Thread by @barandbench

Webinar on “Protection of witnesses and whistleblowers: Strengthening the Frameworks” organised by DSNLU Vishakhapatnam and Confederation of Alumni for National Law Universities (CAN Foundation) will begin shortly.

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Justice AKJ Nambiar of Kerala High Court, Justice Dr. PS Bhati of Rajasthan High Court and Senior Advocate Siddharth Bhatnagar will share their point of view.

Advocates Sriram Parakkat and Vishwajeet Singh will moderate and Prof. (Dr.) S. Surya Prakash will give welcome address.

Session begins.

Shivang Dubey introduces the topic of the session and the panelists.

A presentation is being played to give a background on the CAN Foundation.

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Prof. (Dr.) S. Surya Prakash, Vice Chancellor of DSNLU begins his welcome address.

Dr. Prakash states that considering the volume of work that High Court judges have and the back breaking burden, states and the Central government have to do tackle the burden on administration of justice.

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He adds that there are a variety of judgments where depending upon the nature of the offences the judges have considered the cases before them.

Dr. Prakash: For instance, a public prosecutor who was charged u/S.307 IPC, his appointment as PP was cancelled.

There is no doubt that witnesses have to be protected. A classic case showcasing this is the Salman Khan case, says Dr. Prakash.

There were 27 prosecution witnesses, only 1 is by defence: Dr. Prakash.

Dr. Prakash: HC judgment running into 50,000 words acquitted him. Sessions Court convicted him under charges of IPC and Motor Vehicles Act.

His personal bodyguard was no more, the original FIR was missing and you see quite a number of lapses in the judgment of HC.

Dr. Prakash: His driver was introduced into the proceedings after 13 years.

This is a black face in the history of High Court of Bombay. Bombay Bar has given legal luminaries. The High Court has given luminaries.

This judgment however has disturbed me, says Dr. Prakash.

*This is a black phase

Dr. Prakash concludes his address.

Justice AKJ Nambiyar from Kerala High court begins his address.

He congratulates CAN Foundation for their work.

It will enable students, especially underprivileged to continue their law school education, Justice Nambiyar says.

Justice Nambiyar: What is a witness protection scheme? It is a programme where people are willing to speak against accused.

A witness coming forth is seen as an attribute of good citizenship.

It becomes obligatory on the state then to protect him in order to bring the offender to Justice, he adds.

Justice Nambiyar adds: Globally, I won’t talk of countries which have them, because there are many.

But the framework is that there is a legislation in place keeping the objective of the act.

It is not in every criminal case, because the cost is borne by thestate.

Justice Nambiyar: Lets say there is a bomb thrown in the mob. Here there are many witnesses. There could also be a case where the witness may not know the accused and vice versa.

Justice Nambiyar: But then there are cases where the accused and the witnesses know each other.

So most witness programmes categorise the witness protection required.

Justice Nambiyar: You have to also consider the witness whom you are protecting. For instance in a terrorist group, one of the terrorist may be the witness.

Justice Nambiyar: Most programmes also talk of funds, because the public money goes in this, to improve the efficiency.

In India the additional problem comes due to the volume of the population.

Justice Nambiyar: You also have to consider the third party rights vis-a-vis the witnesses. Who can visit them, etc.

Justice Nambiyar concludes his address with this brief overview of the issues.

Dr. Justice PS Bhati commences his address.

He refers to the address of Dr. Prakash regarding the awaited verdict on the black buck case and opines that there is more awareness in the society regarding the protection to environment.

Justice Bhati gives example of cases when judges have to decide cases where victims come to court with serious charges against the accused, like physical assault, rape, etc. but then they say that they have compromised with the accused.

Justice Bhati: This topic is not only relevant for witnesses, but it is a larger problem.

While speaking, on lighter note, he apologizes for moving his hands a lot.

Justice Nambiyar that way was very cool, my lawyer habits have not gone.

Justice Bhati suggests that good witness programmes have help through lot of magistrates.

He suggests quicker trials. Also adds that if witnesses can be produced before magistrate early in the trial, then it will help in administration of justice.

Justice Bhati: Most of our protection guidelines include not to scandalise the witness him, defame him, etc.

But we need to have be more realistic in our approach. Something has to come out.

Justice Bhati: Witnesses say something before the Insurance companies in accident cases, and something else in the court.

Mostly witnesses are family members, neutral members are far and few. This has to be looked into.

Justice Bhati: Of course we cannot come to a solution right away, but then we are at least having this discussion.

We have to maintain rule of law, or else there will be tooth for tooth situation..

Justice Bhati: We need to strive for a society where the society believes that rule of law is there, there is administration of justice, they will get justice if they approach the courts.

With this he concludes his address.

Senior Advocate Siddharth Bhatnagar begins his address.

Bhatnagar: My endeavour is to try and show the development of technology for protection to witnesses and right to fair trial.

Bhatnagar refers to a law commission report which discussed the stages in criminal proceedings - investigation, pre-trial and trial stage.

There are judgments which deal with this.

Witnesses spend so much time in courts, virtually threatened.

Bhatnagar: We should ensure we do not harass a witness just because they are available.

He mentions of a bill which was not passed and then Supreme Court put a seal on the witness protection scheme prepared by the Government before them which we follow now.

The bill included counsels appointed in each state whom the witnesses can approach for any kind of help during and after the trial.

Bhatnagar suggested that there ought to be more technological involvement to ensure better protection.

Bhatnagar: I will speak a little on the whistleblowers. They are a subset of the witnesses only.

Whatever information they give must be protected too.

Bhatnagar: Whatever information is given to the authority by the witness or whistleblower must also be protected.

