Philosophical Approach to The Justice Rendering System in India and The

Menace of Hostile Witnesses

Project submitted to
Christ (Deemed to be University), Bangalore

In partial fulfilment of requirement for the

Award of degree of
Philosophy of Law
(CIA 1)

By
Blessen Tom Cyriac (2150575)

Under the Guidance of:

Mr. Stalin Arnold

2nd Year, BBA LLB B

2021-2026
 Abstract

In the light of the recent incidents where witnesses became hostile in the Madhu lynching
case of Kerala and Malegaon bomb blast case, has led to a large outcry for the
implementation of the witness protection scheme which protects the witnesses from being
harassed or being influenced by the monetary benefits. Restricting justice to the victim is a
real matter of questioning the functioning of the judicial proceedings in the country. As the
Scottish philosopher David Hume has said in his work REDUCTIONIST EPISTEMOLOGY
OF TESTIMONY “Testimony is a unique source of belief”. Thus, the testimony given by the
witnesses should be to the best of their knowledge and hence the testimonies, as well as the
person giving out the testimony, should be protected under law.

The research area of this paper is the protection of witnesses and the research topic is
“Philosophical Approach to The Justice Rendering System in India and The Menace of
Hostile Witnesses”. By referring to primary sources like different statutes around the world,
case laws and various secondary sources such as books, articles and journals, the author has
adopted a doctrinal research methodology. Through this paper, the author intends to find the
philosophical background of the existing laws on hostile witnesses in a few countries with
more prominence to India. The backlash to justice due to the hostile witnesses and the
mitigation of this issue will also be discussed in this paper. The author also tries to support
the arguments through a philosophical approach. The author also suggests empirical research
using the philosophical aspects mentioned in this paper.

Keywords: Hostile Witnesses, Protection, Justice, Menace, Madhu lynching case, Malegaon
bomb blast case, Intimidation

Literature Review

“Witness Intimidation” ~ Brendan O’Flaherty and Rajiv Sethi1

The article by Brendan O’Flaherty and Rajiv Sethi explains how witness intimidation
involves strategic complexity and two-sided uncertainties criminals cannot know whether
threats will deter witnesses, and witnesses cannot know whether threats will be carried out.
The authors in this article comprehend Witness intimidation as a fundamental and an eminent
threat to the concept of “rule of law”. In the article, the authors observe that the Empirical
data on intimidation of witnesses are hard to obtain, but the authors have mentioned a few
surveys evidence, as well as incidents which were found astonishing as more than three-
quarters of the witnesses, were either threatened or intimidated. Given the paucity of
empirical information, the authors have relied largely on theoretical arguments in our attempt
to understand witness intimidation. The authors emphasize that the best way to measure
witness intimidation is to examine the conviction rate for murders, with appropriate lags to
reflect the length of time it takes to bring a murder case to trial due to the incidents of

1
Brendan O’Flaherty and Rajiv Sethi, “Witness Intimidation”, The Journal of Legal Studies, Vol. 39, No. 2 (June
2010), pp. 399-432, The University of Chicago Press
witnesses being hostile. Thus, the authors have brought in largely theoretical viewpoints in
the article.

“Witness Control” ~ James W. McElhaney2

The Article by James W. McElhaney puts forward multiple arguments and several
recommendations by accessing different rules of selecting a witness and strategies to counter
them using philosophical scenarios. The author put forwards basic principles of witness
control in which he focuses mainly on Controllability as the main attribute which is eminent
to most trial lawyers. In his article, the author has introduced “good witnesses” as a part of
the total package for a successful conviction. The author additionally gives out a panoramic
view of mistakes that a prosecution council may commit on reality-based examples with the
help of cross examination and replies. It is also to be noted that the author appears to be
stating his arguments without substantiating them with supporting incidental evidences. Thus
he concludes that a good deal of energy must be spent just getting the witnesses on the
subject and keeping them focused on that.

“Boxing In the Hostile Witness: How to trap him by his own testimony” ~ Robert
Bugdanowitz3
In this article by Robert Bugdanowitz, the author sites various methods of how to deal with
the plight of a council with regard to the issue of hostile witnesses. The author is of the
opinion that a hostile witness is like a ticking time bomb that if undetected, the witness’s
testimony can explode a lawyer's case and hurt the client. Throughout the article, the author
explains loopholes that can pin down the hostile by his own words. The author further
substantiates on the importance of keeping up-to-date documents subpoenaed for the trial.
The author has used several examples to further elucidate his statements. As said in the article
“witness intimidation”, the author explains how the prejudiced witness may change sides due
to monetary and other influences, without explicating much on statistical evidence.

“The Forgetful Witness” ~ David Greenwald4

This article by David Greenwald revolves around the hassles a council faces when the
witness turns out to be forgetful. In this article, the author stresses the fact that witnesses do,
on occasion, lie, and that they often forget. The author further recommends the technique of
impeachment and the hearsay rule to combat these weaknesses of testimony. Throughout the
article, he has brought in various statutes from the US which could help the council to
impeach a forgetful or a lying witness. The author subsequently concludes that the forgetful
witness offers a puzzle for evidentiary theory and practice which he says has the potential to
derail a party's case who calls the witness to testify.

2
James W. McElhaney,” Witness Control”, Litigation, Summer 1979, Vol. 5, No. 4, ORGANIZING AND TRAINING
FOR LITIGATION (Summer 1979), pp. 47-54, American Bar Association
3
Robert Bugdanowitz, “Boxing In the Hostile Witness: How to trap him by his own testimony”, Source: Family
Advocate , Summer 1983, Vol. 6, No. 1, ANNIVERSARY ISSUE: The Section Celebrates Its 25th Year (Summer
1983), pp. 12-15, American Bar Association
4
David Greenwald, “The Forgetful Witness”, The University of Chicago Law Review, Winter, 1993, Vol. 60, No.
1 (Winter, 1993), pp. 167-195
DESPERATELY SEEKING SAFETY: Witnesses' Experiences of Intimidation,
Protection and Relocation ~ Nicholas R. Fyfe and Heather McKay5
The article critically analyses the structure of witness protection and relocating schemes and
suggests for a national witness protection program in the UK set within a legislative
framework such as in the US and Canada. The author throughout the article stresses on the
fact that Witnesses appear to occupy a paradoxical position within the criminal justice
system. As said by one of the observers in this article, ‘Without witnesses the rudiments of
prosecution, such as identifying the accused and establishing the requisite nexus between
accused and the crime, would become insurmountable obstacles to conviction, and the
criminal justice system would cease to function’. The author throughout the article
contemplates various statistics and research reports, although he says that research into
witness intimidation is in its infancy. The author further articulates various ways the
witnesses being intimidated by the defence agents also how they are vulnerable to verbal
abuse and threats. Although the author reinstates the idea of the witness protection and
relocation programme, he is also critical on the cost that such programmes bring in to the
government agencies.

5
Nicholas R. Fyfe and Heather McKay, “DESPERATELY SEEKING SAFETY: Witnesses' Experiences of Intimidation,
Protection and Relocation”, The British Journal of Criminology, AUTUMN 2000, Vol. 40, No. 4 (AUTUMN 2000),
pp. 675-691, Oxford University Press