A Division Bench of the Allahabad High Court has directed the Uttar Pradesh State Government to file a counter affidavit within two weeks in response to the petitioner’s prayer seeking effective implementation of the Witness Protection Scheme, 2018.

Ms. Abha Singh, the President of the petitioner trust appeared for herself and Additional Government Advocate represented the State in Rannsamar Foundation vs State of Uttar Pradesh (PIL [Cri.] No. 20887 of 2020).

During the hearing before Justices Pankaj Mithal and Saurabh Lavania, the court ordered, “Let the above letters and documents of the State Government be brought on record by the State Government by filing a counter affidavit within two weeks, so that the petitioner may be able to reply and argue the matter further on merits.”

Background

The petitioner, Rannsamar Foundation had approached the Lucknow Bench of the Allahabad High Court, seeking effective implementation of the decision in Mahendra Chawla v. Union of India (2019) 4 SCC 615.

In this case, the Supreme Court had approved the Witness Protection Scheme, 2018, prepared by Union of India and had directed all the States and Union Territories to strictly enforce the same. The key provisions of this scheme may be read here.  

Counsel for State submitted that the State Government had issued necessary directions to all the District Authorities for immediate and effective implementation of the Scheme and even provided vulnerable witness boxes in all Judgeship.

The State has been given two weeks to file the counter affidavit and place all letters and documents on record by the next hearing on December 20, 2020.

On November 4, in the matter pertaining to criminal cases against legislators, the Bench comprising Justices NV Ramana, Surya Kant and Aniruddha Bose of the Supreme Court had issued similar directions to enforce the witness protection scheme. (Ashwini Kumar Upadhyay Vs. Union of India Writ Petition[s][Civil] No[s]. 699 of 2016)

The court said, “The Witness Protection Scheme, 2018, approved by this Court in the case of Mahender Chawla v. Union of India (2019) 14 SCC 615, should be strictly enforced by the Union and States and Union Territories. Keeping in mind the vulnerability of the witnesses in such cases, the Trial Court may consider granting protection under the said Scheme to witnesses without their making any specific application in this regard.”

On December 2, a Division Bench of Chief Justice Abhay Oka and Justice S Vishwajith Shetty of the Karnataka High Court, while hearing a suo motu petition, gave similar directions to the State of Karnataka in matters pertaining to prosecution of political personalities. The Bench said,

“There cannot be any dispute in the cases pending before the special court prominent political personalities will be the accused. There is a possibility that some of the prosecution witnesses may become vulnerable witnesses. We are therefore of the view that it is all the more necessary to implement the witness protection scheme, in relation to the prosecution witness in the cases pending before the special court.”

The Allahabad HC order may be read here:

Related:

Cases against legislators: SC asks trial courts to grant witness protection without application
Witness Protection in India: an idea gathering dust
Witness Protection

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The Supreme Court has issued directions pertaining to cases filed and pending against current and former legislators all across the country such as, no unnecessary adjournment, vacation of stay on proceedings after a certain period of time as well as enforcement of the Witness Protection Scheme, 2018.

These directions were issued by a bench comprising Justices NV Ramana, Surya Kant and Aniruddha Bose while hearing the petition filed by Ashwini Upadhyay on the issue of pendency of cases against legislators. The court has already appointed Adv. Vijay Hansaria as amicus curiae in this case who also submitted a report before the bench based on information provided by High Courts of all the states. The report highlighted the following issues being faced by high courts:

1.      Although video conferencing facilities are available in some of the courts, the same are not adequate to facilitate recording of evidence of witnesses.
2.     The High Court of Kerala has specifically placed on record that the police officials are reluctant to arrest and produce the legislators.
3.    The same issue is also being faced by the Calcutta High Court. Apart from the same, the amicus expressed concerns regarding the suitability of assigning 134 cases to a single Special Court in the State of West Bengal.
4.    Even with respect to the State of Karnataka, the amicus brought up the issue of a Special Court being designated for the entire State, which is located in Bengaluru.
5.   Certain issues that have been raised by a Committee appointed by the Chief Justice of the High Court of Madras were also highlighted by the learned amicus.

The report of the amicus curiae also made the following suggestions:

•        The report suggests that for facilitating recording of evidence of witnesses the Central Government may bear the initial expenses for setting up of adequate video conferencing facility.
•         The requirement for the witnesses to make an application seeking protection, as provided under the Witness Protection Scheme, be waived in these cases as witnesses may be apprehensive of making such an application in the first place.
•      Taking into account the fact that in certain States there are cases which have been pending for more than 25 years, it is imperative to appoint Nodal Prosecution Officers who will be responsible to ensure that arrest warrants are being executed, accused are being produced regularly, summons are being served, etc.
•      The tenure of judicial officers dealing with these cases should be at least 2 years in order to ensure continuity.
•      Additionally, the judicial officers should follow effective case management strategies and should not grant unnecessary adjournments which might lead to delay.

Centre’s response

The Central government is yet to submit before the court status report relating to investigations by special agencies as well as inform the court on the possibility of providing funding for the establishment of at least one video conferencing facility in every district for conducting these cases. The bench granted Centre another week’s time to file a response while stating, “We hope and expect that the Union of India will take into consideration the requests made by the State Governments and a timely response will be submitted on all the above queries.”

