States can send a strong message of institutional intolerance towards violence against women by offering strong witness protection schemes, which will go a long way in increase conviction rates, and rehabilitating survivors and their families.
In 2013, a young Dalit girl was gang-raped in Bhiwani, Haryana, by a group of five men. On the basis of a police complaint, two of the attackers were arrested but were soon granted bail, while the other three remained free. The girl and her family then filed petitions for the arrest all the accused. In July 2016, the girl’s decision to use her right to access justice and file a criminal complaint led to being gang-raped again by the same men. The men kidnapped her when she was returning from college, drugged her and then raped again. They dumped her near Rohtak, where she was found unconscious.
According to the girl’s statements, she and her family had been facing continuous harassment and intimidation from the accused, who wanted an out-of-court settlement and did not want her to pursue the case. Their threats culminated in the second gang-rape.
The case underscores the terrifying impunity that rapists enjoy in India and the failure of the criminal justice system in providing justice to survivors. It is a great betrayal by the justice system of its promise to hold criminals to account and to provide a safe place for women in the country. The Rohtak incident reaffirms the absolute powerlessness faced by women in the criminal justice system and serves as yet another cautionary tale for women who may be considering approaching the police or the courts for redress against violence.
What does this choice actually entail? It means confronting hostile and prejudiced policemen while recording an FIR; struggling to work with public prosecutors, who are so overburdened with cases that they fail to sufficiently prepare the survivor for the rigours of the trial; facing interminable delays in trials; and tackling gruelling and humiliating questions from the defence. The Criminal Law Amendment Act 2013, enacted after the Nirbhaya gang-rape, did introduce many victim-friendly procedural and substantive provisions, such as penal provisions for the police who refuse to register an FIR in cases of rape, acid attack and sexual harassment, and stricter punishment for various crimes. The setting up of ‘one stop centres’ for victims of violence against women is also an important and positive step towards easing the survivors’ interactions with the criminal justice system. But when it comes to the question of protecting survivors and their families from continuous mental and physical harassment from the accused who want the case quashed, there is a ominous absence of protective laws and schemes.
There is a great and urgent need to enact provisions for witness protection across the country. In cases where there is a difference in power and status between the victim and the accused, there is a big possibility of the victim, her family and the witnesses being harassed and pressured by the accused to withdraw the case. In the Rohtak case for instance, the young Dalit girl was raped by men allegedly belonging to an “upper” caste. In the aftermath of the first incident of gang-rape, the girl and her family had been forced to relocate to Rohtak after being ostracised by their community. A similar incident was the Asaram Bapu case. After allegedly being raped by the influential ‘godman’ in his ashram in Jodhpur, the sixteen-year old girl and her family faced intimidation and death threats for lodging a rape case against him in Delhi. The girl was forced to give up her school and study at home for some time. Incidents of rape survivors and their families facing coercion and intimidation is very common. Being unable to face the continuous mental harassment and, in some cases, physical violence, witnesses turn ‘hostile’, refuse to depose in the trial and thus irreparably affect the case outcome.
While certain provisions provide a measure of protection to the victim and other witnesses in the courtroom (such as the provision of in camera trials for rape cases and protection of child rape survivors from confrontation by the accused while recording evidence), there is no avenue for survivors to avail of physical protection during trial and investigation.
The Law Commission has recognised this problem and has dealt with it at length in its 198th report. It has given detailed recommendations for witness protection at the investigation and trial stages, including the use of two-way video-links for recording evidence of survivors away from the direct presence of the accused. But perhaps the most important recommendation is for witness protection programmes. These programmes are envisaged as mechanisms to guard and shield witnesses outside the courtroom, and involve measures ranging from relocation, changing identities and transport. The appropriate protective measure would be decided after an inquiry conducted by a magistrate to determine the level of threat and harm faced.
Delhi is the first state in the country to notify a witness protection scheme. The scheme provides for various levels of security measures, such as the monitoring of calls, provision of police patrols outside the residence of the witness and a change of residence.
If rape survivors are to be encouraged to record FIRs and depose without fear, it is imperative that all states enact strong witness protection schemes. It will send a strong message of institutional intolerance towards violence against women. Witness protection programs will ensure the arrest of sexual offenders, increase the conviction rates and help in rehabilitating survivors and their families.
Gargi Mishra is a lawyer practicing in the Supreme Court and the Delhi high court.