JK High Court Notice regarding Supplementary Cause
The Chief Justice of High Court of Jammu & Kashmir and Ladakh is pleased to approve the updated Model Guidelines for Recording of Evidence of Vulnerable Witnesses in the Union Territory of Jammu & Kashmir and Union Territory of Ladakh:
The purpose of this protocol is to present guidelines and recommendations to Improve the response of the justice dispensation
system towards Vulnerable Witnesses.
This protocol prescribes guidelines to be followed while recording dispositions 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 etc. 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 disabilitie, and witnesses experiencing threats to their Life and property, among others. Vulnerable witnesses find their interaction with the legal process, especially the criminal justice process intimidating, particularly the courtroom experience. Under these circumstances, unless adequate support is provided, a vulnerable witness may not feel safe to provide robust testimony. Further, 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 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 victimization can be minimized. Sensitive engage1nent 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.
These Guidelines have been developed in furtherance of the Supreme Court’s directions in Smruti Tukaram Badade v. 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.
OBJECTIVES OF THESE GUIDELINES
1. To enable vulnerable witnesses to depose freely before any court in a safe and secure environment.
2. To minimize harm or secondary victimization of vulnerable witnesses in anticipation and as a result of participation in the justice system.
3. To ensure that the rights of all the parties in the judicial processes are effectively implemented. In the context of the criminal process- the accused’s right 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.
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