Specific directions

The bench has issued some specific directions to all parties basis the submissions of the petitioner as well as the amicus curiae report. The bench has directed all states and Union Territories to strictly enforce the Witness Protection Scheme approved by the court in Mahender Chawla v. Union of India, [(2019) 14 SCC 615]. The court said, “Keeping in mind the vulnerability of the witnesses in such cases, the Trial Court may consider granting protection under the said Scheme to witnesses without their making any specific application in this regard.”

The court has further asked all states to follow the pronouncement in Asian Resurfacing of Road Agency Private Limited v. CBI, [(2018) 16 SCC 299] regarding vacation of stay on proceedings. The court had held that, “We expect that the Magistrates all over the country will follow our order in letter and spirit. Whatever stay has been granted by any court including the High Court automatically expires within a period of six months, and unless extension is granted for good reason, as per our judgment, within the next six months, the trial Court is, on the expiry of the first period of six months, to set a date for the trial and go ahead with the same.”

The court also clarified that the directions issued in this petition are applicable to both sitting as well as former legislators (MPs and MLAs). The court further directed, “Keeping in mind the public interest involved in these matters, and in order to prevent undue delay, we direct that no unnecessary adjournments be granted in these matters.”

The concerns about specific high courts highlighted in the amicus curiae report were also taken into consideration and the court issued directions accordingly. On the issue of non-execution of warrants against the sitting and former legislators, the counsel for High Court of Calcutta was asked to provide a list of such cases and the “Chief Secretary/ Director General of Police of the State of West Bengal is directed to file an affidavit indicating the implementation of the orders passed by this Court, as well as the High Court, by the next date of hearing.”

Similar direction was passed for the High Court of Kerala where the state government claimed that it was cooperating with the high court in execution of warrants. The court directed the counsel for the high court to furnish a list of such cases to the Chief Secretary/ Director General of Police and directed Kerala government to file a report to that regard by next hearing.

The High Court of Karnataka has been directed to file an affidavit regarding the sufficiency of the designated Special Court to deal with the pending cases as also the status of the stays granted in these cases.

The court also stated that it will consider the remainder of the suggestions made by the amicus on the next date of hearing which is set after three weeks.

What it means for Witness protection

As rightly pointed out by the amicus Curiae, there are certain loopholes in the implementation of the Witness Protection Scheme. As per the Scheme, as laid out in Mahender Chawla & Ors. Vs. Union of India, in order to receive protection, an application in prescribed form is required to be made to the competent Authority (Standing Committee in each District chaired by District and Sessions Judge) which then calls for a Threat Analysis report from the ACP/DSP of the concerned police division. The report categorises threat protection (as per the three categories, ‘A’, ‘B’, and ‘C’) and suggests protection measures. The application is to be disposed of within 5 days of receipt of said report and the order thus passed is to be implemented by the Witness Protection Cell which is also set up under this scheme.

The scheme specifies that the protection should be proportionate to the threat and should be granted for 3 months at a time. The measures may include, inter alia, temporary change of residence, phone number, and escort to and from court, in camera trials, concealment of identity of witness and so on.

It is clear that submission of the application was sort of a prerequisite for receiving witness protection which meant that it had to voluntarily come from the witness’ counsel. The court having waived off the need to file such an application is a major leap towards normalcy of this practice that is yet to find its roots in the criminal justice system. There is no denying that our criminal justice system is in dire need of a usual practice of protecting the witness, especially in cases where the accused is someone placed at a higher level of social hierarchy or someone in a dominant position of power.

This direction of the apex court has now placed the ball in the court of law. It pushes trial courts to grant protection to witness, without the witness having to ask for it. Naturally, all that is needed now is for trial courts to take it upon themselves, and follow through this legally sound practice to steer criminal jurisprudence in the right direction that will ensure justice, in the truest sense of the word.

The Supreme Court order may be read here.

Related:

Witness Protection in India: an idea gathering dust
CRPF to provide protection to victims family in Hathras case: SC
Unnao accident witness claims murder bid on self

The post Cases against legislators: SC asks trial courts to grant witness protection without application appeared first on SabrangIndia.

One expects that after having waited for years for a law to be passed, the troubles caused by its absence will simply go away. That is, however, does not happen as the devil lies in the implementation. The lack of both awareness and application of the Witness Protection Scheme, 2018 is surely one of the reasons where the country over, witnesses –especially from the most marginalised sections –are still subject to threat to their lives and destruction of their property.

An English philosopher Jeremy Bentham is oft quoted on the subject, “Witnesses are the eyes and ears of justice.” In yet another shocking incident of its kind, two Dalit witnesses were brutally assaulted by the accused in a criminal case. The incident was caught on camera and it took place in Mainpuri, Uttar Pradesh. They had taken refuge in a nearby village apprehending such an attack. After suffering severe injuries and even filing a complaint, no arrests have yet been made.

Although the 2018 Witness Protection Scheme has been around for close to a year now, on the ground, India’s criminal justice system continues to reel without its implementation.
 

