In this blogpost Shipra Prashant, 2nd year, student, UPES Dehradun, writes on why does India need witness protection, what are the laws relating to it and their implementation.
Introduction
When a trial is carried on for the demand of justice, it involves various aspects. The victim and the accused along with their councils are not the only parties to a trial, the witness and the supporting circumstances also play an important role. The decision of the trial is majorly based on the evidence and testimony of witnesses. Due to their important position, they are threatened the most.
Importance of witness
A witness performs a sacred duty of assisting the court to discover the truth and to decide on the guilt or otherwise in the case. The witness being neither the accused nor the victim has no risk in the decision of the court. He performs an important public duty, sacrifices his time and takes the trouble to travel all the way to the court to give evidence.
Threats to the witnesses
A major problem faced by the witness is their safety also the safety of their family members who face danger at different degrees. They are often threatened by the opposite party, and the seriousness of the threat depends on the type of the case and the background of the accused and his family. Many a times crucial witnesses are threatened or injured prior to their testifying in the court.
There have been many infamous cases involving various powerful, influencing people, who have everything in their favour except for the evidence. The witnesses are then threatened and the parties try either to mould witness in their favour or turn them hostile.
Incidents involving threats to witnesses
Vyapam Scam:
In the very famous Vyapam scam, the scam involving massive irregularities and corruption in the Madhya Pradesh Professional Examination Board (MPPEB) or MP Vyavsayik Pareeksha Mandal related to admission in medical colleges and recruitment for various government jobs. After this scam came into the picture, people have seen a number of accused and witnesses relating to this case dying mysteriously, while others have died of severe illness.
In this case, a whistleblower, Prashant Pandey, who exposed this massive recruitment and admission scandal, has urged the CBI to probe the deaths of the witnesses to this case, “There must be a CBI probe. It is not a coincidence that all the accused are dying of one ailment or another. There is something more to it,”
A total of twenty-five witnesses including the son of Madhya Pradesh Governor Ram Naresh Yadav, Shailesh, have died so far in this high profile scam of the Madhya Pradesh Professional Examination Board (MPPEB). [1]
Asaram Bapu Case:
In this case, a saint, who faced two rape charges, is currently in jail. A key witness, 35-year-old Kirpal Singh, who died of his injuries, was shot by unidentified assailants in Shahjahanpur. Before the killing of Kirpal Singh, two witnesses Amrut Prajapati in Gujarat and Akhil Gupta in Uttar Pradesh were killed.
A similar pattern of killing, in all these deaths of the witnesses, is a clear indication that these deaths were not natural or an accident. It is safe to deduce that these attacks are being made mainly to eliminate any sort of evidence to the accused. Yet, nothing has been done for the safety of the witnesses. Father of Late Akhil Gupta requested a probe in the death of the witnesses, by way of a letter to the Prime Minister, the Union Minister and the chief minister of Rajasthan and Gujarat.[2]
The Hit and Run Trial of Salman Khan:
The judgement of the Bombay High Court has been nothing short of a disappointment, the High court declared- not drunk, not driving, not guilty. The case proves to be a testimony that the rich and the famous are governed by different set of rules than the lesser mortals.
The witnesses in this case, have been exploited; killed and corrupted in all of these instances. Ravindra Patil, the only witness who stood by his statement that the Actor was drunk was not considered and the High Court ordered that there was “erroneous application” of Section 33 of Evidence Act (relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated) by the trial court. [3]
Importance of Witness Protection:
In the absence of the laws for the protection of witnesses, justice seems like a farfetched idea. In circumstances where the only source of truth is the witness, law for their protection is strongly required.
Law Commission:
The Law commission has made several attempts to draft a witness protection law and recommended to the Centre stressing its need. The last law panel report was sent to the government in 2006. After the Delhi high court’s direction, the state legal services authority drafted a ‘Delhi Witness Protection Scheme’ but that too has been pending since 2013.
Laws for witness protection:
United States of America:
USA has codified laws for Witnesses protection which clearly state that in the case of severe crimes and organised crimes, Attorney General may provide for the protection of the witnesses or close family members of the victim or a close associate. The guidelines have been laid down in various cases; to assure the health, safety, and welfare of that person, including the psychological well-being and social adjustment of that person, for as long as they require it.
