51,000 complaints were received against policemen during 2013.
A serving judge in Delhi recalls a case, "I ordered the police to guard a witness. Later, we discovered that the policeman assigned to protect the witness had a murder case against him. The police department had simply been sitting on his file."