CJP and Witness Protection, the long battle

The Citizens for Justice and Peace (CJP) has been actively pushing for a witness protection programme/scheme since its direct involvement with legal aid for the Victim Survivors of the Gujarat 2002 pogrom. In Witness Protection A Pre-requisite to a Healthy Criminal Justice System, secretary CJP, Teesta Setalvad, argues that

“That the Indian Criminal Justice System suffers from multiple sores, affecting the deliverance of justice has been acknowledged by all. While large numbers of pending cases and delays are the simplest manifestations of this malaise, broken down, case by case, trial by trial there are four areas that need citizen’s attention and campaigns for reform. CJP has centered its initiatives in correcting these maladies. Without a sustained and robust campaign the system, with vested interests will not allow correction.

Time bound trials, Independent Investigation, Witness Protection and Independent Prosecution are these four areas.

After 67 years of a constitutionally driven Criminal Justice System, indicators about the state of the rule of law, a vital ingredient in a democracy, are frightening:

• Criminal Trials take an average of 10-15 years to reach completion
• Convictions are as low as 4 per cent, in mass crimes, and about 33 per cent in individual crimes
• In over 70 per cent of our cases witnesses turn hostile

In 95 per cent of the cases where the criminal cases fall flat because of the malady of the witnesses turning hostile, the State does not play a positive role, remains passive, and does not appeal the acquittal. The state in fact does little or nothing to reassure the witness and provide adequate security cover. Therefore a disturbing trend that has come to light is that the state has become the major defaulter in the failure of the rule of law.

Justice M Jagannadha Rao had expressed his views on the subject in an article published on Sabrangindia in 2005,

“The victim of a crime is an important player in the administration of justice both as a complainant/informant and as a witness for the prosecution/state….Without the victim’s active support, the investigation of a crime may not come to a logical end….But despite being an important component of the criminal justice system, much attention has not been paid to the rights of victims.”

He identified two important aspects in terms of witness protection; first was to ensure that the witness does not turn hostile which can be done by protecting the identity of the witness and the second is to protect the physical and mental vulnerability of the witness by providing physical protection to the witness, so he or she does not feel threatened.

A very critical case in which witness protection was identified to be a critical aspect of the administration of public justice was the one of the Gujarat 2002 related criminal trials, the Naroda Patiya massacre case. In 2011, the Special Trial Court directed the Special Investigation team (SIT) to provide more protection to 6 witnesses in the case after receiving an application from them to that regard and also because one important witness in the case, Nadeem Saiyed was killed in broad daylight by unidentified persons.

In fact, in pioneering orders from the Supreme Court in the matter (NHRC v/s State of Gujarat (2010), 15 SCC 22) and those of 2004, human rights defenders, Teesta Setalvad, over 600 witness survivors were accorded witness protection by the CISF that continues to this day.

Witnesses turn hostile in a high number of criminal cases. The experiences of the Best Bakery Case (Zahira Habibullah Shaikh v/s State of Gujarat, 2004), the Sakshi case, (Sakshi v/s Union of India, 2004)  and the Domestic Working Women’s Case (Delhi Domestic Working Women’s Forum v/s Union of India, 1995) have all pointed to the need for urgent witness protection. The experiences in all these cases show that only when non state players, citizens, back witnesses that the struggle for justice become meaningful and in some degree successful. It is only in such situations that witnesses have found the courage to speak out. CJP’s complete stance and its analysis of witness protection, before the witness protection scheme of 2018 came into being, can be read here.
 

The Supreme Court’s on Witness Protection

The need for witness protection has been highlighted in many judgments of the Supreme Court, specially cases like Sakshi v. Union of India where the court took extra ordinary measures to ensure protection of the witness:

“The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witness do not have to undergo the trauma of seeing the body or face of the accused.”

The problem of witness turning turning hostile was highlighted by the Supreme Court in Zahira Habibullah Sheikh v. State of Gujarat[1]:

“If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors, like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by the court on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface.… Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of the State represented by their prosecuting agencies do not suffer.… There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that the ultimate truth presented before the court and justice triumphs and that the trial is not reduced to a mockery”

The Court also highlighted the role of the state in protecting witnesses in criminal cases where parties involved are powerful in terms of money and political patronage:

“As a protector of its citizens it has to ensure that during a trial in court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like caste, creed, religion, political belief or ideology.”

There are several other such judgments of the Supreme Court where the State’s role in protecting its witnesses has been emphasised. It is this growing body of jurisprudence that led, ultimately to the Witness Protection Scheme 2018 coming into being. This was a case where the witnesses in the Asaram rape case had petitioned the court seeking protection. This Scheme was drafted with the inputs from 18 States/UTs and the Central Ministry of Home Affairs. Although criminal intimidation of witnesses was made a criminal offence under section 195 A of the Indian Penal Code in 2006, no formal structure had, until then, been established for protection of witnesses per se.
 

Adverse impact of lack of Witness Protection

The lack of witness protection over the years has led to many a case where the culprits have gotten away and one such controversial case was the infamous Sohrabuddin case in which over 90 witnesses had turned hostile because the accused in the case were people with strong political backgrounds and that included the current Union Home Minister, Amit Shah.

Another case which is sub judice presently, is the Pehlu Khan lynching case and in one incident in September 2019, a vehicle carrying the lawyer, Pehlu Khan’s sons and other witnesses was attacked by men in an unmarked vehicle while on their way to the Court to depose in the case. A letter was then written to DGP and IGP of Rajasthan by the People’s Union for Civil Liberties with the support of CJP requesting provision of witness protection to the witnesses in the case as there was evident apprehension of imminent threat but the same did not elicit action.

