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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