Report No. 198
Summary of Chapters of the Consultation Paper:
We shall give a brief summary of the Chapters in the Consultation Paper. In Chapter I, we referred in detail to the observations of the Supreme Court in the judgments cited above and in other cases and in particular to the specific observation in NHRC v. State of Gujarat 2003(9) SCALE 329 and in Zahira 2004(4) SCALE 377. In the second case, the Court observed (at p 395)
"Legislative measures to emphasise prohibition against tampering with witnesses, victims or informants, have become imminent and inevitable need of the day".
It also added (at p 399):
"Witness protection programmes are imperative as well as imminent in the context of alarming rate of somersaults by witnesses".
Similar observations were made by the Supreme Court in the recent decision in Zahira Habibulla Sheikh v. Gujarat: 2006(3) SCALE 104.
In Sakshi v. Union of India 2004(6) SCALE 15, after referring to techniques of screening and video-conferencing, the Supreme Court reiterated (at p 35):
"We hope and trust that Parliament will give serious attention to the points highlighted by the petitioner and make appropriate legislation with all the promptness which it deserves."
After referring in Chapter 1 to the above observations of the Supreme Court, the Commission set out in Chapter II, the provisions of the existing criminal laws in India relating to right to a public trial and crossexamination of witnesses in open Court. In this connection, the Commission referred to the provisions of section 327 of the Code of Criminal Procedure, 1973 which provides for an open trial, to section 207 which deals with supply of copies of police report and other documents, to section 208, which deals with supply of copies of statements and documents in cases instituted otherwise than on a police report, to section 273 which requires evidence to be taken in the immediate presence of the accused.
Sections 200 and 202 require the Magistrate to examine the complainant and the witnesses on oath. We also referred to certain exceptions to these rules mentioned in the statute. All these provisions existing in the Code ensure a fair trial to the accused.
In Chapter II, the Commission also referred to some special provisions of the Code of Criminal Procedure, 1973 where in camera proceedings are permitte.- vide section 327(2) which provides for such a procedure in case of trials regarding offence of rape under section 376 and other sexual offences in section 376A to 376D of the Indian Penal Code, 1860. We referred to section 228A of the Penal Code which provides for imprisonment and fine upon any person who prints or publishes the name or any matter which may identify the person against whom rape is alleged or has been found to have been committed.
We also referred to section 21 of the Juvenile Justice (Care and Protection of Children Act, 2000), which prohibits publication of name, address or school or any other particulars calculated to lead to identification of the juvenile or the publication of the picture of a juvenile. Reference was also made to section 146(3) of the Indian Evidence Act, 1872 (as amended in 2002) which states that 'in a prosecution for rape or attempt to commit rape, it shall not be permissible, to put questions in the cross examination of the prosecutrix as to her general character'.
These provisions of the Code of Criminal Procedure, 1973 and the Penal Code, it was pointed out are obviously not sufficient.
In Chapter III, the Commission dealt with some special statutes which were intended to protect witness identity. These were section 16 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and 30 of the Prevention of Terrorist Act, 2002 (POTA).
The validity of these special provisions of the TADA was upheld in Kartar Singh v. State of Punjab 1994(3) SCC 569 and of the POTA in PUCL v. Union of India: 2003(10) SCALE 967.
In Chapter IV, the Commission then surveyed the previous Reports of the Law Commission, namely the 14th , 154 th , 172nd , 178 th Reports on the question. Of course, after the 172nd Report (2000) on 'Review of Rape Laws', the Supreme Court in Sakshi v. Union of India 2004(6) SCALE 15, made important suggestions for having 'video-taped interview', 'closed circuit television' evidence etc. That would mean that witness protection got extended to cases other than terrorist cases. But, still we have to consider the need for such procedures in cases other than those relating to terrorism or sexual offences, such as where grave offences are involved.
In Chapter V thereof, a survey of case law where some measures at witness protection were suggested by our Supreme Court, were dealt with.
We do not want to refer to them in detail once again. But, we made reference to the judgment of the Delhi High Court in Ms. Neelam Katara v. Union of India (Crl WP 247/2002) dated 14.10.2003 where certain guidelines were issued.
The Commission then referred to the view of the Supreme Court that where witness identity is protected, the principle of open trial cannot be said to have been breached.
In Chapter VI of the Consultation Paper, a very detailed comparative law analysis was made, referring to the statutes and judgments from the United Kingdom, Australia, New Zealand, Canada, The United States of America and the European Court of Human Rights and to the judgments and Rules of the International Criminal Tribunal for former Yugoslavia (ICTY) and also the Rules of the similar Tribunal for Rwanda. The Rules of these special Tribunals were examined in detail.
Then in Chapter VII, the Commission referred to the Witness Protection Programmes in Australia (Victoria, National Capital Territory, Queensland), South Africa, Hong Kong, Canada, Portugal, Philippines, USA, France, Czechoslovakia, Republic of Korea, Japan, Netherlands, Germany and Italy.
Finally, in Chapter VIII, the Commission came forward with a Questionnaire in two parts A and B, one relating to Witness Identity Protection and another dealing with Witness Protection Programmes.