The Judgment that laid out India’s Witness Protection Scheme

The 14th Law Commission Report (1996-97) was first such report to focus on the issue of witness protection. The most instrumental piece of law in witness protection remains the case of Mahender Chawla & Ors. Vs. Union of India & Ors. [Writ Petition (Criminal) No. 156 of 2016]. The Witness Protection Scheme laid out in the said judgement, as per Article 141/142 of the Constitution of India, is binding on all Courts within the territory of India and enforceable in all States and Union Territories; this was endorsed by the government in the Rajya Sabha in July 2019.

Some key observations made by the Supreme Court in this landmark judgment are noted below:

“Whenever, in a dispute, the two sides come out with conflicting version, the witnesses become important tool to arrive at right conclusions, thereby advancing justice in a matter.”

“In the words of Whittaker Chambers, a witness is “a man whose life and faith are so completely one that when the challenge comes to step out and testify for his faith, he does so, disregarding all risks, accepting all consequences.”

“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 and/or testify in courts.”

“The present legal system takes witnesses completely for granted. They are summoned to court regardless of their financial and personal conditions. Many times they are made to appear long after the incident of the alleged crime, which significantly hampers their ability to recall necessary details at the time of actual crime. They are not even suitably remunerated for the loss of time and the expenditure towards conveyance etc.”

“It hardly needs to be emphasised that one of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State”

The Court, while quoting from a judgment in Swaran Singh v. State of Punjab[2]  emphasized upon and reiterated several hardships that witnesses have to undergo in criminal cases like how the witness is not given any respect by the court, there is no proper place assigned for them to wait until the hearing begins, during the trial the witness is subjected to prolong stretched examinations and cross examinations

The court rightly observed that criminal justice is closely associated with human rights.

“Whereas, on the one hand, it is to be ensured that no innocent person is convicted and thereby deprived of his liberty, it is of equal importance to ensure, on the other hand, that victims of crime get justice by punishing the offender. In this whole process, protection of witnesses assumes significance to enable them to depose fearlessly and truthfully. That would also ensure fair trial as well, which is another concomitant of the rule of law.”

The Court also interpreted Article 21 of the Constitution as follows:

“If one is unable to testify in courts due to threats or other pressures, then it is a clear violation of Article 21 of the Constitution. The right to life guaranteed to the people of this country also includes in its fold the right to live in a society, which is free from crime and fear and right of witnesses to testify in courts without fear or pressure. “
 

The provisions of the scheme, in brief

In order to receive protection, an application in prescribed form is required to be made to the competent Authority (Standing Committee in each District chaired by District and Sessions Judge) which then calls for a Threat Analysis report from the ACP/DSP of the concerned police division. The report categorizes threat protection (as per the three categories, ‘A’, ‘B’, and ‘C’) and suggest protection measure. The application is to be disposed of within 5 days of receipt of said report and the order thus passed is to be implemented by the Witness Protection Cell which is also set up under this scheme.

The scheme specifies that the protection should be proportionate to the threat and should be granted for 3 months at a time. The measures may include, inter alia, temporary change of residence, phone number, and escort to and from court, in camera trials, concealment of identity of witness and so on.

The complete judgment can be read here.

Coming back

The Witness Protection Scheme has been around for about 11 months now but it is not clear whether litigants and lawyers are at all aware of its provisions and even if they are whether it is taken seriously enough to be used by lawyers in their respective cases. In the case that was highlighted in the beginning, of the two Dalit witnesses being assaulted by the accused in a case where they were charged under the SC/ST Act [The Scheduled Castes and The Scheduled Tribes (Prevention Of Atrocities) Act], had they been provided with protection under the scheme, they would have been probably saved from the attack.

Related:

Assault on Dalits for deposing as witnesses in court in Uttar Pradesh’s Mainpuri

Witness protection

After Nadeem’s murder, court orders more security for Naroda witnesses

Witness Protection Scheme

Pehlu Khan’s Sons, Lawyer and two Case Witnesses attacked!

Lack of Witnesses Protection Derailing Justice in Sohrabuddin case?

The post Witness Protection in India: an idea gathering dust appeared first on SabrangIndia.

Flagging, yet again, the crucial issue of witness protection to ensure substantive justice, the Supreme Court has exhorted governments to be pro-active on the issue of witness protection, PTI reports.

The State needs to play a definite role in coming out with witness-protection programme, at least in sensitive cases involving those having political patronage, muscle and money power so that trial does not get "tainted and derailed", the Supreme Court has said. Observing that threat and intimidation were major causes for witnesses turning hostile, it said when the witnesses are not able to depose correctly before the court, it results in low conviction rate and many times even hardened criminals escape the conviction."It shakes public confidence in the criminal justice delivery system," a bench of justices A K Sikri and Amitava Roy said.

"It is for this reason there has been a lot of discussion on witness protection and from various quarters demand is made for the state to play a definite role in coming out with witness-protection programme, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty," it said.

The bench noted in its verdict that it has become a common phenomenon and almost a regular feature that in criminal cases witnesses turn hostile.

The court's observation came while dismissing an appeal filed by four persons, who were convicted by the Punjab and Haryana High Court for the offences of murder and subjecting a married woman to cruelty. They were initially acquitted by a trial court but the high court had overturned the judgement and convicted them while relying on the dying declaration of the woman, who was set ablaze by the accused persons in 1999.

