DSNLU- CAN Webinar | “We Need Realistic Schemes” says Justice Nambiar, Judge, Kerala High Court Calling for Nuanced Witness Protection in India

In an Online Session organised by Damodaram Sanjivayya National Law University (DSNLU), Visakhapatnam and CAN Foundation, Justice A.K.J. Nambiar, Judge, High Court of Kerala graced the erudite Panel gathered virtually to speak at length about “Protection of Witnesses & Whistleblowers”. The learned Panel for the Session comprised Justice P. S. Bhati, Judge, Rajasthan High Court & Mr. Siddharth Bhatnagar, Senior Advocate, Supreme Court of India along with Justice Nambiar. The Session was moderated by Mr. Sriram Parakkat, EC Member, CAN Foundation; Advocate on Record, Supreme Court of India and Mr. Vishwajeet Singh, Advocate, Supreme Court of India. The Welcome Address and opening remarks were delivered by Prof. (Dr.) S. Surya Prakash, Vice-Chancellor, DSNLU.

Justice A.K.J. Nambiar
Justice P. S. Bhati

The Session commenced with an elaborate introduction of the erudite panelists and the moderators. Prof. (Dr). S. Surya Prakash, VC, DSNLU in his Welcome Address spoke passionately and highlighted the issues and Landmark Judgments on the subject. He gave due acknowledgement to the towering burden that is put on the Judiciary and called for active efforts by the Centre & the States to mitigate the same.

Prof. (Dr). S. Surya Prakash

Justice Nambiar took to the virtual stage and commenced his address by congratulating the CAN Foundation for its continued efforts. Noting the need to support such organizations, he added, “It is something that will enable a lot of students to continue legal education, especially if they are underprivileged in some ways.”

Delving into the topic of the Session, Justice Nambiar began by stating that there is no room for doubt about the desirability of a Witness Protection Programme in any civilised country and in any developed society, which takes Rule of Law and protection of its society seriously. He called for more proactiveness in terms of translating promises into legislative reforms.

He commenced by giving a preliminary understanding of what a Witness Protection Scheme entails – “I understand it to be a programme which selects persons who are willing to speak in a particular case against a particular criminal or a criminal organisation in the interest of bringing the criminal to justice, by cooperating with criminal enforcement agencies.” He further attributed the willingness of such people to come forth with sensitive details to good citizenship. The onus then, in his view, is on the State to protect the witness so that the larger public interest in bringing the offenders to justice is achieved. Quoting Jeremy Bentham, Justice Nambiar said, “Witness is ultimately the Ears and Eyes of Justice. Therefore, it is important to many efficient Criminal Justice Systems to ensure that where there is evidence to be adduced/brought before the court, it should be brought before the Court, by virtue of willingness of the citizen to come or increase efficiency of enforcement agencies to probe further.”

In the First Segment of the Online Session the central theme of the Online Session was “Witness Protection Regimes”. The Session witnessed Justice Nambiar elaborating upon the multitude of solutions that a pointed look at Witness Protection Regimes across the Globe have to offer. He singled out six key features to note from the world over:

  1. Incorporation of Witness Protection in the Legislative Scheme shows the commitment of the State to the cause and enables implementation.
  2. Categorisation of Cases is necessary to effectively utilize the resources that the State possesses and it should aim to strike a balance between the need and administration of Justice, and the cost to be incurred. Therefore, it is pertinent to determine which kind of crimes require the witness protection mechanisms. Witnesses are of various types and thus the nature of protection differs accordingly. For example some Witnesses require protection of identity of the Witness, to shield from possible trauma and intimidation. In other instances, steps to relocate the person, changing and hiding the identity, giving new identity may also be necessitated.
  3. A Strict Admission Criteria which would evaluate not only the threat perception to a particular witness, but also cases where witness itself posing threat to the community where it is located or is harboured, like in terrorism related cases.
  4. Infrastructural Investment towards the commitment of protecting the Witnesses should be effected. Creation of a Fund, ultimately, to help translate ideas into reality calls for expenditure of money by the State for the purposes of ensuring fair trial and efficient criminal justice. Measuring the problem in the Indian context, it is to be noted that the situation is further exacerbated by the volume of cases, population and peculiar systems which form our democratic institution.
  5. In various schemes, specification of consequences of breach by the participants in Witness Protection Scheme of the requirements therein are provided. Additionally, information related to that particular witness should be conserved properly.
  6. Incidental aspects that present themselves as very specific areas to be addressed must also be looked at with due regard. For example, in child witness cases while providing protection, visitation rights are important. So, third party interests vis-a-vis the person who is protected is also to be taken into account.

The Session then veered into a comparative understanding of the Witness Protection Regimes, which was elaborated upon by Justice P.S. Bhati, Judge, High Court of Rajasthan and further into the analysis of the concept by Senior Advocate, Mr. Siddharth Bhatnagar. The second leg of the Session was focused on specific issues that plague the Indian understandings.

Justice Nambiar pointed out the tightrope that is the balance between Fair Trial and Witness Protection. He remarked that a Witness requires confidence in the system. They will be more likely to volunteer once the system understands practical problems and implements measures. “A scheme or policy cannot be idealistic. A person cannot be compelled to give evidence, if he does not volunteer. Balancing of various factors in giving protection to witnesses shall be considered. For instance, a witness programme, where the name and job the witness is to be changed will face realistic implementation setbacks in India,” said Justice Nambiar.

With regard to Media Trials, Justice Nambiar shared his experience while dealing with the Solar Scam Issue in Kerala, where  he had restrained the media from publicising or discussing contents of the Inquiry Commission report. He emphasized that media trials have to be self-regulatory and that responsible journalism is needed at the forefront. Finally, he concluded on the topic of witness protection and media trial by saying that there has to be a balance, and restrictive provisions does not achieve anything and voiced his confidence in the institution of media.

In the last leg of the discussion, Justice Nambiar answered certain pointed questions regarding the way forward for India – addressing expectations from both the Legislature and the Judiciary.

After a Vote of Thanks by the Members of the CAN Foundation, the Online Session was concluded. The Session was organised in association with the SCC-EBC Group as the Knowledge Partners, who are known for their excellent legal research and stellar publishing standards. The Foundation also has Bar and Bench, the legal reporting stalwart as its Media Partner.

The Entire Session can be viewed here: HERE

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