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Witness protection programmes: A critique

Witness protection programmes: A critique
Anita and Edwin

The Government of India has announced its intention to have a comprehensive Witness Protection Programme [WPP], and is in the advanced stages of getting a law passed for the purpose.

The specifics are fine, or at least most of them are. But it does not take into account the social context of the law. This is the greatest flaw in the policy [policy comes first, then law, then enforcement]. The policy as it is, is a copout for the politicians from actually taking care of the security of the community.

WPP becomes a necessity when there is a large section of society that believes that the
a. 'Crime' is right, though illegal, and therefore is hostile to the person who turns against the community [in school it used to be called sneaking! These 'witnesses' are considered spies. The same protection given to spies will need to be given to them too.].
b. Alternate system—organised crime—is more powerful in enforcement. [So if someone testifies, then organised crime is able to punish them with impunity. The state must therefore take them away from such a society].

Normally a community believes in justice, and the person who is on the side of justice is protected by the community [though they may not like him!]. In the case of a WPP, we are admitting that a large section believes that the 'crime' itself is justice, or that the crime is a normative in that particular society, bringing in devastating consequences to those who go against the normative of society.

It becomes obvious therefore that the conditions for the creation of such large social conglomerations and territories must be addressed first. What causes the 'critical mass' of social structures and people to organise outside the 'formal' system? What causes their efficiency to be more 'feared' that the 'formal'?

The fault here lies with the political class that has continuously undermined the faith of the common people on the police [which in any case was minimal, given its colonial origins]. When such faith is undermined, then alternate systems develop, where the 'formal' or 'white' system becomes the enemy. The lasting solution is to restore the faith of the people in the 'formal' system.

Many police commissions have set out how this is possible. [Depoliticising the police being the first step!]. Rebuilding trust is the best form of witness protection, where the community itself becomes anti-crime. Otherwise large-scale [post-Godhra] or retail [Jessica Lal] impunity will be the result.

The WPP also depends on the trust that those who want to testify have on the police, the impartiality of the system, the ability to protect them, its efficiency in securing justice, and waiving prosecution against the witness [who is often someway connected with the crime]. Tweeking small parts of the system will not help in bringing down the crime rate [With all its power, neither did TADA or POTA].

There has been some mention about the right to information, the right to privacy, and the right to face the accuser in court [and also the exceptions]. The fact is that with the advancement of technology, a determined search can easily uncover a witness.

In the case of civilians who demand justice too, it is the enforcement machinery that turns against them. When some citizens of Bangalore complained that their residential area was being turned into a commercial zone in violation of zoning regulations, it is the government that demolished their houses [and only the houses of the petitioners!] for building plan violations. What is to prevent the police to turn against those who give witness in a case like Godhra for instance? So what about automatic immunity... given the high degree of mistrust?

The ability of punitive measures if the police betray the trust to be a deterrent is questionable, given the poor record of the Indian ‘justice’ system. If the betrayal of trust leads to the murder of a witness, it should be considered as the rarest of the rare, and invite life imprisonment. Private petitions should be permitted in these cases, including the request for life imprisonment. [we are for life, not for death penalty, even in cases of misuse of authority leading to death. There are no 'rarest of rare'.].

As it stands, the WPP is a legal band-aid, where drastic surgery is required. What we need is an enabling environment which empowers the citizens to manage their own security. There are many recommendations of many commissions—from administrative to judicial and from police to human rights activists—that address these issues in detail. The policy should be on security and community role in creating a law abiding culture. The role of the police is in enhancing community security as distinct from criminalising people [and also as distinct from the role of the army]. The role of the state lies in providing institutional protection to law abiding citizens. The central role in creating a law abiding society lies with individual citizens, and the community. The role of the state is supportive. When the state usurps this legitimate role of the citizens—and indeed makes it illegal for citizens to perform this function—then we quickly land up on this slippery slope.

The present WPP fosters an illusion of action when there is none, deliberately confusing activity with action, and social change with legislation. It is alright for children to ride a rocking horse and believe that they are chasing bank robbers. Adults must know that just because it moves, it doesn’t get anyone anywhere. Therein lies the difference.