In the Best Bakery trial in Gujarat, 37 witnesses, some of them relatives of those killed, turned hostile. This led to the acquittal of the 21 accused in the murder of 14 Muslims in the 2002 riots. In the Jessica Lall trial, eyewitnesses went back on their initial statements. In both cases, there were grounds to suspect that intimidation played a key role in witnesses resiling on their statements. In several other cases, justice may have been similarly obstructed due to the power of pelf. With more and more cases involving witnesses turning hostile coming to light, the Law Commission’s report on introducing a witness identity protection programme could not have come sooner. That the Law Ministry, too, has shown interest in such a legislation is reason to believe that one of the biggest impediments to a fair trial may soon be dealt with.
Till now, Indian law has deemed it fit to protect witnesses mainly in terror cases, where their lives are in obvious danger — both Tada and Pota having contained such provisions. In other criminal cases, only those involved in rape and child abuse cases, largely the victims themselves, have been allowed the privilege of having their identities protected. For the remaining hundreds of people who are caught in a legal tangle for no fault other than to have been at the wrong place at the wrong time, the State shows a customary lack of concern. This cannot continue. For, as the Supreme Court has noted, “witnesses are the eyes and ears of justice.” They play an important role in taking a trial to its logical end. If the justice system is not to be paralysed, witnesses must be freed at least of their fears of reprisal for having participated in the legal proceedings. There can be no greater protection than anonymity. In time, with enough resources, the State should consider expanding this programme to actual witness protection, even transporting them to other states or out of the country and giving them a new identity, if need be.
Yet, in doing so, the rights of the accused cannot be completely overlooked. The right to cross-examine a prosecution witness is important in his efforts to prove his innocence. As such, the laws in other countries that the Law Commission consulted while preparing its report do not make witness identity protection an absolute right. It is justifiable in exceptional circumstances, keeping in mind the gravity of the case, the importance of the witness and any threat to his or his family’s lives. Also, care must be taken while granting witnesses anonymity to ascertain their credibility. Yet, this change is necessary to ensure that they can speak fearlessly.