The husband and in-laws of the deceased woman had moved the apex court challenging the high court's judgement, saying there was no reason to rely on the dying declaration as there were certain infirmities in it. Police had registered the case against them based on the statement given by the woman, who was admitted to a hospital with 100 per cent burn injuries and had died during treatment.

Witness Protection, the Real Issue
The issue of witness protection has been high-lighted most recently in the cases related to the 2002 Gujarat genocidal killings. The famed Best Bakery Case, in which the  Supreme Court intervened and transferred the case out of Gujarat as also ordered re-trial of the case in Mumbai, the Court had flagged the issue critically.  Thereafter the Prevention of Communal and Targeted Violence Bill, 2011—an aborted promise of the UPA Government made in the Common Minimum Programme(CMP) of 2004- also specifically introduced victimology and witness protection as a statutory responsibility of the state.
 
In November 2005, then chairperson of the Law Commission, Justice M Jagannadha Rao had in his keynote address at a national conference in the capital, detailed the rights, needs and benefits of witnesses required to ensure effective victim testimony.
 
In this keynote address that may be read here he had said that:

“The victim of a crime is an important player in the administration of justice both as a complainant/informant and as a witness for the prosecution/state. His or her role is vital both at the stage of investigation and at the trial stage. Without the victim’s active support, the investigation of a crime may not come to a logical end. At the same time, the victim’s testimony in court, especially if the crime is a violent one, can be said to be the best piece of evidence that can be used against the accused. But despite being an important component of the criminal justice system, much attention has not been paid to the rights of victims.

“The word ‘victim’ has not been defined either in the Indian Penal Code (IPC) or in the Code of Criminal Procedure, 1973 (CrPC). The General Assembly of the United Nations in its 96th plenary meeting on November 29, 1985 made a Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. The declaration defines victims as "persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are violations of criminal laws operative within member states, including those laws prescribing criminal abuse of power".

“We can say that the word ‘victim’ means the person or persons who have suffered physical, financial, social or psychological harm as a result of an offence and in some cases it includes an appropriate member of the immediate family of such a person."

Judicial Precedents
There have been significant judicial pronouncements on Witness Protection by the Supreme Court and yet little has been done by successive governments to ensure an effective and sensitive Witness Protection Programme.
For example,

The Supreme Court of India in Zahira Habibulla Sheikh vs State of Gujarat, 2004 (4 SCC 158) has stated the importance of victims in the following words:
"Right from the inception of (the) judicial system it has been accepted that discovery, vindication and establishment of truth is the main accepted underlying existence of courts of justice. The operating principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of (the) victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences".

The Supreme Court of India in Gaurav Jain vs Union of India (AIR 1997 SC 3021) gave various directions for the rehabilitation and other welfare of victims of such crimes. The Court said that three C’s, viz. counselling, cajoling by persuasion and coercion as the last resort are necessary for effective enforcement of rescue and rehabilitation of the victims of such trafficking. The Immoral Traffic (Prevention) Act, 1956 and the Juvenile Justice (Care and Protection of Children) Act, 2000 deal with these aspects.

The apex court in Vishal Jeet vs Union of India (AIR 1990 SC 1412) had also issued directions on the subject.
The Supreme Court in State of Punjab vs Gurmit Singh,1996 (2 SCC 384) while dealing with a case of rape has said, "The courts should, as far as possible, avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim of (a) sex crime. The anonymity of the victim of the crime must be maintained, as far as possible, throughout". Though in some cases the identity of the victim is known to the accused, this is not so in all cases. Where the identity and all details of the victim are not known to the accused, maintaining anonymity would be quite helpful.[[ Anonymity of victim – Names and addresses of victims may be kept secret in criminal proceedings. Even in supplying copies of charge sheets to the accused, the identity of victims may be withheld.]]

In Delhi Domestic Working Women’s Forum vs Union of India, 1995 (1 SCC 14), the Supreme Court while indicating the broad parameters that can assist the victims of rape, emphasised that in all rape trials ‘anonymity’ of the victims must be maintained as far as necessary so that the name is shielded from the media and public. The court also observed that the victims invariably find the trial of an offence of rape a traumatic experience. The experience of giving evidence in court has been negative and destructive and the victims often expressed that they considered the ordeal of facing cross-examination in the criminal trial to be even worse than the rape itself.

Section 13 of TADA, the Terrorist and Disruptive Activities (Prevention) Act, 1987 and Section 30 of POTA, the Prevention of Terrorism Act, 2002 (now repealed) provides that the court may take such measures as it deems fit to keep the identity and address of witnesses secret.

Despite these consistent and repeated judicial pronouncements, across the political spectrum—despite different parties with ideological variants being in power—restoration of faith in the criminal justice system, is obviously a low priority for all. Regardless of where and on which side you claim to be on the ideological metre.

The post Yet Again, the Supreme Court Raps the Indian State on Witness Protection, But Is Anyone Listening appeared first on SabrangIndia.

The victim of a crime is an important player in the administration of justice both as a complainant/informant and as a witness for the prosecution/state. His or her role is vital both at the stage of investigation and at the trial stage. Without the victim’s active support, the investigation of a crime may not come to a logical end. At the same time, the victim’s testimony in court, especially if the crime is a violent one, can be said to be the best piece of evidence that can be used against the accused. But despite being an important component of the criminal justice system, much attention has not been paid to the rights of victims.

