By Elton Gomes
The Supreme Court, on December 6, approved the Centre’s draft for a witness protection scheme. A bench, headed by Justice A.K. Sikri, said that they had also made some changes to the scheme.
The Supreme Court’s approval was in response to a petition that sought protection for witnesses in the rape cases involving self-proclaimed godman Asaram Bapu.
During a previous hearing, the Centre had told the Supreme Court that it had drafted a witness protection scheme that would be turned into a law “in due course”. Until then, the government has urged the Supreme Court to ask states to follow the draft scheme.
The Supreme Court, in response, has asked all states, except Jammu and Kashmir (since it has a separate constitution), to follow the draft witness protection scheme until it becomes a law.
What has the Supreme Court said?
Approving the scheme, the Supreme Court bench comprising Justices A.K. Sikri and S. Abdul Nazeer said, The right to testify in courts in a free and fair manner without any pressure and threat whatsoever is under serious attack today. If one is unable to testify in courts due to threats or other pressures, then it is a clear violation of Article 21 of the Constitution.”
The right to life guaranteed to the people of this country also includes in its fold the right to live in a society, which is free from crime and fear, and the right of witnesses to testify in courts without fear or pressure, they further said as per a report in the Indian Express.
The apex court said that it shall be the law under Article 141/142 of the Constitution, till the enactment of suitable Parliamentary and/or State Legislations on the subject.
“One of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State. It is a harsh reality, particularly, in those cases where the accused persons/criminals are tried for heinous offences, or where the accused persons are influential persons or in a dominating position,” the bench said in its judgement, as per a Business Standard report.
The top court stated that it is a benevolent and beneficial scheme aimed at strengthening the criminal justice system of the nation. The scheme will ensure access to justice, and advance the cause of justice.
What is the scheme?
The scheme was drawn up by the central government with inputs from eight states/Union Territories, legal services’ authorities from five states, and open sources, including those from civil society, three high courts, and police personnel. The scheme was finalised in consultation with National Legal Services Authority (NALSA).
Essential features of the scheme include identifying categories of threat perceptions, preparation of a Threat Analysis Report by the head of the police, and determining types of protection measures which need to be taken.
The scheme allows witnesses to file an application for seeking protection order before the competent authority of the concerned district where the offence has been committed.
The competent authority will be chaired by Districts and Sessions Judges. It will also include the head of the police in the district as a member and head of the prosecution as member secretary.
According to the judgement, the scheme identifies three categories of witnesses as per threat perception:
Category A: those cases where threat extends to life of witness or his/her 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: involves 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.
Supreme Court had earlier called for a witness protection programme
In November 2016, expressing serious concern over the growing trend of witnesses turning hostile, the Supreme Court has called for a witness protection programme, saying it shakes public confidence in criminal justice system.
A bench headed by Justice A.K. Sikri said that the state should come out with a witness-protection programme, at least in sensitive cases that involve those who have political and financial muscle, so that the trial does not get tainted and derailed.
When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system, the bench said, as per the Hindustan Times.
The apex court noted, It is for this reason there has been a lot of discussion on witness protection and from various quarters demand is made for the State to play a definite role in coming out with witness protection programme, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty.
Prominent witnesses who have faced threats or turned hostile
In April 2018, self-styled godman Asaram Bapus former aide Mahendra Chawla alleged that he was receiving death threats from Asaram and his supporters.
Chawla demanded more security for him and his family. He is one of the key witnesses in a rape case, for which, Asaram and his son were sent to jail in December 2013.
Chawla was earlier attacked by two unidentified persons in May 2015 in the Sanouli village of Panipat district, where he was staying in a rented accommodation. Although he survived the attack, he sustained two bullet injuries on his back.
In another instance, Ravindra Patil, a former cop, and Salman Khan’s bodyguard was reportedly under enormous pressure to alter his statement against the actor in the latter’s 2002 hit-and-run case. Patil even went missing during the course of the trial. He had reportedly gone into hiding to avoid Khans lawyers and also alleged harassment from within the police force.
