National Identity Cards

National Identity Cards


A number of countries in the world have evolved elaborate systems to establish a National Identification Number1 for each individual of their country. This unique identification number attempts to track him by his name, date and place of birth, his sex, his permanent or temporary residence, his socio-economic status, his religion, ethnicity etc for the purpose of work/ occupation, taxation, delivering government benefits and health care among other things. Most countries initially used these numbers for a singular purpose but over time these numbers have been used for a number of other purposes also. This unique number for every individual has immensely helped the law enforcement agencies in conducting surveillance, locating criminals and placing restrictions on the movement of criminals in society. The revenue authorities have also made use of this identity to make financial transactions more transparent and thereby increase tax collections in the country.

History

Sweden was the first country in the world to introduce the system of a Unique Identity Number in the year 1947 covering the entire population. The basic objective was to enforce and tighten the tax collection process. Later on, a number of other countries such as Australia, Austria, Brazil, Canada, People’s Republic of China, Denmark, France, Germany, Italy, Israel, Netherlands, New Zealand, Pakistan, Singapore, South Africa, South Korea, Spain, UK and US established a kind of national identification number for their citizens. A number of these countries, however, insist that a person must have an Identity Card after attaining a certain age. Some countries like Austria, Canada, Finland, France, Iceland, Sweden and Switzerland however do not make it compulsory to have an identity card for all citizens.

India

India has had over time different kinds of identification systems as the Permanent Account Number (PAN) issued by the Income Tax department, the Voters Identity Card issued by the Election Commission of India and the Driving License issued by the Motor Licensing authorities to ensure foolproof identification and ensure accountability amongst the citizens for their activities. India presently does not have an elaborate or well-established system of National Identity Cards for all its citizens. A pilot project is however underway since 2003 for the issue of Multi Purpose National Identity Card (MNIC)2 to all citizens above the age of 18 years. The objective of such a card is to create a national identity for each and every Indian citizen, to enhance national security and to facilitate e-governance.

Multi Purpose National Identity Cards

The concept of MNIC was initiated on the basis of recommendations made in a Report prepared by Group of Ministers3 for reforming the National Security System. This GOM was set up in April 2000 under the Chairmanship of LK Advani to review the national security system and a report was submitted to the PM on 26 February 2001. Chapter V of this report talked about the necessity of providing MNIC to all citizens in view of increasing illegal migrations. It was also suggested that the Central government must bear the full cost of this identity card scheme.

A pilot project was thereafter initiated in thirteen districts of twelve States and one Union Territory covering a population of approximately 31 lakhs. The districts and the States/ UT wherein this project was launched are Karimganj(Assam), Kathua(J&K), Kutch(Gujarat), Jaisalmer(Rajasthan), Pithoragarh(Uttaranchal), Maharajganj(UP), West Tripura(Tripura), Murshidabad(WB), North Goa(Goa), North West Distt.(Delhi), Pondicherry(Pondicherry), Medak(AP) and Ramanathapuram(TN).

The MNIC project, expected to start in April 20034, finally took off in November 2003 to create a national identity for every Indian with the objective of managing citizen identity, increasing national security, ensuring speedy and efficient transactions, having a user friendly interface between the individual and the government, improving services to target persons in BPL and APL categories and deter future illegal immigration. The system envisages the preparation of a National Register of Indian citizens (NRIC) by collecting all legal and technical data from all households through house-to-house surveys. The completeness of such a National Register will help obviate the requirement of a regular census. A unique 16 digit National Identity Number (NIN) will thereafter be given to each citizen of the country and the MNIC will be issued to all Indian citizens above the age of 18 years. The details that are included in the MNIC are – Name, Sex, Father’s name, Mother’s name, Date of birth, Place of birth, Marital status, Name of spouse, Present and Permanent address, Identification mark, Photograph, Biometrics, Date of registration, issue of card and expiry etc. The smart card is a secure 16 KB micro-processor chip and has been designed by National Institute of Design(NID), Ahmedabad. The Cyber technology for these smart cards has been given by National Informatics Centre(NIC) and these will cost the exchequer approximately Rs 60 per card.

The Annual Report5 published by the MHA for the year 2006-07 states that the basic survey and data entry work in the pilot areas has been completed and photographs and finger biometrics incorporated for over 17.2 lakh citizens out of a targeted figure of 31 lakhs . The first set of these MNIC was distributed in early 2007 to 24 selected families in village Pooth Khurd in North West Delhi. The MHA Annual Report mentions that the distribution of cards is likely to be completed by mid 2007.

The issuance of National Identity Cards assumes even greater importance in the wake of the terrorist incidents like 9/11 in US, 7/7 bombings in London, 7/11 local train blasts in Mumbai, 6/30 attack at Glasgow airport, attack on the Indian Parliament, attack on IISc, Bangalore, Malegaon blasts, Diwali blasts in Delhi etc and the global reach of terrorist organizations, and the fact that India has borne the brunt of organized crime, terrorism and illegal immigration for over three decades now. Increased emphasis on security requires the preparation of National Identity Cards which are tamper proof and are a virtual store house of information on the individual and contain his unique identity in the form of biometrics as retinal scan, finger print, DNA, RFID technology etc.

The Indian economy has been witnessing near double-digit growth in the last couple of years. To sustain this trajectory the economy needs to mop up all possible financial resources and plug all the loopholes. The revenue authorities have tightened the financial institutions, laid down stricter guidelines for share markets and mutual funds and these measures have resulted in an increased collection of approximately Rs 30,000 crores in direct and indirect taxes during the year 2006-07 over the budgeted figures.

Benefits of MNIC

The benefits of having a unique numbered identity in respect of each individual are summarized below –

(a) Law enforcement - The database will help keep track of persons with criminal background. The movement of suspicious persons can be kept under close watch on the receipt of specific intelligence inputs. It will also be possible to identify criminals by picking up their fingerprints, DNA profile etc. if traces of these are found at the scene of crime. The movement of persons who do not have Identity Card or whose data is not available with the Government can be viewed with suspicion and a tighter check maintained on them.

(b) Revenue collection - Once the requirement of having an Identity Number is mandated under the law for all financial transactions, it will bring in a much higher degree of transparency and accountability in the system. The amount of black money in circulation will go down and the revenue collection would increase by at least 25- 30 percent. The Direct and Indirect Tax collection in the country for the year ending March 2007 was approximately Rs 4,70,077 crore and an increase of only 25 percent of this figure would amount to a staggering Rs 1,17,519 crores. All this can definitely help the Indian economy gallop at double-digit growth rate for the next couple of years.

(c) Socio-Economic Benefits - One of our Prime Minister is on record having said that only 15 paise out of a rupee invested went to the target beneficiary and rest was pocketed by middlemen and unscrupulous members of the Government. Once the Identity Number is made mandatory, only the genuine beneficiaries will reap these benefits and the flow of funds pertaining to these schemes can be tracked from the Government system to the Bank accounts of the beneficiaries. This will on the one hand uplift the lot of underprivileged people and on the other will definitely curb embezzlement of welfare funds.

(d) Elections- online - The use of national ID card can be made use of to help genuine people cast their votes online and also tap a large number of people who are not able to cast their votes because of various reasons. This will vastly improve the polling percentage and will in real terms enable people’s representatives to be elected. However, the system must be comprehensible to the vast majority of population, must ensure anonymity of the voter, permit only genuine voters to exercise their franchise, be secure electronically and guarantee the integrity of the election process. Such an interface could be established through the telephone and the computer. Several studies have been conducted in this regard and various models6 have been suggested. Estonia became the first country in the world this year to allow casting of votes through the Internet by using the national ID card.7

(e) Checking illegal immigration – The steady increase in illegal immigration along over 22,500 kms of the Indian land and sea border has led to changes in the demographic pattern, illegal settlements, encroachments on forest land, distortion in electoral rolls, skewed impact on the local development and is now posing a serious threat to national security and local identity. The Minister of State(Home) is on record in the Parliament in 2004 stating that over 1.2 crore illegal immigrants are present in the country. Madhav Godbole Report puts this figure at over 2 crore. The expeditious issue of MNICs to all citizens would be effective in containing this menace, which is jeopardizing our national unity, sovereignty and security. The 109th Report submitted by the Parliamentary Standing Committee on Home Affairs to the Rajya Sabha on 23 August 2004 had hoped that the Pilot project would be completed by December 2004 and that the MNIC project should be implemented on full scale at the earliest.

