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“Have you no wish for others to be saved? Then you are not saved yourself, be sure of that!”
Father Kuriakose Kattuthara, a priest of Jalandhar diocese and a key witness in the Kerala nun’s rape case was found dead in Jalandhar district of Punjab. He was a prime witness against his diocese’s Bishop Franco Mullakal, who has been accused of repeatedly raping a nun belonging to his congregation. Another such incident was the death of Yunus, a witness to the Unnao rape case. Further, Talib Hussain, a key witness to the shocking Kathua rape case was brutally assaulted in police custody.
These reports expose the state of vulnerability of witnesses in India. Witnesses face continual threat to their families, fear getting murdered, remain under prolonged duress, constant fear, tension and apprehension.
Importance of Witness
The definition of witness has not been provided in any existing legislation in India.
The Witness Protection Bill, 2015, defined witness as a ‘person who is acquainted with the facts of a crime and who is able to produce evidence of such fact either by providing oral, written or by any intelligible gestures in any judicial proceeding.’
The importance of witness with respect to fundamental right of fair trial was observed by the Supreme Court in the case of Zahira Habibullah H. Sheikh and Another v. State of Gujarat and Ors. it was observed that fair trial means a trial without prejudice or bias against the accused or the witnesses. If the witnesses get threatened or are forced to give false evidence that would not result in fair trial.
Article 14 of the International Covenant on Civil and Political Rights recognizes the right to fair trial and the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power which was adopted by the UN in 1985 affirm that witnesses are victims of crime and are often subjected to sufferings which impair their fundamental rights.
Need for Witness Protection Scheme
Various judicial pronouncements and law commission reports acknowledge the need for witness protection scheme in India given the hostile environment faced by witnesses.
In the case of Krishna Mochi v. State of Bihar, the Supreme Court observed that the reasons for the witness to not turn up include threat to life essentially in cases where the criminals are habitual offenders or have contact with people in power. Thus, the Court acknowledged the problem of ‘hostile witnesses’ which interfere with fair trial.
Further, the 172nd Law Commission Report discussed the issue at hand as referred to it in the case of Sakshi v. Union of India. It was made clear in the report that a minor who has been sexually assaulted in should not be required to give his/her evidence in the presence of the accused. Also, in the case of Delhi Domestic Working Women’s Forum v. Union of India, the Supreme Court emphasized on maintenance of anonymity of the victims of rape who are the key witnesses in rape trials.
Further, the Malimath Committee on Criminal Justice reform and 198th Law Commission report have acknowleged the need for law regarding protection of witnesses.
Challenges towards a successful Witness Protection Scheme
The path to a successful witness protection scheme is marred with problems. Some of the problems include deep rooted corruption, weak interface between working of judiciary and administration, lack of funds, lackadaisical attitude of the authorities, etc.
Further, there is lack of research regarding application of witness protection models like anonymity of witnesses and special police force which have been applied successfully in jurisdictions like the USA and Ireland.
Thus, there are two basic arguments which flow from the above discussion i.e. first there is a glaring need for witness protection scheme in light of constant violation of rights of witnesses and second the steps taken by the State at present is inadequate.
In light of serious denial of rights to witnesses, it is important for the State to enact a witness protection scheme and successfully implement in accordance with the socio-legal milieu.
ABOUT THE AUTHOR:
Shreya Jha is a fourth year student pursuing BA LLB Hons. from Amity Law School, Delhi, IP University. Her areas of interest are corporate and commercial law and human rights law.
In Content Picture Credit: LAWNN