The word ‘victim’ has not been defined either in the Indian Penal Code (IPC) or in the Code of Criminal Procedure, 1973 (CrPC). The General Assembly of the United Nations in its 96th plenary meeting on November 29, 1985 made a Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. The declaration defines victims as "persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are violations of criminal laws operative within member states, including those laws prescribing criminal abuse of power".

We can say that the word ‘victim’ means the person or persons who have suffered physical, financial, social or psychological harm as a result of an offence and in some cases it includes an appropriate member of the immediate family of such a person.
The UN General Assembly affirmed the necessity of adopting national and international norms in order to secure universal and effective recognition of and respect for the rights of victims of crimes and victims of abuse of power. It was also declared that offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependents. This declaration has been described as a "kind of Magna Carta of the rights of victims" worldwide. The declaration recognised the following rights of victims of crime:

(i) Access to justice and fair treatment – This right includes the mechanisms of justice and to prompt redress, right to be informed of victim’s rights, right to proper assistance throughout the legal process and right to protection of privacy and safety.

(ii) Restitution – This right includes return of property for the harm or loss suffered; where public officials or other agents have violated criminal laws, the victims should receive restitution from the state.

(iii) Compensation – When compensation is not fully available from the offender or other sources, the state should provide financial compensation, at least in violent crimes which result in bodily injury, for which national funds should be established.

(iv) Assistance – Victims should receive necessary material, medical, psychological and social assistance through governmental, voluntary and community-based means. Police, justice, health and social service personnel should receive training in this regard.

In Europe, the Convention on the Compensation of Victims of Violent Crimes incorporates the essential rights of victims as stipulated in the UN declaration. The Council of Europe has recommended the revamping of criminal justice incorporating victim’s rights in every stage of criminal proceedings. Following this recommendation, many states in Europe and elsewhere enacted laws aimed at providing increased participation and more substantive rights to victims of crime. For example, the Criminal Injuries Compensation Act, 1995 of the UK, the Victims of Crime Assistance Act, 1996 of Victoria, the Victim and Witness Protection Act, 1982 of the USA, the Victims’ Rights and Restitution Act, 1990 of the USA, are in this category.

In an informative report on "Criminal Justice: The Way Ahead" presented to the British Parliament (February 2001) the UK home department made the following recommendation for criminal justice reform:
"We will put the needs of victims and witnesses at the heart of the criminal justice system and ensure they see justice done more often and more quickly. We will support and inform them, and empower them to give them best evidence in the most secure environment possible".

The Supreme Court of India in Zahira Habibulla Sheikh vs State of Gujarat, 2004 (4 SCC 158) has stated the importance of victims in the following words:
"Right from the inception of (the) judicial system it has been accepted that discovery, vindication and establishment of truth is the main accepted underlying existence of courts of justice. The operating principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of (the) victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences".

(This) conference is mainly focused on victim/witness protection and on the care and support for victims of trafficking and other forms of violence. The term ‘trafficking’ is used to describe activities in which women and children are forced into exploitative situations. In the USA, the Trafficking Victims Protection Act came into force in October 2000, which provides the tools to combat trafficking in persons both worldwide and within the country.

The Supreme Court of India in Gaurav Jain vs Union of India (AIR 1997 SC 3021) gave various directions for the rehabilitation and other welfare of victims of such crimes. The Court said that three C’s, viz. counselling, cajoling by persuasion and coercion as the last resort are necessary for effective enforcement of rescue and rehabilitation of the victims of such trafficking. The Immoral Traffic (Prevention) Act, 1956 and the Juvenile Justice (Care and Protection of Children) Act, 2000 deal with these aspects. The apex court in Vishal Jeet vs Union of India (AIR 1990 SC 1412) had also issued directions on the subject.

However, though these victims are more vulnerable, I would like to speak about victim protection generally.

As stated earlier, every victim is an important witness. "Witnesses," as Bentham said, "are the eyes and ears of justice." If a witness/victim himself is incapacitated from acting as the eyes and ears of justice, the trial gets putrefied and paralysed, and can no longer constitute a fair trial. The incapacitation may be due to several factors, such as the witness/victim not being in a position to speak the truth in court for reasons beyond the control of the witness/victim or due to negligence or ignorance or some corrupt collusion.

In respect of rights that are required to ensure effective victim testimony, there are two important aspects. The first is to ensure that evidence or the statement of a victim that has already been recorded at the stage of investigation is not allowed to be destroyed by the victim resiling from his or her statement while deposing on oath before a court. This phenomenon, of victims turning ‘hostile’ on account of the failure to protect the victim, is one aspect of the problem. It requires that the identity of the victim in some cases be kept secret and anonymity be given. The second aspect is the physical and mental vulnerability of the victim and taking care of his or her welfare in various respects, which call for physical protection of the victim at all stages of the criminal justice process till the conclusion of the case.

A Victims’ Identity Protection and Victims’ Protection Programme are the need of the hour. In order to provide effective Witness Identity Protection and Witness Protection Programmes, the Law Commission of India has circulated an exhaustive consultation paper on the subject including a questionnaire. I am very happy to inform you that this consultation paper has been appreciated not only in India but abroad as well. The commission has received a large number of responses from a cross section of society, viz. judges of the higher and subordinate judiciary, state governments, director generals and inspector generals of police, lawyers, various international and national organisations and individuals.

