What Are The Guidelines For Witness Protection Scheme, 2019?
Introduction
Whenever the people are called as witnesses in the criminal cases for the first time, the biggest fear is not the court, it is only the retaliation.
Most of the witnesses ask the same questions:
“Will the accused threaten me?”
“Can the police really protect me?”
“What if my family is harmed just because I spoke the truth?”
These fears are not imaginary at all. In India, quite a number of criminal cases fall apart not due to the lack of evidence but through the threats, pressures, or the coercion where the witnesses are made to turn hostile. The making of the Witness Protection Scheme comes as a big step to deal with this unfortunate reality and the Supreme Court of India made it compulsory for the states and union territories to implement it.
What Is the Witness Protection Scheme and Why Was It Introduced?
The Witness Protection Scheme is a legal framework to protect and support witnesses to the point of a threat because of their role in criminal trials. The Scheme was approved by the Indian Supreme Court in the case of Mahender Chawla v Union of India (2018), with direction to have all States and Union Territories bound by the Scheme until a statutory law is made by Parliament to define, regulate, and enforce the Witness Protection Scheme.
In the simplest way, the Witness Protection Scheme provides a mechanism to protect the people who testify in a criminal investigation or in the criminal cases from the fear of losing their lives, liberty, or their lives of their families. Therefore, it is both unconstitutional as well as unjust for a citizen to make an honest as well as truthful testimony without having protection from the retaliation or harm from others.
When Does a Witness Need Legal Protection?
Threats or Intimidation: The witness may require for the legal protection if at all they receive the direct or indirect threats for agreeing to testify or cooperate with investigation.
Risk of the Retaliation: Protection may get necessary where accused or their associates attempt to influence, harm, or it may retaliate against witness.
Harassment or Surveillance: If at all the witness is being followed, monitored, harassed, or if at all their family members are being targeted, then they may seek witness protection.
Not Limited to the High-Profile Cases: The witness protection is available not only in sensational or high-profile matters but also in the ordinary criminal cases wherein there is genuine threat to the witness's safety or well-being.
Interference with Testimony: If at all any person attempts to pressure or coerce witness into changing, withdrawing, or for suppressing their testimony, then the legal protection can be sought.
How the Law Assesses the Risk to a Witness
Not every witness faces the same level of danger, and the law recognises this. Under the Scheme, a formal threat assessment is conducted to understand how serious the risk is. Based on this assessment, witnesses are broadly classified into three levels, ranging from cases involving threat to life, to situations where limited protection such as police escort or courtroom safeguards may be sufficient.
This assessment is particularly carried out as per judicial supervision so that protection is not granted or it is denied arbitrarily.
What Kind of Protection Can the Court Provide?
Physical Security Measures: The witness protection goes far beyond the posting a police guard. Focusing on the seriousness of the threat, the protection may include mostly the security arrangements at your residence, police escort, or the surveillance.
Court-Ordered Protective Measures: Courts can also order the special processes during the trial, such as in-camera hearings, use of screens, or the withholding your identity from public records.
Relocation and Financial Assistance: In the extreme cases, especially where there is a serious threat to life, the Scheme allows temporary relocation, financial support for living expenses, and assistance for rehabilitation.
Objective of Witness Protection: The goal is to remove fear from the witness’s mind so that testimony is truthful and voluntary.
Who Decides Whether You Will Get Protection?
Applications for witness protection are examined by a District Standing Committee, which is usually headed by the District and Sessions Judge. While police officers are part of this committee, the final decision remains under judicial oversight.
Once protection is approved, a dedicated Witness Protection Cell within the police is responsible for implementing the orders while maintaining strict confidentiality.
How Can a Witness Apply for Witness Protection Scheme?
Submit Witness Protection Application: The witness, the family member, or the authorised lawyer may submit prescribed Witness Protection Application Form.
File Before the Competent Authority: The application is filed before District Witness Protection Committee, consisting of District & Sessions Judge (Chairperson), Superintendent of Police (Member), as well as the Head of Prosecution (Member Secretary).
In-Camera Proceedings: The Committee may conduct the confidential (in-camera) proceedings to mainly protect witness’s identity and safety.
Threat Analysis Report: The Superintendent of Police prepares the report assessing the seriousness, credibility, as well as the nature of threat faced by the witness or the family.
Interim Protection (If Needed): The temporary protection may be provided immediately if at all the threat appears urgent.
Protection Measures Ordered: Based on report, the Committee may order the measures such as police protection, CCTV, patrols, identity protection, relocation, emergency contacts, as well as the in-camera trial arrangements.
Duration of Protection: Protection is mainly granted for the specified period, generally not exceeding 3 months at a time, and it may be extended if at all necessary.
Is Your Identity Kept Confidential?
Confidentiality is the primary rule of the Witness Protection Scheme. The officials responsible for your safety are the only ones who will know about your address, identity, and the place where you live. During the trials, the courts are also advised not to disclose sensitive information unless it is unavoidable.
Although the protection is for the witness, any confidential information spill will risk the protection and push the witness towards danger, which is why the Scheme is very particular about secrecy.
Who Bears the Cost of Witness Protection?
The State Witness Protection Fund takes care of the expenses related to witness protection. The purpose of this fund is to cover expenses such as security, relocation, travel, and other safety measures. The financial constraints cannot be the reason that a threatened witness will not be granted protection.
What Did the Supreme Court Clarify in the Mahender Chawla Judgment?
The Supreme Court pronounced witness protection as a part and parcel of the right to a fair trial under Article 21 of the Constitution. The Court pointed out that courts cannot have the functionality of justice if the witnesses are not protected and are vulnerable.
Although the Scheme is administrative in character, the Court asserted that it occupies a significant legal void and must be observed until a suitable law is passed by Parliament.
Practical Difficulties in Real-Life Implementation
The challenges, however, still exist despite the Scheme. Some States are struggling with funding and lack of personnel, while in certain cases the witnesses' confidentiality has been compromised due to the unprofessional management of the records. Furthermore, the legal experts' demand for a comprehensive statute that creates, rights and penalties for failures in the protection of witnesses is growing.
What Should You Practically Do If You Are Feeling Threatened?
Stay calm & do not confront the accused or only their associates
Document threats, calls, messages, and incidents carefully
Do not disclose your location or plans casually
Immediately consult a criminal lawyer
Apply for witness protection at the earliest stage
Early legal action can prevent serious harm.
How Lead India can help
Connect You with the experienced Criminal Lawyers to assess all of your risk and advise you on seeking the witness protection.
Assist in Filing the Witness Protection Applications before the competent authority with all of the necessary legal documentation.
Represent You Before District Witness Protection Committee and the Courts to safeguard all your rights and interests.
Help You Secure for the Appropriate Protection Measures such as for the police protection, identity confidentiality, relocation, or the in-camera proceedings, whereever it is justified.
Provide you with the End-to-End Legal Support throughout the investigation and the trial to ensure all your safety and effective enforcement of your legal rights.
One can talk to lawyer from Lead India for any kind of legal support. In India, free legal advice online can be obtained at Lead India. Along with receiving free legal advice online, one can also ask questions to the experts online free through Lead India.
FAQs
1. Is the Witness Protection Scheme legally enforceable in India?
Yes, the Supreme Court has made it all binding on States as well as Union Territories until Parliament enacts a law.
2. Can a witness directly approach the authorities for protection?
Yes, a witness can apply directly without waiting for police initiative.
3. Can courts hide my identity during trial?
Yes, courts can order in-camera hearings and confidentiality measures where required.
4. Who decides the level of protection for a witness?
A judicially supervised District Standing Committee decides based on threat assessment.
