By Tarun Ghai
The ultimate objective of the criminal justice system is that if a person is held guilty it must be beyond reasonable doubt. To put it simply until the judge is sure that after dispensing the witness and evidence it can be deduced that the person has committed a crime only then can he be held guilty.
Now production of witness plays an important part in delivering justice to the victim. They are the catalyst which help the judge to deduce that the accused is guilty of that crime. From Examination in chief to Re-examination, the process can be long and tiring, but apart from this there are certain extra effects that might rise also.
We have seen in past also, how in many cases against the influential and powerful goons, lot of witnesses are abducted and then killed subsequently.
There have been lot of instances where witnesses were asked not to come to court for recording their statement or they would be killed. A lot of instances have occurred where the witnesses have turned hostile for the fear of their lives.
Under such circumstances how can we make sure that fair trial can be given and justice can be given to the victim. For the protection of witness and ensuring their maximum safety, Witness Protection Scheme,2018 was started.
In this scheme for the first time a witness has been defined. It was defined as
“ A person who has important information or written document which relates to an event or happening of an event. Precisely, a person who was the observer or was standing by chance during the happening of that particular transaction and can provide the details therein”
The scheme was launched on 8th Dec, 2018 after carefully examining the provisions of the scheme the divisional bench of Justice AK Sikri and Justice Abdul Nazeer were of the view that the provision of the scheme were basically elaborating Article 21 of the witness, it is the right of witness to give statements without any fear or inducement and it is the duty of the state of the state to provide protection the witness.
In regard to the same, the bench held that the scheme should be understood as a law under Article 141/142 and it is directed to the centre and state government to take steps for necessary implementation unless a proper legislation is made in this regard.
Background of Implementing the Scheme- So basically there were three things that led to the implementation of this scheme.
Firstly, in case of State of Gujrat v. Anirudh Singh, the apex court held that it is kind of obligation on the witness who has knowledge of happening of event to assist the court in delivering justice.
Secondly, there was a mention of such a scheme in 14th Law Commission Report, 1958. That was the first time anything like this was put to issue. Subsequently in report number 154,178,198 same issue was put for consideration.
Thirdly, the Malimath Committee Report also suggested courts to take a positive approach and step forward when a witness is appeared to be harassed. Now let us look at the various remedies provided to the witnesses around the world.
The “International Criminal Tribunal for Rwanda has been very active to provide protection to its citizens acting as witness, it has formulated rules for necessary compensation and protection. Also the UN general assembly in the year 1985 adopted measures for the protection of Victims of Criminal Act and dominance of power for giving guidelines for the active protection of witnesses.
Further in International Convention on civil and Political Rights, Article 14 provides for free trial as a basic human right which also extends to witnesses giving evidence, and the same treaty has been ratified in India also with the object of adopting necessary provisions in its local laws also.
Understanding the WPS,2018
With different kind of suits involving criminal activities and accused, the threat which looms over a witness also changes. The scheme has tried and identified three categories under which witness will be distinguished.
Since the threat is not limited to witness alone but also to his family members, hence in Category A, they have put witnesses where there is a direct threat to life. In Category B, they have put included threat to safety, reputation or any kind of property of witness that might be harmed. The last category ie Category C extends to any kind of harassment or intimidation that the witness will have to face during the course of trial.
There is provisions for funds which might be needed for his protection, according to the scheme, this money will be a direct effort of the States and UT. Out of the total budget that the states have, they have to necessarily make provision for allocation in this regard.
Further, various entities are also allowed to contribute as a part of their CSR ideas. The fund will be operated exclusively by the Home affairs ministry under the Local government. A witness just needs to apply by filing a form for getting protection and he shall be provided with the support after the approval has been given by the Threat Analysis Report which will give its opinion whether the witness requires protection or not and if yes under what category he must be kept.
Further, once the order of protection has passed it becomes the duty of the protection cell to implement that order. They have certain measures available for them to make sure that atleast the minimum requirement of protection is provided.
This might include making sure that the accused and the witness are not produced in front of each other and apart from this relevant information with regard to witness like his personal details can be kept hidden to make sure that maximum privacy can be maintained.
Going further into this the competent authority by submitting a report can also allow the witness to go for a dummy identity. This is nothing but a preventive measure to make sure that witness can have maximum courage to record his statement to effective and fair trial.
Even after all the positive provisions, there still lie certain drawbacks that are needed to be done away with.
Firstly, now all states in India have same amount of resources to fulfill the expenditure of the scheme, there is no mention of any kind of aid from the centre to fulfill the need. This can be a huge drawback for states which are home to low- budget families.
Secondly, the order for protection is only limited to three months from the date of application, while we all know in how much time the trail ends.
Thirdly, the TAR which is made is often put forward to a head of police in that particular district. With lot of goons being political supported and also in cases where people from influential families are involved, there is high risk that the reports might change due to pressure and this may take away the ultimate objective of the scheme.
To conclude we can understand that this scheme is a great step taken and a positive approach which will show good results in future. We can expect positive changes in future, 10 years down the lane there we will see proper application of Witness Protection Scheme.
[1] Shrey Verma, ‘Witness Protection Scheme in India’
[1] ‘Witness Protection Scheme,2018’
[1] Sanchita Kadam, ‘Witness Protection in India: an idea gathering dust’
