Context and background While hearing a PIL filed on the safety of witnesses in large and sensitive cases, the Supreme Court has approved the draft of the Central Government’s witness protection scheme on December 5. After
Context and background
While hearing a PIL filed on the safety of witnesses in large and sensitive cases, the Supreme Court has approved the draft of the Central Government’s witness protection scheme on December 5. After discussions with the central government, the central government has drafted the witness protection plan. Justice A. K. The bench chaired by Sikri said that all states and union territories must abide by it until Parliament makes legislation in this regard. In the draft of the witness protection scheme, arrangements have been made to take the witness to safe court and give statements without any fear or pressure. It has been made compulsory to keep the identity of witnesses confidential and the government has been given the responsibility to keep privacy in the identity of witnesses and to prevent the tendency of exposing their identity.
What is the Supreme Court directive?
- The Supreme Court said that the ‘law’ will remain under the provisions of the witness protection scheme, 2018, Article 141 and 142 of the Constitution until appropriate law is made by Parliament or the state on this subject.
- Justice A. K. Sikri and Justice S. a. Abdul Nazir’s Bench instructed that by the end of 2019 all the states and Union Territories have been made to compile the statements of sensitive witnesses in all the district courts of the country.
- The Bench said that the Central Government should help financially and in other ways to cooperate in this work of States / UTs. The court said that one of the main reasons for the overturning of the witnesses is also not to provide them proper security.
- After consultation with the National Legal Services Authority (NALSA) and the Police Research and Development Bureau (BPRD), the draft of witness protection scheme was finalized, in which it has been placed in three categories based on the assessment of the danger of the lives of witnesses-
- In cases where there are serious threats to the life of the witness or members of his family after checking or after the investigation.
- In cases where during the investigation or during the trial, the reputation of the witness or his family members, security and property is threatened.
- In such cases where the witness or the family members increase the risk of reputation and property harassment during trial or trial.
- The Central Government has prepared this scheme based on information received from open sources including 18 States / Union Territories, five State Law Services Authorities and Civil Society, three High Courts, as well as police personnel.
- This directive of the court came after the hearing of a Public Interest petition for the protection of witnesses in the rape case related to Asaram Bapu.
- Significantly, many people who testified against Asaram were killed and many were assassinated.
- Therefore, the draft prepared by the government on behalf of the witnesses to ensure the safety of witnesses in the matter of ensuring justice in all judiciary along with this matter and the approval given by the Supreme Court is an important initiative.
- The petition filed in connection with the safety of witnesses had requested for the disappearance of witnesses and investigation of the incidents of attack on them.
- Regarding this petition the Center had informed the court that after it consultation with the Police Research and Development Bureau and the National Legal Services Authority, the draft of the witness protection scheme has been prepared. The Center also received the opinion of all the States and Union Territories on this draft. Despite this, the scheme could not be made concrete.
Why is the safety of witnesses necessary?
- Madhya Pradesh Professional Examination Board, also known as Vyastham, is related to admission in medical colleges and recruitment for various government jobs. In this recruitment process, cases of irregularities and corruption were highlighted in large numbers. After this, many accused and witnesses related to this case had died in mysterious circumstances.
- In the case related to the corruption of the National Rural Health Mission in Uttar Pradesh, four witnesses in police custody died in one of the suspicious circumstances after one.
- There are many major cases in which 2G scam, fodder scam, hit and run, in which leading witnesses were forced to terminate or were not forced to bear witness.
- There were allegations of rape in two cases against Sant Asaram Bapu. He is currently in jail. An important witness of this case, 35-year-old Kirpal Singh, was shot and killed by unknown assailants in Shahjahanpur.
- Earlier, two other witnesses were killed in Gujarat by Amrit Prajapati and in Uttar Pradesh, Akhil Gupta.
- In criminal cases, witnesses play the role of eye and ears over the event scenario. But many times it has been seen that after witnessing the testimony of the court, important witnesses return to the statements made in the police or there is a lot of discrepancy in their testimony.
- The result is that many times the criminal prosecution becomes weak due to the turn of witnesses and the accused gets released.
- The role of the witnesses in the major criminal cases of the country and the manner in which they have been affected by issues ranging from being sensitive to their safety has been a matter of constant concern of the court.
- According to an estimate, in the country of about 10 to 12 percent of the cases, culprits can be punished in the face of the turn of witnesses in crimes like murder and rape in the country.
- Keeping in mind the status of the witnesses, however, the issue of conservation of witnesses has been steadily rising, but now it seems that after the judicial intervention, the scheme of protection for the witnesses may be taken as pertinent.
- In the context of the safety of witnesses, due to the absence of effective legislation, justice seems like a far-fetched one.
- In such circumstances where the only source of truth is a witness, there is a strong law to protect its security.
