A PIL was filed by witness – father of a murdered witness, father of the child rape victim and a journalist who escaped a murder attempt by goons of godman Asaram and his son Narayana Sai and still faces death threats by a jailed sharpshooter of Asaram and Narayan Sai, stating that the prevailing feeling of fear amongst witnesses in the country seriously impairs the right of the people of this country to live in a free society governed by rule of law. 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 right of witnesses to testify in courts without fear or pressure.
The court took this case with great attention and also asked the Ministry of Home Affairs and the Attorney General of India to come up with suggestions. Taking this into accord, the MHA circulated the draft of Witness Protection Scheme, 2018 to all the states in April and resubmitted the summary based on the inputs received from 18 States/Union Territories, 5 States Legal Services Authorities and open sources including civil society, three High Courts as well as from Police personnel and also National Legal Services Authority(NALSA).
The Courts have earlier adopted different means to ensure witness protection, which are as follows:
(a) Publication of evidence of the witness only during the course of the trial and not after- Naresh Shridhar Mirajkar and Others v. State of Maharashtra and Another, 1966 (3) SCR 744
(b) Re-trial allowed due to apprehension and threat to the life of witness- Sunil Kumar Pal v. Phota Sheikh and Other, AIR 1984 SC 1591
(c) The necessity of anonymity for victims in cases of rape- Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14)
(d) Discouraging the practice of obtaining adjournments in cases when the witness is present and accused is absent. State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667
(e) Making threatening of witnesses as a ground for cancellation of bail- Ram Govind Upadhyay v. Sudarshan Singh, II (2002) SLT 587
(f) Cross-examination by video conferencing — This is one of the innovative methods devised, which is specifically helpful to the victims of sexual crimes, particularly, child witnesses who are victims of crime as well.
It also ordered that the States/Union Territories should set up in all the district courts in India, vulnerable witness deposition complexes within a period of one year, with the financial support of Central Government.
- On December 5, 2018, the court allowed the PIL and decreed the bringing into effect of the Witness Protection Scheme, 2018 as ‘law’ under Article 141/142 of the Constitution, till the enactment of suitable Parliamentary and/or State Legislations on the subject.
- The Act goes out of the way to protect the victims- Part II(7)(L) of the Witness Protection Scheme, 2018 provides for usage of specially designed courtroom having special arrangements like live links, one way mirrors, and screens apart from separate passages for witnesses and accused with the option to modify the image of the face of the witness and to modify the audio feed of the witness’s voice, so that he/she is not identified.
- Para 7 of the Scheme provides for various witness protection measures as follows-
(a) Ensuring that witness and accused do not come face to face during investigation or trial;
(b) Monitoring of mail and telephone calls;
(c) The arrangement with the telephone company to change the witness’s telephone number or assign him or her an unlisted telephone number;
(d) Installation of security devices in the witness’s home such as security doors, CCTV, alarms, fencing etc;
(e) Concealment of the identity of the witness by referring to him/her with the changed name or alphabet;
(f) Emergency contact persons for the witness;
(g) Close protection, regular patrolling around the witness’s house;
(h) Temporary change of residence to a relative’s house or a nearby town;
(i) Escort to and from the court and provision of Government vehicle or a State-funded conveyance for the date of hearing;
(j) Holding of in-camera trials;
(k) Allowing a support person to remain present during the recording of statement and deposition;
(l) Usage of specially designed vulnerable witness courtrooms which have special arrangements like live video links, one way mirrors and screens apart from separate passages for witnesses and accused, with option to modify the image of face of the witness and to modify the audio feed of the witness’ voice, so that he/she is not identifiable;
(m) Ensuring expeditious recording of deposition during the trial on day to day basis without adjournments;
(n) Awarding time to time periodical financial aids/grants to the witness from Witness Protection Fund for the purpose of relocation, sustenance or starting a new vocation/profession, if desired;
(o) Any other form of protection measures considered necessary.
- Through the prescribed form submitted to witness deposition complexes, once set up by the State Government, the witnesses now can avail number of services for their protection like- Installation of CCTV’s in their houses, concealment of their identity, never to be brought face to face with accused, request patrolling near their house, relocation, etc.
- The scheme discusses the category of witnesses which has been divided into 3, based on the threats they encounter.
- The hearing of all the witnesses under the witness protection scheme will be made in camera.
- The Scheme envisages creating of witness protection fund from various sources for the enforcement of this scheme.