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Witness this

The moral principle in either case is exactly the same. But, somehow, I?m not sure that our judgment is, or should be, writes Barkha Dutt.

india Updated: Feb 10, 2007 03:14 IST

Himanshu Sabharwal is a fighter — the sort of man who will confront injustice with outspoken rage instead of helpless tears. So, even when his father, a college professor in Madhya Pradesh, was battered and killed by campus goons from the ABVP, Himanshu clung on tightly to his anger to get him through the pain. Within hours, mourning had made way for a missive: to make sure his father’s murderers were punished.

It seemed an open and shut case. After all a slew of television cameras had filmed the professor being beaten mercilessly by a mob before collapsing on the backseat of an ambulance. The images of the murder had been played out on national television; the public pressure had forced the administration to make several arrests, and scores of people were witness to the assault.

And then, the inevitable happened.

One by one, testimonies were altered, withdrawn and overturned, till every significant witness in the case had jumped sides.

Even the college peon — the man who had leapt forward to physically lift the professor onto the ambulance, when no one else, teachers or students, had been willing to help — did an about turn in court. It was another outbreak of India’s Hostile Witness epidemic. And for the first time in months, amidst reports that a battery of senior lawyers had been enlisted by the ABVP, Himanshu Sabharwal seemed defeated.

Since then, outraged public opinion has demanded that the men who turned hostile be treated like criminals and be punished for perjury.

But should our condemnation be that simplistic? Are hostile witnesses examples of inexcusable cowardice and caprice? Or are they a frightening statement on the staggeringly flawed legal system?

Can we really look at all hostile witnesses through the same prism? Is there a difference between a rich film star who refuses to testify honestly in court and an impoverished, powerless pavement-dweller or government clerk who has either been bought over or pressurised into selling out? Of course, the moral principle in either case is exactly the same. But, somehow, I’m not sure that our judgment is, or should be.

Just a few days after Professor Sabharwal was murdered, the college peon who had tried to save his life, and had also got injured, as the mob went for the kill, was brutally honest about his own vulnerability. Lying strapped to a hospital bed, he told several television channels about how he had been offered money and threatened with death if he testified against the accused in court. “I can see my death before my own eyes,” he said helplessly. So, why did the police not record his statement in the presence of a magistrate and ensure that it would be admissible later as evidence?

And much as my heart went out to Himanshu Sabharwal to watch the witnesses switch sides, it was still disconcerting to read about the NSUI workers who had arrived at court to blacken the face of the ‘turncoat’ peon. Would actor Shayan Munshi have ever been treated the same way for his failure to stand up for the truth in the murder of Jessica Lall? Or, rewind to 2003.

Remember how 13 of Mumbai’s top film stars changed their testimony in the case that explored Bharat Shah’s links with the underworld? (With the honourable exception of Preity Zinta.) When people with money, influence and public adulation don’t trust themselves to tell the truth in court, how can we expect those who live on the margins of the power circuit to be any braver?

Activist Teesta Setalvad who was personally betrayed by the dithering testimonies of Zahira Sheikh in Gujarat’s infamous Best Bakery trial, argues that it is the State that is the biggest defaulter — not just because the State offers no protection to the witness, but because the State is often seen to be on the side of the accused.

Take the professor’s murder: the college campus was flooded with policemen the day he was murdered. But they just stood by and watched. It is ludicrous to expect a powerless college employee to then trust the same police force to protect him against the accused. Witness protection is long overdue, but even that will remain entirely notional till investigative agencies are not seen to be independent.

So, should television testimonies be admissible as evidence? Unfortunately, if these interviews are done in the presence of the police, their integrity can always be questioned. The controversial Parliament attack case is an example of how television interviews can sometimes muddy already murky waters. Charged with providing logistical support to the terrorists who attacked India’s Parliament, Mohammed Afzal has now petitioned the President for clemency and insists that his so- called “confessional interviews” to several television channels were induced under police torture.

But then there are those who argue that in Professor Sabharwal’s murder, the unmediated and unedited footage captured by television crews can and should be treated as more than circumstantial evidence. Either way, India needs to draw up a new system of gathering evidence.

And then there’s the biggest stumbling block of all — just how long it all takes. The statistics alone are frightening enough to keep most ordinary people far away from the courts. Criminal trials in India can take anywhere between 10 and 15 years to complete and the conviction rates are abysmally low (as low as 4 per cent in mass crimes and 33 per cent in individual crimes). There’s a backlog of three million cases in the high courts and 20 million cases in the country’s lower courts. Acquittals are rarely or half-heartedly appealed by the State.

So, which sane person would want to devote years of her life making trips to a courtroom, when defeat nearly always seems pre-ordained?

The solution is obvious: time bound trials and fast-track courts. But then the jurists would turn around and say there just aren’t enough judges — three for every 100,000 people, making it the lowest ratio in the world.

As we step back and look at this legal logjam, let’s be honest. How many times have we met people who won’t even stop at an accident site and will hastily drive past it, just because they don’t want to get entangled in a police case?

So, before we judge those who refuse to take the stand honestly, we must pause to consider: can you and I really be sure that we would have done the honourable thing in the same circumstances?

Barkha Dutt is Managing Editor, NDTV 24X7

Email Barkha Dutt: barkha@ndtv.com