Beyond vacancies, judicial reforms in India also need to look at creating witness-friendly systems

The Delhi High Court is currently hearing two petitions questioning the slow rate at which child sexual abuse cases are disposed of. One of the arguments made by the petitioners is that cases will be cleared quicker if the state government provides additional infrastructure such as special court rooms for deposition and more forensic labs.

This is a welcome approach to judicial reforms as discussions in recent times have had an almost myopic focus on the pending cases and vacancies across courts. Framing the problem only in those terms can be problematic as solutions can overlook the question of quality of justice – cases deposed in haste are only likely to return in appeals and judicial standards may not always be met in a rush to fill vacancies.

Vulnerable witnesses

In fact, studies across the world show that the number of cases filed before a judge is not correlated with his or her rate of clearance of cases. A better approach is to talk about how judicial processes can be improved so that cases are disposed of quicker. This would involve departing from a rigid one-size-fits-all approach to legal procedure to one with more flexibility.

Sexual abuse, especially of children, is one area where such flexibility is required – especially with regard to witness deposition. In such cases, the entire process of justice, beginning with the police and ending with vicious defence counsels, is mired in insensitivity, adding to the ordeal of victims.

The Vulnerable Witness Courts for vulnerable witnesses in the national capital are an outstanding initiative towards greater judicial sensitivity, implemented by the Delhi High Court under Justice Gita Mittal. These courts serve as an example of how the judiciary can be reformed through new infrastructure and revised procedures that don’t undermine the rights of the accused to a fair trial.

The first such court was opened in Delhi’s Karkardooma area in 2012. Since then, two more courts have been set up in Saket and Tis Hazari with plans to open more in Dwarka and Rohini.

The glaring question, however, is not whether Delhi should have more Vulnerable Witness Courts, but why other cities have none. These courts after all, implement guidelines issued by the Supreme Court and the 172nd Law Commission and consolidate them with best practices from abroad. There is no reason why such courts their benefits cannot be transplanted to other parts of the country.

The protocols issued by the Delhi High Court define “vulnerable witnesses” as victims or witnesses of sexual offences and serious crimes as well as all child witnesses.

The word “vulnerable” is used because the very act of having to recount such ordeals in the presence of one or more of the perpetrators or an audience can be traumatising for all witnesses. But for the truly vulnerable – children and others unfamiliar with courtrooms – court procedure can be just as daunting, especially when administered insensitively.

As a result, testimonies are often undermined (resulting in acquittals) or the victim is effectively re-victimised by the legal process, and very frequently, both.

Victim-friendly system

This is where Vulnerable Witness Courts come in. These courts have separate instructions on legal procedure: witnesses can take as many intervals during their testimony as they desire and testimonies must, to the extent possible, be completed in a single hearing (to prevent multiple visits to court). The court can also appoint a guardian on behalf of witnesses unfamiliar with court processes. The purpose of such guardians is make procedure more sensitive to witnesses by creating a support mechanism for them. This includes explaining all the relevant legal processes, attending all hearings, helping the witness and their family cope with the effects of the trial as well as providing recommendations to the judge if necessary.

The court can also appoint a facilitator, whose role is to ensure effective communication between the witness and other parties involved during legal proceedings such as police, doctors and counsels. A facilitator may be a translator, social worker or relative.

Witnesses are also allowed to request someone familiar to accompany them during the testimony for support and judges are empowered to appoint such a person even when there is no request.

The Vulnerable Witness Courts also allow witnesses to visit the court ahead of their hearing so that they can familiarise themselves with what would otherwise be an alien environment. On the day of their hearing, witnesses are kept in a separate room with a TV and reading materials for their comfort.

Witnesses are given the option of whether they would like to depose via video link or in the courtroom itself. If they opt for the former their testimony will be televised in the courtroom via a live video link using a 360⁰ camera in the presence of a court officer. This ensures that the testimony is fair and will not undermine the rights of the accused.

If they choose to depose in court they can request a screen to block the accused or have him shifted to an adjacent room with a one-way mirror through which he may view the proceedings. Crucially, the court can also declare that identifying information of the witness be kept confidential so as to help protect the witness from threats.

At the Vulnerable Witnesses Deposition Complex in Tis Hazari, which opened in April, witnesses are picked up by court staff from their home. This is a crucial step as many times, a witness and perpetrator may have to travel on the same bus from a remote area.

Once they reach the complex, there are separate entrances for the witness and the accused.

The Vulnerable Witness Courts have thus been effective in addressing re-victimisation and unfamiliarity, which makes their absence in other cities so perturbing. They have also been effective in encouraging more and better depositions and helped prevent witnesses turning hostile.

A robust witness protection programme is still needed to protect witnesses outside of court rooms, but Vulnerable Witness Courts are a step in the right direction towards more victim friendly justice. It is baffling that Delhi remains the sole pioneer on this front. Such courts will be more effective in curtailing sexual assault offences than increases in punishment, as many cases fail at the stage of evidence. Harsher laws have no effect if they cannot be implemented.

It is therefore time that the government (both Union and the states) and the judiciary move away from myopic discussions about vacancies and make sure that the delivery of justice does not act as an impediment to those who seek it.

The author is a research associate at the Takshashila Institution, an independent, non-partisan think tank and school of public policy. The views contained here are personal.