India now has a witness protection programme. Indeed, this is a watershed moment for witnesses, who can finally be protected. Yet, the scheme has many potential hurdles to cross.
In 2016, 4 people moved a petition before the Indian Supreme Court. They had witnessed harassment, intimidation, and threats to witnesses related to them in the infamous Asaram Bapu case, which involved rape allegations against a towering Indian preacher. The SC found the issues of witness protection raised in the petition to be serious, and of pan-India importance, and impleaded the remaining states and UTs as respondents. The views of the states and UTs on a witness protection scheme was sought. The Attorney-General was instructed to frame a draft witness protection scheme. Showing uncommon alacrity, the Home Ministry began soon prepared a draft and placed it before the Court. The states and the UTs were asked to furnish comments on it. Further, the Ministry itself opened a public consultation on the draft, and considered comments from the National Legal Services Authority, High Courts, police personnel and civil society. Finally, taking the comments received from all these stakeholders into account, the Ministry framed the final Witness Protection Scheme, 2018 and placed it before the Court.
The Court promptly accepted it. The Scheme is reproduced in full in the judgment of the SC. It came into force on the date of the judgment, December 5, 2018.
Based on the level of threat during investigation, trial, or post-trial, witnesses have been categorised into 3 categories:
- Category A: Where the threat extends to life of witness or his family members.
- Category B: Where the threat extends to the safety, reputation, or property of the witness or his family members.
- Category C: Where the threat is moderate and extends to harassment or intimidation of the witness or his family members, reputation or property.
The Indian States have been directed to set up a State Witness Protection Fund, which shall be the mother goddess feeding the expenditure on the Witness Protection Scheme. Every witness himself, his family members (clearly defined to include only specific relations), his lawyer, and multiple police officers involved in the investigation and imprisonment stage (also clearly defined) have been empowered to file an application for witness protection, preferably to be forwarded through the Prosecutor handling the case. A standard format has been laid down for the application.
All such applications are to be considered by a Competent Authority to be set up in every district. The entire process is required to take place in private, and must be completed within 10 days of a request reaching the Authority. In the meanwhile, while processing the request, the Authority may order interim witness protection measures if a threat is imminent. Lastly, but most importantly, everyone involved in the entire process is sworn to secrecy. The investigating officer and the courts are required to acquaint witnesses with this scheme.
Witnesses in India are indeed a tired, pathetic lot. It is an open secret that many of them have to bear the brunt of every possible imaginable coercive tactic to silence them or make them go turncoat. Harassment, threats, bribes, attacks on one’s body, property and family are not uncommon. Even attempts on their life are not unheard of. The more powerful the accused the witness is testifying against, the more the danger of falling prey to some or all of these. These coercive tactics often make witnesses turn hostile. Witnesses often turn up dead. Cases built on the bulwark of witness testimony thus fall apart. Indeed, a large number of criminal cases in India continue to be built majorly on witness testimony. Justice thus falls prey to muscle power.
However, most witnesses and their families do not face outrageous threats. The garden variety, and a substantial part, of threats to witnesses can easily be countered by taking very basic steps, some of which are already standard – viz. concealment of identity, providing police escorts, monitoring communications, etc. Stakeholders should, first and foremost, concentrate on getting these basics right.
The Witness Protection Scheme, 2018 has all the features of a world-class witness protection scheme. It provides for global best practices in the field of witness protection to be adopted in India. Properly implemented, this Scheme will be a game changer for the Indian justice system, and a messiah for troubled witnesses across the country.
Every successful witness protection scheme is built on the crux of confidentiality. The death of confidentiality is as good as the death of witness protection, and often the reputation, property, and even the life of the witness and his family. In a country where evidence and snippets of the internal working of investigations are often revealed to the media, maintaining the confidentiality of the entire process will be the challenge. The silver lining in the cloud, however, is that India follows an adversarial justice system. Hence, theoretically, every stakeholder in the witness protection scheme―be it the police officers or the prosecutors―works opposite to the defendant[s], and therefore they have an incentive to ensure such confidentiality. The challenge will be to ensure that no other (bad) external incentives – viz. contacts, mala fide intentions, etc. – are allowed to interfere with this fine balance. Confidentiality will then be automatically ensured. Instilling a culture of confidentiality amongst all stakeholders, including drilling in the knowledge that a failure to do so can often mean life and death for a person, would also go a long way.
Manpower and training is another challenge to be overcome. India’s police-people ratio is abysmally low. It will be an uphill task to ensure enough boots on the ground to administer a witness protection programme. This problem is further compounded by the fact that witness protection is often no easy task. It requires specially-trained police officers. Stakeholders may often unwittingly compromise the process if not trained properly. Hence, training of police officers will be a major challenge. Again, the silver lining is that witness protection will be administered by a special Witness Protection Cell of the respective police force. This is a wonderful opportunity to specially train a subset of police officers to be islands of excellence in a sea of mediocrity, who can uphold the ethos of confidentiality and administer witness protection with aplomb.
The Witness Protection Scheme, 2018 marks a watershed moment in the history of India. It is fraught with opportunities. The time is ripe to make this Scheme into a turning point for the justice system in India. It is now up to us to overcome the hurdles and challenges which lie in the way of its implementation, and make this Scheme the grand success Lady Justice deserves.
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