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Witness Protection Scheme 2018

Practise Questions
Q-The draft Witness Protection Scheme, 2018, 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
victimisation. Discuss. (250 words) ()

 Syllabus – Topic Structure, organization and functioning of the Executive and the Judiciary –
Sub-Topic=Judicial Reforms, Criminal Justice System
 Meaning
 Need
 Provisions
 Advantages
 Disadvantages
 Conclusion
 Imp Terms & Concepts

Why in News:
 The Supreme Court recently (December 2018) approved India’s first Witness Protection
Scheme, noting that one of the main reasons for witnesses to turn hostile is that they are not
provided appropriate protection by the State.
 Supreme Court today gave its seal of approval to a draft witness protection plan prepared by the
government. The plan, called the Witness Protection Scheme, will have to be implemented by all
states, except Jammu and Kashmir (which has a separate constitution), until Parliament turns
the draft into law, the Supreme Court ruled today.
 During a previous hearing, the government had told the Supreme Court that it had formed a draft
witness protection scheme that would be turned into a law "in due course".
 Until then, the government said, the Supreme Court could ask states to follow this draft scheme.
 Today, the Supreme Court did just that, asking states to follow the draft Witness Protection
Scheme until it is made into a law.

 Pending legislation by Parliament, the Supreme Court has asked States to implement a scheme
framed by the Centre to protect witnesses in criminal trials from threat, intimidation and undue
influence.
 It is gratifying that the court has played a proactive role in getting the Centre and the States to
come up with a concrete proposal. The Centre deserves credit for coming forward to suggest
that its draft witness protection scheme be introduced by judicial mandate instead of waiting for
formal legislation.
 A Bench of Justices A K Sikri and S Abdul Nazeer asked the Centre, states and Union Territories
to “enforce” the scheme “in letter and spirit”
 The court said, “it shall be the ‘law’ under Article 141/142 of the Constitution, until the
enactment of suitable Parliamentary and/or State Legislations on the subject”
 The question of witness protection had come up in a PIL that sought protection for witnesses in
cases against self-styled Godman Asaram Bapu.

Need
 The need to protect witnesses has been emphasised by Law Commission reports and court
judgments for years

 In 2003, Justice V Malimath Committee on criminal justice system had recommended enacting
a separate witness protection law and in 2006, the Law Commission of India, in its 198th report,
provided for a draft witness protection law. These problems have been a part of India’s legal
fabric since Independence, with the first witness protection programmes being mooted by the
law commission in 1958
 Besides, countries such as USA, United Kingdom, China, Italy, Canada, Hong Kong and Ireland
have witness protection scheme.

 In the current system, there is little incentive for witnesses to turn up in court and testify
against criminals. Besides threats to their lives, they experience hostility and harassment while
attending courts.
 The tardy judicial process seldom takes into account the distance they have travelled or the time
they have lost in attending court, only to be told they have to return another day.
 As Justice A.K. Sikri points out, the condition of witnesses in the Indian legal system is
“pathetic”, as it takes them for granted
Case Studies
1. The recent (2019) 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. The rape accused,
Bharatiya Janata Party (BJP) MLA Kuldeep Singh Sengar, was arrested in April last year after the
survivor attempted to immolate herself in front of the Uttar Pradesh Chief Minister’s residence
while demanding justice. Consequent to the death of the two individuals, one of whom was also
a witness in the case, charges pertaining to attempt to murder were added to those already
present against Sengar.
2. On June 2,2019 this year, Assistant Sub Inspector Suresh Pal, assigned to protect murder witness
Rambir, was accidentally killed when the assailants missed their aim while attempting to kill the
witness.
3. 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. In fact, it
was the killing of the three, followed by a Public Interest Litigation, which prompted the apex
court to issue directions to the Centre and the States to frame Laws for protection of witnesses.
4. The most recent (august 2019) tragedy in the Unnao rape case, leading to deaths of key
witnesses in the upcoming trial due to a road accident, and placing the victim herself in
intensive care, has led to renewed criticisms of many features of India’s criminal justice system.

Meaning:
 Witness protection is security provided to a threatened person providing testimonial evidence
to the justice system, including defendants and other clients, before, during, and after a trial,
usually by police.
 Witness protection is usually required in trials against organized crime, where law enforcement
sees a risk for witnesses to be intimidated by colleagues of defendants. It is also used at war
crime trials.
 Witness Protection Scheme, 2018 - aim - provides for protection of witnesses based on the
threat assessment and
 protection measures inter alia include
 protection/change of identity of witnesses,
 their relocation,
 installation of security devices at the residence of witnesses,
 usage of specially designed Court rooms, etc.
Provisions/Features:
 The court has stated that the scheme will be implemented under Article 141/142 of Constitution
till the enactment of parliamentary and state legislation

 The Witness Protection Scheme will extend to all the states of India except Jammu &
Kashmir.

