To stall the criminal cases collapsing with witnesses turning hostile under duress, the Supreme Court on Wednesday put in place a long-awaited witness protection scheme for the safety of witnesses faced with threat to life and harassments to them or their families in criminal cases’ trial.
Supporting the ‘Witness Protection Scheme, 2018′ prepared by the Centre, the bench of Justice A.K. Sikri and Justice S. Abdul Nazeer in their judgement said, “It shall be the law under Article 141/142 of the Constitution till the enactment of suitable parliamentary and/or State legislations on the subject.”
The witness protection scheme essentially involves concealing the identity of the witness faced with threat, prohibits the publication or revealing, in any manner, the identity of the witness during investigation, trial and post-trial stage.
Describing the condition of witnesses as “pathetic”, Justice Sikri said, “Because of the lack of witness protection programme in India and the treatment that is meted out to them, there is a tendency of reluctance in coming forward and making statement during the investigation.”
“One of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State. It is a harsh reality, particularly, in those cases where the accused persons/criminals are tried for heinous offences, or where the accused persons are influential persons or in a dominating position,” the judgement said.
This situation, the court said, “prevails because of the reason that the state has not undertaken any protective measure to ensure the safety of these witnesses, commonly known as witness protection'”.
The court today ordered that the Union of India as well as states and Union Territories will enforce the witness protection scheme in letter and spirit.
The court ordered that “in all the district courts in India, vulnerable witness deposition complexes shall be set up by the States and Union Territories” and this “should be achieved within a period of one year.”
The witness protection measures would be proportionate to the threat perception and would include that witness and accused do not come face-to-face during investigation or trial, monitoring of mail and telephone calls, changing the telephone number of witness including providing him unlisted number and other measures.
All this will be for a specific period and would not exceed three months at a time.
It may also include, the court said, “the option of the modification of the image of face of the witness including modification of the audio feed of the witness’ voice, so that he/she are not identified. It may also include change of identity or relocation of witnesses to other places” within the state or outside.
There would be categorisation of witnesses on the basis of whether threat perception involves life, safety, reputation or property of the witness or his family members, and lastly moderate threat involving harassment or intimidation of the witness or his family member’s, reputation.
The scheme says that the application for witness protection would be heard in camera where only necessary people would be allowed to be present. Deposition by the protected witness would be through live video links without being present in the courtroom.
The hearing on the need for the witness protection scheme is rooted in a petition by Mahender Chawla who miraculously survived a murder attempt for daring to testify against so-called godman, Asaram Bapu, and his son Narayan Sai in cases of rape of a child and two sisters.
Other petitioners included a witness, father of a murdered witness, father of the child rape victim and a journalist who escaped an alleged murder attempt and still faces death threats.