Background- The issue of witness protection scheme had cropped up earlier when the top court was hearing a public interest litigation (PIL) seeking protection for witnesses in rape cases involving Asaram Bapu.
In a society governed by a Rule of Law, it is imperative to ensure that investigation, prosecution and trial of criminal offences is not prejudiced because of threats or intimidation to witnesses. The need to protect witnesses has been emphasized by the Hon’ble Supreme Court of India in “Zahira Habibulla H. sheikh and Another v. State of Gujarat” 2004 (4) SCC 158 SC. While defining Fair Trial, the Hon’ble Supreme Court observed that “If the witnesses get threatened or are forced to give false evidence that also would not result in fair trial”.
In 1958, the 14th Report of Law Commission indicated about the need to protect witnesses. The 4th Report of the National Police Commission, 1980 also dealt with the said subject. In 154th Report (1996) The Law Commission dealt with the plight of the witnesses. The report spelt out the inconvenience and the lack of facilities and the threat from the accused to the witnesses. The 172 and 178th report also dealt with the said subject and recommended that witnesses should be protected from the wrath of the accused in any eventuality. The Hon’ble Supreme Court also repeatedly observed about the importance to give protection to witnesses.
The edifice of the scheme stands on the categorization of the witnesses as per the threat perception. Three categories keeping in view of the degree of threat has been conceptualized i.e.
Category A- pertains to the scenario where the threat is graver and extends to life of a witness or his family members;
Category B- comprises that degree where threat is to the safety, reputation, property of witness or family members, and lastly,
Category C- comprises of the degree where threats are more moderate as compared to the threats conceptualized in the categories A and B. Category C extends to harassment or intimidation of the witness or his family members reputation.
Types of Protection Measures:
The types of Protection measures envisaged under the Scheme are to be applied in proportion to the threat. The same are not expected to go for infinite time, but are expected to be for a specific duration on need basis which is to be reviewed regularly. The measures provided for the protection of the witnesses include the following:-
(a) Ensuring that witness and accused do not come face to face during investigation or trial;
(b) Monitoring of mail and telephone calls;
(c) Arrangement with the telephone company to change the witness’s telephone number or assign him or her unlisted telephone number;
(d) Installation of security devices in the witness’s home such as security doors, CCTV, alarms, fencing etc.;
(e) Concealment of identity of the witness by referring to him/her with the changed name or alphabet;
(f) Emergency contact persons for the witness;
(g) Close protection, regular patrolling around the witness’s house;
(h) Temporary change of residence to a relative’s house or a nearby town;
(i) Escort to and from the court and provision of Government vehicle or a State funded conveyance for the date of hearing;
(j) Holding of in-camera trials;
(k) Allowing a support person to remain present during recording of statement and deposition;
(l) Usage of specially designed vulnerable witness court rooms which have special arrangements like live links, one way mirrors and screens apart from separate passages for witnesses and accused, with option to modify the image of face of the witness and to modify the audio feed of the witness’ voice, so that he/she is not identifiable;
(m) Ensuring expeditious recording of deposition during trial on day to day basis without adjournments;
(n) Awarding time to time periodical financial aids/grants to the witness from Witness Protection Fund for the purpose of re-location, sustenance or starting new vocation/profession, if desired;
The Witness Protection Scheme, 2018 is a first attempt at the National level to holistically provide for the protection of the witnesses which will go a long way in eliminating secondary victimization. The witnesses being eyes and ears of justice, and play an important role in bringing perpetrators of crime to justice. This scheme attempts at ensuring that witnesses receive appropriate and adequate protection. This will go a long way in strengthening the Criminal Justice System in the Country and will consequently enhance National Security Scenario.
Since the passage of the citizenship (Amendment) Bill, 2016 by Lok Sabha many questions have been raised about its constitutionality particularly when the said amendment is focused to give the benefit to illegal migrants belonging to particular religion communities.
Before looking into the amendment deeply and before knowing the meaning of the illegal migrants. First we need understand how Indian citizenship can be acquired.
There are three ways to acquire the citizenship of India under the citizenship Act, 1955 .These are:
- One takes birth in the country
- One having resided in the country over a period of time.
This is citizenship by naturalization. Under this clause the applicant must have resided in India during last 12 months and for 11 of the last 14 years. The bill relaxes this 11years to 6 years for person belonging to 6 religions (Hindu, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan).
Illegal migrants cannot acquire citizenship .Illegal migrants are those:
- Who enters in the country without valid travel documents
- Who enters with valid documents but stays beyond the permitted period of time.
Under the foreigners Act, 1196 and passport entry into India Act, 1920 illegal immigrants may be imprisoned or deported. The central government notification exempts six minorities (Hindu, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan).
These groups of illegal migrants cannot be imprisoned or deported for not having valid papers. Citizenship (amendment) Bill2016 seeks to grants them citizenship in India in the basis of naturalization by further reducing the time from 11 year to 6 year.
In all the above legal charges two communities are left behind i.e. Muslims and Jews. Which means if they are illegal migrants then still they can be deported or imprisoned. Article 14 of our constitution gives right to equality which includes in itself all citizen and foreigners both. The question is –Will the amendment in the citizenship act pass the test of equality when the differentiation between the illegal migrants on the basis of religion. Especially when no rationale can be seen behind the said classification or should we say no rationale can be seen behind the said discrimination.
Direct conflict with the Assam Accord
The proposed amendment may be in conflict with Assam accord .the accord was signed to protect the social, cultural and linguistic identity of the Assamese people. It states that foreigner who has entered Assam from Bangladesh after 25th March, 1971, will be detected and expelled. Hence there may be the cases under the accord related to persons belonging to minority communities. However, they would be deemed as legal migrants on enactment of the bill .
