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WITNESS PROTECTION POLICY IN INDIA

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In India there is no law for the protection of witnesses. The nearest law is the Public Interest Disclosure and Protection to Persons Makin t!e Disclosure "ill or the W#ISTLE"LOWER "ILL which is still languishing in the Parliament. Countries like UK, US, Canada and Australia have witness protection laws. US has the ictim and !itness Protection Act "#$%&', the ictims( )ights and )estitution Act "#$$*' and Australia has the Protected +isclosures Act "#$$,'. Under the -nglish law, threatening a witness from giving evidence, is contempt of Court. !hile talking a.out !itness Protection, we might recall the /est /aker0 Case where $A#IRA S#AI%# turned a !ostile &itness ' Zahira v. State of Gujarat: ())*+, The LAW COMMISSION in its -*T# REPORT '-./0+ referred to 1&itness23rotection14 but t!at &as in a li5ited sense, That related to proper arrangements .eing provided in the Courthouse, the scales of travelling allowance, their dail0 allowance etc.

MALIMAT# COMMITTEE REPORT anal01ed the conditions of witnesses in India and tried to make suita.le recommendations in the form of amendments in various provisions in CrPC "Criminal Procedure Code' and also other recommendations relating to the treatment of witnesses in the courts. /ut the committee onl0 asked what to do .ut not how to do.

The -/*T# LAW COMMISSION REPORT suggested to prevent witnesses from turning hostile taking the signature of the witness, if he is literate, on his statement, giving a cop0 of the statement to the deponent under acknowledgement and thirdl0 to send copies of the statements to the appropriate magistrate as well as to the superior Police office. The #2,th )eport of the 3aw Commission #$$4 contains a chapter on Protection and facilities to Witnesses. The recommendations mostl0 related to allowances and facilities to .e made availa.le for the witnesses. 5owever, one of the recommendations was6 7!itnesses should .e protected from the wrath of the accused in an0 eventualit07, .ut, again, the Commission did not suggest an0 measures for the ph0sical protection of witnesses. The NATIONAL POLICE COMMISSION REPORT '-.0)+ again dealt with the inade8uac0 of dail0 allowance for the witnesses, .ut nothing more.

The DEL#I #I6# CO7RT issued 67IDELINES to t!e 3olice on 3ro8idin 3rotection to &itnesses to cur. the menace of their turning hostile leading to ac8uittal of accused in heinous crimes. This decision given .0 a .ench comprising 9ustice 7S#A ME#RA and 9ustice Pradee3 Nandra9o on a petition filed .0 :eelam Katara whose son :itish was allegedl0 kidnapped form marriage part0 in ;a1ia.ad .0 )a<0a Sa.ha =P +P >adav(s son ikas and his nephew ishal and killed. The Del!i #i ! Court has issued guidelines stating it s!all be t!e dut: o; t!e COMMISSIONER O< POLICE to 3ro8ide securit: to a &itness in res3ect o; &!o5 an order !as been 3assed b: t!e co53etent aut!orit: directin 3olice 3rotection,

T!e DEL#I #I6# CO7RT in au ,()-= granted three more months time to the NEW DEL#I o8ern5ent to evolve a &itness 3rotection 3olic: to ensure that witnesses are not harassed or intimidated .0 powerful accused in criminal cases.

The S7PREME CO7RT has talked a.out Witness Protection in NHRC v. State of Gujarat: ())= "$', PUCL v. Union of India6 &**?"#*' , Zahira v. State of Gujarat: ())*, Sakshi v.Union of India6 &**, "4' SCA3- #2 and Zahira v. Gujarat &**4 "?'. The Su3re5e Court in N#RC 8, State o; 6u9arat "&**?' had acknowledged this pro.lem and o3ined t!at >no la& !as :et been enacted4 not e8en a sc!e5e !as been ;ra5ed b: t!e 7nion o; India or b: t!e State 6o8ern5ent ;or o;;erin 3rotection to t!e &itnesses, <or successful prosecution of the criminal cases, protection to witnesses is necessar0 as the criminals often have access to the police and influential people.@

