In a first by any state, Delhi’s AAP govt has notified the Delhi Witness Protection Scheme 2015. But how will it be implemented when the police is under the BJP-ruled center?
By Ajith Pillai
CRUCIAL witnesses being influenced or coerced into turning hostile has seen the most watertight of cases falling apart in recent times. In fact, at least two Supreme Court judgments have taken serious note of the fact that those who testify against the state or the rich and powerful have, under pressure from vested interests, withdrawn the statements earlier made to the police. This, the judgments observed, virtually made a mockery of the criminal justice system and needed to be addressed with immediacy. The apex court—as well as other courts and legal bodies—have repeatedly stressed the need to protect witnesses to ensure that their testimonies are secured and they are insulated from any kind of influence.
Given this backdrop, the Delhi government notifying the Delhi Witness Protection Scheme, 2015, on July 30 has been quietly applauded by the legal community. While witnesses were being provided protection on a case-to-case basis by the National Investigating Agency (NIA), which probes terrorism-related cases, this is the first time that a formal program of this kind has been drawn up by any state government.
GIVE THEM CONFIDENCE
So how will the new protection scheme, developed after studying several western models, work? According to the government notification: “The objective of the scheme is to ensure that the investigation, prosecution and trial of criminal offences is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal recrimination. It aims to promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance to criminal law enforcement agencies and overall administration of Justice. Witnesses need to be given the confidence to assist law enforcement and judicial authorities with full assurance of safety.”
Witnesses have been classified into three categories, according to the level of threat perception determined by a senior officer of the district where the case is being investigated. The most vulnerable are those who, along with their families, need protection for extended periods of time even after the conclusion of the trial. One step below them are witnesses who need protection only during the course of the trial, and finally, there are those who receive minor threats and intimidation during the investigation process. Once the threat perception is assessed and orders passed by the Delhi State Legal Services Authority (DSLA), it is the duty of the witness protection cell—a wing to be created by the state police—to provide security.
Several areas of witness protection have been identified and spelt out in the scheme. These include: Ensuring that the witness and the accused do not come face-to-face during investigation or trial; holding of in-camera trials; monitoring of mail and telephone calls; arrangement with the telephone company to change the witness’ telephone number or assign him/her an unlisted telephone number; installation of security devices in the witness’ home such as CCTV, alarms, fencing etc; concealment of identity of the witness by referring to him/her with the changed name; emergency contact persons for the witness; ensuring expeditious recording of deposition during trial on a day-to-day basis without adjournments; providing financial aid/grant to the witness from Witness Protection Fund for the purpose of re-location and sustenance or starting new vocation/profession.
STRAINED RELATIONS
On paper, the scheme looks impressive. But the big question is: Will a protection program funded through state budgetary allocation and supported by the Delhi government be implemented in letter and spirit by the police that currently serve under the Union home ministry? No one is willing to be uncharitable at this nascent stage but one Delhi government official admitted to India Legal: “The misunderstanding and strained relations between the state and central government may not help in the implementation and success of the program, although the High Court has ordered it.”
Interestingly, the Delhi government was forced to act, thanks to a 2013 Delhi High Court order which took note of the problem of witnesses turning hostile in the Jessica Lall, Priyadarshini Mattoo and Nitish Katara murder cases. A bench of Justices S Ravindra Bhat and GP Mittal, while ordering the prosecution of two witnesses who had turned hostile during the Jessica Lal murder trail, also took note of the other two cases and ordered the state government to put in place a witness protection program.
One hopes that petty state-center politics do not come in the way of the well-intended and much-needed program. But given the backdrop of the constant bickering between the Arvind Kejriwal government and the police in particular, it may be wishful thinking that the scheme will move in the right direction. According to police insiders, the first hurdle to be crossed will be the creation of the witness protection cell—who will set it up? The state or the center?
The Delhi government, to its credit, has taken the first step forward by formulating and notifying a well-rounded program. It is time to consolidate on that rather than take two steps back.