The Supreme Court has approved India's first Witness Protection Scheme.
What is the Witness Protection Scheme, 2018?
The scheme was drawn up by
the central government with inputs from 8 states/Union Territories
legal services authorities of five states
open sources including civil society, three high courts as well as from police personnel
The scheme was finalised in consultation with the National Legal Services Authority (NALSA).
Features - The important features include identifying categories of threat perceptions and preparation of a ‘Threat Analysis Report’ by the head of the police.
Besides, other protective measures include -
ensuring that the witness and accused do not come face to face during probe
protection of identity
change of identity
relocation of witness
witnesses to be apprised of the scheme
confidentiality and preservation of records
recovery of expenses, etc
Other features include in-camera trial, proximate physical protection and anonymising of testimony and references to witnesses in the records.
Threat perception - The programme identifies “three categories of witnesses as per threat perception” as follows:
Category A - cases where threat extends to life of witness or family members during investigation, trial or even thereafter
Category B - cases where threat extends to safety, reputation or property of the witness or family members during the investigation or trial
Category C - cases where threat is moderate and extends to harassment or intimidation of the witness or family members, reputation or property during the investigation, trial or thereafter
Procedure - The application for protection will have to be filed before the “Competent Authority” along with supporting documents.
The Authority will in turn seek a “Threat Analysis Report” from the ACP/DCP in charge of the police station.
The Authority will be required to dispose an application within five days from the date of receipt of Threat Analysis Report.
In its report, the police officer must categorise the threat perception and suggest protective measures.
The Authority shall interact with the witness and other relevant persons (in person or through electronic means).
Proceedings of the Authority will be held in-camera.
The Witness Protection Order passed by the Competent Authority shall be implemented by the Witness Protection Cell of the state or UT.
The “overall responsibility” for implementing the order lies with the head of the police of the state and Union Territory.
If the order is for change of identity or relocation, it shall be implemented by the Home department concerned.
The Witness Protection Cell will file a monthly follow-up report to the Authority.
It also empowers the Authority to call for a fresh Threat Analysis Report if it feels the need to revise its order.
Fund - The expenses for the programme will be met from a Witness Protection Fund to be established by the states and UTs.
They should make annual budgetary allocation for the fund which will also be free to accept donations.
Donations could be from national and international philanthropic organisations and amounts contributed as part of Corporate Social Responsibility.
What is the Court's order?
The court noted that one of the main reasons for witnesses turning hostile is the lack of appropriate protection by the State.
Being unable to testify in courts due to threats or other pressures is a clear violation of Article 21 of the Constitution.
The Court thus asked the Centre, states and Union Territories to “enforce” the scheme “in letter and spirit”.
It asked all states and UTs to set up vulnerable witness deposition complexes, as required by the Scheme, by the end of 2019.
These rooms will be equipped with facilities to prevent the accused and witness coming face to face.
The court said, “it shall be the ‘law’ under Article 141/142 of the Constitution, until the enactment of suitable Parliamentary and/or State Legislations on the subject”.
How does it hep?
Witnesses turning hostile is a major reason for most acquittals.
In the current system, there is little incentive for witnesses to turn up in court and testify against criminals.
Besides threats to their lives, they experience hostility and harassment while attending courts.
The judicial process seldom takes into account the distance they have travelled or the time they have lost in attending court.
Thus, the need to protect witnesses has been emphasised by Law Commission reports and court judgments for years.
A robust witness protection scheme will bring in efficiency in the criminal justice system, given the abysmal rate of convictions in the country.
