Insights into Editorial: Shielding witnesses: on protection scheme
The Supreme Court approved the Centre’s draft witness protection scheme and asked all the states to implement it till Parliament comes out with a legislation.
The issue of witness protection scheme had cropped up earlier when the top court was hearing a public interest litigation (PIL) seeking protection for witnesses in rape cases involving Asaram Bapu.
The witnesses, being eyes and ears of justice, play an important role in bringing perpetrators of crime to justice.
Draft Witness Protection Scheme:
The draft witness protection scheme, finalised in consultation with the National Legal Services Authority (NALSA) and Bureau of Police Research and Development (BPRD), has three categories of witnesses based on the threat perception.
- The court had asked the Centre to finalise the scheme after getting response from the states and Union Territories.
- The court had said that witness protection scheme can be implemented for at least sensitive cases and the Ministry of Home Affairs could come out with a comprehensive plan.
- Further, 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 and all possible steps should be taken for expeditious completion of the trial of cases.
- The scheme provides for identity protection and giving a new identity to the witness.
- The need to protect witnesses has been emphasized through various Law Commission Reports and Court Judgments for years.
- Witnesses turning hostile is a major reason for most acquittals. It is first attempt at the national level to holistically provide for the protection of the witnesses.
- This attempts at ensuring that witnesses receive appropriate and adequate protection.
Delhi scores a first in protecting witnesses:
Delhi has become the first state in the country to announce a scheme for witness protection. The state government notified the Delhi Witness Protection Scheme, 2015.
The government will make budgetary provisions in its annual budget for implementation of the scheme.
Witnesses under three categories will be provided protection, depending on the threat perception.
The categories have been draw up based on type of threat and duration for which the protection has to be given. For instance, if there is a threat to life and it affects the day-today activities of a witness for a substantial period during the investigation.
Previous Recommendations on protecting witnesses:
Law Commission’s recommendation in 2006 that the Centre and the States share the cost equally.
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.
The real test will be the advanced forms of identity protection: giving witnesses a new identity, address and even ‘parentage’, with matching documents.
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 ad hoc steps such as those outlined for concealing the identity of witnesses in anti-terrorism and child-centric laws.
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.
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.
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.
Section 195 A of the Indian Penal Code deals with witness protection.
Countries such as USA, United Kingdom, China, Italy, Canada, Hong Kong and Ireland have witness protection scheme.
In 2003, Justice V Malimath Committee on criminal justice system had recommended enacting a separate witness protection law.
In 2006, the Law Commission of India, in its 198th report, provided for a draft witness protection law.
The draft of the Witness Protection Scheme, 2018 states that it 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.
This will go a long way in strengthening the criminal justice system in the country and will consequently enhance national security scenario.