New Law needed to Protect Witnesses – Pro-whistle blower laws need to be enacted – Corruption in India is a mega industry to which public exposés are no match.
From: eGov INDIA <email@example.com>
Subject: New Law needed to Protect Witnesses – Pro-whistle blower laws need to be enacted – Corruption in India is a mega industry to which public exposés are no match.
Cc: “Additional Secretary Legislative DepartmentShri N.L. Meena” <firstname.lastname@example.org>, “Additional Secretary Legislative DepartmentShri V. K. Bhasin” <email@example.com>, “Joint Secretary & Legislative Counsel Legislative DepartmentShri P.B.Singh” <firstname.lastname@example.org>, “Shri S.R. Dhaleta Joint Secretary & Legislative Counsel” <email@example.com>, “Additional Legislative CounselDr. G.Narayana Raju” <firstname.lastname@example.org>, “Member Secretary LAW COMMISSION OF INDIADr. Brahm A. Agrawal” <email@example.com>, “Shri Bhupinder Singhji” <firstname.lastname@example.org>, “egovindia” <eGovINDIA@yahoogroups.com>, “VMK VEMAKU” <email@example.com>, firstname.lastname@example.org, email@example.com
Date: Tuesday, August 11, 2009, 2:56 PM
Hon’ble Law Minister of India ,
In Business Since 1971. I have my own Consulting Business in California, USA. My number 949-302-8841(Mobile)
|In India, in most of the cases involving rich influential persons or corrupt politicians, crucial witnesses turn hostile, making the rule of law, a mockery.|
It is said that, in India, in most of the cases involving rich influential persons or corrupt politicians, crucial witnesses turn hostile, making the rule of law, a mockery. Very often witnesses become untraceable. Sometimes they are just eliminated.
The Law Commission in its 14th Report (1958) referred to ‘witness-protection’, but that was in a limited sense. That related to proper arrangements being provided in the Courthouse, the scales of travelling allowance, their daily allowance etc. The National Police Commission Report (1980) again dealt with the inadequacy of daily allowance for the witnesses, but nothing more. The 154th Report of the Law Commission 1996 contains a chapter on “Protection and facilities to Witnesses”. The recommendations mostly related to allowances and facilities to be made available for the witnesses. However, one of the recommendations was: “Witnesses should be protected from the wrath of the accused in any eventuality”, but, again, the Commission did not suggest any measures for the physical protection of witnesses. The 178th Report of Law Commission, again, referred to the fact of witness turning hostile, and the recommendations were only to prevent witnesses from turning hostile. The Report suggested an amendment to insert S.164 A to the Code of Criminal Procedure, as under:
164 A (1) Any police officer making an investigation into any offence punishable with imprisonment for a period of ten years or more (with or without fine) including an offence which is punishable with death, shall in the course of such investigation, forward all persons whose evidence is essential for the just decision of the case, to the nearest Magistrate for recording their statement.
(2) The Magistrate shall record the statements of such persons forwarded to him under sub-section (1) on oath and shall keep such statements with him awaiting further police report under Section 173.
(3) Copies of such statements shall be furnished to the investigating officer.
(4) If the Magistrate recording the statement is not empowered to take cognizance of such offence, he shall send the statements so recorded to the magistrate empowered to take cognizance of the case.
(5) The statement of any person duly recorded as a witness under sub-section (1) may, if such witness is produced and examined, in the discretion of the court and subject to the provisions of the Indian Evidence Act, 1872, be treated as evidence.
No Government has accepted this. The latest is Malimath Committee Report which contains a casual statement that a law should be enacted for giving protection to witnesses and their family members, without specifying any provision or scheme whatsoever.
It is ironic that draconian laws like Terrorist and Disruptive Activities (Prevention) Act, 1987, and Prevention of Terrorism Act, 2002, provided for protection of witnesses. The prosecution as also the Court could direct that the identity and the address of the witness be kept secret. The Court could even avoid the mention of the names and addresses in its order or judgement. It is generally perceived that these provisions were incorporated not with any concern for the witnesses, but to prevent the accused from preparing an effective defence and to deny fair trial.
|It is ironic that draconian laws like Terrorist and Disruptive Activities (Prevention) Act, 1987, and Prevention of Terrorism Act, 2002, provided for protection of witnesses.|
Under the English law, threatening a witness from giving evidence, is contempt of Court. So also any act of threat or revenge against a witness after he has given evidence in Court, is also considered as contempt. Recently the U.K. Government has a law known as Criminal Justice and Public Order Act, 1994 which provides for punishment for intimidation of witnesses. S.51 of the Act not only protects a person who is actually going to give evidence at a trial, but also protects a person who is helping with or could help with the investigation of a crime. Under a similar law in Hongkong, Crimes Ord (Cap 200) HK, if the threat or intimidation is directed even as against a friend or relative of the witness, that becomes a punishable offence.
In the United States, the Organised Crime Control Act, 1970 and later the Comprehensive Crime Control Act, 1984 authorised the Witness Security Program. The Witness Security Reform Act, 1984 provides for relocation and other protection of a witness or a potential witness in an official proceeding concerning an organised criminal activity or other serious offence. Protection may also be provided to the immediate family of, or a person closely associated with, such witness or potential witness if the family or person may also be endangered on account of the participation of the witness in the judicial proceeding.
|In European countries the Witness Protection Programme covers organised crimes, terrorism, and other violent crimes.|
The nature and extent of the risk to the safety of the witness or related person.
