A CASE ANALYSIS OF THE STATE OF BOMBAY V. KATHI KALU OGHAD AND ORS, AIR 1961 SC 1808April 20, 2019
SECULARISM IN INDIA: AN EVALUATION FROM INDEPENDENCE TILL THE ELECTIONS OF 2019April 20, 2019
The Supreme Court of India(SC) passed a decision favouring the witness protection scheme in an attempt to reform the deplorable state of witness protection in India. Currently, jeopardy and imperiling circumstances stare witnesses during and after the investigation and trials. In Mahender Chawla Vs. Union of India, the SC, by virtue of its powers under article 141-142 has asked the state governments to implement this scheme till the Centre comes out with a legislative bill that gives the scheme the required status in the form of an Act.
The scheme is much needs in a time where the witnesses have been turning hostile due to threats by the criminals, the families have been facing threats during and after the trial and the judiciary is being misled owing to the adulterated evidence presented before it. The Best Bakery Case, the Sohrabuddin case and the Mecca Masjid case are a few examples.
TRACING THE ORIGINS
The evolution of the witness protection scheme in India has been interesting. It begins with the Indian Evidence Act that provides for protection of witnesses under the sections 151/152 from indecent questions and investigative procedures. The scheme has found place in the plethora of Law commission reports(14th to 198th report). It has also found place in legion of case laws. Yet the scheme did not find its true place in the machinery due to lack of formal implementation.
ABOUT THE SCHEME
The witness protection scheme has been formulated by the central government with the aim of building confidence in witnesses by providing assistance in order to ensure the fair deposition of evidence. The scheme has been divided into three segments based on the categories of witnesses. The scheme has the requisite provisions for funds, the procedure for filing for protection and the list of the kind of protection a witness would be entitled to. Subsequent parts also go on to deal with protection and change of identity of witnesses if required. The most crucial part as per the author in this scheme is of appraisal of the scheme to the beneficiaries by the officers and the review of the scheme time and again.
POSITIVES OF THE SCHEME
The scheme has a scope of becoming one among the successful witness protection schemes in the world with the comprehensiveness and the meticulousness with which the scheme has been drafted. There have been provisions and ideas that have been borrowed from across similar schemes in the world. The scheme does not limit itself to the people who are immediately in connection with the witness or the family rather considers anyone who is testifying in the court as a witness. This is opposed to definitions of witnesses in schemes of Pakistan and Australia which have looked at the aspect of witness protection through a toilet paper roll vision.
PROBLEMS WITH THE SCHEME
The scheme is heavily dependent upon the cooperation by the police force and involves the intermediation by senior police officials at various stages. Moreover, the kind of remedies offered include in camera trials, close protection, regular patrolling around the witness’ house, installation of security devices in witness’ home, escort to and from a court, and ensuring expeditious recording of deposition during the trial, requiring huge involvement by the police. As per the statistics published by the National Crime Records Bureau five lakh police posts out of the sanctioned 22.8 lakh posts or 25 percent of the posts are lying vacant while there is a steady rise in the crime rate. India also ranks among the highest in terms of vacancies in the police force as per a report by UNODC.
Implementation of this scheme by the current police force would overburden the force, neither allowing the police to perform its everyday functions nor allowing it to perform protection under the witness protection scheme.
Secondly, “police” is a state subject while “evidence” falls under the purview of the both the Centre and state. This has been the precursor to its introduction by the Central government. The Centre had opened the scheme to recommendations by the state governments. The data on suggestions provided is unknown and has not been published. Non acceptance of the recommendation without substantial reasoning might leave states feeling isolated and preventing efficient implementation of the scheme.
The paucity of funds will lead to the scheme falling through. Central government being non committed to provide for funds may prove to be a reason for the disruption of this scheme. There is no section that mandates the funding and the lack of consequences may prompt the state to be non-committed to the scheme and its beneficiaries.
Thirdly the scheme is very utopian considering the financial and social status of organisations in the country. The in camera trials, transport and financial assistance, the regular patrolling and the change of identity are not easy. These require efficiency and confidentiality. They require time and space which India clearly does not hold in terms of limited courts and manpower.
What is proposed is to recruit and fill the unabashedly high vacancies and allow all the officers to perform the demands of this scheme as and when required. As the scheme progresses it is proposed that an exclusive wing be formed for witness protection, trained and skilled for such roles and duties. Such an approach has been successfully tested in countries like the United States and Israel. Training of the manpower to perform roles demanded from this scheme is necessary, without which the scheme may break down.
Witnesses being the eyes and ears of the judiciary in current state of criminal justice in India and to cope up with the pace of the petitions what India needs is a practical scheme fit for the epoch. It needs to be ensured that the scheme having taken shape it is time that the administrative machinery be true to the beneficiaries thereby coming up with an infallible toolkit to ensure that the scheme is working towards witness protection.
ABOUT THE AUTHOR
Nishtha Nikhil Gupta is a 1st year student at the NALSAR University of Law in Hyderabad. She is interested in criminal and constitutional law.
In Content Picture Credit: India Legal