 The Scheme broadly classifies witnesses in need of protection into three types based on the
threat assessment
Category A Where the threat extends to life of witness or his family members, during
investigation/trial or thereafter.
Category B Where the threat extends to safety, reputation or property of the witness or his family
members, during the investigation/trial or thereafter.
Category C Where the threat is moderate and extends to harassment or intimidation of the
witness or his family member's, reputation or property, during the investigation/trial or
thereafter.

 The Scheme provides for a State Witness Protection Fund for meeting the expenses of the
scheme.
 This fund shall be operated by the Department/Ministry of Home under State/UT Government
and shall comprise of the following:
1. Budgetary allocation made in the Annual Budget by the State Government
2. Receipt of amount of costs imposed/ ordered to be deposited by the courts/tribunals in
the Witness Protection Fund;
3. Donations/ contributions from Philanthropist/ Charitable Institutions/ Organizations and
individuals permitted by the Government.
4. Funds contributed under Corporate Social Responsibility.
 As per Article 141/142 of the Constitution, the Witness Protection Scheme, 2018 endorsed in
the said Judgment of the Supreme Court is binding on all Courts within the territory of India and
enforceable in all States and Union Territories.

Advantages / Positive Implication

 A robust witness protection scheme will strengthen the criminal justice system
 Witnesses turning hostile is a major reason for most acquittals. So it will improve the low rate of
convictions in the country
 Following this, Maharashtra came out with the Maharashtra Witness and Protection and
Security Act 2017, which was notified in January 2018. However, the Centre, and most other
States, are yet to act on the directive.
 In every case, the witnesses are the eyes and ears of justice; thus, they play an important role in
bringing the criminal or accused to justice. The Witness Protection Scheme is the initial attempt
at the National-Level to provide the required protection for the witness bearers, which will go a
long way in nullifying secondary victimization. This scheme attempts to ensure that the
witnesses receive the necessary protection. It also strengthens the Criminal Justice system in the
country and will inevitably increase the National Security.

.
Challenges / Criticism
 The Centre is scheduled to bring an Act on the subject by the end of this year, it has not made
much progress. The Centre is yet to act on a Supreme Court directive to legislate on witness
protection
 Meanwhile, the apex court gave its assent last year to the Witness Protection Scheme, which
was drafted by the Centre in consultation with the Bureau of Police Research and Development
and the National Legal Services Authority. The Centre was to implement the scheme after
circulating it among all States and Union Territories and obtaining their comments. However,
the scheme was meant to be a measure in force only till the government brought out its own
law on the issue. Though the Centre is scheduled to bring an Act on the subject by the end of
this year, it has not made much progress.

 Lax implementation: As regards the existing measure, though its objective is to ensure the
safety of witnesses, so that they are able to give a true account of the crime without any fear of
violence or criminal recrimination, its implementation on the ground leaves much to be desired.
The Unnao matter would have been hushed up but for the fact that the survivor attempted to
immolate herself in front of the Chief Minister’s residence.
 Further, though the scheme provides for police personnel to be deployed to protect the witness
on the basis of threat perception, it is silent on the punishment to be given to those policemen
who, while being charged with providing security, themselves threaten the witnesses. Why were
the policemen tasked with protecting the Unnao survivor not with her when she travelled to Rae
Bareli? Were they aware that a sinister plan had probably been hatched to eliminate her
relatives?
 Perhaps the most fatal flaw the programme suffers from is that it expects the same police
forces, which we routinely criticise as being understaffed to handle investigative work, to devote
adequate resources to offer round-the-clock protection required to ensure the safety of
witnesses.
 Above all, what emboldens the criminals the most is the support they get from the police. The
shadowy politician-police nexus is so strong that no policeman, at the mercy of political leaders
for his career progression, dares take any action against his ‘master’. As long as this nexus
continues, the delivery of criminal justice in India will remain a casualty.
 In December 2018, the Supreme Court, while hearing a PIL filed by witnesses involved in the
Asaram Bapu rape case, approved a witness protection scheme floated by central agencies and
directed the Centre and states to implement this. We are in August, and it is still unclear
whether all states have done so; in all likelihood, they haven’t.

Reforms

Conclusion
 The Witness Protection Scheme calls for more elaborate and stricter laws to be incorporated so
that criminals find no loopholes that can be exploited to their advantage. The sooner the Centre
comes up with a legislation codifying the protection to be given to witnesses, the better it is for
India’s criminal justice system.
 In words of Jeremy Bentham, “Witnesses are eyes and ears of justice”. This scheme is a step in
the right direction in ensuring the confidence of witnesses in trusting the criminal justice system
of the nation.