(f) Better e-Governance- The objective of e-governance is to simplify procedures, remove red tape, reduce corruption and provide basic information to all by using electronic tools in an easily accessible and user-friendly environment. The SARITA project in Maharashtra, Bhoomi project in Karnataka, e-Seva centres in AP are such examples. The use of electronic tools can be coupled with the mandatory use of National Identity Cards to ensure that the benefits of the various schemes run by the government reach the target beneficiaries. The government can cut down on costs, reduce delays, fix accountability and increase efficiency in the system. Privacy International,8 an organization based in UK, has conducted campaigns and research throughout the world on issues concerning the acceptability of ID cards across countries, the usefulness of information available on them and how it can impact law enforcement, tax collection and welfare frauds. This organization has also examined aspects as diverse as possible discrimination and privacy issues related to issue of such ID cards.

(g) Medical field- The MNIC can also be developed to incorporate medical details of the card holders. This will help the government know the status of health of citizens and build up a database of persons affected by illnesses such as blindness, physical disability, mental retardation, AIDS, blood disorders, area specific problems etc. The government could then concentrate its efforts by allotting finances for specific programmes in specific areas and the database can act as a life giver for persons afflicted by incurable or life threatening diseases by enabling them find the right kind of donors of blood, bone marrow or life saving organs.

(h) Similarity with Internet- The use of MNIC’s can be shown to have a lot of similarities with the Internet. Herein, if a person has an email address he can send and receive emails. Even though nobody polices the Internet yet the misdeeds of the Internet users and hackers as in Child pornography, Terrorism, Gambling, peddling in Arms and Drugs etc could all be tracked using various tools, techniques and cooperation of the law enforcement agencies all over the globe. Similarly once each citizen has a uniquely coded MNIC, all his deeds, misdeeds, financial transactions, deals etc can be tracked. This will help make systems more transparent and ensure better accountability of rules and regulations.

Conclusion

The Pilot project has been overly delayed. The 112th Report of The Parliamentary Committee on Home Affairs9 submitted before the Rajya Sabha on 20th April 2005 stated that the Pilot Project was to be completed by April 2005 but observed that the progress was tardy. An amount of Rs 14.22 crores had remained unutilized under this scheme out of a total allocation of 19.82 crores. The Parliamentary Committee noted with concern that such slow progress on such an important project was bound to have far- reaching ramifications for the maintenance of internal security. The Home Ministry should therefore take steps to complete the pilot project and ensure that this scheme is implemented at the national level at the earliest.

In the interests of the safety and security of the country and the fight against terrorism, all out efforts must be made for the expeditious preparation and distribution of the Multi Purpose National Identity Cards (MNIC) to all citizens above 18 years of age. In the process, the assessment of possible loopholes in the system, process of authentication and intrusion detection technologies must be kept track of. In this endeavour we must give full support to police, customs, income tax, other law enforcement agencies, development agencies, NGOs etc so that they dovetail their systems and make them MNIC-compatible and ensure that the Government systems become more user-friendly, accessible, efficient and effective in curbing the menace of criminals, illegal immigration and deliver benefits to the target audience while at the same time reducing red-tapism and corruption. All this would bring in a quantum jump in transparency and accountability of the system, which will go a long way in ensuring that the precious resources of the economy are utilized more fruitfully and efficiently while guaranteeing national safety and security.

(2,402 words)



Abstract of article

A number of countries in the world have established different forms of National Identity Number to track individuals for the purpose of Law enforcement, revenue collection, checking illegal immigration and curbing welfare frauds. India too has had different forms of identification systems over time as PAN, Voters Identity Card, Drivers licence etc. A pilot project is presently underway for the preparation of Multi Purpose National Identity Cards(MNIC) meant for distribution to every Indian citizen above the age of 18 years.
This unique identity can aid the law enforcement authorities curb crime, help in increased revenue collection, ensure that socio- economic benefits reach the target person, facilitate elections online, check illegal immigration and render life saving measures in the medical field.

The Pilot project is way behind schedule and so must be completed at the earliest. We need to usher MNIC in our country as early as possible to bring in transparency and accountability while at the same time ensuring national safety and security.



Bibliography
1. http://en.Wikipedia.org/wiki/National_Identification_Number
2. http://en.Wikipedia.org/wiki/Multipurpose_National_Identity_Card(India)
3. Report of the Group of Ministers on National Security, Chapter V- Border Management, pp 85- 86.
4. Parliamentary Standing Committee on Home affairs, 109th Report on Demand for Grants(2004- 05) of Ministry of Home Affairs, Rajya Sabha Secretariat, New Delhi.
5. Ministry of Home Affairs, Government of India, Annual Report 2006- 07, Chapter IV- Emerging Concerns and New Initiatives- Pilot Project on Multi- Purpose National Identity Cards, pp- 42.
6. http://www.mirzapur.nic.in/Nisani
7. Information Technology, What’s New- Estonia votes...online!, April 2007, pp- 18
8. http://www.privacyinternational.org/
9. Parliamentary Standing Committee on Home affairs, 112th Report on Demand for Grants(2005- 06) of Ministry of Home Affairs, Rajya Sabha Secretariat, New Delhi.

( published in Indian Police Journal : Apr - Jun 2008, pp 15-20)
( published in DNA newspaper, 26th June, 2009 )

Kailash Manasarovar Yatra

THE LAND OF SHIVA


“He is the God of forms infinite, in whose glory all things are, smaller than the smallest atom, and yet the Creator of all, ever living in the mystery of His creation.” This is how the Yajur Veda describes the Supreme Being – Lord Shiva. The One without a beginning or end. The Absolute Power who creates, preserves and destroys.

Mount Kailash

The images of Lord Shiva have been traced to the Indus Valley civilization. Sacred literature of the Hindu religion – the Vedas, the Upanishads and the Puranas – speak of Shiva pervading the entire Universe. The Hindus nevertheless believe Mount Kailash to be the abode of Lord Shiva and his consort Parvati. Shiva Purana, a religious text of the 13th century, describes Mount Kailash as the favourite spot of Lord Shiva and Parvati. Valmiki’s Ramayana, Tulsidas’s Ramcharitmanas and Shrimadbhagvat also refer to Mount Kailash as the holy place of Lord Shiva. This mountain, 22,028 ft in height, is the most worshipped peak in the world.

The Jains revere Mount Kailash because Adinath Rishabhadeva, the first of the twenty-four Jain Tirthankars, is said to have attained Nirvana here. Mount Kailash is called Ashtapada in Jain literature. It is said that Chakravarti Bharat, son of Adinath Rishabhadeva, constructed 72 beautiful Jain temples in the memory of his great father after he had attained salvation at Mount Kailash.

The Tibetans call this mountain Gang Rinpoche, implying the jewel of snow. In Tibetan mythology, the deity Demchhok or Pavo is said to reside on Mount Kailash. He wears a tiger skin with a garland of human skulls around his neck. He is also said to hold a damroo in one hand and a trishul in the other. The deity is thus remarkably similar to the popular image of Lord Shiva. Dorje-phangmo or Vajra-Varahi is the consort of Demchhok and is shown, in Tibetan paintings, holding Demchhok in an embrace.

