The question expects us to bring out the details of the witness protection scheme and analyze its pros and cons with respect to its effectiveness. Thereafter we need to provide a fair and balanced conclusion and discuss the way forward.
Introduction – Highlight why the issue is in news.
In the main body, discuss the details of the witness protection scheme
Evaluate the scheme with respect to its effectiveness
Give the +ves as well as some loopholes which experts have pointed out
Give a fair and balanced conclusion and discuss way forward.
Recently the Supreme Court (SC), while hearing a PIL in Mahendra Chawla and Ors, approved the Centre’s draft Witness Protection Scheme (WPS). All accused in the Sohrabuddin case were acquitted and 88 witnesses out of a total of 212 who were examined by the court turned hostile. The Supreme Court had approved the Centre’s draft witness protection scheme and had asked all the states to implement it till Parliament comes out with legislation. The court had also made some changes in the scheme.
Highlights of the draft scheme:
The draft witness protection scheme has been finalised in consultation with the National Legal Services Authority (NALSA) and Bureau of Police Research and Development (BPRD).
The types of protection measures envisaged under the scheme are to be applied in proportion to the threat and they are not expected to go on for infinite time.
The scheme envisages that there should be safeguards that witnesses and accused do not come face to face during investigation or trial and adequate security measures should be there for the safety of the witnesses.
The scheme provides for identity protection and giving a new identity to the witness.
The scheme shall extend to the whole of the India except the State of Jammu & Kashmir.
As per the scheme, police escort will be provided to witnesses who are threatened and, if needed, they would be relocated to a safe house.
The scheme also says mails and phone calls of the witnesses would be monitored to trace the person threatening them.
It said a separate witness protection fund will be created in each state to meet the expenses incurred under the scheme.
Witness deposition complexes will be set up in all district courts by the states and union territories within a year where the witnesses could fearlessly depose against the high and mighty without coming face-to-face with the accused.
It has three categories of witnesses based on the threat perception:
Category ‘A’: Where the threat extends to life of witness or his family members and their normal way of living is affected for a substantial period, during investigation/trial or even thereafter.
Category ‘B’: Where the threat extends to safety, reputation or property of the witness or his family members, only during the investigation process or trial.
Category ‘C’: Where the threat is moderate and extends to harassment or intimidation of the witness or his family member’s, reputation or property, during the investigation process.
The scheme faces a few challenges:
The draft scheme does not seem to be premised on any empirical study and, therefore, the deeper insights about the varied sufferings and consequences of being a witness remain unaddressed.
Given the way the police and prosecution work in this country, the idea of hiding the identity of a witness as a measure of protection does not seem to be practical.
Overworked and understaffed, the police are also unlikely to make any meaningful threat analysis for a witness. Police force which roughly devotes only 20 per cent of its time to investigative work would be justifiably right in avoiding this task.
The lower courts, where all the witnesses have to appear, do not have the infrastructure to satisfy the mandate of the present WPS. Nor can they do much to avoid contact between the witness and the accused.
The in-camera trial arrangements in all such cases also have the same issue.
The most problematic and unrealistic factors in this scheme are the arrangements to change identity and relocate witnesses. Even in the rarest of rare cases, the witnesses would perhaps not like this to happen to them. This borrowed idea — devoid of empirical understanding — does not fit Indian conditions.
The major source of harassment for the witnesses stemmed from the frequent adjournment of cases, which was confirmed by 65 per cent witnesses in the said study.
As many as 80 per cent of witnesses also reported monetary loss and other kinds of deprivation due to their repeated appearances in the courts. Around 65 per cent of the witnesses reported frequencies of adjournments.
In 40 per cent of the cases, they were persuaded through social or caste-related pressure to assent to being witnesses.
A vast number — 44 per cent — complained of an unfair deal meted out to them by agencies like the police, prosecution or the courts.
Girls and women who report sexual violence are often even more vulnerable and face extreme pressure or direct threats from the accused.
There have been ad hoc steps such as those outlined for concealing the identity of witnesses in anti-terrorism and child-centric laws
Expanding facilities and implementing a comprehensive and credible witness protection programme will pose logistical and financial challenges
This is at variance with the Law Commission’s recommendation in 2006 that the Centre and the States share the cost equally.
We actually need is a “Witness Assistance Programme”. A study conducted by experts based on 800 witnesses in the premises of courts in Madhya Pradesh, Uttar Pradesh, Rajasthan, Maharashtra and Karnataka clearly revealed that a vast majority of witnesses do not need protection — they require more assistance, care and dignity.
The need is to understand and take into account the fact that witnesses are also a harassed lot, who at times are dealt with much like the accused.
The present WPS needs a complete shift in focus to make it rights-based rather than security-centric.
A few dedicated courtrooms for vulnerable witnesses, mostly child victims, are needed.
In 2003, Justice V Malimath Committee on criminal justice system had recommended enacting a separate witness protection law and in 2006, the Law Commission of India, in its 198th report, provided for a draft witness protection law.
The scheme is to be funded by budgetary support from State governments and donations