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 <egovindia@gmail.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.
To: vnathan@nic.in
Cc: “Additional Secretary Legislative DepartmentShri N.L. Meena” <nlm.ld@nic.in>, “Additional Secretary Legislative DepartmentShri V. K. Bhasin” <vkb@nic.in>, “Joint Secretary & Legislative Counsel Legislative DepartmentShri P.B.Singh” <pbsingh_2006@yahoo.com>, “Shri S.R. Dhaleta Joint Secretary & Legislative Counsel” <srdhaleta@india.com>, “Additional Legislative CounselDr. G.Narayana Raju” <dgnraju@yahoo.com>, “Member Secretary LAW COMMISSION OF INDIADr. Brahm A. Agrawal” <lci-dla@nic.in>, “Shri Bhupinder Singhji” <bhupinder@mail.svpnpa.gov.in>, “egovindia” <eGovINDIA@yahoogroups.com>, “VMK VEMAKU” <ekavikumaraswamy@gmail.com>, egovindia@gmail.com, egovindia@yahoo.com
Date: Tuesday, August 11, 2009, 2:56 PM

August 12th 2009

Irvine, California, USA

 

 

TO: Sri M. Veerappa Moily,
Hon’ble Law Minister of India , 

(Sri T K Viswanathan, Secretary, Ministry of Law and Justice,)

 

Hon’ble sir,

 

I am Venkatappa Marappanapalya Kumaraswamy, From Marappanapalya, Nelamangala Tq. Bangalore Rural Dt, Karnataka, India.

BMS College of Engineering “BMSCE”, Bangalore.1971., BMS College of LAW from 1971-1974., MBA University of Wisconsin-Whitewater, USA.1978.
In Business Since 1971. I have my own Consulting Business in California, USA. My number 949-302-8841(Mobile)

I have met you in California along with Late Dr. C. Veerappa. Also I have talked to you regarding eGovernance Issues in Bangalore.

 

 

eGovINDIA-Yahoo group comprises of over 4000 members from all over the world. The members of the group have subscribed to process automation based true e-governance which has the capacity to empower the citizens of all walks of life such as the socially and economically downtrodden, women, minorities and people living in far flung areas. 

 

I am stationed at Los Angeles, CA, USA. He is a post graduate in Management and has been deeply committed to the creation of a transparent and self confident India.

 

eGovINDIA Group, had Submitted to National Knowledge Commission, on relevance of e-governance in building a knowledge super power.

  

  

 

HON’ble SIR, India needs a Whistleblowers Protection Act

http://www.hinduonnet.com/op/2003/03/25/stories/2003032500110200.htm

We are willing to work with you on this just like we have done in Right to Information Act 2005. We have done lots of research on this. We have even gone to extent drafting some of the requirements of INDIA WHISTLEBLOWERS PROTECTION ACT. We would like to continue our work in this.

 

We will work with your Ministry to provide information. We have some people in Bangalore, Chennai, Mumbai, Gujarat, Delhi and other places.

 

Corruption in India is a mega industry to which public exposés are no match. Pro-whistle blower laws need to be enacted.

  

Whistles, stings and slapps by Rajeev Dhavan

http://www.hindu.com/2003/12/12/stories/2003121201851200.htm

 

In India, civil service rules forbid whistle blowing. But Justice Jeewan Reddy’s 179th Law Commission Report (2001) on “Public Interest Disclosure and Protection of Informers” wisely projects the importance of protecting whistle blowers.

 

_____________________________________________________________________________________________

 

Witness Protection
New Law needed to Protect Witnesses

H Suresh

 

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.

 

http://www.combatlaw.org/information.php?article_id=550&issue_id=22

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On 8th August 2003, in the case of National Human Rights Commission v. State of Gujarat, the Supreme Court regretted that “no law has yet been enacted, not even a scheme has been framed by the Union of India or by the State Government for giving protection to the witnesses.” Later on in the case of Zahira v. State of Gujarat, while transferring what is known as the Best Bakery Case, to Mumbai by its Order dated 12th April, 2004, directed: “The State of Gujarat shall also ensure that the witnesses are produced before the concerned court, whenever they are required to attend them, so that they can depose freely without any apprehension of threat or coercion from any person. In case any witness asks for protection, the State of Maharashtra shall also provide such protection as deemed necessary, in addition to the protection to be provided for by the State of Gujarat……” Between August 2003 and April 2004, neither Gujarat nor Maharashtra had framed any witness protection scheme. The Supreme Court itself did not spell out any guidelines for witness protection in either of these two cases. The erstwhile trial in Gujarat was an “over-hasty stage-managed, tailored and partisan trial.” The worst culprit was the State of Gujarat itself and all its agencies. The censure and the reprimand, were all directed against the State and its modern day “Neros”. “When fences start to swallow the crops, no scope will be left for survival of law and order or truth and justice. Public order as well as public interest become martyrs and monuments.” It is unfortunate that the State of Gujarat itself was entrusted with the responsibility of protection to the witnesses, as the case stood transferred to Maharashtra. The witnesses now are in the same predicament as before, in the re-trial that is going on in Mumbai.

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.

 

Recommendations by Commissions
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 S.151 and 152 of Indian Evidence Act, 1872, victims and witnesses are protected from being asked indecent, scandalous, offensive questions, and questions intended to annoy or insult them. Otherwise, there is no other provision for protection of witnesses, as against threats, intimidation or any inducement whereby they are prevented from telling the truth. Very often, when an accused is released on bail, one of the terms and conditions imposed by the Court on the accused, is that he shall not tamper the evidence, or approach the witnesses. This, again, is not as a provision for protection of the witnesses, but only to ensure the trial is not rendered infructuous. Judges also hold in-camera trials to ensure deposition by witnesses without any fear or embarrassment. Recently the Supreme Court has permitted recording of evidence by video-conferencing. All these are inadequate without a specific legal provision guaranteeing protective measures to victims before the trial and also after the trial.

