“Witness protection” and the grey in it…

The infamous Asaram Bapu Rape Case had gained quite the attention of the media, when one of the top religious leaders in the land of spirituality was allegedly observed as a criminal. In December of the same year, a key witness before the court, was stabbed and critically injured in Surat for having accused the Guru of the crime. The threats and attacks rose in number as further details of the case unfolded before the court. A former follower had been attacked in 2014 with highly corrosive acid who provided legal assistance to the people who had spoken against Asaram. The most famous and curious of all the attacks was the assassination of Amrut Prajapati, who was Asaram’s personal Ayurveda doctor for a long time. He was shot outside his clinic in Rajkot who for he had testified in court. Akhil Gupta shared the same fate in 2015. By now it had been well established that it was an alarming demand to provide protection to witnesses after they provide their testimony in court. Later on, in February of 2015, Rahul Sachan, another Ayurvedic Practioner who had agreed to testify in court against Asaram Bapu was stabbed just before he could reach the court and testify. Not only was it of chief importance to protect a witness, but it was also observed through harsh history that it was of epitome importance to ensure protection of people who have agreed to provide evidence for assistance of the case in question.


Coming to the question, what is a witness? A witness can be defined as a person who is to give important evidences or statements referring to a charge of the offence for assisting the court in achieving a final conclusion. Therefore, in special and criminal cases, where the stakes are higher, a witness plays a very important role for the justice system. He can be considered a deliverer of the truth by being the first-hand account of what he has observed and perceived.


A key witness of the Salman Khan Hit-and-Run case, Muslim Shaikh received two phone calls with threats to accept 5 lakh rupees and not testify or to face severe action. After noticing this event, the police was asked to conduct an inquiry and submit a report. The witness had a view of the accident. He is said to have seen Salman Khan disembarking the car which had run over people on September 28, 2002. There are multiple different types of witnesses. And depending on how the witnesses are linked with the case or the evidences that they will be providing, their validity may change. The different types are Child Witness, Interested Witness, Eye Witness, Hostile Witness, Related Witness, Independent Witness, Solitary Witness, Material Witness, Trap Witness, Expert Witness & Official Witness. Muslim Shaikh, being an independent eye witness, his testimony’s validity was high. And in such circumstances, it was necessary that the witness doesn’t change their stance being bribed by the huge sums of money being offered to them.


In the case Mahender Chawla v Union of India (2018 SCC), witness protection was first attempted. Its importance was recognized. It had been observed that often in cases which involve very dangerous criminals specifically from organized crime rings, were successful in threatening the witness directly and suppressing them from testifying in court. In cases of very influential people, often the witnesses were bought out by offering a large sum of money. The witnesses often chose this to happen as they realize they are not legally bound to be protected. In this case, a petition was presented to the court. Mahender Chawla had survived an assassination attempt for being a witness to the Asaram Bapu case. Another petitioner, Karamvir Singh was the father of a juvenile rape victim. There were a few more petitioners with them who had allegedly been attacked for daring to testify that Asaram Bapu and his son, Narayan Sai were involved in committing sexual offences in the name of tantra mantra in their ashram targeting under age female children. The scheme was first framed by the Union Ministry of Home Affairs in response to the PIL received by them, seeking protection from the witnesses. The court had recognized that the issue particularly pertains to the availability of protection for witnesses, and hence the results of the proceedings could be of universal effect and benefit for all the courts to provide witness protection for witnesses of all states.


The objective of the Witness Protection Scheme was to ensure that the witnesses do not change their stance or they do not turn hostile due to death threats or tempting financial offers. If a witness feels a threat, the police should look into management of the same. A bench of Justices AK Sikri and S Abdul Nazeer overseed the proceedings of this case. An important obiter dicta, as observed, was the fact that the inability to testify in courts due to any threat is a violation of Article 21 of the Constitution.


The Central Government had finalized the scheme of Witness Protection with consulation from the National Legal Services Authority and the Bureau of Police Research and Development and presented it to the court on November 6, 2018. The court emphasized that it shall be directed as a law under Article 141 and 142 of the Indian Constitution, where Article 141 states that a law declared by the SC shall be binding all courts within the territory of India and Article 142 resting the ability to pass any necessary order for SC to serve complete justice. Witness Protection Scheme was now to be enforced by all States and Union Territories of India.


The provisions of this scheme include identifying the threat as observed by the witness and preparing a Threat Analysis Report by the head of the police. The threats have been classified on a scale of 3 different levels based on how far the threat extends and the extent of damage being threatened with. The 3 different classes are, threat extending to life of the witness and his family members, threat to his safety, reputation or property, or threat to the harassment of witness and his family. Protective measures have to be implemented that the witness and accused do not come face to face during the proceedings of the case in order to keep the identity of the witness concealed from the potentially dangerous party. In order to do so, the witness may even undergo a change of identity or even relocation of witness. The witness is to be thoroughly explained about the situation and the scheme being applied to prevent further mishaps.


The concept of witness protection was present in many countries before coming to India. These include Canada, Thailand, Australia and South Africa. But the first one to have a completely well defined system dedicated to this cause was United States of America. There the scheme is under the Federal Government. It has been seen as a pretty efficient way to manage the safety of witnesses but it has often been used as a weapon to fight back organized crime instead of just preventing it spoiling proceedings and witness testimony on courts. Such has been observed in the case of Henry Hill where Henry Hill an American mobster having associations with the Lucchese crime family was arrested on narcotics charges in 1980. It was later discovered that he was also a part of the Air France robbery and the Lufthansa heist and also had direct involvement in the murder of Billy Batts, another member of the organized crime family. However, to avoid prosecution, and feeling the imminent threat of being murdered by his own crew, a common trend in American mob history, he entered the US Marshal’s Witness Protection Program in 1980. Using assistance from the program, he and his family received new changed names and were relocated for protection in exchange for information that was very vital in arresting his associates Jimmy Burke and Paul Vario.


In this instant it has been seen that the witness protection is being used as a means of escape for large scale criminals who go unpunished. Although their information helped in the successful prosecution of several other criminals, but the fact is that such an exchange is barely a trade for information in exchange of a new life and is a little unethical. Not only the criminals go unpunished but they are protected well. However it can be argued that criminals are still human beings and are under the constitution of their respective countries. Hence their protection and well-being is an obligation for the state. Leaving them back into the wild without being protected is an informal butchering of the cattle, as the life threat is very high in certain cases. In developed countries like USA, the witness protection scheme not only ensures smooth proceedings, but often in very high-profile cases, the protection of the witness is essential for ages after the prosecution as threats persists even after the prosecution ends. And there it is a liability for the government and includes a huge amount of expense, which cannot be possibly balanced and tallied with justice. In developing countries, ensuring protection of every single witness in the never-ending number of pending cases and massive untraceable population, keeping tabs on every single witness and offering individual protection still remains a theoretical concept only in paper and its practicality can still be questioned by law research enthusiasts and keyboard warriors.

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