In a significant judgment passed today, the Supreme Court has given effect to Witness Protection Scheme 2018. The Court directed that the same shall be enforced by the Central and State governments till the enactment of a suitable parliamentary or State legislation in this regard.

The judgment was passed by a Bench of Justices AK Sikri and S Abdul Nazeer in a petition filed by witnesses in the rape cases against Godman Asaram Bapu.

The Witness Protection Scheme 2018 was framed by the Central government based on the inputs received from 18 States/Union Territories, 5 States Legal Services Authorities and open sources including civil society, three High Courts as well as from Police personnel.

The Court today approved the scheme and directed the same shall have the force of law under Article 141/142 of the Constitution, until the enactment of suitable Parliamentary and/or State Legislations on the subject.

Petition

In the instant case itself the petitioners had approached the Supreme Court with the allegations that in the trials that are going on against Asaram, who is charged with the offence of committing rapes in numerous cases, witnesses have been frightened with serious consequences in case they depose against Asaram.

It was alleged that as many as 10 witnesses had already been attacked and three witnesses killed.

There were four petitioners including a witness, father of a murdered witness, father of the child rape victim and a journalist who escaped a murder attempt by goons of godman Asaram and his son Naryana Sai.

The petitioners had prayed for a court-monitored SIT or a CBI probe. It was stated by the petitioners 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. It was their submission that 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 petitioners had argued.

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.

Appreciating the importance and seriousness of the matter, the Supreme Court had issued show cause notices in the petition on November 18, 2016.

When the matter was again listed on August 28, 2017, Attorney General KK Venugopal, and Additional Solicitor General Pinky Anand appeared on behalf of Union of India. It was pointed out that since the matter was on the issue pertaining to witness protection programme, it would be appropriate to implead other States also. The petitioners were, accordingly, directed to implead other States as well.

The coverage of the petition was, thus, extended to the entire country, encompassing all the States and Union Territories.

Centre frames Witness Protection Scheme 2018

When the matter was thereafter taken up for hearing on November 17, 2017 the Court had asked the Attorney General to give his suggestions in the form of a draft scheme. All the other respondents were also called upon to file their responses indicating as to what steps could be taken to have the witness protection programme in place.

The Court noted in its judgment that the “Union of India did not take this petition as adversarial and understood the necessity of having such a scheme in the larger public interest.”

The Ministry of Home Affairs prepared a draft witness protection scheme, 2018 and placed the same on record. The Union Government was impressed upon to finalise the scheme after receiving the comments/suggestions from the State Governments.

When the matter was taken up on November 19, 2018, the Attorney General informed the Court that after taking the inputs from various States and Union Territories, the Central Government has finalized the scheme and filed it in the Court on November 06, 2018. He also submitted that the Supreme Court can pass appropriate orders directing all the States to adopt that scheme till the time appropriate legislation in this behalf is passed.

As per the affidavit of the Central Government, the Witness Protection Scheme, 2018 which was framed by it was based on the inputs received from 18 States/Union Territories, 5 States Legal Services Authorities and open sources including civil society, three High Courts as well as from Police personnel. It was also stated that the scheme has been finalised in consultation with National Legal Services Authority (NALSA).

The Scheme

The essential features of the Witness Protection Scheme, 2018 include identifying categories of threat perceptions, preparation of a “Threat Analysis Report” by the Head of the Police, types of protection measures like ensuring that the witness and accused do not come face to face during investigation etc. protection of identity, change of identity, relocation of witness, witnesses to be apprised of the scheme, confidentiality and preservation of records, recovery of expenses etc.

Directions by Supreme Court

The Court stated in its judgment today that it is a beneficial and benevolent scheme which is aimed at strengthening the criminal justice system in this country. It shall ensure not only access to justice but also advance the cause the justice itself.

It, therefore, issued the following directions with respect to the scheme:

-> This Court has given its imprimatur to the Scheme prepared by respondent No.1 which is approved hereby. It comes into effect forthwith.

-> 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, until the enactment of suitable Parliamentary and/or State Legislations on the subject.

-> 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 endeavour of the States/Union Territories by helping them financially and otherwise.

Advocate Gaurav Agrawal served as Amicus Curiae in the matter.