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Prologue-Witness Protection Programme
- In a major development, the witness protection programme is finally in place.
- The Supreme Court has approved the Centre’s draft witness protection scheme and has asked all the states to implement it till Parliament comes out with a legislation. The court has also made some changes in the scheme.
- The Supreme Court has asked States to implement a scheme framed by the Centre to protect witnesses in criminal trials from threat, intimidation and undue influence. However, it is important to note that this is pending legislation by Parliament.
- Further, it is important to note that given the abysmal rate of convictions in the country, it is inexcusable that it took so long.
The Need to Protect Witnesses:
- The need to protect witnesses has been emphasised by Law Commission reports and court judgments for years.
- It is important to note that witnesses turning hostile is a major reason for most acquittals.
- In the current system, there is little incentive for witnesses to turn up in court and testify against criminals.
- Besides threats to their lives, they experience hostility and harassment while attending courts.
- Further, the tardy judicial process seldom takes into account the distance they have travelled or the time they have lost in attending court, only to be told they have to return another day.
- As Justice A.K. Sikri points out, the condition of witnesses in the Indian legal system is “pathetic”, as it takes them for granted.
- It is gratifying that the court has played a proactive role in getting the Centre and the States to come up with a concrete proposal.
- Experts point out that the Centre deserves credit for coming forward to suggest that its draft witness protection scheme be introduced by judicial mandate instead of waiting for formal legislation.
A Closer Look:
- The draft witness protection scheme has been finalised in consultation with the National Legal Services Authority (NALSA) and Bureau of Police Research and Development (BPRD).
- The scheme envisages that there should be safeguards that witnesses and accused do not come face to face during investigation or trial and adequate security measures should be there for the safety of the witnesses.
- It broadly classifies witnesses in need of protection into three types based on the threat assessment.
- It has three categories of witnesses based on the threat perception:
1) Category ‘A’: Where the threat extends to life of witness or his family members and their normal way of living is affected for a substantial period, during investigation/trial or even thereafter.
2) Category ‘B’: Where the threat extends to safety, reputation or property of the witness or his family members, only during the investigation process or trial.
3) Category ‘C’: Where the threat is moderate and extends to harassment or intimidation of the witness or his family member’s, reputation or property, during the investigation process.
- Further, basic features such as in camera trial, proximate physical protection and anonymising of testimony and references to witnesses in the records are not difficult to implement.
- Experts point out that the real test will be the advanced forms of identity protection: giving witnesses a new identity, address and even ‘parentage’, with matching documents.
- The scheme is to be funded by budgetary support from State governments and donations.
- This is at variance with the Law Commission’s recommendation in 2006 that the Centre and the States share the cost equally.
- The SC has asked all states and Union Territories to set up vulnerable Witness Deposition Complexes, as required by the Scheme, by the end of 2019.
- These rooms will be equipped with facilities to prevent the accused and witness coming face to face.
- The expenses for the programme will be met from a Witness Protection Fund to be established by states and Union Territories.
- As per the scheme, police escort will be provided to witnesses who are threatened and, if needed,witness would be relocated to a safe house.
- The scheme also says mails and phone calls of the witnesses would be monitored to trace the person threatening them.
- It said a separate witness protection fund will be created in each state to meet the expenses incurred under the scheme.
- In 2003, Justice V Malimath Committee on criminal justice system had recommended enacting a separate witness protection law and in 2006, the Law Commission of India, in its 198th report, provided for a draft witness protection law.
- Besides, countries such as USA, United Kingdom, China, Italy, Canada, Hong Kong and Ireland have witness protection scheme.
Significance of the scheme:
- The witnesses, being eyes and ears of justice, play an important role in bringing perpetrators of crime to justice.
- The scheme is the first attempt at the national-level to holistically provide for the protection of the witnesses, which will go a long way in eliminating secondary victimization.
- This scheme attempts at ensuring that witnesses receive appropriate and adequate protection.
- It also strengthens the criminal justice system in the country and will consequently enhance national security scenario.
- Victims and witnesses of serious crimes are particularly at risk when the perpetrator is powerful, influential, or rich and the victims or witnesses belong to a socially or economically marginalized community.
- Girls and women who report sexual violence are often even more vulnerable and face extreme pressure or direct threats from the accused.
Concluding Remarks:
- Experts point out that all this needs to be done without undermining their professional and property rights and educational qualifications.
- The introduction of the scheme marks a leap forward. Until now, there have been adhoc steps such as those outlined for concealing the identity of witnesses in anti-terrorism and child centric laws.
- A few dedicated courtrooms for vulnerable witnesses, mostly child victims, are also functional.
- However, expanding such facilities and implementing a comprehensive and credible witness protection programme will pose logistical and financial challenges. It will be well worth the effort, as the scheme could help strengthen India’s tottering criminal justice system.