International Laws
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 Attorney General takes the final decision whether a person is qualified for protection from bodily injury and otherwise to assure the health, safety and welfare of that person. In a large number of cases, witnesses have been protected, relocated and sometimes even given new identities. The Program assists in providing housing, medical care, job training and assistance in obtaining employment and subsistence funding until the witness becomes self-sufficient. The Attorney General shall not provide protection to any person if the risk of danger to the public, including the potential harm to innocent victims, overweighs the need for that person’s testimony. A similar program is in Canada under Witness Protection Act, 1996. The purpose of the Act is “to promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance in law enforcement matters” [Section 3]. Protection given to a witness may include relocation, accommodation and change of identity as well as counselling and financial support to ensure the security of the protectee or to facilitate his becoming self-sufficient. Admission to the Program is determined by the Commissioner of Police on a recommendation by a law enforcement agency or an international criminal court or tribunal [Sections 5 and 6]. The extent of protection depends on the nature of the risk to the security of the witness, the value of the evidence and the importance in the matter.

The Australian Witness Protection Act, 1994 establishes the National Witness Protection Program in which (amongst others) the Commissioner of the Australian Federal Police arranges or provides protection and other assistance for witnesses [Section 4]. The witness must disclose a wealth of information about himself before he is included in the Program. This includes his outstanding legal obligations, details of his criminal history, details of his financial liabilities and assets etc. [Section 7]. The Commissioner has the sole responsibility of deciding whether to include a witness in the Program.

The Witness Protection Act, 1998 of South Africa provides for the establishment of an office called the Office for Witness Protection within the Department of Justice. The Director of this office is responsible for the protection of witnesses and related persons and exercises control over Witness Protection Officers and Security Officers [Section 4]. Any witness who has reason to believe that his safety is threatened by any person or group or class of persons may report such belief to the Investigating Officer in a proceeding or any person in-charge of a police station or the Public Prosecutor etc. [Section 7] and apply for being placed under protection. The application is then considered by a Witness Protection Officer who prepares a report, which is then submitted to The Director [Section 9]. The Director, having due regard to the report and the recommendation of the Witness Protection Officer, takes into account the following factors, inter alia, [Section 10] for deciding whether a person should be placed under protection or not:
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.

A comprehensive witness protection programme is in the Philippines. The law, the Witness Protection Security and Benefit Act, aims to protect witnesses and grant them certain rights and benefits to ensure their appearance in investigative bodies/court. Protection is given to witnesses in cases involving grave offences. Sometimes protection could be given to a person who has participated in the commission of a crime but desires to be a witness for the State (such as approvers).
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.

1. To testify before and provide information to all appropriate law enforcement officials concerning or arising from the activities involved in the offense charged;
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.

International Criminal Court
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.

Urgent Need for a Law
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.

J. H. Suresh is a retired judge of the Mumbai High Court.
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Lack of awareness leads to corruption – Hindustan Times, Raipur, December 18, 2004.

 

Get on with Whistleblower’s Act – Civil Society, September-October 2004.

  

 India’s Right To Information Movement Makes A Breakthrough – Opengovjournal.org, March 22, 2005.

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We have more material on these issues.

 

If any questions, We will be able to answer.

 

Thanks

Sincerely

 

V. M. Kumaraswamy

 

ಈ ಕವಿ ಸಂಸ್ಥಾಪಕರು ಶ್ರೀ ವಿ.ಎಂ.ಕುಮಾರಸ್ವಾಮಿ 

 

V. M. Kumaraswamy, BE., MBA (USA)., 1971 BMSCE Graduating CIVIL Batch.

Welcome to the World of BMSCE IAA!
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Give priority to eradicate corruption, says M.V. Kamath-Make public to know RTI Act, “There is as much difficulty in defining corruption as there is in defining consumerism,”

Give priority to eradicate corruption, says M.V. Kamath

Staff Correspondent

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‘There is difficulty in defining corruption as there is in defining consumerism’

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Udupi: The Chairman of Prasar Bharati, M.V. Kamath, said on Sunday that it was necessary to remove corruption, which had permeated all levels in the country. He was presiding over the inaugural function of a programme to commemorate the achievements of consumer activists late P. Narayana Rao and late Vinutha Rao, organised by the Udupi Consumers’ Forum, here. He also released a book “Consumer Jurisprudence – An Introduction” compiled by U.G. Kamath, on the occasion.Dr. Kamath said that the efficacy of the Right to Information Act was yet to be known. However, the public should be made aware of this Act. “There is as much difficulty in defining corruption as there is in defining consumerism,” he said.

About 30 years ago, some U.S. pharmaceutical companies were selling drugs to Third World countries at exorbitant rates and were making enormous profits. But these companies had purchased the silence of the press and none of the U.S. newspapers reported about it. The press in India now are no better, he said. Presspersons could be purchased. Giving examples, he said film reviews were being routinely purchased by interested parties. Even editorials in newspapers could be bought.

The bad state of roads in Udupi district was a clear example of substandard works and corruption.

Such was the condition of the roads that he did not feel like inviting his friends to visit him, Dr. Kamath said.

Convener of the forum K. Damodar Aithal welcomed the gathering. The Deputy General Manager of Syndicate Bank, Devananda Upadhyaya, inaugurated the programme. Trustee of the forum A.P. Kodancha proposed a vote of thanks.

The second edition of the book “Balekadarara Rakshanege Mahiti Hakku 2005”, written by H. Shantharaj Aithal, was released by Chief Manager of Corporation Bank Ajit Rao.

http://www.hindu.com/2007/11/12/stories/2007111256780500.htm