Witness Protection is a myth or reality? - Seeker's Thoughts

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Witness Protection is a myth or reality?

What are the crucial problems witnesses faced in India?
Picture courtesy - catch news
In any criminal cases, the witness plays a pivotal role in determining the final outcome. Due to this, the parties often threaten the witnesses, turning then hostile and interfering with the fair administration of justice.  India still lacks a well-functioning witness protection programme despite various attempts to improve it.

In most cases involving influential people, it has been a regular practice for witnesses to retract from their original statements or to go into hiding because of intimidation and threat to life and destruction of property.

A witness is one of the indispensable parts of the criminal justice system, and his stand determines the very backbone of the decision of the case. Therefore, the truthfulness of the witness’s testimony becomes the cornerstone of justice and hence the witness is made to offer a statement under oath.

What is witness protection scheme?
The witness protection scheme allows for a wide range of protection measures that must be taken to protect people testifying in criminal cases.
Supreme Court approved the government’s draft witness protection scheme. States have been asked to follow the draft rules until a law made; the scheme prescribes a number of measures to be taken to protect a witness. Except for Jammu and Kashmir (which has a separate constitution), until parliament turns the draft into law, the Supreme Court.

What are the facts which come under the scheme?

The Supreme Court held that scheme will become law under Article 141/142 of constitution till enactment of parliamentary and state legislation on the subject. It also directed states/UTs to set up the (vulnerable witness deposition complexes) within the period of 1 year by 2019. It also observed that there is the paramount need to have witness protection regime in statutory form.                       
The main reasons for establishing these vulnerable witness deposition complexes is a large percentage of acquittal in criminal cases is due to witness turning hostile and giving false testimonies, mostly due to its lack of protection for them and their families.

Scheme working process
The scheme has been formulated by Home Ministry on the inputs received from 18 states/UTs, five state legal services authorities and sources including civil society, three high courts as well as from police personnel. It was finalised in consultation with National Legal Services Authority. (NALSA)

The scheme has divided into 3 categories, which is witness based on the threat perception.
1-      A – when the threats extend to life of witness or his family members and their normal way of living if affected for a substantial period, during investigation/trial or even thereafter.
2-      B – Where the threats extend to safety, reputation or property of the witness or his family members, only during the investigation process or trial.
3-     C – Where the threats are moderate and extend to harassment or into mediation of the witness or his family member’s, reputation or property, during the investigation process.

  Key features
1-      Preparation of threats analyses report by the head of police.
2-     Confidentiality and preservation of records, recovery of expenses. Etc.
3-     Types of protection measures like ensuring that witness and accused do not come to face to face during investigation etc. Protection of identity, change of identity relocation of witnesses.
4-     Other protective measures include monitoring of mail and phone calls, change of phone number, installation of CCTV cameras at the witness’s home and concealment of identity.

 The categorised witness under the scheme can file an application for seeking protection order before competent authority of concerned district where an offence is committed. The competent authority will be chaired by the district where the offence is committed. The competent authority will be chaired by district and session judge. Head of police in the district will be its member and head prosecution in the district as its member secretary.

When this authority receives application it has to call for threat analysis report from ACP/DSP in charge of the concerned police sub-division. The authority is also empowered to order protection measures based on TAR such as identity protection, change of identity and relocation of witnesses.
Reasons for Witness Turning Hostile
The threats to the lives of witnesses are one the primary reasons. For them to retract their earlier statements during trial. Apart from these sections, there is nothing in the law to protect witnesses from external threats, inducement or intimidation. Political pressure, self-generated fear of police and the legal system, absence of fear of the law of perjury, an unsympathetic law enforcement machinery and corruption are some of the other reasons for witnesses turning hostile in the course of the trial.

Challenges towards Witness Protection
There are many practical problems like the costs of implementation and infrastructure. When talking about providing bodyguards, security, relocation to another area etc., corruption in the administration and judiciary also make witness vulnerable.

At present in India, even expert witnesses of the various forensic disciplines do not have any protection. A witness in Indian situation, who is living comfortably with a join and family, may not intend to undergo such drastic changes in his life for the sake of being a witness in a court of law. In the India scenario, where there are so many social obligations and relatives to attend to the proper implementation of the witness protection programmes will not be possible for a variety of reasons.

How this witness protection scheme would signify for witnesses?
The witnesses, being eyes and ears of justice, play an important role in bringing perpetrators of crime to justice. The scheme 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. The scheme attempts at ensuring that witnesses receive appropriate and adequate protection. It also strengthens the criminal justice system in the country and will consequently enhance security scenario.

Note – in 2003, justice V malimath Committee on Criminal justice system had recommended enacting a separate witness protection law and in 2006, the Law Commission of India, in its 198th report provided for a draft witness protection law.

Countries such as USA, UK, China, Italy, Canada, Hong Kong, and Ireland have a witness protection scheme.