The Supreme Court of India on November 19, 2018, said that it would direct all the states to implement the draft witness protection scheme framed by the Centre in consultation with the National Legal Services Authority (NALSA).
The SC bench comprising Justices AK Sikri and S Abdul Nazeer took the decision in response to the plea made by Attorney General KK Venugopal that the draft scheme, which has now been finalized, would be made into a law in due course, but till then the court should direct the states to start implementing it.
The issue of the witness protection scheme had cropped up earlier when the top court was hearing public interest litigation (PIL) seeking protection for witnesses in rape cases involving self-styled preacher Asaram Bapu.
During the hearing on November 19, advocate Gaurav Agrawal, assisting the court as an amicus curiae in the matter, told the bench that the government has finalized the draft witness protection scheme in consultation with NALSA, based on the inputs received from a majority of the states.
The advocate stated that the scheme has three categories of witnesses based on the threat perception, and suggested that the states should start enforcing it.
The petitioners, who are witnesses in cases related to Asaram, had sought a probe into the instances of alleged attacks and disappearances of witnesses in these cases.
The top court had in March 2017 questioned Haryana and Uttar Pradesh over the status of implementation of witness protection schemes till then and had directed them to provide security cover to witnesses in rape cases against Asaram, who is currently in jail.
While Uttar Pradesh has three such witnesses, Haryana has one.
Witness Protection Scheme-2018
- To enable a witness to give testimony in a judicial setting or to cooperate with law enforcement and investigations without fear of intimidation or reprisal.
- To ensure that the investigation, prosecution, and trial of criminal offenses is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal recrimination.
- To promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance to criminal law enforcement agencies and the overall administration of Justice.
- To give witnesses the confidence to come forward to assist law enforcement and Judicial Authorities with full assurance of safety.
- To identify a series of measures that may be adopted to safeguard witnesses and their family members from intimidation and threats against their lives, reputation, and property.
- In cases involving influential people, witnesses turn hostile because of the threat to life and property. In such cases, witnesses find that there is no legal obligation by the state for extending any security.
- The Supreme Court had held in an old judgment that it is the salutary duty of every witness who has the knowledge of the commission of the crime, to assist the State in giving evidence.
- If the witnesses get threatened or are forced to give false evidence, it would not result in a fair trial.
- Due to witnesses turning hostile, the conviction rate in murder and rape in India is just around 10 to 12 percent.
- The first-ever reference to witness protection in India came in 14th Law Commission Report in 1958.
- Organized crime has seen a huge jump in recent years and is becoming stronger and more diverse.
- In the investigation and prosecution of crime, particularly the more serious and complex forms of organized crime, it is essential that witnesses, the cornerstones for successful investigation and prosecution, have trust in the criminal justice system.
- Witnesses need to have the confidence to come forward to assist law enforcement and prosecutorial authorities. They need to be assured that they will receive support and protection from intimidation and the harm that criminal groups may seek to inflict upon them in attempts to discourage or punish them from co-operating.
- Hence, legislative measures to emphasize prohibition against tampering of witnesses have become the imminent and inevitable need of the day.
- Even the Law Commission of India has recommended that witnesses should be protected from the wrath of the accused in any eventuality.
Following are some of the rights that the witnesses should be entitled to:
i) Right to give evidence anonymously
ii) Right to protection from intimidation and harm
iii) Right to be treated with dignity and compassion and respect for privacy
iv) Right to information of the status of the investigation and prosecution of the crime
v) Right to secure waiting place while at Court proceedings
vi) Right to transportation and lodging arrangements
The scope of the Scheme
- The Witness Protection scheme may be as simple as providing a police escort to the Courtroom, offering temporary residence in a safe house or using modern communication technology such as video conferencing for the recording of testimony.
- In other more complex cases, where cooperation by a witness is critical to the successful prosecution of a powerful criminal group, extraordinary measures are required to ensure the witness’s safety such as anonymity, relocation of the witness under a new identity in a new, undisclosed place of residence.
- The witness protection, especially in its practical operation, must, therefore, be viewed on a case by case basis in meaningful assistance to the witnesses.
- In November 2017, the Supreme Court had asked the Centre as to why a draft scheme cannot be formulated for witness protection in the country when specific provisions in this regard were already there in the National Investigation Agency (NIA) Act.
- It had said that the Ministry of Home Affairs (MHA) could at least come out with a draft scheme for witness protection and had asked the Attorney General to give his suggestions on the issue.
- The court had said that the witness protection scheme can be implemented for at least sensitive cases and that the MHA could come out with a comprehensive plan.
- In April 2018, the Centre had informed the top court that it had framed a draft witness protection scheme and it was circulated among the states and Union Territories administration for comments.
- The court had asked the Centre to finalize the scheme after getting a response from the states and Union Territories.