Bonpos, the followers of Bon religion who inhabit Tibet, refer to this mountain as the nine-storeyed Swastika Mountain called Kang Tise. They believe that the soul of their kingdom resides within this holy mountain. Bon is a pre-Buddhist religion which developed in the Shang shung kingdom of Western Tibet. The Bonpos regard Kang Tise as the site where the legendary battle was fought between the Buddhist monk Milrepa and the Bon shaman Naro Bon Chung. The victory of Milrepa over Bon Chung led to Buddhism becoming the dominant religion of Tibet.

The holy river Ganga is believed to have descended from the heavens on this mountain. Four rivers originate from Mount Kailash – Satluj, Karnali, Brahmaputra and Indus. Tibetan literatures also mention rivers Langchen, Mapcha, Tamchok and Senge as coming out of Meru mountain, which is synonymous with Kailash.

Manasarovar Lake

The origin of Manasarovar lake has an interesting story. It is said that a number of rishis were doing penance in the pre-Vedic times in this region to propitiate Lord Shiva. There had been no rainfall in the area for over twelve years and all the nearby lakes and rivers had dried up. The rishis went to Lord Brahma and sought his blessings. Lord Brahma then created the great lake Manasarovar from his mind, and that is why the lake is call Manas which means mind or consciousness while Sarovar means lake. The lake is also called Lake of Consciousness. The very sight of this large lake, its transparent bluish waters, the calmness and solitude pervading all around transport a person to a different world and remind him of what Wordsworth described as

“A presence that disturbs me with the joy
Of elevated thoughts; a sense sublime
Of something far more deeply interfused,
Whose dwelling is the light of setting suns,
And the round ocean, and the living air,
And the blue sky, and the mind of man;
A motion and a spirit, that impels
All thinking things, all objects of all thought,
And rolls through all things.”

The lake is situated 30 kms. south-east of Mount Kailash at a height of 14,950 ft and has a perimeter of 110 kms. It is said to have been discovered by king Mandhata. A majestic mountain named after the king, Gurla-Mandhata, overlooks the lake.

The Tibetans call it Tso-Mapham or Tso-Mavang or the precious lake. It is said that the Gods had bathed Queen Maya in its holy waters before she gave birth to Lord Buddha. The Pali scholar Buddhaghosha also refers to Anotata as a water source in the Himalayas with four rivers flowing out of it.

The Hindus take a holy dip in the ice cold waters of Manasarovar and this is believed to liberate them from the cycle of birth and death. The devout carry back prasad in the form of holy water, coloured sand, pebbles or herbs for people who are not fortunate enough to undertake the pilgrimage. The Buddhists do not take a dip in the lake because, according to them, Manasarovar is meant only for the gods to bathe in. They however drink its holy water.

Parikrama

The parikrama of Mount Kailash has a length of about 57 kms and takes three days to complete. Interestingly, the Hindus perform the parikrama clockwise while the Bonpos do the same anti-clockwise. It is said that one parikrama of Mount Kailash rids a person of all his sins in this birth and 108 parikramas gives him Nirvana or enlightenment. Some Tibetans like to finish the parikrama in one day only, they call it Ningkor.

Dolma La is the highest point one crosses while doing the parikrama of Mount Kailash. It is 19,500 ft above the sea level. Dolma in Tibetan is the same as Goddess Tara while La means a pass. A big boulder at this point represents Goddess Tara. She is said to extend protection to all those who come to the Dolma La. The place is full of colorful flags and buntings with writings from Tibetan scriptures. These flags are believed to spread the message of peace, happiness, love and brotherhood as they flutter in the wind.

The Hindus as well as Tibetans do parikrama or kora of Mansarovar lake also. Here again, there is an interesting comparison. The Hindus undertake the parikrama in summer months; the Tibetans go through the kora even in winters when the lake is frozen. There are a number of gompas or monasteries on the banks of Mansarovar, the important ones being Chiu, Cherkip, Langbona, Seralung, Qugu and Zaidi.

The journey to Kailash-Mansarovar could be undertaken from either India or Nepal side. It is an unforgettable experience when the philosophy and the truth behind the following lines is driven home to the pilgrim:

“The One remains, the many change and pass;
Heaven’s light forever shines,
Earth’s shadows fly”

( 1,126 words)

(published in Swagat- inflight magazine of Indian Airlines - July 2004 )

Plea Bargaining

Plea Bargaining

Indian context

An ever-increasing amount of litigation in India has led to Courts becoming overburdened at all levels. There is realization at all levels of government that these increasing number of cases are putting an extra burden on the judicial system as a result of which cases are not able to move quickly through the Courts and the proverbial case of justice delayed is justice denied is being seen as more true today than ever before. The court trials take years, decades or even quarter of a century to conclude at times. The fallout of such delays is not difficult to guess – an increasing bent of people towards litigation, over burdening of courts with cases, witnesses forgetting the sequence of events, complainants becoming disinterested, important witnesses being won over and the truth in the cases getting lost along this long and tedious process.

Over burdening of Courts

There were approximately 2.03 crore cases pending in district and subordinate courts all over the country as on 31 October 2001. Of this large number, approximately 1.9 crore cases were pending in 7 states – UP, Gujarat, Maharashtra, Madhya Pradesh, West Bengal, Bihar and Karnataka. The condition is about the same in the High Courts and there were 35,57,637 cases pending in the different High Courts of the country as on 31 October 2001. Approximately 5 lakh of these cases are more than 10 years old. The number of cases in the Supreme Court is however manageable and only 21,995 cases are pending therein.

The tardy disposal of cases is also linked to the extremely low judges per capita ratio in the country. The Law Commission of India’s 120th report (1987)1 observed that the strength of judicial officers in India is far less than in a number of other countries. India has roughly 10.5 judges per million people whereas this figure for Australia, Canada, England and US stands at 41.6, 75.2, 50.9 and 107 respectively. This Law Commission Report also observed that the total judge strength of 7675 is grossly inadequate for a country of the size and magnitude as India.

Apart from the overburdening of the Courts, there is gross neglect and apathy towards the status of under trials, who are lodged in different jails all over the country. Because of the increasing amount of time taken in the dispensation of justice, the jails in the country today are over-crowded with convicts and under trials. Against a sanctioned capacity of 2.56 lac prisoners, the jails in the country today have more than 5 lac people behind bars.
The State governments today spend approximately an amount of Rs.361 crores per annum on the people imprisoned and undergoing trial @ Rs.55/- per head per day for approximately 1.8 lac prisoners under trial. This situation would be a lot different if matters moved speedily in the courts. The State governments would then be able to reduce the number of under trials in the jails and bring about substantial savings in this huge expenditure also.

Concept of Plea Bargaining

A plea bargain is a deal offered by the prosecutor to the defendant as an incentive for his pleading guilty on lesser charges. This alternative method of dispute resolution allows the prosecutor to obtain conviction in cases, which may otherwise go for lengthy trials.

Plea bargaining has often been talked of as a method for reducing the burden on the courts by accepting the guilty plea of the accused person. A plea bargain provides both the prosecution and the defense with some control over the final result. In plea bargaining the accused pleads guilty to a lesser charge rather than go through the long, arduous and expensive process of trial and be confronted with a maximum sentence for punishment. The defendant in the bargain is able to receive a lighter sentence, for may be a less severe charge, than might have resulted by taking the case to trial. He is also able to bring about savings in his legal fees and also avoids the harassment of going through the entire process of trial. Being convicted on reduced charges for a less serious offence also goes to the advantage of the defendant. Pleading guilty also helps him avoid publicity, which is otherwise attracted in cases highlighted by media.

The judges have opined that if the period of waiting during trial can be reduced there may be a greater possibility of effective evidence forthcoming. The fairness of plea bargaining, however, also depends on how likely it is that the accused would be convicted if no plea is offered. The process also avoids the great degree of unforced idleness experienced by the under trial prisoners during their detention period.