There are provisions and guidelines available to provide temporary security to the witnesses in accordance to the situation. The US Marshal Service provides for security to the witnesses and their dependants. The department provides 24-hour protection to all witnesses while they are in the high-trial environment, including pre-trial conferences, trial testimonials and other court appearances. The US Marshal Service have protected, relocated and given new identities to more than 8,500 witnesses and 9,900 of their family members.[4]
India:
The situation in India in comparison to the USA is rather bleak. The road to safety of the witnesses seems like a tough one. Even the judiciary has raised concerns regarding it.
According to a senior lawyer and Member of Parliament Mr. KTS Tulsi, the rate of conviction in murder cases is 10 per cent, while in rape cases is around 12 per cent”. Further he says that, “These low numbers exist because witnesses are too scared to come to the court… Justice is being severely compromised because of the absence of a programme that protects witnesses.”
In India, presently, there is no legislation that provides the standard operating procedure to ensure the safety of witnesses who feel threatened. At present, a witness who feels threatened has three avenues:
Firstly, a person has the opportunity to approach the local police and ask for protection. Secondly, the witness can file a writ petition in the High Court and ask for a directive to the police to provide protection. Third, the witness can ask the trial court judge to order the police to provide security. But this is a very laborious process because the police only provide protection after carrying an audit of threat perception.[5]
Provisions in India:
Terrorist and Disruptive Activities Act, 1985:
However, there are certain provisions present; our legislature has made provisions to allow the witness to remain anonymous. The first such law was the Terrorist and Disruptive Activities Act, 1985 (commonly known as Tada). This Act states that if the witness desires, the court “may” take steps to keep the “identity and address of the witness secret”, the violation would result in, a fine of Rs 1,000 and punishment of up to one year in the case of violation.
Prevention of Terrorism Act, 2002:
A similar provision was made in the Prevention of Terrorism Act, 2002 (repealed in 2004), and continued in The Unlawful Activities (Prevention) Amendment Act, 2004. The provision for the protection of the identity of the victim and witnesses is also present in the Juvenile Justice Act and in laws that deal with sexual offences.
Drawbacks
But these laws do not take into consideration any possible threat to witness’s family or property. If a member of the family is feeling threatened, there is no procedure or law available for tackling this situation.
The challenge remains in the implementation of the witness protection law. As the Law Commission’s report illustrates, the right of protecting the identity of the witness has to be balanced with other provisions of law. For instance, will a law that conceals the identity of the witness compromise the right of the accused to demand a fair trial, as the accused would want to check the authenticity of the witness?
The Law Commission’s answer is that unlike in some western countries, in India, neither the right to an open public trial nor the right of examination of the prosecution witness in the immediate presence of the accused is absolute. Therefore, where such a dilemma exists, the need for witnesses deposing without fear or intimidation should override the need for an open trial. Therefore, it’s rather difficult to have protection given as extensively as it is provided in the United States.
Absence of Man Power:
There is an absence of adequate manpower in our country According to the home ministry; India has 136 policemen for every 100,000 people, whereas the sanctioned strength is 181 policemen for 100,000 people. As compared to India, developed countries have a much better ratio: Canada has 191, Japan 200, the US 224 and Italy 550.
The number of policemen is less that it is very difficult to put them on duty to protect witnesses. It would cost around Rs 4-5 lakh to guard a man for a year. The state doesn’t have that kind of money to provide protection. [6]
Steps by the government:
However there have been certain steps been taken, the Delhi government has made a beginning with the notification of the Delhi Witness Protection Scheme. The scheme provides for ensuring anonymity of the witness and if the need arises, for changing the identity of the witness. This scheme also provides for installing security cameras and providing escort vehicles to the witness.
Though the scheme is far from the actual legislation that is in need, but it can still be considered as a positive step towards ensuring the safety of the witnesses.
[1] [1] http://indiatoday.intoday.in/story/vyapam-scam-madhya-pradesh-deaths-shivraj-chouhan-probe/1/449441.html
[2] [2] http://www.business-standard.com/article/current-affairs/will-india-be-able-to-protect-its-witnesses-115080101007_1.html
[3] [3] http://indianexpress.com/article/india/india-news-india/salman-khan-verdict-the-witness-who-stood-by-his-statement-till-his-death/
[4] http://www.usmarshals.gov/witsec/
[5] http://www.business-standard.com/article/current-affairs/will-india-be-able-to-protect-its-witnesses-115080101007_1.html
[6] ibid
