“I swear to tell the truth, the whole truth and nothing but the truth”
These words are uttered by every witness as he takes his place behind the solid, wooden columns of the witness box, professing his unmitigated devotion in the sacrilegious duty of aiding the public justice system in assessing guilt and uncovering truth. Indeed, the witness plays a crucial role in the criminal justice system, by answering the questions posed by various men of law, testifying to certain events that their eyes may have seen or repeating words that their ears may have heard, by providing a credible voice that may prove another man guilty or innocent. Yet, these words in recent times, often tainted by the inclement mist of money, power and harassment found in the real world, and the word of the witness often deviates from that flimsy line of truth.
A witness is considered to be hostile when he gives a statement to the police providing an account affirming the commission of a crime, but refutes the same when called on trial. Thus, despite being the most reliable source that the prosecution depends on to gather evidence against the accused, the witness retracts his statement, essentially destabilizing the bulk of the prosecution case, often resulting in the accused walking free. This poisons what is accepted as truth in the trial, compromises on its tenets of fairness and hampers the delivery of justice.
Cases of hostile witnesses have left breadcrumbs on the legal system since time immemorial. In the landmark 2006 Jessica Lal murder case, the complainant himself repudiated his own statement, spuriously claiming that he had no knowledge of the Hindi language, and did not identify the offender despite having seen the entire chain of events unfold.
In another landmark case, over 80 witnesses who had witnessed hate speeches presented by BJP leader Varun Gandhi before elections, became victims of coercion and bribe, and swerved from their initial stand.
Recently, the Gujarat High court declared 19 people to be hostile in the trial for the murder of Jayshreeba Jhala, and put them on trial for the same.
The psyche of these witnesses unveils the factors for their perfidy to be those primal human qualities that have beset man since the Iron Age – fear and greed. In most cases, the accused are well equipped with network of influential contacts that can weasel them out of any rapidly sinking ship, and a pool of mercenary henchmen ready to do their bidding. Threats to the witness themselves or their families are callously flung, with some of these threats materializing, corresponding to the gravity of the case. Fears of such peril and anxiety dissuades a witness from continuing his role in the investigation, and he is often compelled to withdraw his statement. On the other end of the spectrum, witnesses may also be compelled by the ensnaring allure of wealth, often being promised huge monetary amounts in return for withdrawing statements, which often eclipses one’s moral compass and turns him hostile.
This hostility may also be a result of the callous attitude with which witnesses are treated in the judicial system. Witnesses are often people who are no direct stakeholders in the case and are present for the sole reason of helping to further the case. They are in no way assigned such responsibility or paid remuneration for the same, but still are expected to play a certain role. Hence they must be treated with a certain level of respect. However in India, no such respect is accorded to them. They are often not accorded a seat but made to stand, until they are herded into the courtroom by the peons. They may have to give up a day’s worth of wages, but not reimbursed for these gratuitous expenses. Often trials are enervating, long winded and inconclusive, adjourning the matter and assigning a new date for appearance, despite a whole day’s worth of wait.
In 2003, the Malimath Committee suggested various reforms to uplift the rights available to witnesses. This included physical protection of witnesses, dignified treatment, maintenance of anonymity, in camera proceedings, adequate monetary compensation for travel, accommodation as well as any other hardships they may have had to undergo. Various judgement have also stressed on the dire need to elevate the status of witnesses. In Maneka Sanjay Gandhi vs Ram Jethmalani, the court recognized the importance of creating a conducive environment for the witness, and emphasized the need for witness protection.
In Delhi Domestic Working Women’s Forum v. Union of India, the Apex Court stated that the witnesses of rape crimes, that is the victims themselves need to be provided anonymity so that they may testify to the crime uninhibited.
Witnesses count under some of the most cardinal pillars of the criminal justice system. It is on their word that the final decision of the court is anchored upon. Ensuring their integrity and credibility is, therefore, of paramount importance. It is necessary that the system make the witness feel comfortable, respected and safe, so that they in turn can help mould the criminal justice system into one under which each citizen feels comfortable, safe and respected.