The -.0T# LAW COMMISSION REPORT on Witness Identit: Protection and Witness Protection Pro ra55es was su.mitted in August &**4 and has dealt with the histor0 of !itness Protection and the state of things eAtensivel0. The 3aw Commission, through its seminal #$%th )eport, su.mitted detailed reco55endations to de8elo3 a co53re!ensi8e &itness 3rotection 3ro ra5. The report had eAhaustivel0 e?a5ined earlier La& Co55ission Re3orts and t!e 9uris3rudence in t!is ;ield, It recommended concrete steps and a5end5ents to cri5inal la& that would stren t!en &itness 3rotection 3ro ra55es, 3ike the ICC, the 3aw Commission had also recommended &itness 3rotection at ALL sta es o; in8esti ation4 and trial and e8en 3ost2trial. /ut like other reports and recommendations, there has .een ver0 little action on its findings, while witness intimidation and harassment continue.

It is ironic that draconian laws like TERRORIST AND DISR7PTI@E ACTI@ITIES 'PRE@ENTION+ ACT4 -.0A4 and PRE@ENTION O< TERRORISM ACT4 ())(, provided for 3rotection o; &itnesses. The prosecution as also the Court could direct that the identit0 and the address of the witness .e kept secret. The Court could even avoid the mention of the names and addresses in its order or <udgement. It is generall0 perceived that these provisions were incorporated not with an0 concern for the witnesses, .ut to prevent the accused from preparing an effective defence and to den0 fair trial

The 7NLAW<7L ACTI@ITIES 'PRE@ENTION+ AMENDMENT ACT4 ())* B C7@ENILE C7STICE 'CARE AND PROTECTION O< C#ILDREN+ ACT4 ())) also contains 3ro8isions ;or Witness Protection, So, it is up to the government to act on the 3aw Commission report and ta.le a !itness Protection /ill in the Parliament.

The Ishrat 9ahan case has thrown up 0et another important 8uestion that nags the criminal <ustice s0stem6 that of protection of witnesses and victims( families who pursue criminal proceedings or name perpetrators. Shamima Kauser, Ishrat(s mother, as well as the latter(s famil0 mem.ers and friends supporting the criminal case against the fake encounter, have .een receiving threats and have .een intimidated. The lack of a comprehensive witness protection programme as part of the criminal <ustice s0stem is effectivel0 facilitating attempts to su.vert <ustice. In a sense, for man0 of these courageous witnesses and others conscientiousl0 pursuing criminal prosecution, fearing for their lives is a refrain. The eAperience of survivors of communal carnages who have testified against the accused is also

similar. In /hagalpur, /ihar, over #*** persons were killed in one of the worst massacres seen in independent India. Twent0Bfour 0ears later, when we approach and encourage victims and witnesses to speak out, the0 are reluctant to do so, living as the0 still are in fear of reprisals. ;iven that onl0 a handful of individuals have .een convicted for the #$%$ riots, the identities of the courageous witnesses who testified against them are known to ever0one in the communit0. This has meant the0 are eAtremel0 vulnera.le to threats and reprisals from the accused or their famil0 and friends. The ROME STAT7TE that created the INTERNATIONAL CRIMINAL CO7RT 'ICC+ C which India !as not si ned B has recognised this pro.lem and 5andated t!e 3rotection o; &itnessesD otherwise, it would .e impossi.le to gather evidence even for mass crimes. The ICC has esta.lished a se3arate unit t!at 3ro8ides su33ort to t!e &itnesses and res3onds i55ediatel: i; &itnesses recei8e t!reats or inti5idation, =oreover, the protection and support services are provided not onl0 during the trial stage, .ut if re8uired, at all stages of the criminal proceedings, from investigation to postB trial. It is true the ICC has more resources availa.le than most criminal <ustice s0stemsD nevertheless, putting victim and witness protection measures in place is ineAtrica.l0 linked to the dispensation of <ustice an0where.