Witness Protection in India

  • Category
    Polity & Governance
  • Published
    27th Aug, 2019

Issue

Context

The recent accident in Rae Bareli in which a rape survivor’s two aunts died, and which left her and her lawyer in a critical condition, has drawn much media attention.

Background

  • Jeremy Bentham has said that “Witnesses are the eyes and ears of justice.” In cases involving influential people, witnesses turn hostile because of threat to life and property.
  • Witnesses find that there is no legal obligation by the state for extending any security.
  • Moreover, in recent years organized crime has grown and is becoming stronger and more diverse.
  • In the investigation and prosecution of crime, particularly the more serious and complex forms of organized crime, it is essential that witnesses, the cornerstones for successful investigation and prosecution, have trust in criminal justice system.
  • First ever reference to Witness Protection in India came in 14th Law Commission Report in 1958.
  • Recent instance of failure of Witness Protection
    • Recently, two aunts, one of whom was also a witness in the Unnao Rape case, died in a car accident. This is being considered as an attempt to murder by the prime accused in the case
    • In June 2019, an assistant Sub Inspector, who was assigned to protect murder witness, was accidentally killed when the assailants missed their aim while attempting to kill the witness.
    • In 2017, in the Asaram Bapu case concerning the rape of some women devotees, three witnesses were killed and as many as 10 attacked in an attempt to weaken the case.

UNDERSTANDING CRIMINAL JUSTICE SYSTEM OF INDIA

Criminal Justice System (CJS)

  • Criminal Justice refers to the agencies of government charged with enforcing law, adjudicating crime, and correcting criminal conduct. For example: Police, Court of Law, Jail etc.
  • CJS is essentially an instrument of social control: society considers some behaviour so dangerous and destructive that it either strictly controls their occurrence or outlaws them outright.

Objectives of an Efficient Criminal Justice System

  • To prevent the occurrence of crime.
  • To punish the transgressors and the criminals.
  • To rehabilitate the transgressors and the criminals. 
  • To compensate the victims as far as possible.
  • To protect the witness from harassment and undue influences
  • To maintain law and order in the society.
  • To deter the offenders from committing any criminal act in the future.

Some of the major Criminal Laws in India

  1. The Indian Penal Code of 1860
  2. The Protection of Civil Rights Act, 1955
  3. Dowry Prohibition Act, 1961 
  4. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Status of Criminal Justice System in India

  • The criminal law and criminal procedure are in the concurrent list of the seventh schedule of the constitution
  • The Criminal Justice System in India is an age-old system primarily based upon the Penal legal system that was established by the British Rule in India.
  • The system has still not undergone any substantial changes (Section 124A of the Indian Penal Code) to adopt the contemporary changes in the Indian Society 
  • In India only about 16 out of 100 people booked for criminal offences are finally convicted. Low rate of conviction points to the inefficiency of the Criminal Justice System of India
  • The system takes years to bring justice and has ceased to deter criminals. Currently, there are more 2.8 crore cases pending in various courts across India. Justice delayed is justice denied.
  • On the contrary, many innocent people remain as undertrail prisoners as well. As per NCRB data, 71% of our total prison population comprises of undertrials prisoners. (4 lakh total prisoners in Indian Jails)
  • The hierarchy of courts, with appeals after appeals, puts legal justice beyond the reach of the poor.
  • The poor victims of crime are entirely overlooked in misplaced sympathy for the criminal.
  • The recent conflict in the higher officials of the Central Bureau of Investigation (CBI) has damaged the respect of the premier investigation agency of the nation.
  • Poor Criminal Justice System in India is one of the most major reason behind the low success of India’s extradition requests made to other countries. Only 1/3rd of the request made by India are accepted since 2002.
  • After 34 Years, The Supreme Court has finally brought Sajjan Kumar, an accussed in the 1984 Anti-Sikh Riots, to justice by convicting and sentencing him to imprisonment for life for his involvement in the killing on innocent sikh people in the 1984 riots.  

Steps taken by the Government of India to improve the Criminal Justice System in India

  1. The parliament has put in place a Witness Protection Scheme in 2018. Currently, the witness receive life threats from the acussed parties, their time and travel cost in attending the court is seldom taken into account, and there Is little incentive for the witness to turn up in court.
  2. Government is now considering the recommendation of the Malimath Committee, which submitted its report in 2003.
  3. Maharashtra has came out with the Maharashtra Witness and Protection and Security Act 2017, which was notified in January 2018.

Witness Protection Scheme 2018

The scheme was drawn up by:

  • the central government with inputs from 8 states/Union Territories
  • legal services authorities of five states
  • open sources including civil society, three high courts as well as from police personnel
  • The scheme was finalised in consultation with the National Legal Services Authority (NALSA).

Features

  • The important features include identifying categories of threat perceptions and preparation of a ‘Threat Analysis Report’ by the head of the police.
  • Besides, other protective measures include -
    • ensuring that the witness and accused do not come face to face during probe
    • protection of identity
    • change of identity
    • relocation of witness
    • witnesses to be apprised of the scheme
    • confidentiality and preservation of records
    • recovery of expenses, etc
  • Other features include in-camera trial, proximate physical protection and anonymising of testimony and references to witnesses in the records.

Procedure

  • The application for protection will have to be filed before the “Competent Authority” along with supporting documents.
  • The Authority will in turn seek a “Threat Analysis Report” from the ACP/DCP in charge of the police station.
  • The Authority will be required to dispose an application within five days from the date of receipt of Threat Analysis Report.
  • In its report, the police officer must categorise the threat perception and suggest protective measures.
  • The Authority shall interact with the witness and other relevant persons (in person or through electronic means).
  • Proceedings of the Authority will be held in-camera.
  • The Witness Protection Order passed by the Competent Authority shall be implemented by the Witness Protection Cell of the state or UT.
  • The “overall responsibility” for implementing the order lies with the head of the police of the state and Union Territory.
  • If the order is for change of identity or relocation, it shall be implemented by the Home department concerned.
  • The Witness Protection Cell will file a monthly follow-up report to the Authority.
  • It also empowers the Authority to call for a fresh Threat Analysis Report if it feels the need to revise its order.

Significance

The witnesses, being eyes and ears of justice, play an important role in bringing perpetrators of crime to justice. The scheme is the first attempt at the national-level to holistically provide for the protection of the witnesses, which will go a long way in eliminating secondary victimization. This scheme attempts at ensuring that witnesses receive appropriate and adequate protection. It also strengthens the criminal justice system in the country and will consequently enhance national security scenario.

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