Patils statement was eventually dismissed by Bombay High Court judge A.R. Joshi. The courts ruling eventually acquitted Salman Khan in the 2002 hit-and-run case, while Patil passed away with no one to look after him.
Actor Shayan Munshi had filed the FIR in the Jessica Lal murder case, but in court, turned into a hostile witness. He distanced simself from his complaint by saying he “didn’t understand Hindi” and hence had no clue what the cops had written in the FIR.
Jessica Lal was shot dead in April 1999 for refusing to serve a drink at a late night party to Manu Sharma, a politician’s son.
A Tehelka sting operation from 2006 exposed Munshi’s lies. Tehelka pretended to be a UK-based company that was casting for a bilingual film. Munshi demonstrated his proficiency in Hindi and boasted about taking eight months of Urdu lessons.
In its verdict, the court noted that Munshi first identified Manu Sharma as the culprit who fired at Lal, but later took a U-turn saying Sharma did not demand liquor from Lal. Munshi had also stated that the man, who had shot at Lal, was “much taller” than Manu Sharma.
Delhi’s witness protection scheme
Authorities in Delhi introduced a Witness Protection Scheme in 2015. The Delhi State Legal Services Authority (DSLSA) passes protection orders in each case after thoroughly evaluating the threat.
The commissioner of Delhi police is responsible for the overall implementation of the witness protection orders. Protection measures could include armed police protection, regular patrolling around witnesses house, installing closed-circuit television cameras, and relocation.
Once the DSLSA receives an application for protection, it seeks a threat analysis report from a senior police officer of the district or unit that is investigating the case.
DSLSA has to interact with the witness or others connected to the prosecution to determine protection needs and make a final order within seven working days of the application being filed. The DSLSA then passes interim protection orders, if needed.
Since 2015, the DSLSA has received 45 such cases, including five cases of rape, four cases of child abuse, and one case of acid attack.
Will it be effective?
Excluding Delhi, so far, the rest of the country hadn’t had a witness protection programme till date. Now that this scheme is here to fill the lacuna, it remains to be seen how many law-abiding citizens will come forward as witnesses, and see justice run its course. India still seems to be plagued by political clout, and court cases can be a painfully long and frightening process for many.
An important aspect that needs to be kept in mind, despite this scheme, is the pervasive issue of caste, and social persecution of Dalits. Dalits continue to be hesitant to come out as witnesses, and the police tend to remain reluctant to register cases against those with political clout.
According to a report by Human Rights Watch, girls and women who report sexual violence are often more vulnerable, especially because in most cases, the perpetrators are not strangers, but known to the victims. As a result, they face extreme pressure and/or direct threats from the accused. The witness protection programme will thus have to be sensitive about trusting the victim, and cognisant about unexpected sources of threats and social pressures.
Awareness about this programme will be necessary to encourage stronger participation from witnesses.
Witness protection programmes around the world
In America, the US Marshals Service provides for the security, health, and safety of government witnesses, and their immediate dependents, whose lives are in danger due to their testimony against drug traffickers, terrorists, member of organised crime, and other major criminals.
Since the programme began in 1971, the US Marshals’ Witness Security Programme has protected, relocated, and given new identities to more than 8,600 witnesses and 9,900 of their family members. They provide 24-hour protection to all witnesses, while they are in a high-threat environment, which includes pre-trial conferences, trial testimonials, and other court appearances.
The Crime and Corruption Commission (CCC), a statutory body set up to combat and reduce the incidence of major crime and corruption, runs a witness protection programme in Queensland, Australia.
A person does not have to be a witness in a court of law to qualify for witness protection. Anyone who has put themselves and their families or associates at risk by helping law enforcement agencies might get protection. The relevant law enforcement agency usually applies to the CCC for protection on behalf of the witness.
Once a person has been accepted into the witness protection program, the level of protection will differ depending on the type of danger to which the person has been exposed.
Elton Gomes is a staff writer at Qrius .