J&K High Court approves updated guidelines for recording evidence of vulnerable witnesses

Srinagar, Feb 28: The Chief Justice of the High Court of Jammu & Kashmir and Ladakh has approved the updated Model Guidelines for Recording 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 the Registrar General, Shahzad Azeem, these guidelines have been developed in compliance with the Supreme Court's directions in Smruti Tukaram Badade v. State of Maharashtra and have been drawn from the Guidelines for Recording Evidence of Vulnerable Witnesses in Criminal Matters prepared by the Delhi High Court, as well as the Protocol for Recording Evidence of Vulnerable Witnesses notified by the Jammu & Kashmir High Court. Additionally, they incorporate relevant statutory provisions, judicial pronouncements, and international standards concerning vulnerable witnesses.

“The purpose of this protocol is to provide guidelines and recommendations aimed at improving the justice system's response to vulnerable witnesses,” the notification states, adding, “These guidelines prescribe the procedures to be followed while recording depositions of vulnerable witnesses to ensure they can provide their best evidence in criminal proceedings.”

Each witness is unique and must be addressed accordingly. The vulnerability of a witness may arise due to various circumstances, including but not limited to the nature of the crime, threats and intimidation, fear of reprisal, age, developmental levels, gender identity, sexual orientation, ethnicity, religious identity, caste, physical and/or mental disability, lack of infrastructural support, language barriers, and geographical location.

“Some of the most challenging cases before judges involve vulnerable witnesses such as children, victims of sexual offenses or domestic violence, persons with disabilities, and those facing threats to their life and property,” the notification states.

It emphasizes that vulnerable witnesses often find legal proceedings, particularly the courtroom experience, to be intimidating.

The notification underscores that, without adequate support, vulnerable witnesses may not feel safe enough to provide robust testimony. It also highlights that navigating the adversarial criminal justice system or civil justice system can have significant and long-lasting psychological impacts on vulnerable witnesses.

To address these challenges effectively, the justice system must respond proactively and sensitively in an age-appropriate manner, ensuring that judicial processes are less traumatic and that secondary victimization is minimized.

“Sensitive engagement and suitable modifications of existing procedures (within the framework of the law), while safeguarding the rights of the accused or the opposing party, can significantly enhance the quality of depositions by vulnerable witnesses and potentially impact the outcome of a trial.”

Objectives of the Guidelines:

To enable vulnerable witnesses to testify freely in a safe and secure environment.

To minimize harm or secondary victimization of vulnerable witnesses before and during their participation in the justice system.

To ensure that the rights of all parties involved in judicial processes are effectively protected.

The notification further emphasizes that, within the criminal justice system, the guidelines seek to balance multiple rights, including:

The accused’s right to a fair trial and due process.

The victim’s right to participate effectively in proceedings, be treated sensitively, and be protected from secondary victimization.

The protection of vulnerable witnesses, who may not necessarily be victims, but require support to provide reliable testimony.