- To make the criminal justice system more effective, the safety of witnesses is very important because in many criminal cases, punishment is not done only because the witness is disappeared before coming to court or because of fear the court will not come. Finds
- There is a lot of delay in making judgments on matters in courts, due to which witnesses stop coming to court.
- One good thing is that implementing this directive of the Supreme Court will be binding on all the states but for this, a separate law will be required because there is a great difference in law and planning.
So far, what progress has been made on the witness protection law in India?
- The Law Commission has made several attempts to draft the witness protection legislation and has also recommended the Center to emphasize its need.
- In the 154th Report of the Law Commission, a chapter on the safety and facilities of witness (witness) has been included.
- Similarly, the Law Commission in 2001, in its 178th report, addressed the issue of preventing witnesses from making hostile.
- In order to improve the criminal justice system in 2003, the Justice Malimath Committee had recommended the creation of a separate witness protection law in India on the basis of laws made to protect the witnesses and members of their families in the United States and other countries.
- The most important recommendation of this report was to add a new section 164-A, amendment in the Paragraph Process Code, 1973, which was related to recording statements of important witnesses in the presence of magistrates.
- There is a provision for the protection of witnesses in section 195-A of Indian Penal Code (IPC).
- The Supreme Court expressed concern over the questions raised regarding the safety of witnesses in many cases, including the eyewitness testimony of the Best Bakery Case related to Gujarat’s 2002 riots, Zahira Sheikh.
- Based on the 198th Report of the Law Commission and on the basis of the ‘Identity of the Witness, safety and witness protection program’, a Bill Witness Protection Bill, 2015 was prepared for the protection of witnesses.
- This bill was sent to state governments and union territories, but there was no consensus on this.
How strong is this new guideline of the Supreme Court?
- It will not be right to say anything on how strong it will be on the new guidelines line, but it would have been nice that Parliament made laws on this.
- In the case of the Law Commission, 2003, in the Neelam Katara case, the guidelines of the Delhi High Court, the National Legal Service Authority’s witness protection scheme, there is some such effort which has brought awareness among the people.
- People have done the job of judiciary in a way sensitive and now Parliament is being sensitized through the judiciary that it will make laws. This guideline will continue until the law is made.
- There is a change in the mindset of the people. People have now started to realize that what is going on will not work now because people are not ready to tolerate it anymore.
- Significant witnesses have either been killed or threatened or lured in the number of high profile cases that have taken place in the country.
- This changing situation should be welcomed because the things that should come from parliament or political establishments are now coming from the judiciary. Our policymakers, who have the responsibility to take action in this direction, are unable to do anything, while the civil society is playing a leading role in it, which is a matter of regret.
Challenge of implementation of scheme
- Implementing this plan properly will be a big challenge. Because the process of hearing in courts of any criminal case is so long that it is not possible for states to give protection to the witnesses.
- Quick investigation of cases, prompt prosecution of lawsuits, and speedy judgment or conviction of the culprits, may not necessarily be such a big plan and no longer need to protect the witnesses for long.
- Hiding the identity of witnesses is a very difficult task in itself. For this, there will be separate provision for manpower, funds, resources etc.
- Apart from this, there will be huge amount of expenditure in the witness protection program, which will be borne by the states. Most states in India are reluctant to spend on such schemes.
- There is an urgent need to enforce the official witness protection laws, but implementing it will be a difficult task as it will require adequate police force, which is currently very little.
- It is not viable for the police to ensure the safety of all the witnesses in each criminal case.
- The report of the Union Home Ministry shows that it is not possible to spend huge amount on the witness protection program, even when the country is suffering from poverty, disease and health problems.
- Some social activists believe that the safety given to politicians should be removed for the protection of witnesses in serious criminal cases.
- Politicians and bureaucrats take advantage of the security system at large levels, so some policemen from the security forces of each politician can be put on the security of witnesses.
- In the Effective Witness Protection Act, ideally all three related agencies, police, government and judiciary should be included.
- The government should display the political will to implement the necessary Acts, the judiciary can see the legal aspects and its execution can be entrusted to the police.
- An independent Witness Protection cell should be formed and false identification, transfer and check provision should be made in it.
- The witnesses should be treated with fair, respected and dignified and the criminal justice process should be free of threats, harassment or abuse.
- Medical facilities, social services, state compensation, counseling, treatment and other assistance can be provided to the witnesses.
- The provision of punishing witnesses in case of false testimony should also be strictly enforced.
It would not be wrong to say that politicians and influential lobby generally do not leave any stone unturned to check or affect. A corrupt police force is a major participant in this hateful task. It is important to protect witnesses to increase public commitment towards the justice system. Also, the public needs to unite against the evil propaganda of scaring the witnesses and removing them from the way. The order of the court will surely give courage to honest citizens. Now it is necessary that Parliament pass an effective law without delayed it.