The judicial process benefits by disposing off the case early by accepting the guilty plea. The entire process of trial, examination of witnesses, their cross examination etc. need not be gone through. An increasing amount of litigation today is forcing the judiciary to give less and less time to each case as a result of which the time required to come to a conclusion has increased substantially. A plea bargain, therefore, offers the possibility of lightening the burden of the Courts, thereby giving the judiciary an opportunity to devote more time to cases of importance and those which have a bearing on society or have serious legal implications. The Law Commission’s 154th Report (1996)2 stated that though plea bargaining is an important technique to avoid overcrowding of criminal cases in the courts, but it should be adopted with adequate safeguards to prevent abuse.

The prosecutor too benefits as a result of plea-bargaining. He gets an assured conviction in a case and is spared the agony of waging a long drawn out legal battle against the accused, especially when he is willing to confess for the crime committed. The prosecutor can then devote more time to cases that involve complex reasoning of legal matters or are high profile cases that attract media attention.

Types of Plea Bargain

There are two different approaches to the concept of plea bargaining –

(a) Charge Bargain - This is when the prosecutor allows the defendant to plead guilty to a lesser charge or to only some of the charges that have been filed against him.

(b) Sentence Bargain - This occurs when a defendant is told in advance what his sentence will be in case he pleaded guilty. This procedure often takes place in high profile cases wherein media publicity does not permit a charge bargain and therefore a sentence bargain is adopted to the more serious charges against the defendant.

Cause for concern

Approximately 54,94,814 criminal cases were registered in India in the year 2003. The conviction rate in India is abysmally low when compared to that of other countries. Cyprus has the highest conviction rate in the world with a figure of 95.21 per 1000 people whereas India occupies the 41st position in the list of all countries with a rate of only 0.56 per 1000 people. The number of people acquitted in the criminal courts in India is very high and in absolute terms India occupies the first place amongst all nations showing that maximum number of people acquitted here.

Initiatives by Government

The Law Commission’s 142nd report (1991)3 considered the concept of plea bargaining as a means to overcome the problems of mounting arrears of cases in the Criminal Justice system. The report also stated that a large number of people in India are in favour of this concept because most people arrested are guilty anyway, public money is wasted on trials, both sides gain in the process and time and money is saved by the accused and the government. The Law Commission’s 154th report (1996) again strongly advocated that Plea bargaining be made an essential component of the Criminal Justice system. The Justice VS Malimath Committee on Criminal Justice Reforms (2003)4 submitted its report to the Government recommending that plea bargaining should be introduced into the Criminal Justice system to facilitate early resolution of criminal cases and reduce the burden of the courts.

The government thereafter introduced a Bill in the Parliament called the Criminal Law (Amendment) Bill, 2003 which sought to introduce Plea Bargaining in the Criminal Procedure Code, 1973 apart from making other changes in the IPC, CrPC and the Indian Evidence Act. The Parliamentary Standing Committee on Home Affairs in its 85th report (2001) on ‘Law’s Delays and Arrears in Courts’ recommended the introduction of Plea Bargaining in India. The same Committee, in its 111th report on the Criminal Law (Amendment) Bill, 2003 presented to the Rajya Sabha on 02 March 2005, endorsed the introduction of Plea bargaining in the Criminal Procedure Code.

Plea Bargaining has since been introduced through Criminal Law (Amendment) Act, 2005(6) which was passed by the Parliament in the winter session of 2005. This has come into force from 5th July, 2006 with the introduction of a new Chapter- XXI-A incorporating sections 265-A to L in the Criminal Procedure Code, 1973. The Act seeks to introduce Plea bargaining or mutually satisfactory disposition in all criminal cases other than offences punishable with death or imprisonment for a term exceeding seven years. This benefit is not extended to offences affecting the socio-economic condition of the country or which have been committed against women or children below the age of 14 years. It is also pertinent to note that the Act envisages an active role for the Courts in trying to ensure that such a plea is made voluntarily by the accused and he is aware that by pleading guilty he will waive his right to go through the process of trial. The judgements delivered in cases of Plea Bargaining are final and no appeal shall lie in any Court against them.

Flip Side

The detractors of plea bargaining have argued that the plea bargain essentially works as a threat. The prosecutor herein bullies the defendant into plea bargaining, thereby making him surrender his right to trial and at the same time threatening him that in case he went for trial he would be punished twice over- once for the offence committed and secondly for showing the audacity to commit the case to trial.

It is further argued that most of the people caught in criminal cases are poor and therefore the system by showing the option of plea bargaining tries to portray that this is the best economic alternative available to them. A lengthy period of pre-trial incarceration also, at times, renders the defendant weak and demoralized and pushes him into the prosecutor’s suggestion of plea bargaining. It is obvious that a person who faces a 90% chance of conviction during trial would opt to plea bargain for charges which would give him only 50 % of maximum conviction. It is also argued that white collar criminals with good lawyers will probably get off with lighter sentences than what they really deserve. Since, this technique involves pleading for a lesser charge, hence, the variation between the offences for which a person is charged and finally the offences which are accepted as a result of plea bargaining exhibit the dramatic evidence of the extent to which the interests of the State are compromised.

Conclusion

However, the advantages gained in terms of expeditious disposal of cases, quality of judgements delivered and the important legal issues being given due attention far outweigh the stated evils of plea bargaining. This procedure gives the accused an opportunity to obtain a speedy trial, is an end to uncertainty, savings towards litigation costs and a probability of settling for a lesser sentence.

Considering the overburdened status of our Courts and the increasing bent of people towards greater litigation, plea bargaining appears to be a pragmatic and an unavoidable approach towards reducing the back-breaking burden of the courts. Such a procedure will also reduce congestion in jails and bring about considerable savings at the state level in the administration of the Criminal Justice system.

Besides, an accused who feels remorse or wants to make amends by pleading guilty in the hope that the community will enable him to pay the penalty for the crime committed with a degree of compassion and consideration needs to be treated differently from another who decides to go through the entire process of trial at considerable cost of time and money to the public exchequer. The time is indeed opportune today to give Plea Bargaining a chance.

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Pankaj Kumar Singh
IPS (Raj : 1988)
DIG SCR-III / CBI
New Delhi

( Words – 2068 ).

- ( published in CBI Bulletin: Jun- Dec 2006 )

- ( published in Academy Journal - NPA - Jan- Dec 2006 )

Bibliography

1. Law Commission of India, 120th Report on Manpower Planning in Judiciary: A Blueprint, July 1987, pp 2-3. 2. Law Commission of India, 154th Report on The Code of Criminal Procedure, 1973 (Act No- 2 of 1974), Vol-I, 1996, pp 51-54.
3. Law Commission of India, 142nd Report on Concessional Treatment for Offenders who on their own initiative choose to plead guilty without any Bargaining, 1991, pp 5-8.
4. Committee on Reforms of Criminal Justice System, Government of India, Ministry Of Home Affairs, Report, March 2003, pp 178-180.
5. Criminal Law (Amendment) Bill, 2003, Bill No. LX of 2003, A Bill further to amend the Indian Penal Code, the Criminal Procedure Code, 1973 and the India Evidence Act, 1872, pp 2-8.
6. Criminal Law (Amendment) Act, 2005, No 2 of 2006, An Act further to amend the Indian Penal Code, the Criminal Procedure Code, 1973 and the India Evidence Act, 1872, Ministry of Law and Justice, 11 January, 2006, pp 2-4.


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Witness Protection- Full length

Witness Protection Programme
“The edifice of administration of justice is based upon witnesses coming forward and deposing without fear or favour, without intimidation or allurement in Courts of law. If witnesses are deposing under fear or intimidation or for favour or allurement, the foundation of administration of justice not only gets weakened, but in cases it may even get obliterated”.
This landmark observation was made by the High Court of Delhi in the petition filed by Smt. Neelam Katara, mother of Nitish Katara who had been killed by certain influential persons in the night of 16-17 February, 2002. The mother, Smt. Neelam Katara had, filed this petition in the High Court of Delhi requesting the Court to issue directions pertaining to witness protection.