As I stated earlier, since the testimony of the victim is a very important piece of evidence in the criminal trial, it is essential that the victim should be able to give his or her testimony in court freely and without any fear or pressure. In many cases victims even turn hostile due to threats or pressure from the offender or his associates. In certain cases the victim feels uncomfortable about giving answers in the immediate presence of the offender. In order to facilitate the victim giving his or her testimony in
court freely and without any fear or pressure, it is necessary that the victim is provided certain protections and rights. These may include the following:
(i) Anonymity of victim – Names and addresses of victims may be kept secret in criminal proceedings. Even in supplying copies of charge sheets to the accused, the identity of victims may be withheld. The Supreme Court in State of Punjab vs Gurmit Singh,1996 (2 SCC 384) while dealing with a case of rape has said, "The courts should, as far as possible, avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim of (a) sex crime. The anonymity of the victim of the crime must be maintained, as far as possible, throughout". Though in some cases the identity of the victim is known to the accused, this is not so in all cases. Where the identity and all details of the victim are not known to the accused, maintaining anonymity would be quite helpful.

In Delhi Domestic Working Women’s Forum vs Union of India, 1995 (1 SCC 14), the Supreme Court while indicating the broad parameters that can assist the victims of rape, emphasised that in all rape trials ‘anonymity’ of the victims must be maintained as far as necessary so that the name is shielded from the media and public. The court also observed that the victims invariably find the trial of an offence of rape a traumatic experience. The experience of giving evidence in court has been negative and destructive and the victims often expressed that they considered the ordeal of facing cross-examination in the criminal trial to be even worse than the rape itself.

Section 13 of TADA, the Terrorist and Disruptive Activities (Prevention) Act, 1987 and Section 30 of POTA, the Prevention of Terrorism Act, 2002 (now repealed) provides that the court may take such measures as it deems fit to keep the identity and address of witnesses secret.

The New Zealand Evidence Act of 1908 contains detailed provisions regarding the maintenance of anonymity of victims and witnesses.

In the UK, the power of the court to withhold the name of the victim/witness in a criminal trial is treated as inherent in the court. Section 11 of the UK Contempt of Court Act, 1981 provides that the court may give directions to prohibit the publication of names or other matter in connection with the proceedings. In R. vs Murphy, 1989 it was held that the identity of the witness should be kept secret not only from the accused but also from the defence lawyer.

In Canada, anonymity of witnesses/victims is treated as a privilege granted under common law. The European Court of Human Rights has in Kostovski (1990), Doorson (1996), Fitt (2000) and Visser (2002) recognised the need to protect the identity of witnesses/victims.

(ii) Trial of sexual offences in camera – Section 327 of the CrPC provides that the trial of certain sexual offences shall be conducted in camera. If a trial is conducted in camera, it would help the victim to give her testimony comfortably. The presence of the public and the media produces a sense of shyness in the mind of the victim and she may not give testimony freely. The Supreme Court in the Gurmit Singh case said that if the witness or victim is protected it "would enable the victims of crimes to be a little comfortable and answer the questions with greater ease in not too familiar surroundings. Trial in camera would not only be in keeping with the self-respect of the victim of (the) crime and in tune with legislative intent but is also likely to improve the quality of evidence of a prosecutrix because she would not be so hesitant or bashful to depose frankly as she may be in open court, under the gaze of (the) public. The improved quality of her evidence would assist the courts in arriving at the truth and sifting truth from falsehood". In view of Section 327 of the CrPC and the direction of the apex court, a victim of a sexual offence has a right that trial be held in camera.

Section 13 of TADA and Section 30 of POTA provide that proceedings under these Acts shall be held in camera.

Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms speaks not only of the right to ‘open justice’ but also of the need for exceptions in the interests of morals, public order, national security and protecting the privacy of juveniles and others where publicity could otherwise prejudice the interests of justice.

Following the ruling of the European Court of Human Rights in Chahal vs UK, the Special Immigration Appeals Commission Act, 1997 and the Northern Ireland Act, 1998 have been enacted which provide for courts to sit in camera where it was necessary on national security grounds and for appointing special counsel to represent individuals in those proceedings. Section 153 of the South African Code of Criminal Procedure permits criminal proceedings to be held in camera to protect privacy of witnesses.

(iii) Use of screen while recording of statement of victim – In many cases, especially cases relating to women and children, victims are hesitant to speak freely in the presence of offenders. Section 273 of the CrPC provides that trials should be conducted in the presence of the accused. In this regard the Law Commission in its 172nd Report (2000) has recommended the insertion of a proviso below Section 273 to the effect that where the evidence of a person below 16 years who is alleged to have been subjected to sexual assault is to be recorded, the court may take appropriate measures to ensure that such a person is not confronted by the accused. Recently the Supreme Court of India considered the abovementioned recommendation of the
Law Commission in Sakshi vs Union of India, 2004 (6 SCALE 15). The observations that the Supreme Court made in this case are worth recalling. The court observed:
"The whole inquiry before a Court being to elicit the truth, it is absolutely necessary that the victim or the witnesses are able to depose about the entire incident in a free atmosphere without any embarrassment… The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witness do not have to undergo the trauma of seeing the body or face of the accused" (emphasis supplied).

