Witness Protection for Rape Survivors- Abyss between the Present and the Future

Revti Rani Roy[1]

According to Cardozo,

“The law, like the traveler, must be ready for tomorrow. It must have a principle of growth.”[2]

At the present juncture, laws which are always dynamic in nature may tentatively be described as static when it is concerned with witness laws. Hindu Jurisprudence has also emphasized on the importance of witnesses for creating a balance between “adharma” and “truth”. Stanza 18 of Eighth Chapter of Manu Samhita explains importance of witnesses[3]:

“Padodharmasya Kartaram
Padah sakshinomruchhati
Padah sabhasadah sarban
pado rajanmruchhati”

Meaning thereby, in adharma flowing from wrong decision in a Court of law, one-fourth each is attributed to the person committing adharma, witness, judges and the ruler.

Bentham believed: “Witnesses are eyes and ears of justice.” He considered ceremony of oath for a witness same as that of religious ceremony.[4]However, dearth of such provisions in our legal system is polluting this pious concept since victims and witnesses are threatened for life to procure inanimate justice in this inanimate society. Putting emphasis on life of rape victim, Hon’ble Judges Dr. A.S. Anand and Saiyed Saghir Ahmad, JJ. said,[5]

“A murderer destroys the physical body of his victim; a rapist degrades the very soul of the helpless female.”

Protection to victims has been given a twofold connotation- firstly identity of the person and secondly physical protection from the accused. The law prevailing in our nation protects the former but not the latter.

The Criminal Law (Amendment) Act of 2013 has strengthened the laws relating to sexual offences, but no consensus has been achieved among legislators for protection of rape survivors/ victims/ witnesses during pre or post-trial criminal procedure.

In Sakshi v. Union of India and Ors.,[6] the Apex Court gave guidelines for protection of minor victim of sex abuse or rape. Earlier, the Hon’ble Supreme Court urged that while counter examination of the rape victim, the Court should not sit as a silent spectator.[7]In National Human Rights Commission v. State of Gujarat,[8] the Hon’ble Court regretted 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 giving protection to the witnesses.”

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Delhi High Court has formulated elements to be fulfilled while giving witness protection like: nature of investigation, risk to the security of witness which may emanate from accused, importance of witness in the matter, value of such evidence and cost of providing police protection to the witness.[9]

The need for stringent laws for witness protection has been lamented by the Courts time-and-again. In the most recent writ petition, the Apex Court passed an Order, stating:

“Whether there are any such programs in different States and, if so, what is the nature of those programmes? Further, if there is no such programme in a particular State, what steps can be taken to keep this programme in place.”[10]

There are certain provisions in International law appealing the States to follow their model to provide assistance to witnesses for efficient progression of judicial system. The United Nations Organization circumscribes duties of State towards victims including establishment of fair, inexpensive and accessible mechanism.[11] The state has duty to recognize victims of their rights and to provide social security to each and every one.[12]Rome Statute also states that appropriate measures should be taken to protect safety, physical and psychological well-being of victims and witnesses.[13] UK has facilitated legal guidance on Witness Protection and Anonymity under which victims of rape or sexual offences are entitled to ‘anonymity’ in the press.[14] New Zealand is running Witness Protection Program since 1987 and has enacted a separate legislation: Witness Protection Act 2000.[15]

Even the presence of these enactments in the International law has not yet fortified our lawmakers to legislate a proper law to ensure justice and righteousness for delicate, exposed, vulnerable and helpless!

Since independence, a series of recommendations to protect rape survivors and witnesses have been made. Law Commission’s 172nd Report has suggested measures to protect the rape victim, stating: investigation, interrogation and recording of statement must be done by a female officer[16]. 198th Report of Law Commission of India acknowledged and reviewed the identity protection laws for rape victims and proposed Witness (Identity) Protection Act, 2006.[17] Consultation Paper on Witness Identity Protection and Witness Protection Programmes, August 2004 has been forwarded by Law Commission of India.

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After strings of recommendations, Delhi has ultimately brought Delhi Witness Protection Scheme 2015, aimed to identify series of measures that may be adopted to safeguard witnesses and their family members from intimidation and threats against their lives, reputation and property.[18] Nonetheless, the said scheme too does not give shield to the victims.

Even after plethora of recommendations before the legislative authorities, any enactment related to the protection of witnesses inclusive of rape victims specifically has not been formulated yet, resulting which efficient justice delivery mechanism is dying and shattering away brick-by-brick. Before closing this unfinished episode, certain suggestions need to be forwarded:

  1. Enactment of full-fledged legislation addressing how and when witness protection to the victims, witnesses as well as their family members has to be arranged.
  2. Rehabilitative measures should be introduced in the enactment.
  3. Right to be informed of release or escape of accused from prison shall lie with the victim.
  4. Substantive laws regarding method of cross-examination in the interest of victims shall be introduced so that no victim gets harassed nor does she comprehend any difficulty in corroborating her statements.

Therefore, there must be a utilitarian approach towards this crime. Justice, humanity and morality shall triumph over evils of this sin. The author casts doubt on the prevalent legal system, pondering upon an important question which must be answered- “Will we have to wait for another Nirbhaya to martyr her life to enact one piece of legislation?”

[1] Student.

[2] VD. Mahajan, Jurisprudence & Legal Theory 171 (5th ed. 2016).

[3] Zahira Habibullah Sheikh v. State of Gujarat, AIR 2006 SC 1367, ¶ 1.

[4] Jeremy Bentham, The Works of Jeremy Bentham, 488, (John Bowring ed.) (1843) (20 Dec, 2017, 06:13 p.m.) https://lf-oll.s3.amazonaws.com/titles/1923/Bentham_0872-06_EBk_v6.0.pdf.

[5] State of Punjab v. Gurmit Singh, AIR 1996 SC 1393, ¶ 22.

[6] Sakshi v. Union of India (UOI) and Ors., AIR 2004 SC 3566, ¶ 34.

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[7] State of Punjab v. Gurmit Singh and Others, AIR 1996 SC 1393, ¶ 23.

[8] National Human Rights Commission v. State of Gujarat, (2009) 6 SCC 342, ¶ 9.

[9] Neelam Katara v. Union of India & Ors., (2003) ILR 2 Delhi 377, ¶ 15.

[10] Supreme Court of India Record of Proceedings, Mahender Chawla v. Union of India Ministry of Home Affairs Secretary. Writ Petition(s)(Criminal) No(s). 156/2016.

[11] United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985, Art. 5.

[12] International Covenant on Economic, Social, and Cultural Rights, G.A. Res. 2200A (XXI), art. 9-10, U.N. Doc. A/RES/2200A (XXI) (Dec. 16, 1966).

[13] Rome Statute of the International Criminal Court, Art. 68.

[14] Witness protection and anonymity, The Crown Prosecution Service (Dec 26, 2017, 04:11 p.m.) http://www.cps.govuk/legal/v_to_z/witness_protection_and_anonymity/.

[15] Witness protection program, Crime and Corruption Commission, Queensland, (Dec 26, 2017, 05:01 p.m.) http://www.ccc.qld.govau/witness-protection/witness-protection-program.

[16] Law Commission of India, Review of Rape Laws, (Law Com No 172, 2000) ¶ 4.2.

[17] Law Commission of India, Witness Identity Protection and Witness Protection Programmes(Law Com No 198, 2006)84.

[18] India’s First Witness Protection Law, Delhi Witness Protection Scheme, 2015, (Aug 2, 2015) http://latestlaws.com/indias-first-witness-protection-law-delhi-witness-protection-scheme2015-read-download-full-text/.