DSNLU-CAN Webinar | Scholarly Perspectives And Conceptuals of Witness Protection Regimes : Justice P.S. Bhati

This Sunday witnessed an astounding beginning when some of the esteemed members of the Legal Fraternity gathered for yet another thought provoking Online Sessions on one of the most significant topics of the present time. The Session was organized by Damodaram Sanjivayya National Law University (DSNLU), Visakhapatnam and CAN Foundation.

The erudite panel for the Session comprised Justice A. K. J. Nambiar, Judge, Kerala High Court, Justice P. S. Bhati, Judge, Rajasthan High Court & Mr. Siddharth Bhatnagar, Senior Advocate, Supreme Court of India. They elaborated on the Topic of “Protection of Witnesses & Whistle Blowers: Strengthening the Frameworks”. The Session brought numerous perspectives and issues into the picture. These were carefully picked and presented by Hon’ble Justice P.S. Bhati.

Discussing the affordability of witness protection, Justice Bhati remarked “As the member of the Legal Fraternity or as a lawyer or even as a Judge, we find people who are often injured physically come up to the Courts andmenion to have settled into a compromise. Though in heinous crimes the Hon’ble Supreme Court has specifically said that compromises are not the way to go. However, these things do touch the conscience of the Legal Fraternity when the rape victim alleges serious rape assault and when renders her statement she says ‘no, it was under a mistake and we have compromised.

Stressing on the above problems, Justice Bhati appreciated the efforts of CAN Foundation members towards the session on a topic of extreme significance. Congratulating the Foundation he also asserted that “While it is not that in this one session we can give a solution for it, we have to stand up for it. The problem is not only to the witness. It is a larger problem and the CAN Foundation has really touched it well.” After which he vehemently points out the need to contemplate in order to find a solution.

Continuing his argument, he talked about the need to increase the number of Magistrates and aligns the same with the concept of Rule of Law. In his opinion, “If the number of magistrates are increased, it will not be a costly affair as the sanctity of ‘Rule of Law’ has to be maintained and unless the witnesses and the trials are protected the whole system falls down. The quicker justice is given, the risk will be lesser and one one phase of protection will be met with.”

Later, Justice Bhati delved into another important facet of the topic being the hostile witnesses and how their statements at different stages rendered them hostile at the trial. He elaborates on how Sections 161, 162 and 164 of the CrPC talked about witnesses’ statements, which is later contradicted in Court as a result of which the witness is subsequently declared hostile. Another issue, which in Justice Bhati’s opinion gains importance, is the relevance of these statements until trial testimony. As he puts, “Whether the witness can be penalised or reprimanded for turning hostile? An interesting simultaneous Jurisprudence says that No, you cannot do so, else the system is likely to turn into a police regime.”

He further explained, “A number of solutions are offered such as videotaping the statement under Section 161 of the CrPC. In some tribal areas of Rajasthan, the government offers compensation to rape victims. Some people lodge an FIR, take compensation from the State and then turn hostile at the trial. Coercion is not physical alone, it can be financial or psychological as well.”

Putting forth his concerns for the Hostile witnesses, Justice Bhati asserted “Hostile witnesses have always troubled the justice system. The conviction rate is low and the Judiciary is blamed for low conviction rates as low as 4-5 %. This less conviction is not the failure of the judiciary alone but of the entire legal system. At the same time, we cannot put witnesses in the spot either or be hard on them since witness independence is paramount. Therefore, we still allow cross-examination of hostile witnesses to retrieve some relevant part out of the version being given at the trial and some testimony can be restored.” Thus, the need to protect the witnesses and prevent them from turning hostile has become crucial.

He further points out how there are different versions in FIR, in Section. 161, CrPC and the Statement under Section 164 CrPC.  The witnesses, however, cannot be prosecuted for differing versions at different stages. Concluding his stance he remarked “It is very important that the witness be made more comfortable in courts and the police system. The question is whether the Judges and lawyers are able to keep him in the right state of mind to give a clearer version of events.”

These issues along with several new ones were introduced and elucidated upon by Mr. Siddharth Bhatnagar. Agreeing with his copanellists, he reiterated the desirability and the necessity of a witness protection program. He commenced his address by mentioning the need to focus on how India had developed on two particular  aspects. ”While it is the right of an accused to have an open trial, we must also balance the rights of the victim in the prosecution of witnesses who must be able to depose freely and fairly. Secondly, you need wider consultation with the states. After all, all the states must be on board largely when it comes to these issues. Police and police order are state subjects, criminal law and criminal procedure are concurrent subjects under the constitution. States being on Board is extremely important.”

Explaining the Law Commission’s reports, Mr. Bhatnagar stated how the Commission had looked at witness protection in three stages:

  • The stage of investigation, before any evidence is recorded,
  • The stage before trial starts, and
  • After the trial starts.”

He further asserted the need of extending the protection to not only those witnesses who feared for their life but also, those who are called day in day out. As he put it “they come at risk as a threat to their life, but they also spend their time, energy and efforts in service of society by going to a Court spending the whole day there. So, we have to find a way to see how witnesses can be protected in that manner.”

Mr. Bhatnagar emphasised how witness protection scheme that the Supreme Court had put a seal on, and which presently we operate under was interestingly, prepared by the government itself; so the government while being quite hesitant to pass a legislation on the subject, prepared a witness protection scheme and put it before the Supreme Court and the Court then said, very well you must implement this until this legislation comes out. “We don’t have a legislation but the scheme itself I think is a good starting point. It deals with various issues, threats to family members, threat to property and it also sets out the differences of threat perception how witnesses are to be treated differently in that aspect.”

Pointing out the shortcomings of the Act, Mr. Bhatnagar laid down some key observations. He mentioned “Firstly, it did not deal with the private sector. Secondly, that bill which was passed actually requires disclosure of the name of the complainant so a witness protection issue comes up there as ultimately whistleblowers are a subset of witness protection. Whatever information comes into the hands of an authority that is deciding on witness protection must equally be kept confidential and there must be procedures for the same.” In his opinion, the Act required constant development  and technological advancement.

Addressing the practical problems relating to implementation, he stated that unless we have legislation, we’ll never have a realistic financial aspect sworn into the scheme itself. Ultimately, a good Witness Protection Scheme must have access to so many different things that are well funded. We need man power, we need places where people are going to go and we may need to upgrade our court system.

“Issue is, say, access to technology, especially during this pandemic, there are people who don’t have that access and unless you have legislation which deals with that issue, I don’t think a scheme which is carried out as a protem measure can meet what you really want to achieve in this.” He concluded by observing the requirement of comprehensive legislation that deals with issues such as technological requirement, funding, in-camera trials etc. that provide protection and anonymity to witnesses.

For organizing the Session and providing continuous assistance, the Foundation is extremely indebted to SCC-EBC for being their Knowledge Partners. The Foundation also extends its heartfelt gratitude to their thank our Media Partner Bar & Bench for their constant support in their endeavours.

You can view the entire Session at HERE 

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