SC approval of Witness Protection Scheme could be turning point in India's criminal justice system, but implementation is key

This week, the Supreme Court came out with a decision that, if implemented well, can prove to be a decisive landmark in the development of the criminal justice system in India.

In the case of Mahendra Chawla and Others versus the Union of India, the Supreme Court has given effect to the Witness Protection Scheme, 2018, which aims to "promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance to criminal law enforcement agencies and overall administration of justice". With its order, the Supreme Court has declared that the scheme be considered the 'law' under Article 141/142 of the Constitution of India till Parliament or state assemblies enact suitable legislation on the subject.

The case was filed in the backdrop of the witnesses in the Asaram Bapu rape case being harassed and threatened of serious consequences, in the event of them deposing against the religious leader. It was reported that at least 10 witnesses were attacked and three killed for deposing against Asaram.

As the matter related to the rule of law and its fair implementation, the coverage of the petition was extended to all states and Union Territories of India, and their inputs were welcomed to frame a scheme for witness protection. Thereafter, the Ministry of Home Affairs prepared a draft Witness Protection Scheme, 2018, which the Union government finalised after gathering inputs from states, Union Territories, high courts, police personnel and the National Legal Services Authority (NALSA).

File image of Supreme Court. PTI

File image of Supreme Court. PTI

What the scheme includes

The Witness Protection Scheme was drafted with the aim to ensure that trials were not prejudiced because witnesses were too intimidated or frightened to provide evidence without protection from violent or other criminal acts.

The scheme finds its justifications in a catena of judgments as well as various reports of the Law Commission of India, which found that protecting witnesses from harassment by anti-social elements, such as rapists and murderers, was the need of the hour. The drafters of the scheme acknowledged the fact that while there are provisions in the Indian Penal Code (Section 195A) and other laws like the Juvenile Justice Act and Whistleblowers Protection Act that provide safeguards to witnesses against threats and impose strong punishments, there is no formal structure that comprehensively deals with the matter.

The scope of the Witness Protection Scheme has been left open to be decided on a case-to-case basis, varying according to the degree of the vulnerability of the witness and the perceived threat. This is a commendable step as providing a straight-jacketed formula to be applied to every case without variance would have ridiculed its effectiveness. Therefore, as mentioned in the scheme, witness protection may be as simple as providing a police escort to the witness till the courtroom or using modern communication technology, such as audio-video means, to record their testimony.

Part II of the scheme forms its core as it mentions the steps to be undertaken to protect a witness. It provides that any person can seek protection by filing an application in a prescribed form before the 'competent authority' of the concerned district. The authority should then ask for a 'Threat Analysis Report’ from the Assistant Commissioner of Police or Deputy Superintendent of Police in charge of the concerned police sub-division. This report would then categorise the witness as follows as per the threat perceived:

Category A: Where the threat extends to the life of the witness or his family members during investigation/trial or thereafter.
Category B: Where the threat extends to the safety, reputation or property of the witness or his family members during the investigation/trial or thereafter.
Category C: Where the threat is moderate and extends to harassment or intimidation of the witness or his family members, reputation or property during the investigation/trial or thereafter.

While the Threat Analysis Report is being prepared, if the competent authority feels any urgency in the matter owing to an imminent threat, it can pass orders to provide interim protection to the witness or his family members. Within five working days of receiving the Threat Analysis Report from the police, the application seeking protection should be disposed of, and the Witness Protection Cell should implement the authority's order.

The authority must also interact — in person or virtually — with the witness to ascertain the kind of protection needed. The authority's order is also subject to revision based on a fresh Threat Analysis Report, which may be prepared at the discretion of the authority.

Furthermore, if the witness or the police is aggrieved by the level of protection granted, then a review application can be filed within 15 days of the authority passing the orders.

Under the scheme, the witness protection measures are to be time-bound and cannot exceed three months at a stretch. The scheme provides for 15 measures of protections that can be provided to the witnesses, including concealment of identity, protection, monitoring of phone calls, and installation of CCTV cameras. The last measure includes a blanket cover on any protection that the witness might need, and the witness is entitled to any other form of protection measures considered necessary.

Moreover, the scheme also provides for change of identity and relocation. But if a false complaint is lodged by any individual, then the expenses incurred to provide protection to the witness can be recovered.

The scheme also appeals and urges every state to widely publicise the provision so people fearlessly start deposing in the court of law.

While this is a very comprehensive scheme that is bound to change the dynamics of criminal law in the country for good, the real test is its implementation and enactment. It can only be hoped that unlike the law against sexual harassment, which undertook a tedious journey of over 15 years to transform from the Vishakha Guidelines to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the legislature expeditiously — within a reasonable time — enacts a law adding to the scheme.

Furthermore, for its implementation, law agencies should be made accountable in case the scheme is not followed in letter or spirit. Vigilance from NGOs can also lead to better implementation and help ensure maximum publicity.

Raghav Pandey is an assistant professor of law at the Maharashtra National Law University in Mumbai, and Neelabh Bist is a fourth-year student at the institute

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Updated Date: Dec 10, 2018 07:20:41 IST

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