The use of a screen as suggested by the Law Commission and also recommended by the Supreme Court would make it comfortable to the victim to testify in court where he or she may not confront the accused directly.

It is proper practice in criminal trials in the UK where children give evidence about sexual abuse to allow a screen to be erected between the witness and the defendant. If a defendant in person seeks to dominate, intimidate or humiliate a complainant, or should it be reasonably apprehended that he will do so, a screen can be erected. Sections 16 to 33 of the Youth Justice and Criminal Evidence Act, 1999 require the court to consider special measures of various kinds for protection of vulnerable and intimidated witnesses.

(iv) Recording of statement through video conferencing – There is another method by which a victim may avoid direct confrontation with the accused while giving testimony. That is recording through video conferencing. Recording of evidence by way of video conferencing has been held to be permissible in a recent decision of the Supreme Court in State of Maharashtra vs Dr Praful B. Desai, 2003 (4 SCC 601). When a statement is recorded through this method, the victim would feel more comfortable and will give answers without any fear or pressure. Portuguese legislation (Act No. 93/99) of July 14, 1999 contains very exhaustive provisions regarding this aspect.

In the UK, video recorded evidence is admissible in certain cases: (a) an offence which involves an assault on or injury or threat of injury to a person (b) an offence of cruelty to persons under the age of 16 years (c) offences under the Sexual Offences Act, 1956 and 1967, Indecency with Children Act, 1960, Protection of Children Act, 1978, etc.

(v) Cross-examination through questions handed over by the defence to the judge – Victims often feel embarrassment due to the questions put by the defence counsel during cross-examination. A suggestion has been made that in some cases, instead of directly putting questions to the witness by the defence counsel, a set of questions may be handed over to the judge by the defence in advance. And the judge may ask these questions to the victim or other witnesses. The Supreme Court in the Sakshi case has stated, "often the questions put in cross-examination are purposely designed to embarrass or confuse the victim of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused. It will therefore be better if the questions to be put by accused in cross-examination are given in writing to the presiding officer of the court, who may put the same to the victim or witnesses in a language which is not embarrassing". The Law Commission in its questionnaire has posed a question as to whether it be kept in mind that the right of the accused to cross-examine a witness effectively will not be jeopardised, as this is part of a "fair trial" as guaranteed and recognised under Article 21 of the Constitution.

(vi) Change in venue of trial – In certain circumstances, the venue of the trial may be shifted if the witnesses or victims are not in a position to depose freely due to various reasons. The Supreme Court in Zahira Sheikh’s case ordered a shift in the venue of the trial from Gujarat to Maharashtra. There are other instances as well. The Code of Criminal Procedure, 1973 contains provisions (Section 406, 407) in respect of transfer of cases. It has been done in cases in the UK and Northern Ireland also.
(vii) Providing physical and other protection to victims/witnesses – If required, victims/witnesses may be provided with physical and other protection. To provide such protection, witness/victim protection programmes may be established. Under such a programme, various protections such as police protection to victims and family members, providing new places for residence, monetary support, transport facilities and other facilities may be provided. The Law Commission in its consultation paper has discussed this aspect in detail, along with the schemes prevalent in various countries.

Article 24 of the United Nations Convention against Transnational Organised Crime contains provisions for witness protection.

In Australia, the Parliament of Victoria has enacted the Witness Protection Act, 1991, which contains provisions regarding a witness protection programme. For the Australian Capital Territory a separate legislation, namely, the Witness Protection Act, 1996 is in force. In Queensland, the Witness Protection Act, 2000 is in force.

In South Africa, the Witness Protection Act, 1998 is applicable for the purpose of protection of witnesses.

In Hong Kong, the witness protection programme was established under the Witness Protection Ordinance of 2000. In Canada, the Witness Protection Programme Act, 1996 has been enacted.

Portuguese legislation (Act No. 93/99) deals with the provisions governing the enforcement of measures on the protection of witnesses in criminal proceedings where their lives or physical or mental integrity, freedom or property are in danger.
In the USA, the Victim and Witness Protection Act of 1982 contains several provisions to aid victims and witnesses of federal crimes.

(viii) Compensation to victims – In India, Section 357 of the Code of Criminal Procedure, 1973 provides for order to pay compensation to the victims of crimes. The Law Commission of India in its 142nd and 154th Reports has recommended the insertion of a new section in the code for a Victim Compensation Scheme. Provisions for compensation to victims are specified in many countries.

(ix) The Indian Evidence (Amendment) Act, 2002 has inserted a proviso below sub-section (3) of Section 146 of the Evidence Act, 1872 thereby giving protection to a victim of rape from unnecessary questioning about her past character. The Law Commission in its 185th Report (2003) recommended the insertion of a broader provision by way of a new sub-section (4) in Section 146.

The Code of Criminal Procedure (Amendment) Act, 2005 has inserted a new Section 164A in the CrPC for medical examination of a victim of rape by a registered medical practitioner employed in a hospital run by the government or local authority.

(Justice M. Jagannadha Rao is the chairman, Law Commission of India. This paper was presented as the keynote address at a recent National Consultation on the Protection of Victims of Trafficking and other Forms of Violence, November 19, 2005.)

Archive from Comunalism Combat, December 2005

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