After years of anticipating a concrete system to safeguard witnesses, the Supreme Court finally approved the draft witness protection plan on December 6, 2018. The first-ever plan is called the Witness Protection Scheme and has been prepared by the government to be implemented in all the states.
As per the SC ruling, the Center, states and Union Territories should enforce the same ‘in letter and spirit’. It will apply across the country except for Jammu and Kashmir, which has its separate constitution, till the time the Parliament transforms the draft into law.
According to the bench headed by Justices A K Sikri and S Abdul Nazeer, the right of witnesses to testify freely in courts should be included in the right to life.
Approving the scheme, the bench stated, “The right to testify in courts in a free and fair manner without any pressure and threat whatsoever is under serious attack today. 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 the right of witnesses to testify in courts without fear or pressure.”
The court added, “It shall be the ‘law’ under Article 141/142 of the Constitution, till the enactment of suitable Parliamentary and/or State Legislations on the subject”.
The bench also made a number of changes to the draft.
This ruling comes in the context of a number of cases of fatal attacks suffered by witnesses in the past. On Thursday’s hearing, the SC deliberated on the petition to seek protection for the witnesses in rape cases that involved Gujarat-based preacher Asaram Bapu.
In 2018, the government had drawn up the previous draft, with inputs from 18 states/union territories, the legal services authorities of five states, three High Courts, and open sources like civil society.
The previous scheme allowed some measures to be undertaken to protect witnesses in criminal cases, ranging from ensuring that they are not exposed to any confrontation with the accused and providing close-proximity protection.
The protective measures also included monitoring of phone calls, e-mails, installation of CCTV cameras in their houses and concealment of their identities.
For exceptional cases, the government can also assist in changing the identity of the witness. “Witnesses are eyes and ears of the court,” the draft protection scheme notes observe.
The scheme will apply to witnesses of three categories, based on the threat perception. The first category includes cases where the threat extends to their life or that of their family members during an investigation, trial or even after that. The second category includes cases where the threat extends to the reputation, the safety, the property of the witness or their family members during the investigation or trial. And, the final category includes the threats that extend to harassment or intimidation of witnesses and their family members.
The court has also directed the states and union territories to establish vulnerable witness deposition complexes or rooms by the end of 2019. This area is to be equipped with facilities to prevent the accused from confronting the witnesses and posing them any threats.
(Edited by Shruti Singhal)