Recently, The Supreme Court has approved Witness Protection Scheme and asked the states to enforce it. The draft scheme, prepared by the National Legal Services Authority (NALSA) and Bureau of Police Research and Development (BPRD)
Definition of Witness
The Witness Protection Scheme, 2018 defines ‘witness’ as:
‘Witness’ means any person, who possesses information or document about any crime regarded by the competent authority as being material to any Criminal proceedings and who has made a statement, or who has given or agreed or is required to give evidence in relation to such proceedings.’
Need of witness protection scheme
- To protect witnesses: 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 marginalised community.
Girls and women who report sexual violence are often even more vulnerable and face extreme pressure or direct threats from the accused, as Human Rights Watch found in its report “Everyone Blames Me”: Barriers to Justice and Support Services for Sexual Assault Survivors in India.
- To ensure rule of law: It is a rule of law that no rights of the witness should be prejudiced by way of threats, intimidation or corruption therefore, to allow him to testify for or against the case which he had been a witness to with full liberty.
- Rights of the witnesses: It is the responsibility of the State to impart adequate protection to the witness. This would encourage more witness to come forward
- First reference to Witness Protection in India came in 14th Law Commission Report in 1958. After that 178th and 198th Law Commission Report also recommended putting in place a witness protection scheme.
- The 198th report of Law Commission various aspects such as Witness Identity Protection v. Rights of accused and based on this witness protection bill, 2015 was introduced
- The Justice Malimath Committee on Reforms of Criminal Justice System suggests the need for witness protection program
- In 2003, best bakery case, the Supreme court directed the government to report the steps taken for witness protection.
- In 2018, Mahendra chawla vs UoI, Supreme court directed the state to implement Witness protection scheme 2018 till the parliament brings law in this regards.
Witness Protection Scheme 2018
- Aim: To enable a witness to depose fearlessly and truthfully by providing appropriate protection from the state
- The scheme would serve as the ‘law’ under Article 141/142 of the Constitution, until suitable Parliamentary and/or State Legislations on the subject is enacted
Article 142: It deals with Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc. It states that the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it
3. The expenses for the programme will be met from a Witness Protection Fund to be established by states and Union Territories
4. The programme identifies “three categories of witnesses as per threat perception”:
- Category A: Those cases where threat extends to life of witness or family members during investigation, trial or even thereafter.
- Category B: Those cases where the threat extends to safety, reputation or property of the witness or family members during the investigation or trial
- Category C: Cases where the threat is moderate and extends to harassment or intimidation of the witness or his family members, reputation or property during the investigation, trial or thereafter.
- The scheme recognizes the protection of identity of the witness.
- Changing the residence of the witness to somewhere else
- Preparation of a “Threat Analysis Report” by the head of the police
- Scheme provides review and appeal in case witness or the police authority is agreed by the decision of the Competent Authority.
Issues with Witness protection scheme
- The functioning criminal justice system is the responsibility of the State and some states may not have adequate resources to implement this scheme effectively.
- The lower courts, where all the witnesses have to appear, do not have the infrastructure to satisfy the mandate of the present WPS.
- Overworked and understaffed police are unlikely to make any meaningful threat analysis for a witness.
Also, in high profile cases involving politicians or influential people the police officer can be put under pressure to provide those people the information regarding the witness.
- The arrangements to change identity and relocate witnesses may not fit Indian conditions.
- Scheme not addressed the harassment of the witnesses from the frequent adjournment of cases, monetary loss and other kinds of deprivation due to their repeated appearances in the court
- It doesn’t address the social reality of witnesses. Most crimes in India take place amongst people known or related to each other and, consequently, the witnesses also share some relationship with both the victim and the accused. Thus, it casts tremendous pressure on the witness, generally of a social or caste-related nature.
The Witness Protection Scheme, 2018 (Draft) is a 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. But few steps need to taken to make it more effective
- Government must enact a comprehensive legislative which clearly defines the role of Police, government and judiciary. There is a need to make Witness protection scheme more right based rather than security centric.
- Along with Witness protection scheme there is need of “Witness Assistance Programme” as a vast majority of witnesses do not need protection — they require more assistance, care and dignity.