Urgent need for a witness protection programme: Law panel tells govt

Responding to a concern raised by the Supreme Court in the Best Bakery case, the Law Commission has initiated the process of drafting a law ...

Responding to a concern raised by the Supreme Court in the Best Bakery case, the Law Commission has initiated the process of drafting a law to protect witnesses with a slew of radical measures, including changing their identity and even their physical appearance.

The commission8217;s chairman, former Supreme Court judge M Jagannadha Rao, gave Law Minister H R Bhardwaj yesterday a 330-page consultation paper highlighting the 8216;8216;urgent need8217;8217; to give witnesses the option, firstly, of deposing anonymously. And, secondly, of being rehabilitated elsewhere through, what is provided in several advanced countries, as 8216;8216;witness protection programmes.8217;8217;

The paper points out that though POTA is the only Indian law which allows the identity of witnesses to be kept secret, the trend of their turning hostile due to threats is 8216;8216;no longer confined to cases of terrorism.8217;8217; Hence, it proposes a general law that goes beyond POTA and extends anonymity as well as witness protection, that too 8216;8216;in all criminal cases involving grave offences not limited to terrorist crimes.8217;8217; Ironically, the Law Commission is expanding on the POTA provision on witness anonymity at a time when the Cabinet has decided to repeal the entire law apart from the clause against funding of terrorist organisations.

The consultation paper has been posted on the commission8217;s website inviting responses to a detailed questionnaire on what kind of a witness-protection law India should adopt. After getting feedback, the commission proposes to give its final report along with a draft Bill. On its part, the commission has made a comparative survey of the witness protection laws of a dozen countries and annexed the statutes of Portugal and New Zealand to the paper evidently because they were found to be most suitable to Indian conditions.

Since the anonymity proposal undermines the right of the defence counsel to cross-examine the prosecution witness, the commission has sought to strike a balance by saying that the witness would have to depose in the presence of the defence counsel even if the accused is not allowed to see him. The paper makes it clear that the idea of introducing witness protection programme involves dealing with a range of practical problems:

8226; If a person8217;s identity is to be changed, he will have to be given not only only a new name and address but also a fresh birth certificate, ration card and other such official documents.

8226; Similar police protection may have to be given to his family members as well.

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8226; To reduce the chances of his being traced by the side of the accused, the police may have to resort to, as the paper put it, 8216;8216;changes in the physiognomy or the body of the beneficiary.8217;8217;

8226; If the witness and his family have to be shifted elsewhere in the country or abroad, the authorities will have to determine the period of their stay in the new place, the maintenance they may have to be paid or the fresh employment they may have to be provided.

8226; Should a person entering the programme be required to enter into a memorandum of understanding setting out his rights and obligations? If so, what are the means of enforcing such rights and obligations?

8226; Given the enormous expenditure involved in implementing the witness protection programme, the Law Commission has also asked the public to ponder whether India can afford it at all.