In India, a shroud of precariousness hangs heavily over prosecution witnesses. It is an open secret that one’s integrity and strength of conviction to speak up for the truth could very well be eroded or crushed by coercion.
Or, as the steadily rising death toll of those who have volunteered to speak out against Asumal Thaumal Harpalani, more notoriously known as Asaram Bapu shows, these courageous people could be silenced for ever. Simply killed, one after another. Thus far, three prosecution witnesses have been killed, and a fourth, almost fatally injured.
Witnesses Entrapped By the System
It is also a truth that the law enforcement machinery is invariably responsible for the witness’ plight. When protection is sought, the police tends to throw at a vulnerable person an intimidating set of rules.
The judiciary in turn, penalises witnesses for perjury irrespective of whether one is a habitual liar, or has fallen for an inducement, or has been threatened and bludgeoned into going back on his word.
It is this context that one has to evaluate the Supreme Court’s 14 September Orderin the criminal writ petition filed by lawyer Bennet Castelino. The court directed all the trial courts in Gujarat and Rajasthan where different cases against the self-styled godman and his son are going on, to evaluate the threats faced by different prosecution witnesses, and if found genuine, then to provide adequate protection whenever the need arose.
The circumstances which compelled Castelino, a Mumbai-born lawyer and solicitor who divides his time between the city of his birth and New Zealand, where he runs a law firm, also speak volumes about the extreme danger in this particular case.
Moreover, those very same circumstances, and the alarming facts of this case, strongly indicate why the apex court’s Order might just not be sufficient.
Mortal Fear, Minimal Protection
The plight of Mahender Chawla, who has recounted everything in a sworn affidavit filed before the Supreme Court, drove Castelino to seek urgent relief from the apex court.
Chawla was Asaram’s secretary from 2001 to 2005, and in 2013, had come out with startling revelations against the godman and his son Narayan Sai. He accused both of large scale defalcation of funds and rampant sexual exploitation of female followers, especially minor girls.
Online news site The Wire has a “chilling primer” of all the allegations against the duo, and how they were attempting a massive cover-up. It also bears ample testimony to the immense political and social clout they enjoy, and wield it to seek impunity.
In his affidavit, Chawla, the sole surviving one among the three key prosecution witnesses, states that he has witnessed the acts of which the father-son duo has been accused of, and also has evidence to substantiate the allegations of embezzlement.
On 13 May this year, “unknown persons” launched a grievous attack on him, leaving him battling for his life. The one armed guard allocated for his protection seems to have “strategically” gone on leave the previous day, leaving the path clear for the assailants.
Now, paralysed, jobless and in penury, Chawla pleads that he wants to live at least till the time he is able to testify and expose the culprits.
Most shocking is the fact that he has knocked on the doors of many lawyers, but everyone has declined to help either out of fear, or because of the sheer power and influence exercised by Asaram and Narayan Sai.
Witnesses Succumb, Cases Collapse
In its 2013 judgement in the Jessica Lal case, in which indispensable prosecution witnesses changed their stances and almost managed to win an acquittal for accused Manu Sharma, the Delhi High Court was constrained to lament:
The perception of such power being wielded liberally and without compunction, to harass, intimidate, or often win over witnesses, is widespread. There is no gain saying that such perception is borne out in case after case, when witnesses who are considered bulwarks of the prosecution version turn turtle and do not support the state.
— 2013 Delhi HC Judgement
More recently, important witnesses in the “Hindutva terror” trials are turning hostile, leaving investigators worried about the cases being irreparably jeopardised.
The Case for Protection
In his petition, Castelino underscores how critical it is to protect witnesses especially in cases of sexual assault against minors. Section 19 of the POCSO (Protection of Children from Sexual Offences) Act which makes it mandatory to report such cases.
If a complainant has apprehensions of being intimidated, people would hardly step forward, thereby defeating the very purpose of an important legal provision.
He also cites the 184th Report (2006) of the Law Commission of India which contained a slew of recommendations intended to revamp the witness protection system in India. That report, regrettably, has been banished to the cold storage. And, more and more lives are being hurled into the resultant gaping void.
Initially, the court was reluctant to entertain the writ, he told The Quint in an email interview. Only after much persuasion did the judges relent, but then the courts can only do so much, he said. It is incumbent upon the government to provide robust protection, and it’s here that all the concerned authorities were found to be terribly deficient.
Whether the Supreme Court’s limited intervention will help avert one more witness’s death or retreat in this case remains to be seen. But the pattern of violence already unleashed, and the toll it has exacted proves, again, the urgency of instituting ironclad safeguards, so that justice can be done.