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Report No. 198

Witness Identity Protection and Witness Protection Programmes

Chapter I

Introductory

The Consultation Paper:

The issues of 'Witness Identity Protection and Witness Protection Programmes' were taken up by the Law Commission suo motu in the light of the observations of the Supreme Court in NHRC v. State of Gujarat 2003(9) SCALE 329, PUCL v. Union of India: 2003(10) SCALE 967; Zahira Habibullah H Sheikh and Others v. State of Gujarat: 2004(4) SCC 158, and Shakshi v. Union of India: 2004(6) SCALE 15 that a law in this behalf is necessary. More recently the same view was expressed by the Supreme Court in Zahira Habibulla Sheikh v. Gujarat: 2006(3) SCALE, 104.

The Court stated in all the above cases that having regard to what is happening in important cases on the criminal side in our Courts, it is time a law is brought forward on the subject of witness identity protection and witness protection programmes.

The Law Commission of India released a Consultation Paper on 'Witness Identity Protection and Witness Protection Programmes' in August 2004. After release of the Consultation Paper, the Criminal Law Review, a leading law journal published from the United Kingdom, in its issue of February 2005 (at page 167), reviewed the Consultation Paper under the heading of 'Law Reform' as follows:

"The Law Commission of India has published a substantial Consultation Paper (pp. 337), "Witness Identity Protection and Witness Protection Programmes" (August 2004). As its title suggests the paper covers two broad aspects of the need for witness protection. The first addresses the questions of whether and to what extent provision ought to be made for witnesses to give evidence anonymously during criminal trials.

One of the remarkable features of the paper is the breadth of the research that has been undertaken. Chapter 6 of the paper comprises a comparative study of case law on witness protection and anonymity which, in addition to common law jurisdictions, encompasses the procedures adopted by the respective International Criminal Tribunals for Yugoslavia and Rwanda, and reviews the jurisprudence of the European Court of Human Rights.

The second aspect of witness protection covered by the paper concerns "the physical and mental vulnerability of witnesses" and the need to take care of "various aspects of the welfare of witnesses which call for physical protection of witnesses at all stages of the criminal process". An extensive comparative review of witness protection programmes operating in various jurisdictions is set out Ch. 7 of the paper.

The paper goes significantly beyond the traditional scope of comparative studies in criminal justice law reform documents, which is confined to practices in the more prominent common law jurisdictions. In addition to statutory schemes in Australia, South Africa, the United States, and Canada, those operating in continental jurisdictions, including France, the Netherlands, Germany, Portugal and Italy, fall within the purview of the chapter. The full text and a summary of the paper can be accessed on the Commission's website:
http://lawcommissionofindia.nic.in/."

The Commonwealth Law Bulletin (2004) (Vol. 30) (pp 262 to 272) has referred to the Consultation Paper and has extracted the summary of the Consultation Paper and questions contained in the Questionnaire in Chapter VIII thereof.



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