Srinagar, Feb 28: Chief Justice (CJ) of the High Court of Jammu & Kashmir and Ladakh has approved the updated Model Guidelines for recording of evidence of vulnerable witnesses in accordance with the new criminal laws in the Union Territories of Jammu and Kashmir and Ladakh.
According to a notification issued by Registrar General, Shahzad Azeem, the guidelines have been developed in furtherance of the Supreme Court’s directions in Smruti Tukaram Badade versus State of Maharashtra and have been drawn from the Guidelines for recording of evidence of vulnerable witnesses in criminal matters prepared by the Delhi High Court and the protocol for recording evidence of vulnerable witnesses notified by the Jammu & Kashmir High Court as well as relevant statutory provisions, judgments, and international standards relevant to vulnerable witnesses.
“The purpose of this protocol is to present guidelines and recommendations to improve the response of the justice dispensation system towards vulnerable witnesses,” the notification said, adding, “This protocol prescribes guidelines to be followed while recording depositions of vulnerable witnesses in order to enable them to give their best evidence in criminal proceedings”.
“Each witness is unique and is to be addressed accordingly. The vulnerability of a witness may emerge from a range of circumstances which include, but are not limited to nature of crime, threats and intimidation, fear of reprisal, age, developmental Levels, gender identity, sexual minorities, ethnicity, religious identity, caste, physical and/or mental disability, lack of infrastructural support, language barriers, geographical location,” the notification said.
“Some of the most challenging cases before judges during the course of their careers are those involving vulnerable witnesses such as children, victims of sexual offences or domestic violence, persons with disabilities, and witnesses experiencing threats to their Life and property, among others.” The notification underscores that vulnerable witnesses find their interaction with the legal process, especially the criminal justice process intimidating, particularly the courtroom experience.
While the notification underscores that under these circumstances, unless adequate support is provided, a vulnerable witness may not feel safe to provide robust testimony, it says the lengthy process of navigating the adversarial criminal justice system or the civil justice system can affect the vulnerable witness’ psychological well-being in significant and long-lasting ways. To respond effectively to the needs of vulnerable witnesses, the notification says, the justice system needs to respond proactively with sensitivity in an enabling and age-appropriate manner, so that the judicial process is less traumatic and secondary victimisation can be minimized.
“Sensitive engagement and suitable modifications of existing procedures (within the framework of the law), while ensuring the rights of the accused or the opposite party, can significantly impact the quality of deposition by vulnerable witnesses and potentially the outcome of a trial”. The objective of the guidelines is to enable vulnerable witnesses to depose freely before any court in a safe and secure environment besides to minimize harm or secondary victimization of vulnerable witnesses in anticipation and as a result of participation in the justice system. The objective of the guidelines is also to ensure that the rights of all the parties in the judicial processes are effectively implemented.
“In the context of the criminal process, the right of the accused to fair trial and due process, the right of the victim to take part effectively in the proceedings, to be treated sensitivity and not be subject to secondary victimization, and the protection of the rights of a vulnerable witness (who may not necessarily be a victim), are effectively implemented”, read the notification.