Witness protection is a much talked about topic in the last few months. The BMW case, Tandoor murder case, Best Bakery case, Muttoo murder case and lately the much talked about Jessica Lall case have all highlighted the urgent need to address this vital issue in our Criminal Justice system.

The Vohra Committee Report had critically talked about the growing nexus of politicians, bureaucrats and the criminals. It stated that criminalisation had struck at the very foundation of the Indian polity and there was an urgent need to deal with this matter in a surgical manner to prevent the morass from spreading further. It is common knowledge today that the prosecution is getting weaker by the day and the power of money, muscle and networking is proving difficult to handle. The percentage of cases ending in acquittal is on the rise. The legal process takes a lot of time and the common person feels harassed while trying to help the system. These are some of the many disincentives for people to come forward and perform the important public duty of assisting the Courts in deciding on the guilt or otherwise of the accused during trial of cases in the Courts. The Malimath Committee Report also reiterated the common perception that the witness today has no stake in the decisions of the criminal courts as he is neither an accused nor the victim. He is one who should be treated with great respect and considered a guest of honour if the law is to succeed.

In India it is being increasingly felt that the legal system in India is biased against weak, the poor and the helpless. It is the rich and those having the muscle who take advantage of the legal system by either delaying the entire process of police investigation and the trial in the Courts or buying out justice in their favour.

The witnesses appearing in the Courts these days are subjected to all kinds of harassment and intimidation, so that the cause for justice is not attained. More often than not, it is the accused, his relatives and friends who intimidate the witnesses so that the true picture does not emerge before the Courts. In some cases intimidation is followed by acts of violence and vandalism also. Physical assaults and damage to the property of witnesses are not uncommon. Because of the general impression prevalent in the public of law enforcement authorities as police etc. and the extremely time-taking and expensive legal procedures prevalent, a number of witnesses who are victims of intimidation, assault etc. do not report such incidents to the police and take the easier way out by deposing in favour of the accused persons in the courts.

Protection of witnesses - past history
It is interesting to note that as far as back as 1932, the section 31 of Bengal Suppression of Terrorist Outrages Act, 1932 empowered the Special Magistrate to exclude persons or public from the premises of the Court in order to protect the identity of certain witnesses. Similarly, section 13 of TADA-1985 and section 16 of TADA-1987 also provided for the protection of identity and address of a witness. Even POTA-2002, which has since been repealed, also had a similar provision to protect the identity of the witness and help him depose fearlessly and truthfully in the court to support the cause of justice.

Initiatives in recent past
On 8th of August, 2003 in the case of National Human Rights Commission vs State of Gujarat, the Hon’ble Supreme Court observed “that no law has yet been enacted, not even a scheme has been framed by the Union of India or by the State Government for giving protection to the witnesses”. However, in the case of Zaheera Vs. State of Gujarat when the Supreme Court ordered for the transfer of Best Bakery case to Mumbai in its order dated 12.4.2004, the Court directed the State Government to take appropriate action to ensure that the witnesses when produced before the Courts could depose freely without any apprehension, threat or coercion from any person. The Supreme Court also directed the State of Maharashtra to provide protection to any witness in case a request was made by them, in addition to the protection that was to be provided by the State Government of Gujarat.

However, Justice P. Nandrajog and Justice Usha Mehra of High Court of Delhi in their order dated 14.10.2003 in response to a petition filed by Smt. Neelam Katara stated that till the time a suitable Legislation was brought on the Statute Book, guidelines known as Witness Protection Guidelines will operate for the protection of witnesses. The order defined a witness, an accused and the competent authority. The competent authority, on receipt of request from a witness, was to determine whether the witness required police protection, to what extent and for what duration. The competent authority was also to consider the nature of risk to the witness, the importance of such a witness and his deposition and the cost of providing such police protection to the witness.

The 14th report of Law Commission of India (1958) did refer to witness protection, but in a very limited sense, relating to proper arrangements to be provided to the witnesses in the Courts and the extent of travelling and daily allowance to be given to them. The 4th report of National Police Commission (1980) also talked about the travails that the witnesses have to undertake while attending proceedings, and nothing more. The 154th report of Law Commission (1996) had a chapter on the need for protection and facilities to witnesses. This was the first report which categorically stated that necessary confidence has to be created in the minds of witnesses that they would be protected from the wrath of the accused in any eventuality. However, this report stopped short at this juncture and did not recommend any measures for the physical protection of the witnesses or how to make their depositions - anonymous or pseudonymous. Similarly the 172nd report of the Law Commission (2000) also talked about witness protection but in a very limited sense pertaining to the evidence of a minor in the case of a sexually abused child only. The report suggested that the Court be permitted to use a video taped interview of the child abused. It went on to recommend that the prosecution must have the option to request the Court to provide a screen so that the child victim did not see the accused during the trial.

178th report of the Law Commission (2001) again referred to the fact of witnesses turning hostile. The Malimath Committee on reforms of Criminal Justice System also made recommendations to prevent witnesses from turning hostile. The Report recommended the insertion of a new Section 164-A to provide for recording of statements of material witnesses in the presence of a Magistrate where the offences were punishable with imprisonment of 10 years or more (with or without fine) including an offence punishable with death. On the basis of this recommendation, the Criminal Law (Amendment) Bill, 2003 was introduced in the Rajya Sabha. This has since been passed by both the houses of the Parliament but the due notification is still pending. The Malimath Committee in its Report (2003) mentioned about the serious concern being voiced by all about witnesses who came to the Courts and gave false evidences with impunity. This was a big factor contributing towards the failure of the Criminal Justice System. The Report went on to state that many witnesses gave false evidence because of threats to them or their family members. The Report, therefore, urged the Government to enact a law for giving protection to the witnesses and their family members on the lines of similar laws prevalent in US and other countries.

The Law Commission of India has lately released a Consultation Paper on the issue of witness protection. It has talked about the two broad aspects relating to witness protection - anonymity and physical protection. The Consultation Paper has highlighted the urgent need to give witnesses the option of firstly, deposing anonymously and secondly, relocating them at a different location as is provided in the witness protection programmes of a number of countries. This Consultation Paper deals with a number of practical aspects related to this problem - changed identity of a witness, police protection being made available to the witness and his family members, witness being relocated elsewhere in the country or abroad and whether a memorandum of understanding, suggesting the rights and obligations of the witnesses and the Law Enforcement authorities, is an appropriate method of going about this programme. The enormous expenditure involved in implementing such a witness protection programme has also been kept in mind.

The Law Commission of India has taken up this subject on its own, on account of the observations of the Supreme Court in certain important cases and also because of its relevance in our country today. The Commission has invited responses from all sections of the society which, if found fit, would be incorporated in the recommendations to be sent to the Government along with the Draft Bill on witness protection.

United States

The Witness Security Reform Act of 1984 set up the platform for the relocation and protection of witnesses in proceedings related to organized criminal activity, drug trafficking or any other serious offence. This protection can also be extended to the immediate family or a person closely associated with such a witness if he felt endangered on account of his participation as a witness in judicial proceedings. The Attorney General of US is the final authority to decide whether a person is to be granted entry into the Witness Security Programme. This protection is meant only for those witnesses whose evidence is considered essential for successful prosecution of a criminal case and in which the life and liberty of the witness and his family members are also at risk.

The three main organisations which maintain the witness security programme in the US are - US Marshal Services - which provides security, health and safety of the witnesses, US Department of Justice (Office of Enforcement Operations) - which authorizes the admission into the programme of witnesses whose lives are endangered and the Federal Bureau of Persons - which maintains the custody of witnesses in prison.

The programme in the US has been considered quite successful and since its inception in the year, 1970, the programme has achieved an overall conviction rate of 89%. As a result of the evidence given by protected witnesses more than 10,000 criminals have been convicted.

United Kingdom
The Criminal Justice and Public Order Act (1994) provides for punishment for persons who intimidate witnesses. Section 51 of the Act protects persons who are going to give evidence during trial and also those who help him in the investigation of crime. The Director of Prosecutions created in 1989, and appointed by the Attorney General from amongst the Members of Bar, administers the witness protection programme in UK. He discharges all his functions under the superintendence of the Attorney General.