It is hereby announced for the general information of the candidates who have applied in response to the Advertisement No. 0612016 published on 20.03.2017, corrigendum dated 27.08.2018 and announcement dated 22.10.2018.
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Orator’s Law Academy achieved 5th rank in Punjab Judiciary. And many many congratulations to Ritika Kansal. We are proud of you..
PUBLIC APPOINTMENTS HIGH COURT OF DELHI: NEW DELHI
DELHI JUDICIAL SERVICE EXAMINATION – 2018
THE HIGH COURT OF DELHI invites online applications from eligible candidates for filling up 50 vacancies in Delhi judicial Service by holding Delhi Judicial Service Examination in two successive stages:
(i) Delhi Judicial Service Preliminary Examination (objective type with 25% negative marking) for selection for the main examination; and
(ii) Delhi Judicial Service Main Examination (Written) for selection of candidates for calling for Viva voce.
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The rights of victims of crime is a subject that has, unfortunately, only drawn sporadic attention of Parliament, the judiciary and civil society. Yet, it has made great progress over the years. It is our evolving and developing jurisprudence that has made this possible. But we still have a long way to go to bring the rights of victims of crime to the centre stage and to recognise them as human rights and an important component of social justice and the rule of law.
The travails and tribulations of victims of crime begin with the trauma of the crime itself and, unfortunately, continue with the difficulties they face in something as simple as the registration of a First Information Report (FIR). The difficulties in registering an FIR have been noticed by a Constitution Bench of this Court in Lalita Kumari v. Government of Uttar Pradesh.1 The ordeal continues, quite frequently, in the investigation that may not necessarily be unbiased, particularly in respect of crimes against women and children. Access to justice in terms of affordability, effective legal aid and advice as well as adequate and equal representation are also problems that the victim has to contend with and which impact on society, the rule of law and justice delivery.
What follows in a trial is often secondary victimisation through repeated appearances in Court in a hostile or a semi-hostile environment in the courtroom. Till sometime back, secondary victimisation was in the form of aggressive and intimidating cross-examination, but a more humane interpretation of the provisions of the Indian Evidence Act, 1872 has made the trial a little less uncomfortable for the victim of an offence, particularly the victim of a sexual crime. In this regard, the judiciary has been proactive in ensuring that the rights of victims are addressed, but a lot more needs to be done. Today, the rights of an accused far outweigh the rights of the victim of an offence in many respects. There needs to be some balancing of the concerns and equalising their rights so that the criminal proceedings are fair to both.2 The Courts have provided solace to the victim with monetary compensation, but that is not enough.3 There are victim compensation schemes in force due to the mandate of Section 357A of the Code of Criminal Procedure, 1973 (the Cr.P.C.) but even that is not enough, though they are being implemented in several parts of the country. We are of the view that the judiciary is obliged to go and has gone beyond merely awarding compensation and has taken into consideration the larger picture from the perspective of the victim of an offence, relating to infrastructure in court buildings and has recommended and implemented some recommendations such as the construction of child friendly courts and courts that address the concerns of vulnerable witnesses.4 The Courts have done and are continuing to do their best for the victims of crime.
In Sakshi v. Union of India5 this Court passed significant directions for holding in camera proceedings, providing for a screen between the accused and the victim and placed restrictions, in a sense, on the cross examination of witnesses. It is true that these directions have been passed in a case relating to sexual offences but the trend of this Court has been to show concern for the rights of victims of an offence and to address them.
Parliament also has been proactive in recognising the rights of victims of an offence. One such recognition is through the provisions of Chapter XXIA of the Cr.P.C. which deals with plea bargaining. Parliament has recognised the rights of a victim to participate in a mutually satisfactory disposition of the case. This is a great leap forward in the recognition of the right of a victim to participate in the proceedings of a non-compoundable case. Similarly, Parliament has amended the Cr.P.C. introducing the right of appeal to the victim of an offence, in certain circumstances. The present appeals deal with this right incorporated in the proviso to Section 372 of the Cr.P.C.
In other words, a considerable amount has been achieved in giving life to the rights of victims of crime, despite the absence of a cohesive policy. But, as mentioned above, a lot more still needs to be done.
Among the steps that need to be taken to provide meaningful rights to the victims of an offence, it is necessary to seriously consider giving a hearing to the victim while awarding the sentence to a convict. A victim impact statement or a victim impact assessment must be given due recognition so that an appropriate punishment is awarded to the convict. In addition, the need for psycho-social support and counselling to a victim may also become necessary, depending upon the nature of the offence. It is possible that in a given case the husband of a young married woman gets killed in a fight or a violent dispute. How is the young widow expected to look after herself in such circumstances, which could be even more traumatic if she had a young child? It is true that a victim impact statement or assessment might result in an appropriate sentence being awarded to the convict, but that would not necessarily result in ‘justice’ to the young widow – perhaps rehabilitation is more important to her than merely ensuring that the criminal is awarded a life sentence. There is now a need, therefore, to discuss these issues in the context of social justice and take them forward in the direction suggested by some significant Reports that we have had occasion to look into and the direction given by Parliament and judicial pronouncements.
The rights of victims, and indeed victimology, is an evolving jurisprudence and it is more than appropriate to move forward in a positive direction, rather than stand still or worse, take a step backward. A voice has been given to victims of crime by Parliament and the judiciary and that voice needs to be heard, and if not already heard, it needs to be raised to a higher decibel so that it is clearly heard.