Nailing a lie

Rajeev Dhavan / Mar 25, 2006, 00:00 IST

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The teenage Zahira went through the trauma of witnessing the death and destruction of her family and home.

We cannot but feel sorry for Zahira Sheikh, frustration at what she did and anger that those who manipulated her to perjury got away scot-free. The teenage Zahira went through the trauma of witnessing the death and destruction of her family and home.
Bravely entering the public domain with the truth for which she was admired, Zahira retreated into a twisted story of surrendering truth to lies.
She has now been severely punished by the Supreme Court with imprisonment for one year, a fine of Rs 50,000 and further imprisonment if the fine is not paid. The sentence is a warning to many others who still have to depose in the Gujarat cases.
Zahira could have sought redemption by frankly telling the court of the pressures on her. The Supreme Court has reason to be piqued. It was Zahira's petition to Supreme Court that led to the transfer of the case from Gujarat to Maharashtra.

Zahira can still approach the court to come clean on various pressures that led to her topsy-turvy interface with perjury. If she does so, the courts may reduce her punishment, and provide witness protection to send her on to anonymity and a new life.
Many future solutions are being canvassed, including introducing witness protection programmes drawn from various parts of the world.
The Law Commission of India has examined aspects of this in various reports in 1958, 1966 and more recently in a consultative paper in 2005.

Witness protection programmes are devised to protect witnesses who may otherwise be reluctant to testify in cases for fear of repercussions. Such programmes may include physical witness protection, giving screened evidence, post-trial anonymity and rehabilitation.
But apart from directions by Delhi high court in Neelam Katara's case in 2003 and Supreme Court's observations in the NHRC, Zahira and Sakshi cases, Indian law has remained stagnant. Undoubtedly witness protection is necessary.
But after Jessica Lal's case, it is being flaunted as a complete answer. However, it does not necessarily follow that even having got this protection, witnesses will testify against powerful accused who can intimidate them, their family or friends.
But, witness protection may go one step further towards securing a witness's presence and testimony at the trial. Second, witness protection can create havoc in the life of the protected witness �� both during trial and thereafter for life.
Victims and witnesses cannot without consent be placed under surveillance and confinement under the guise of protection. What has emerged from both the Jessica Lal and Best Bakery cases is the disturbing spectacle of witnesses who seem to feel that they can lie with impunity.
Until this view is corrected, there will be no respite from justice being bought and sold. To that extent, Justice Pasayat's judgment in the latest Zahira case points to using the mechanisms that actually exist in the law.
The Supreme Court was in a position to use its inherent powers, which are not available to all courts. New and better remedies need to be devised. The first is to prosecute those who threaten witnesses.
As elsewhere, this should be extended beyond trial witnesses to those who assist investigation. But, the threat must first surface to enable prosecution.
The second remedy to make it difficult for witnesses to resile from their statements is to record it before a magistrate. The third is to prosecute for perjury even though such proceedings are slow and cumbersome.
At present, approvers can be prosecuted for perjury only with the high court's sanction. In other cases, a long drawn complaint procedure is prescribed. These procedures need to be altered so that the court where the perjury occurs can deal with it.
It has been suggested that the Malimath committee's proposals be accepted to alter the very basis of India's law of evidence and procedure, to alter burden of proof, right to silence, the requirement to prove guilt beyond all reasonable doubt and to institute an inquisitional system to replace India's adversial approach.
This would be disastrous. Time-honoured civil liberty protections should not be sacrificed. Any change in the law will affect the innocent and guilty alike. We cannot countenance double-edged remedies that will threaten people with injustice.
The writer is a senior Supreme Court advocate.

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