Part I of this article had discussed the relevance of a witness protection program in the overall schema of a free and fair trial. This article provides some insights into the ways and means of going about it on the basis of useful examples from other countries that provide this facility to witnesses.

Most developed countries have well formulated and comprehensive witness protection programs to safeguard witnesses in important criminal cases. For example, the US has the Victim and Witness Protection (1982), the Victims’ Rights and Restitution Act (1990) and Australia has the Protected Disclosures Act (1994). Unfortunately, despite the high rate of crime and low rate of conviction, India has not drawn up even a rudimentary framework to protect witnesses in crucial cases. The onus of protecting witnesses rests with the police, who have a dubious reputation in discharging this duty. The traditional exclusive dependence on the police tom protect the witness has proven ineffectual in building the confidence of witnesses to take risks for bringing the guilty to justice. With the nexus between the police and criminals coming to light at regular intervals, this process has suffered a further setback.  

The record of convictions in communal riot cases is much worse. For example, in the 1984 anti-Sikh riots, not a single person has been found guilty till date. According to Asghar Ali Engineer, a scholar who has made an extensive study of communal riots in India, the rate of acquittal is more than 90 percent. Gujarat is proving no exception.

A witness protection program is critical not only in riot cases, which are known for their abysmally low rate of conviction, but also in combating organized crime. Protection of witnesses is very important in the investigation and prosecution of organized crime as they (witnesses) are subject to intimidation by the accused, many of whom are mafia dons and underworld elements indulging in nefarious anti-national activities like arms and drugs smuggling, human trafficking, terrorism, and money laundering. Complacency in this regard can be detrimental to the security environment of the nation as criminal elements get emboldened by the lackadaisical approach of the law enforcing agencies in bringing them to justice. Only the fear of stringent legal action can act as a check. This requires an effective witness protection program, involving all the three concerned agencies – police, government and judiciary. The political will to initiate this program should be displayed by the government; the legal aspects can be looked into by the judiciary, and, the execution can be entrusted to the police.

It should be noted that in cases where the witness is also the aggrieved party or victim of the criminal act in question, they face dual risks: i) reconciling with their past trauma and ii) fear of not inviting additional danger to themselves and their loved ones. In these situations, witness protection programs can act as the much needed support system. Some provisions of this program can be as follows:

• Keeping the identity of witnesses confidential throughout the trial;

•  Arranging for a closed door trial or trial by video conferencing;

• Avoiding exposure of the witness to media;

• Ensuring physical safety of the witness and their close relatives by providing bodyguards;

• Bringing them to court only at the sentencing stage; and

• Resettling them by providing a new identity and a safe haven

The key to a witness protection program is the safety and security of witnesses before, during and after trial, which is missing in all these areas. Security after trial is virtually non existent in India. In this situation how could one expect Zahira to muster the courage to give testimony by risking their lives? She has boldly demanded a retrial outside Gujarat (preferably Mumbai), but is she safe there? What is the guarantee that the people who intimated her in Vadodara will spare her in Mumbai? And even if they do, she will have to eventually return back to Gujarat, which is her home. What will be her fate then?

But denying a retrial would unleash other repercussions. Not sure of receiving justice, victims tend to loose faith in the governance processes or look for alternate recourses. Both situations are dangerous. While the former undermines the effectiveness of governance, the latter will impact adversely on national security.  As Julio Ribeiro, former Director General of Police, Maharashtra and Governor of Punjab, aptly put it in an interview to the Times of India dated 10 September 2002, “If people who have seen their mothers and sisters raped and burnt before their eyes have no hope of getting justice, they will turn into terrorists and why are we talking about ISI and Pakistan when we are doing their job for them by creating terrorists?”