That data has to be confidential and be ensured is not leaked.

Bhatnagar concludes his address.

Advocate Vishwajeet Singh asks Justice Bhati to touch upon the issue of witnesses turning hostile.

Justice Bhati: There has to be a balance between punishing the hostile witness versus penalising him. There has to be a balance maintained.

Justice Bhati: This jurisprudence of protection of witness has to be studied carefully by students of law.

Credibility of the witnesses are affected.

BMW cars change into trucks in hit and run cases. It is a challenge to the judges.

Justice Bhati: Hostile witness is not defined anywhere.

But we know what it is. We have cross-examination with a hope that a hostile witness may be reversed.

Law requires witness to be free from all influence.

Justice Bhati: While protecting witness, we also have to ensure that the witness is not pressurised the other way round. The credibility and independence of the witness has to be maintained.

Justice Bhati: Even in constitutional courts, with habeas corpus petition, we have couples who are brought in. The girl gives a different statement in court, and a completely different statement in chambers where her parents are not present.

Justice Bhati: CAN foundation can take up this issue with the relevant authorities, not just judicial officers, but even police.

Are judges and lawyers are keeping the witness in a better frame of mind to give evidence?

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Justice Bhati: Resolution of problems will become easier if CAN foundation can act as a catalyst between the witness and law enforcement authorities.

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Advocate Sriram Parakkat asks Justice Nambiyar to speak a little on the angle of media trials in witness protection.

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Justice Nambiyar: Before going to media trials, let me just speak on something which Mr. Bhatnagar said on the balance of rights between fair trial and protection of witness.

This I feel is the question the legislation should answer.

Justice Nambiyar: Siddharth was speaking of the case where the SC used a bill which was discussed by the Parliament.

But in the other cases he referred to like Vishakha, the legislation came out after 13 yrs of the Supreme Court judgment.

With a piece of legislation, there is deliberation and discussion. The Constitution which took 2 yrs to pass is mature legislative drafting.

One thing that could be looked into to avoid delay in the identification of the issues with infrastructure or manpower.

Justice Nambiyar: Take for instance a witness programme where you can change the name and job of the witness. Is it realistically possible in India?

We have to consider it realistically in our country.

Justice Nambiyar: Which citizen will believe today if the police says his identity will be safeguarded.

The Supreme Court seem a little idealistic.

We need realistic schemes - those can be acted upon easily.

Justice Nambiyar: When you talk of media trial - there is a balance to be maintained between freedom to speech and right of fair trial.

Courts hold that the greater public good has to be considered, but then who can decide what is the greater public good.

Justice Nambiyar: While dealing with the solar scam issue it was not a gag order, but I had asked media to show restraint on discussing contents of the commission report.

Personally I also believe that the viewer may not like to see the same thing on the channel the whole day.

Justice Nambiyar: When I saw the restraint I also lifted the “gag order” and said that media can decide to what extent they can report.

And to be fair to them they did show some responsible journalism.

Justice Nambiyar:argumentsI feel that there has to be a balance, not just provisions which stops from doing something. That does not achieve anything.

He concludes his answer.

Adv. Singh asks Sr. Adv. Bhatnagar to throw some light on the implementation of the 2018 witness protection programme.

Bhatnagar: I completely agree with what Justice Nambiyar said. All his reasons.

Just adding more to what he said - when there is something that is realistic, then the members in the system will have equal access to implement them, they will access to the technology.

Adv. Parakkat asks Justice Nambiar to speak something on whistleblower protection scheme.

@sriram_parakkat

Justice Nambiyar: It is more or less the same.

We need to look from within to find out the kind of offences which are committed in our country, the nature of the society, the allocation of funds, the issues a witness may possibly face.

Justice Nambiyar: Hence I believe it is the legislation which will help and ideally a legislation at the Centre and the state. The Centre can give a broad framework, the State can add in the nitty gritty.

Justice Nambiyar: The whistleblower protection legislation is actually in place, but it is not yet notified, I don’t know why.

He gives an example where his father was on the commission which was discussing the whistleblower protection for the state.

Justice Nambiyar: The draft that was under discussion penalised officers below a particular level. The discussion was around the point that if the higher authority can be prosecuted then there will be too much power with one person.

Justice Nambiyar: About the whistleblower protection, I think the protection should include the aspect that the officials may try to show that the whistleblower is giving false information.

Justice Nambiyar: There should be nothing to discourage the whistleblowers from approaching.

Advocate Singh asks Justice Nambiyar on the issue of legislation in light of cases under UAPA.

Justice Nambiyar states that even if the legislation takes time, it is fine as long as they are available to bring in a feeling of protection in the minds of the citizens.

Advocate Parakkat asks Justice Bhati about what his take on the legislation was.

Justice Bhati agreed with Justice Nambiyar and added that maintaining rule of law is of utmost importance.

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Sr. Adv. Bhatnagar adds that once 2018 witness protection scheme by the Supreme Court is in place, so the challenges that are being faced in the implementation can be incorporated in the final legislation.

Justice Nambiyar agrees with Bhatnagar.

Justice Bhati shares an anecdote of when he was a lawyer and had a witness in customs case to file a writ in high court for getting his share in the smuggled goods as was allowed then.

He shared how between him and the court, they managed to keep the identity of the petitioner hidden throughout the hearing.

Sr Adv Bhatnagar ends the panel discussion by adding that constitutional courts can take of protection till a legislation is in place, that power has been given to the courts he says.

Shivang Dubey thanks all panelists for this session.

Session ends.

Hostile witnesses have always troubled the justice system, Justice PS Bhati on need for Witness Protection law #witnessprotection @CANFoundation19

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