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Ensuring witness safety central to rule of law

Published in: The Hindu

A group of street children recently told the Verma Committee, which was set up to recommend reforms to India’s sexual assault laws, that they had witnessed police in Delhi gang-rape a girl in a police van. The committee decided not to refer the case to the police for investigation. “We wanted to protect their identity as we feared that police might launch some kind of vendetta against them,” committee member Gopal Subramaniam told The Hindu. “We want to save them from the system.”

Subramaniam’s statement is a damning indictment of India’s criminal justice system. Across the country, victims of violent crimes, including sexual assault, as well as those who witness it, frequently do not file criminal complaints, cooperate with investigators, or testify truthfully in courts because they fear retaliation. In many rape cases, survivors are threatened or intimidated into settling with the perpetrator.

Currently there are few safeguards in place to prevent harassment or worse outside courtrooms during criminal investigations. The consequences of the lack of protection can be devastating. In a case that dragged on for nearly two decades, in 1990, a teenager named Ruchika Girhotra accused a powerful police officer in Haryana state of sexually abusing her. When Ruchika pressed the case, her entire family was harassed and she committed suicide in 1993.

Leading lawyers and rights activists have long argued that victims and witnesses are pressured to change their testimony during criminal proceedings. This leads to acquittals, including in trials for murder, rape, caste-based atrocities, and sectarian crimes. They say a comprehensive witness protection program is needed to address the problem.

The few witness protection procedures currently available to safeguard victims and witnesses include transferring criminal trials to safer venues, preventing the accused from confronting a witness in court; allowing courts to use screens to separate the accused and survivor in rape trials, allowing police to withhold witness identity, prohibiting intimidating questions during cross-examination; and allowing witnesses to testify remotely by video.

But the authorities are often unaware or reluctant to use these procedures. In some cases the response to victim protection can be callous or deadly. For example, a judge trying the Kandhamal communal riot cases in Orissa responded to a victim’s plea for protection by saying, “I am not your bodyguard. If you do not want to depose, why did you file a complaint in the first place?”

Lawyers who have assisted witnesses to secure police protection through individual petitions to authorities say the witnesses sometimes had to pay for such protection. But most victims and witnesses cannot afford these payments — nor should they have to. The lack of government-funded protection mechanisms puts even existing ad hoc police protection out of reach for the vast majority of those who need it. Many rights groups reiterated the need for witness protection in their written submissions to the Verma Committee and the parliamentary Standing Committee on Home Affairs.

Verma Committee member Subramaniam confirmed that the committee included the interview with the children who witnessed rape in their final report “to show the deeper malaise in the system,” and hoped that the government would take the necessary steps.

But recent history shows little government inclination to address the need for witness protection:

In 2005 the Standing Committee on Home Affairs raised concerns about the lack of witness protection and recommended law reform. Nearly a decade ago the Indian Supreme Court underscored the need for victim and witness protection in the context of the Gujarat riots, and even ordered protection for many victims and witnesses. High courts in different parts of the country have bemoaned the absence of witness protection and its impact on criminal investigation and trials, ordering witness protection in individual cases.

In 2006 the Law Commission of India produced a 500-page report on witness protection, recommending procedural changes to protect witnesses inside and outside courtrooms. The report provided comparative information about witness protection regimes in other countries, included a draft law on witness protection, and called for the government to fund the program. The government could use this report as a starting point for discussions around this important issue.

The issue of witness protection is complex but clearly overdue for reform. Parliamentarians can take first steps to remedy the gaps immediately as they debate the new sexual assault ordinance and bill. They should examine some provisions introduced in the Protection of Children from Sexual Offences Act, 2012, including that a child and family should have access to a “support person,” who should be in contact with the child about his or her safety during investigation and trial and report it to authorities. While this does not fully address the concerns around witness protection, but it is a step in the right direction.

At this critical moment of law reform in India, parliamentarians and policymakers should utilize the momentum and demand that victim and witness protection be given high priority. Doing so will help ensure that future witnesses to crimes like Ruchika Girhotra are safe as they seek justice.

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