Author: Krishna Agarwal
On 5 Decemeber, 2018, a division bench of the Apex Court compromising of Justice A.K. Sikri and Justice Abdul Nazeer in Mahender Chawla & Ors. v. UOI directed that:
The Union of India as well as States and Union Territories shall enforce the Witness Protection Scheme, 2018 in letter and spirit. It shall be the ‘law’ under Article 141/142 of the Constitution, till the enactment of suitable Parliamentary and/or State Legislations on the subject.
Mahender Chawla & Others v. Union of India
WP (Cri) 156 of 2018
BENCH- A.K. Sikri & S. Abdul Nazeer, JJ.
JUDGMENT by- A. K. Sikri, J.
DATE OF JUDGMENT- 05/12/2018
The present petition was filed by the people associated as witnesses in the Asaram case. There were four petitioners which included a witness in the case, father of a murdered witness, father of the rape victim and a journalist who escaped a murder attempt by the goons of Asaram and his son Narayan Sai and is still facing death threats by a jailed sharpshooter of Asaram and Narayan Sai. The petitioners have prayed for a court-monitored SIT or a CBI probe in the matter on the ground that the prevailing feeling of fear amongst witnesses in the country seriously impairs the right of the people of this country to live in a free society governed by rule of law. The right to testify in courts in a free and fair manner without any pressure and threat whatsoever is under serious attack today. If one is unable to testify in courts due to threats or other pressures, then it is a clear violation of Article 21 of the Constitution. The right to life guaranteed to the people of this country also includes in its fold the right to live in a society, which is free from crime and fear and right of witnesses to testify in courts without fear or pressure.
The court, in this regard, took a brief note of various previous judgments that have discussed the issue at hand. Briefly stated, the court concluded that the witnesses have to go through a lot of trouble so as to provide for any evidence in the court. The hindrances are not only the influential people i.e. the Goons and the wealthy but also, the police is unable to provide protection to such witnesses. The court acknowledged the absence of any concrete statute in this regard and accepted that there is a dire need for such legislation. The court was of the opinion that due to above-stated reasons, many times the witnesses turn hostile or does not present himself for scrutiny of the court and this result into obstruction of criminal justice. The court also took into consideration the acts of the trial courts, where adjournments were granted without reasonable cause which further results into harassment of the witnesses.
On this point, the court relied on the previous case of Ramesh and Others v. State of Haryana,[1] where previously the Apex court has itself analyzed various other judgments and came to the conclusion that:
“the following reasons can be discerned which make witnesses retracting their statements before the court and turning hostile:
(i) Threat/Intimidation.
(ii) Inducement by various means.
(iii) Use of muscle and money power by the accused.
(iv) Use of stock witnesses.
(v) Protracted trials.
(vi) Hassles faced by the witnesses during investigation and trial.
(vii) The non-existence of any clear-cut legislation to check hostility of witness.”
The court then also discussed the various problems faced by vulnerable witnesses, such as child witnesses, a victim of sexual abuse, etc. and lauded the guidelines as issued in the case of Sakshi v. Union of India.[2] The guidelines issued by the court for protection of vulnerable witnesses are:
“a) The judges shall allow the use of a videotaped interview of the testimony of the child in the presence of a child-support person.
- b) A child could be permitted to testify through closed circuit television or from behind a screen to acquire an honest and frank account of the acts complained of without any fear.
- c) Only the judge should be allowed to cross-examine a minor on the basis of the questions given by the defense in writing after the examination of the minor.
- d) During the testimony of the child, sufficient interval should be provided as and when she requires it.”
The court also praised the efforts taken by newer court establishments where special court-rooms are designed for vulnerable witnesses so as to protect the interest of these witnesses and also affirmed that such court-rooms shall be designed in each and every court establishment.
The court further summarized various other judgments that have driven towards the protection of witnesses.
(a) Publication of evidence of the witness only during the course of the trial and not after.[3]
(b) Re-trial allowed due to apprehension and threat to the life of witness.[4]
(c) The necessity of anonymity for victims in cases of rape.[5]
(d) Discouraging the practice of obtaining adjournments in cases when the witness is present and accused is absent.[6]
(e) Making threatening of witnesses as a ground for cancellation of bail.[7]
(f) Cross-examination by video conferencing — This is one of the innovative methods devised, which is specifically helpful to the victims of sexual crimes, particularly, child witnesses who are victims of crime as well.
In the present petition, the petitioners had initially impleaded Union of India as Respondent No. 1 and States of Haryana, Uttar Pradesh, Rajasthan, Gujarat, and Madhya Pradesh as Respondent Nos. 2 to 6. However, to make a pan India significant witness protection program, the court ordered the petitioners to make each of the State and Union Territory a party to the present petition, and to this regard, the petition was amended and notice was served to each state and Union Territory. The Union of India through the Attorney General was requested to submit a draft scheme in this regard. The scheme was made by the Ministry of Home Affairs and had been put in the record for the court. The court then asked for comments on the scheme so prepared from all the States and Union Territories and a scheme was finally drafted for the legislation to pass and until then the said scheme is into force under sec 141 and 142 of the Constitution of India.
The Witness Protection Scheme, 2018 has been summarized briefly hereunder:
Part I – Consist of Short Titles and Definitions.
Part II – Sec 3– under Sec 3 the witnesses have been categorized under three divisions depending upon the threat to such witnesses.
Sec 4– a fund named witness protection fund has been instituted and working of such fund is explained
Sec 5– the witness asking for protection must file an application before the competent authority
Sec 6– under Sec 6 the procedure for processing application so filed by the witness for his protection is exhaustively explained.
Sec 7– it deals with the kinds of protections that can be provided to the witnesses depending upon thee threats to such witnesses.
Sec 8– once any order for protection is passed, the competent authority can review the same.
Part III- Sec 9– provides provisions for protection of identity
Part IV- Sec 10– provides provisions for change of identity
Part V– Sec 11– provides provisions for relocation of witnesses
Part VI- Sec 12– every state shall give wide publicity to this scheme.
Sec 13- all the stakeholders in any suit shall protect the confidentiality of the witness
Sec 14– where a false complaint has been filed, the ministry shall recover the cost from the complainant
Sec 15– a review application may be filed within 15 days
The court finally disposing of the petition, directed that:
(i) This Court has given its imprimatur to the Scheme prepared by respondent No.1 which is approved hereby. It comes into effect forthwith.
(ii) The Union of India, as well as States and Union Territories, shall enforce the Witness Protection Scheme, 2018 in letter and Writ Petition (Crl.) No. 156 of 2016 Page 40 of 41 spirits.
(iii) 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.
(iv) In line with the aforesaid provisions contained in the Scheme, in all the district courts in India, vulnerable witness deposition complexes shall be set up by the States and Union Territories. This should be achieved within a period of one year, i.e., by the end of the year 2019. The Central Government should also support this endeavor of the States/Union Territories by helping them financially and otherwise.
[1] Ramesh & Others v. State of Haryana, (2017) 1 SCC 529.
[2] Sakshi v. Union of India, (2004) 5 SCC 518.
[3] Naresh Shridhar Mirajkar & Others v. State of Maharashtra & Another, 1966 (3) SCR 744.
[4] Sunil Kumar Pal v. Phota Sheikh & Other, AIR 1984 SC 1591.
[5] Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14.
[6] State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667.
[7] Ram Govind Upadhyay v. Sudarshan Singh, Appeal (Crl.) 381-382 of 2002.
About the Author: Krishan is a 2015-20 Batch student at ILS Law School, Pune.
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