The Ishrat Jahan case has thrown up yet another important question that nags the criminal justice system: that of protection of witnesses and victims’ families who pursue criminal proceedings or name perpetrators. Shamima Kauser, Ishrat’s mother, as well as the latter’s family members and friends supporting the criminal case against the fake encounter, have been receiving threats and have been intimidated. The lack of a comprehensive witness protection programme as part of the criminal justice system is effectively facilitating attempts to subvert justice.
The press release drafted by Shamima Kauser’s lawyer, Vrinda Grover states: “even in the past attempts have been made on the life of Shamima Kauser, Rauflala and Mohinuddin Ismail Syed. Despite written, verbal and oral complaints to the CBI and the police, no serious action or inquiry has been initiated into the matter.” Ms. Grover wants witness protection for Ishrat’s family.
The complete lack of witness protection in India is evidenced in the case regarding the encounter killings of Sohrabuddin Sheikh and Kauser Bi. In a Kafkaesque manner, Tulsiram Prajapati – a witness to Sheikh’s killing - had predicted his own death. Prajapati, who was lodged in Udaipur jail, repeatedly petitioned the authorities he feared for his life and safety since he was a material witness in the killing of Sohrabuddin and Kauser Bi, and that his death was imminent. He had written letters to the National Human Rights Commission and made oral appeals to courts maintaining if something was not done to protect him, then he would be killed in a fake encounter. He was, eventually, and the police alleged he was shot dead while trying to escape custody.
In the case of the mass rapes in Kunan Poshpora in Kashmir, the Kupwara Judicial Magistrate has reopened investigation 22 years after the incident. Meanwhile, victims and their family members have received veiled and direct threats to withdraw their complaints.
In a sense, for many of these courageous witnesses and others conscientiously pursuing criminal prosecution, fearing for their lives is a refrain. The experience of survivors of communal carnages who have testified against the accused is also similar. In Bhagalpur, Bihar, over 1000 persons were killed in one of the worst massacres seen in independent India. Twenty-four years later, when we approach and encourage victims and witnesses to speak out, they are reluctant to do so, living as they still are in fear of reprisals. Given that only a handful of individuals have been convicted for the 1989 riots, the identities of the courageous witnesses who testified against them are known to everyone in the community. This has meant they are extremely vulnerable to threats and reprisals from the accused or their family and friends. In successive interviews that we held with survivors who had testified in court proceedings, their fear seemed palpable. With the state providing almost no support to these witnesses, they are left to fend for themselves.
In fact, a key witness in one of the most brutal massacres in Bhagalpur has been living in hiding ever since a few of the accused in the case he testified in were convicted by the court. When a team of researchers met him, he told us that he had been threatened several times, and except for a few persons no one knew of his whereabouts. When we asked why he had not filed a police complaint against such harassment, he smiled at the naivety of the question and said, “What can we expect from the police when the local police was also involved in the massacre?”
In many cases, some witnesses or victim families have succumbed to the threat of reprisals, and stopped testifying in courts against the accused. Unless witness protection measures are seriously implemented, witnesses will continue to turn hostile in criminal cases. A well designed witness justice programme would no doubt encourage witnesses to come forward and testify against the accused in their cases, even if it involves powerful persons.
The Rome Statute that created the International Criminal Court (ICC) – which India has not signed - has recognised this problem and mandated the protection of witnesses; otherwise, it would be impossible to gather evidence even for mass crimes. The ICC has established a separate unit that provides support to the witnesses and responds immediately if witnesses receive threats or intimidation. Moreover, the protection and support services are provided not only during the trial stage, but if required, at all stages of the criminal proceedings, from investigation to post-trial. It is true the ICC has more resources available than most criminal justice systems; nevertheless, putting victim and witness protection measures in place is inextricably linked to the dispensation of justice anywhere.
The Supreme Court in National Human Rights Commission v. State of Gujarat had acknowledged this problem and opined that “no law has yet been enacted, not even a scheme has been framed by the Union of India or by the State Government for offering protection to the witnesses. For successful prosecution of the criminal cases, protection to witnesses is necessary as the criminals often have access to the police and influential people.” The Delhi High Court has also issued guidelines stating it shall be the duty of the Commissioner of Police to provide security to a witness in respect of whom an order has been passed by the competent authority directing police protection.
In August 2006, the Law Commission, through its seminal 198th Report, submitted detailed recommendations to develop a comprehensive witness protection program. The report had exhaustively examined earlier Law Commission Reports and the jurisprudence in this field. It recommended concrete steps and amendments to criminal law that would strengthen witness protection programmes. Like the ICC, the Law Commission had also recommended witness protection at all stages of investigation, and trial and even post-trial. But like other reports and recommendations, there has been very little action on its findings, while witness intimidation and harassment continue. It is hoped that not only does the Ishrat Jahan family receive all the protection and support but that this case goads the government to implement much needed amendments to criminal law vis-à-vis witness protection.
Warisha Farasat, a lawyer, works with the Centre for Equity Studies