Mahender Chawla v. Union of India
Supreme Court of India, 5 December 2018, 2 judges
The Supreme Court approved the Union Government's Witness Protection Scheme, 2018, directed all States and Union Territories to enforce it as law under Articles 141 and 142 until legislation is made, and ordered vulnerable witness deposition complexes in every district.
Facts
The petitioners, a witness, the father of a murdered witness, the father of a child rape victim and a journalist, alleged that witnesses in rape trials against a self-styled godman had been threatened, attacked and killed. They petitioned under Article 32, contending that the right to testify freely without threat is part of Article 21. The Court ordered security for the petitioners, had all States and Union Territories impleaded, and asked the Attorney General for a draft scheme. The Ministry of Home Affairs prepared the Witness Protection Scheme, 2018 after comments from States, Union Territories, legal services authorities, High Courts, police and civil society, and filed it on 6 November 2018. All respondents accepted that the Court could direct its enforcement.
Questions before the Court
- Is there a need for a witness protection regime in India in the absence of legislation?
- Can the Court direct enforcement of the Witness Protection Scheme, 2018 across the country until a law is enacted?
What the Court held
- A main reason for witnesses turning hostile is that the State does not give them appropriate protection, especially where the accused are influential or tried for heinous offences.
- There is a paramount need for a statutory witness protection regime, which all stakeholders concede, but none has been enacted. The Scheme, prepared with wide consultation, was approved and comes into effect forthwith.
- The Union, States and Union Territories shall enforce the Scheme in letter and spirit, and it shall be the law under Articles 141 and 142 until suitable Parliamentary or State legislation is enacted.
- Vulnerable witness deposition complexes shall be set up in all district courts by the end of 2019, with financial and other support from the Central Government.
Why it matters
The judgment gives a country-wide witness protection framework by approving an executive scheme and declaring it binding law under Articles 141 and 142 until legislation is made. The Scheme covers threat analysis, protection measures, identity protection, change of identity and relocation, and the Court ties it to setting up vulnerable witness deposition complexes in every district.
In the Court's words
Copied from the official judgment; each passage links to its page.
“It hardly needs to be emphasised that one of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State. It is a harsh reality, particularly, in those cases where the accused persons/criminals are tried for heinous offences, or where the accused persons are influential persons or in a dominating position that they make attempts to terrorize or intimidate the witnesses because of which these witnesses either avoid coming to courts or refrain from deposing truthfully.”
“One thing which emerges from the aforesaid discussion is that there is a paramount need to have witness protection regime, in a statutory form, which all the stakeholders and all the players in the criminal justice system concede. At the same time no such legislation has been brought about. These are the considerations which had influenced this Court to have a holistic regime of witness protection which should be considered as law under Article 141 of the Constitution till a suitable law is framed.”
“As is clear from its reading, the essential features of the Witness Protection Scheme, 2018 include identifying categories of threat perceptions, preparation of a "Threat Analysis Report" by the Head of the Police, types of protection measures like ensuring that the witness and accused do not come face to face during investigation etc. protection of identity, change of identity, relocation of witness, witnesses to be apprised of the scheme, confidentiality and preservation of records, recovery of expenses etc.”
Provisions interpreted
Case and bench
- Parties
- Mahender Chawla & Ors. v. Union of India & Ors.
- Case
- Writ Petition (Criminal) No. 156 of 2016
- Decided
- 5 December 2018
- Bench
- A.K. Sikri, S. Abdul Nazeer
- Opinions
- Judgment delivered by A.K. Sikri, J.; signed also by S. Abdul Nazeer, J.
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