Canada

The Witness Protection Act (1996) lays down the parameters for deciding whether a witness needs to be admitted to this programme. The anonymity of a witness is granted if there is material to show that not doing so will jeopardize his life and liberty. The Attorney General has to consider the nature of risk to the witness, the danger that the witness can pose to the community if he is admitted to this programme, the importance of witness in the investigation and prosecution, the value of information available with the witness and the cost of maintaining such a witness in the programme, before a witness can be admitted in this programme.

Australia

The Witness Protection Act (1994) established the National Witness Protection Programme of this country. The Commissioner of Australian Federal Police is the final authority to decide whether or not a witness is to be included in this programme. He is the one who arranges for the protection and other related assistance for the witnesses. It is also considered obligatory for witnesses in this programme to inform all details about themselves before they are admitted to this programme.
The Supreme Court of Victoria (Australia) in 1995 approved the ‘non-disclosure of names and addresses of informers and undercover police officers as well as other witnesses whose personal safety could be endangered by the disclosure of their identity’. The protected witnesses in the programme sign a Memorandum of Understanding with the Federal Police authorities. The seriousness of the offence, the nature and importance of the evidence to be given, the perceived danger to the witness and the nature of his relationship with other witnesses are prime considerations to be looked into before a witness is included in this programme.

New Zealand
The New Zealand Evidence Act (1908) provides protection to undercover police officers in cases involving drug offences, where there is a maximum penalty of 7 years imprisonment. In 1997 Section 13(g) was included in this Act making such a protection applicable to all witnesses if it was felt that their lives were endangered. This Act also has a provision to issue an order for anonymity, if the judge is satisfied that the safety of the witness is likely to be endangered if his identity is disclosed.

South Africa
The Witnesses Protection Act (1988) makes the Director, in the Office for Witness Protection under the Department of Justice, responsible for the protection of witnesses and other related persons. A witness who believes that there is a threat to his life and liberty can apply for being placed under protection. The Director of this programme then considers the nature and extent of risk and safety of the witness, the importance of his evidence and its relevance etc. before deciding who is to be placed under protection.

The South African Criminal Procedure Code permits criminal proceedings to be held in camera to provide privacy to the witnesses. The Courts have also permitted witnesses to give evidence behind closed doors and ensure their anonymity.

Philippines
The Witness Protection Security and Benefit Act aims at protecting witnesses who are to depose in cases of grave offences, by granting them certain rights and benefits to ensure their appearance in Courts. The protected witnesses are expected to sign a Memorandum of Agreement with the Department of Justice which outlines the duties and responsibilities of the witnesses under this witness protection programme. The witness, once under the aegis of this programme, is entitled to housing, means of livelihood, subsistence allowance, travelling expenses, free medical treatment and hospitalization and substantial monetary compensation to his relatives in case of his/her death.

International Criminal Court
The Rome Statute of the International Criminal Court is one of the most extensive guides on witness protection. The victims and witnesses herein are both entitled to witness protection under the Rome Statute. The Courts also have the authority to conceal the identity of witnesses, when they deem it appropriate. The International Criminal Tribunal for former Yugoslavia (ICTY) has dealt with and discussed in detail matters relating to protection of witnesses, anonymity, and specific measures for their protection. Similarly, International Criminal Tribunal for Rwanda (ICTR) has also formulated a set of rules to provide for the protection of victims and witnesses and has also circulated a Consultation Paper to elicit more opinion in this regard.

United Nations
The UN Declaration of Basic principles of Justice for Victims of Crime and Abuse of Power has stated that judicial and administrative measures must be taken to minimise inconvenience, protect privacy and ensure safety of victims and witnesses. The above was declaration adopted by UN General Assembly resolution 40/34 of 29th November, 1985 which stated that individuals who have suffered harm, including physical or mental injury, economic loss etc. in violation of criminal laws operating in the country are the persons who need protection of the State.

European Convention on Human Rights

A significant step was taken by this Convention pertaining to witness protection in the landmark Doorson case in which it was decided that the statement made by an anonymous witness can also be used, if there is enough corroborative evidence.

Council of Europe
Witness protection has been discussed in a variety of situations in Recommendations on the Intimidation of Witnesses and Rights of the Defence. The significant recommendations include protecting witnesses from a face to face confrontation with the accused, resorting to audio visual recording of statements, revealing identity of witnesses only at the later stages of the proceedings and excluding media and public from all or part of the trial. This Council has also requested all Member States to set up such witness protection programmes in their countries.

Italy The Central Protection Services administers the witness protection programme in this country.

A number of other countries as Germany, Netherlands, Ireland also have similar witness protection programmes.

Need for witness protection programmes
The need for a Witness Protection Programme in India has been felt for a long time. The Bengal Suppression of Terrorist Outrages Act (1932), TADA (1985), POTA (2002) etc did feel that the identity and other details of witnesses needed to be kept a secret where there was danger to life - either of the witness, his relatives or to his property. This on the one hand, protected the witnesses by giving them anonymity and on the other hand helped them support the cause of prosecution fearlessly and truthfully during the course of trial in the Courts, without having the fear of incurring the wrath of the accused persons, his friends or relatives.

In the absence of any such law in India, the criminals and the offenders have often felt emboldened and have intimidated crucial witnesses to give deposition in their favour and thereby subverted the criminal justice system. In India the crime rate is high and the rate of conviction is abysmally low. The police investigation and the Court procedures take agonizingly long periods to reach any conclusion and this is a significant reason why crucial witnesses lose vital interest in the cases. Considering that the number of cases pending in the Courts all over the country is increasing each day, it is indeed a tall order to expect the police, the traditional guardians of witnesses, to protect all crucial witnesses all the time. It is therefore imperative that a line be drawn and a witness protection programme is taken up as early as possible in our country. For a start this programme could be taken up for selected crimes only, especially ones that have an impact on the safety and the security of the country, the economy of the nation and those related to organized crime.

Today, the transnational nature of organized crime is posing an ever increasing challenge to the law enforcement agencies all over the world. This is so because the real perpetrators of such organized crimes are difficult to identify, they do not directly involve themselves in the actual commission of crime and the evidence against them is difficult to build up. It is therefore absolutely essential that the inter-agency and international cooperation is taken to a much higher level to pin down the perpetrators of such transnational organized crimes.

In India, in the recent past the BMW case, Nitish Katara murder case, Best Bakery case, Priyadarshini Mutto case and the Jessica Lall case - all point towards an increasing tendency of the witnesses to turn hostile because of various reasons. Similarly inspite of a large number of deaths, the record of conviction in the communal anti-Sikh Riots of 1984 and the Gujarat clashes of 2002 is shameful, to say the least. A large number of cases dragging in the Courts today are of persons related to mafia, underworld elements indulging in anti-national activities, arms and drugs smuggling syndicates, terrorist organizations etc. which on the one hand are detrimental to the safety and security of the nation and on the other hand embolden the criminal elements because of the ineffective approach of the law enforcement agencies. The disinterest shown by the crucial witnesses and the extraordinary long time taken by the Courts in deciding the cases are only contributing to this malaise. Only the fear of prompt stringent legal action can act as a check on such anti-national and criminal syndicates. The presence of a credible Witness Protection Programme can go a long way in helping the cause of justice, encourage people to speak up against the criminal and other anti-social elements who flaunt money and muscle and thereby improve the governance in the country and ensure security of the nation.

The Hon’ble Supreme Court while delivering judgement in Vishakha Vs. State of Rajasthan (1997) observed that “in the absence of a domestic law occupying the field, any international convention not inconsistent with the fundamental rights and the harmony with its spirit may be read into Municipal Law”. Similarly, in another judgement of the Supreme Court as 2002(5) of SCC 294 it was observed that if need be “the courts have the necessary power, by issuing directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role”.