The nature of the proceedings in which the witness has given evidence or may be required to give evidence.
The importance, relevance and nature of the evidence, etc.
In European countries such as Italy, Germany and Netherlands, the Witness Protection Programme covers organised crimes, terrorism, and other violent crimes where the accused already know the witness/victim.
|Protection is also necessary to restore a sense of human dignity which stands shattered in a situation like Gujarat carnage.|
Before a person is provided protection under this Act, he/she shall first execute a Memorandum of Agreement with the Secretary of Department of Justice, which shall set forth the witness’ duties and responsibilities such as, but not limited to, the following:
|In most of the cases, witnesses are the victims of the crime.|
2. To avoid the commission of a crime;
3. To take all necessary precautions to avoid detection by others of the facts concerning the protection provided him under the Act;
4. To comply with legal obligations and civil judgements against him;
5. To cooperate with respect to all reasonable requests of off1icer and employers of the Government who are providing him protection.
6. To regularly reform the program officials of his current activities and address;
7. To comply with such other conditions as may be imposed by the Secretary of Justice.
Once a person/witness has been accepted under the witness protection program, he/she shall have the following rights and benefits:
1. To have a secure housing facility or, when circumstances warrant, to relocation and/or change of personal identity at the expense of the Program.
2. To have a means of livelihood and financial assistance from the Program for his support and that of his family.
3. Not to be removed from or demoted in work provided his/her employer is notified through a certification to be issued by the Department of Justice. Further, he/she shall be paid his/her equivalent salaries or wages corresponding to the number of days of absence.
4. To be provided with reasonable travelling expenses and subsistence allowance.
5. To be provided with free medical treatment, hospitalisation and medical expenses.
6. If a witness is killed because of his participation in the Program, his/her heirs shall be entitled to a burial benefit of not less than Ten Thousand Pesos P10,000.00 exclusive of any other benefit he may be entitled under the Program.
7. In case of death or permanent incapacity, his minor or dependent children shall be entitled to free education from primary to college level in any state or private school, college or university as may be determined by the Department of Justice. However, if the witness covered by the scheme fails or refuses to testify, he would be liable for contempt and also for perjury, if he testifies falsely or evasively.
The need for setting up separate victim and witness protection units in the trial of mass crimes has been acknowledged in the setting up of international tribunals to deal with them. The International Criminal Tribunal for Rwanda has formulated rules for protection of victims and witnesses. Similar provisions exist in the Statute for the creation of an International Criminal Court (ICC).
In most of the cases, witnesses are the victims of the crime. And the most vulnerable amongst them are women and children. Under the existing system they are mere pawns in a criminal trial and there is very little concern for protecting their real interests. The protection is necessary so that there is no miscarriage of justice; but protection is also necessary to restore in them, a sense of human dignity which stands shattered in a situation like Gujarat carnage.
The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power was adopted by the United Nations General Assembly in resolution 40/34 of 29 November 1985. According to the first paragraph of this declaration, victims of crime are described as “persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative in Member States, including those laws proscribing criminal abuse of power.” It is they who need protection.
As it is, as we have seen in Best Bakery case, the person who is most likely to suffer is Zahira, herself. She had seen the crime; she had seen the criminals, but when time came for her to be bold enough to depose before the Court, she found that she was in an atmosphere which was wholly hostile to her – the prosecutor, the defence lawyer, the accused, the supporters of the accused – perhaps the judge whom she was not sure of. The trial became a mockery. Later on, when she was resurrected by the efforts of well-meaning N.G.Os, and the Supreme Court transferred the case to Mumbai, apparently there was a feeling that justice will be done to the victims. Unfortunately, she is again caught in the same quandary. So, again she becomes a hostile witness, liable for perjury and also liable for contempt of court. Is there any legally just and fair solution for this conundrum of these events?
Therefore, there is an urgent need to bring forth a bill of right to preserve and protect victims’/witnesses’ rights, justice and due process. Such a bill should include the following:
To be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process.
To be informed, upon request, when the accused or convicted person is released from custody or has escaped.
To be present at and, upon request, to be informed of all criminal proceedings where the accused has the right to be present.
To be heard at the time of the granting of bail to the accused and sentencing.
To confer with the prosecution, after the crime against the victim has been charged, before a criminal court.
To receive prompt restitution from the person or persons convicted of the criminal conduct that caused the victim’s loss or injury.
To be heard at any proceeding when any post-conviction bail from judicial custody is being considered by a competent court of law.
To a speedy trial and prompt and final conclusion of the case after the conviction and sentence.
To frame rules and provide for a witness protection programme which will remain in force not only before the trial, but also thereafter. The rules should also provide for recording of evidence of such witnesses, immediately on filing the charge-sheet, de-bene-esse-, while the rest of the trial could be held in due course. Since tele-conference has been recognised, such witnesses could be examined and cross-examined through tele-conference methods.
AND above all,
To be informed of victims’ constitutional rights.
In USA since 1975. Self Employed Since 1971.
Dr.Kambar on ekavi and VMK
Dr. Chandrashekara Kambara’s Speech aobut KSD
Part one : http://youtube.com/watch?v=s01b4Z7l-aw
Part two : http://youtube.com/watch?v=UMmmomar7WA
EKAVI activities on picasaweb album
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