We are finally over with the wait for a programme to confirm the safety of witnesses. The Supreme Court on Wednesday approved a Witness Protection Scheme drawn up by the government and asked the Centre, States and Union Territories to implement it “in letter and spirit”. The court declared that the right to life would include the right of witnesses to testify freely in courts, without anything to fear.
Accepting the Scheme, a bench of Justices AK Sikri and S Abdul Nazeer said: “The permission to testify in courts in a free and fair manner without any pressure or danger whatsoever is under consequential attack today. If one is not able to testify in courts because of warning threats or oppressive behaviour, then it is a straightforward violation of Article 21 of our Constitution. The basic Right To Life promised to the people of this country also includes the Right to live in a society free from criminals, hatred, fear and the freedom of witnesses to testify freely in courts.”
The court states “it should be the ‘law’ under Article 141/142 of the Constitution until the validation of proper Parliamentary and State Legislations on the subject”.
The question of protecting the witnesses has come up in a PIL that fought for the safety of witnesses in cases against popular Gujarat based preacher Asaram Bapu.
The Scheme was brought to limelight by the Centre in 2018 with inputs from 18 Indian states/ Union Territories, Legal Service Authorities of 5 Indian states and Open Sources counting in the civil society. Three High Courts and Police Personnel are assigned with the target to confirm that the investigation, execution and trial of criminal offences are not biased because witnesses are scared off to provide evidence without any protection from Brutal Criminal Accusation (BCA).
The programme recognises “three divisions of witnesses according to the threat perception”:
CATEGORY A: The cases where there might be a life threat for the witness or his family members during the investigation, trial or after that.
- CATEGORY B: The cases where there is a threat to the safety, reputation or property of the witness or his family members during the enquiry process or trial period.
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CATEGORY C: Cases where the danger is not too high and might lead to the harassment or life risk of the witness and his family. Their reputation and property might be at risk.
The prices for the programme will be fulfilled with a Witnessed Protection Fund to be accepted by the Indian States and Union Territories. They must create a yearly budgetary allocation for the fund which will be free of cost to accept donations from the national and international philanthropic organisations and amounts donated as a part of the Corporate Social Responsibility.
The application for safety needs to be filed in front of the “Competent Authority” along with supporting documents. As a result, the authority will demand a “Threat Analysis Report” from the Assistant Commissioner of Police /Deputy Commissioner of Police in charge of the Police station. The police officer must deliver the report intelligently. The Authority will have to throw away an application seeking security in minimum 5 days from the date of receipt of the Threat Analysis Report.
The police general must classify the threat perception and propose protective measures.
It is vital that at the time of processing the application, the Authority must interact in person and if that isn’t possible to achieve by means of an electronic procedure with the witness and other concerned people, the Authority Proceedings will be held in front of the camera.
The Competent Authority recently passed the Witness Protection Order. It will be practically implemented by the Witness Protection Cell of a State or Union Territory of India. The complete responsibility for this lies with the Police or the Union Territory head chief.
In case, the order is for alteration of identity or relocation, it will be implemented by the concerned Home Department.
The Witness Protection Cell will categorize a monthly follow-up report to the Authority. If it feels the requirement to go through the order once again, it entitles the Authority to call for a brand new Threat Analysis Report.
The bench mentioned the significance of witnesses in criminal trials and added that in spite of this, “the condition of witnesses in the Indian Legal System is nothing less than pathetic.”
The court stated that “there is an infinite number of threats faced by the witnesses at different stages of an investigation and then at the time of the formal investigation of evidence by the judge. These witnesses don’t have any legal solution, neither do they receive any suitable treatment. The current legal system doesn’t take the witnesses seriously. They are called to court regardless of their financial or personal situations” and aren’t properly paid back for the loss of precious time and the expenditure on transportation etc”.
The bench came to notice that “ one of the vital reasons for witnesses to turn aggressive is because they don’t receive proper protection by the State… Since the past 2 decades, the criminal justice system in India has been witness to mindnumbing incidents where witnesses ended up turning hostile.” This is the sole reason for improper judgement resulting in serious consequences on the criminal justice system.
The bench also requested that by the end of 2019, all the States and Union Territories should try to set up vulnerable witness deposition complexes as required by the Scheme. These rooms will be especially furnished with facilities to prevent the criminal and the witness from appearing face to face.