The High Court of Delhi while giving its order in response to a petition filed by Smt. Neelam Katara in Oct 2003 stated that “the society has an interest in the administration of justice and it may be true that let a hundred accused escape but let not even a single innocent be punished. But this cannot be stretched to mean an escape route should be provided to the accused to hijack administration of justice and secures his innocence as a result of might being righ”t. The Court went on to give out Witness Protection Guidelines, which are to operate for the protection of witnesses till the enactment of suitable Legislation.

A good Witness Protection Programme is essential for witnesses whose evidence is crucial for the successful prosecution of criminal cases and wherein the life of witness and his family members is also at risk. It must be ensured that the evidence to be given by the witness far out weighs the burden on the State exchequer in terms of manpower and money in securing the interests of justice, up-holding the law of the land and instilling a sense of confidence in the law abiding public. This programme also has the capacity to generate a sense of fear amongst the anti-social and the anti-national elements.

In case such a Witness Protection Programme is introduced, the extent of anonymity to be provided to the witnesses, the security to be given to him and his relatives and friends, relocating of the crucial witness elsewhere in the country or abroad, providing him with suitable employment and housing and taking necessary care of his medical, transportation and other needs etc. can be extended in a phased manner taking into account the extent of resources available with the State and the country. Considering the financial constraints of our country, it may not be possible to provide a protectee witness with all the benefits stated above and on a scale as expansive as is being provided to witnesses in developed countries. However, a beginning needs to be made and even a small step would be a step in the right direction.

A number of agencies as Judiciary, Police, Prisons etc. are involved in the Witness Protection Programme. It is therefore imperative to ensure that the officials who run this programme are persons of absolute trust and integrity. The data base managing the identity of such protected witnesses must be scrupulously guarded, otherwise criminal elements will pose a threat to the life and liberty of the witnesses and his family members and thwart the ends of justices by finding out the true identity and the location of such protected witnesses and either intimidating them to change their evidence in the court or eliminating them. Strict penal provisions must exist for violations observed on part of the officials who run the Witness Protection Programme. If violations are found to exist on part of witnesses enrolled in this Programme they too should be penalised.

The benefits to be obtained from such a witness protection programmes are immense. The members of organized crime syndicates, terrorist organizations and other anti-social elements would run the risk of not knowing the witnesses and yet the truth coming out squarely in their faces in the open courts. The overall conviction rate in heinous offences would go up and this will make a difference to the safety and security in our society and will have a telling effect on the economy of the country also. The social, political and economic benefits will far outweigh the cost that will be incurred in running such a programme.

India today is an emerging super power in the Asian Region. Foreign investments coming to the country are on the rise every year. It is, therefore, important that the law is held supreme by all and the terrorists, anit-national organisations and the organized criminal gangs do not come in the way of subverting the economy and getting cases decided in their favour from the Courts. Witness Protection Programme is the need of the hour. We must start with a programme, howsoever small, to take the criminal justice system forward in the right direction.

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Bibliography

1. Mrs. Neelam Katara Vs UOI & Others, High Court of Delhi at New Delhi, CRL W No. 247/2002, dt 14 Oct, 2003.
2. Vohra Committee Report, Ministy of Home Affairs, 5th Oct,1993.
3. Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, Report, March 2003.
4. Law Commission of India’s Consultation Paper on Witness Protection, Chapter III, 13 August, 2004.
5. Zaheera Vs State of Gujarat, 12 April 2004, SCC (Crl) 999.
6. Mrs. Neelam Katara Vs UOI & Others, High Court of Delhi at New Delhi, CRL W No. 247/2002, dt 14 Oct, 2003.
7. Law Commission of India, 14th report on Reform of Judicial Administration (Vol.I), 1958, pp 482, 485.
8. National Police Commission, 4th report, 1980, pp 16.
9. Law Commission of India, 154th report on The Code of Criminal Procedure 1973 (Act No 2 of 1974) (Vol. I), 1996, pp 43-44.
10. Law Commission of India, 172nd report on Review of Rape Laws, 2000, pp 82.
11. Law Commission of India, 178th report on Recommendations for Amending various Enactments, Both Civil and Criminal, 2001, pp 116 – 124.
12. Law Commission of India’s Consultation Paper on Witness Protection: Chapter I-VIII, 13 August, 2004.
13. Vishakha Vs State of Rajasthan, 13 August 1997 (6), SCC-241.
14. Harish Chandra Tiwari Vs Baiju, 8 January 2002 (5), SCC-294.


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Abstract
Witness protection is a much talked about topic today. The Vohra Committee Report, the Malimath Committee Report have all mentioned about this critical pillar of the Criminal Justice system.

Even as far back as 1932, Bengal Suppression of Terrorist Outrages Act and recently the TADA and POTA have had provisions to help witnesses depose fearlessly in the Courts. The various reports of the Law Commissions have also dealt with this aspect in detail. In the absence of any such law in India, the criminals and the offenders have often intimidated crucial witnesses to depose in their favour. The benefits to be obtained from a Witness Protection programmes are immense. The criminals would run the risk of not knowing the witnesses and yet the truth coming out squarely in their faces in the open courts. The Witness Protection Guidelines issued by the High Court of Delhi in Neelam Katara Vs UOI & Others(2003) could be starting point in this direction.

Witness Protection is the need of the hour. We must start with a Programme, howsoever small, to take the Criminal Justice system forward in the right direction.

( published in Indian Police Journal : Apr - Jun 2006 )

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Witness Protection- summary

Witness Protection Programme

“The edifice of administration of justice is based upon witnesses coming forward and deposing without fear or favour, without intimidation or allurement in Courts of law. If witnesses are deposing under fear or intimidation or for favour or allurement, the foundation of administration of justice not only gets weakened, but in cases it may even get obliterated”.

This landmark observation was made by the High Court of Delhi in the petition filed by Smt. Neelam Katara, mother of Nitish Katara, who was killed by certain influential persons in the night of 16-17 February, 2002. The mother, Smt. Neelam Katara, had filed the petition in the High Court of Delhi, requesting the Court to issue directions pertaining to witness protection.

Witness protection has been a much talked about topic in the last few months. The BMW case, Tandoor murder case, Best Bakery case, Muttoo murder case and lately the much talked about Jessica Lall case have all highlighted the urgent need to address this vital area of our Criminal Justice system.

The Vohra Committee Report had critically talked about the growing nexus of politicians, bureaucrats and the criminals. It stated that criminalisation had struck at the very foundation of the Indian polity and there was an urgent need to deal with this matter in a surgical manner to prevent the morass from spreading further. It is common knowledge today that the prosecution is getting weaker by the day and the power of money, muscle and networking is proving difficult to handle. The percentage of cases ending in acquittal is on the rise. The legal process takes a lot of time and the common person feels harassed while trying to help the system. These are some of the many disincentives for people to come forward and perform the important public duty of assisting the Courts in deciding on the guilt or otherwise of the accused during trial of cases in the Courts. The Malimath Committee Report also reiterated the common perception that the witness today has no stake in the decisions of the criminal courts as he is neither an accused nor a victim. The Report emphasized that he should be treated with great respect and considered a guest of honour if the law is to succeed.

It is being increasingly felt that the legal system in India is biased against the weak, the poor and the helpless. It is the rich and those having the muscle who take advantage of the legal system by either delaying the entire process of police investigation and trial in the Courts or buying justice in their favour.

The witnesses appearing in the Courts are subjected to all kinds of harassment and intimidation with the result that ends of justice are not attained. More often than not, it is the accused, his relatives and friends who intimidate the witnesses so that the true picture does not emerge before the Courts. In some cases, intimidation is followed by acts of violence and even vandalism. Physical assaults and damage to the property of witnesses are not uncommon. Because of the general impression prevalent in the public of law enforcement and the extremely time-taking and expensive legal procedures prevalent, a number of witnesses who are victims of intimidation, assault etc. do not report such incidents to the police and take the easier way out by deposing in favour of the accused in the courts.

Protection of witnesses - past history

It is interesting to note that as far as back as 1932, section 31 of Bengal Suppression of Terrorist Outrages Act, 1932 empowered the Special Magistrate to exclude persons or public from the premises of the Court in order to protect the identity of certain witnesses. Similarly, section 13 of TADA-1985 and section 16 of TADA-1987 provided for the protection of the identity and address of a witness. POTA-2002, which has since been repealed, also had a similar provision to protect the identity of witness and help him depose fearlessly and truthfully in the court to support the cause of justice.

Initiatives in recent past

On 8th of August, 2003 in the case of National Human Rights Commission Vs. State of Gujarat, the Hon’ble Supreme Court observed “that no law has yet been enacted, not even a scheme has been framed by the Union of India or by the State Government for giving protection to the witnesses”. However, in the case of Zaheera Vs. State of Gujarat when the Supreme Court ordered the transfer of Best Bakery case to Mumbai through its order dated 12.4.2004, the Court directed the State Government to take appropriate action to ensure that the witnesses when produced before the Courts could depose freely without any apprehension, threat or coercion from any person. The Supreme Court also directed the State of Maharashtra to provide protection to any witness in case a request was made by them, in addition to the protection that was to be provided by the State Government of Gujarat.

However, Justice P. Nandrajog and Justice Usha Mehra of High Court of Delhi in their order dated 14.10.2003, in response to a petition filed by Smt. Neelam Katara, stated that till such time a suitable legislation was brought on the Statute Book, guidelines known as Witness Protection Guidelines will operate for the protection of witnesses. The order defined a witness, an accused and the competent authority.
The 14th Report of Law Commission of India (1958) did refer to witness protection, but in a very limited sense relating to proper arrangements to be provided to the witnesses in the Courts and the extent of travelling and daily allowance to be given to them. The 4th Report of National Police Commission (1980) also talked about the travails that the witnesses have to undertake while attending the proceedings, but nothing more. The 154th Report of Law Commission (1996) had a chapter on the need for protection and facilities to witnesses. This was the first report, which categorically stated that necessary confidence has to be created in the minds of witnesses that they would be protected from the wrath of the accused in any eventuality. However, even this report did not recommend any measures for the physical protection of the witnesses or how to make their depositions, anonymous or pseudonymous. The 172nd Report of the Law Commission (2000) also talked about witness protection but in a very limited sense pertaining to the evidence of a minor in the case of a sexually abused child only. The report suggested that the Court be permitted to use a video taped interview of the child abused.

The 178th Report of the Law Commission (2001) again referred to the fact of witnesses turning hostile. The Malimath Committee on reforms of Criminal Justice System made recommendations to prevent witnesses turning hostile. The Report recommended the insertion of a new Section 164-A to provide for recording of statements of material witnesses in the presence of a magistrate where the offence was punishable with imprisonment of 10 years or more (with or without fine) including an offence punishable with death. On the basis of this recommendation, the Criminal Law (Amendment) Bill, 2003 was introduced in the Rajya Sabha. It has since been passed by both the houses of the Parliament but the due notification is still pending. The Malimath Committee in its Report (2003) mentioned about the serious concern being voiced by all about witnesses who came to the Courts and gave false evidences with impunity. This was a big factor contributing to the failure of the Criminal Justice System.

The Law Commission of India has lately released a Consultation Paper on the issue of witness protection. It has talked about the two broad aspects relating to witness protection - anonymity and physical protection. The Consultation Paper has highlighted the urgent need to give witnesses the option of firstly, deposing anonymously and, secondly, relocating them at a different place as is provided in the witness protection programmes of a number of countries. This Consultation Paper deals with a number of practical aspects related to this problem - changed identity of a witness, police protection being made available to the witness and his family members, witness being relocated elsewhere in the country or abroad and whether a memorandum of understanding, suggesting the rights and obligations of the witnesses and the law enforcement authorities, is an appropriate method of going about this programme. The enormous expenditure involved in implementing such a witness protection programme has also to be kept in mind.

The Law Commission of India has taken up this subject on its own, on account of the observations of the Supreme Court in certain important cases and also because of its relevance in the country today. The Commission has invited responses from all sections of the society which, if found fit, would be incorporated in the recommendations to be sent to the Government along with the Draft Bill on witness protection.

Need for Witness Protection Programme

In the absence of any such law in India, the criminals and the offenders have often felt emboldened and have intimidated crucial witnesses to give deposition in their favour and thereby subverted the criminal justice system. In India the crime rate is high and the rate of conviction is abysmally low. The police investigation and the Court procedures take agonizingly long periods to reach any conclusion and this is a significant reason why crucial witnesses lose interest in the cases. Considering that the number of cases pending in the Courts all over the country is increasing each day, it is indeed a tall order to expect the police, the traditional guardians of witnesses, to protect all crucial witnesses all the time.

In India, in the recent past the BMW case, Nitish Katara murder case, Best Bakery case, Priyadarshini Mutto case and the Jessica Lall case - all point towards an increasing tendency of the witnesses to turn hostile because of various reasons. Similarly inspite of a large number of deaths, the record of conviction in the communal anti-Sikh Riots of 1984 and the Gujarat riots of 2002 is shameful, to say the least. The disinterest shown by the crucial witnesses and the extraordinary long time taken by the Courts in deciding the cases are contributing to this malaise. Only the fear of prompt stringent legal action can act as a check on such anti-national and criminal syndicates. The presence of a credible Witness Protection Programme can go a long way in helping the cause of justice, encourage people to speak up against the criminal and other anti-social elements who flaunt money and muscle and thereby improve the governance in the country and ensure security of the nation.

The Hon’ble Supreme Court while delivering judgement in Vishakha Vs. State of Rajasthan (1997) observed that “in the absence of a domestic law occupying the field, any international convention not inconsistent with the fundamental rights and the harmony with its spirit may be read into Municipal Law”. Similarly, in another judgement of the Supreme Court as 2002(5) of SCC 294 it was observed that if need be “the courts have the necessary power, by issuing directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role”.

The High Court of Delhi while giving its order in response to a petition filed by Smt. Neelam Katara in Oct 2003 stated that “the society has an interest in the administration of justice and it may be true that let a hundred accused escape but let not even a single innocent be punished. But this cannot be stretched to mean an escape route should be provided to the accused to hijack administration of justice and secures his innocence as a result of might being right”.

The benefits to be obtained from such a witness protection programmes are immense. The members of organized crime syndicates, terrorist organizations and other anti-social elements would run the risk of not knowing the witnesses and yet the truth coming out squarely in their faces in the open courts. The overall conviction rate in heinous offences would go up and this will make a difference to the safety and security in our society and will have a telling effect on the economy of the country also. The social, political and economic benefits will far outweigh the cost that will be incurred in running such a programme.

Witness Protection Programme is the need of the hour. We must start with a programme, howsoever small, to take the criminal justice system forward in the right direction.

( published in newpaper Pioneer 2006 )

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Witness Protection Programme

Abstract

Witness protection is a much talked about topic today. The Vohra Committee Report, the Malimath Committee Report have all mentioned about this critical pillar of the Criminal Justice system.

Even as far back as 1932, Bengal Suppression of Terrorist Outrages Act and recently the TADA and POTA have had provisions to help witnesses depose fearlessly in the Courts. The various reports of the Law Commissions have also dealt with this aspect in detail. In the absence of any such law in India, the criminals and the offenders have often intimidated crucial witnesses to depose in their favour. The benefits to be obtained from a Witness Protection programmes are immense. The criminals would run the risk of not knowing the witnesses and yet the truth coming out squarely in their faces in the open courts. The Witness Protection Guidelines issued by the High Court of Delhi in Neelam Katara Vs UOI & Others(2003) could be starting point in this direction.

Witness Protection is the need of the hour. We must start with a Programme, howsoever small, to take the Criminal Justice system forward in the right direction.

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