By- Aarcha Sasikumar
Witness protection, fair trail, justice, intimidation.
Witnesses are an important part of criminal trials and are game changers in criminal investigations. For this reason, they are subjected to threats and intimidation. Protecting witnesses, is therefore important, not only for protecting individual liberty, but also for ensuring justice.
Power politics has always been a threat to delivery of justice. Destroying valuable evidences and preventing key eye-witnesses from testifying are not just dramatic elements for movies, but are real-life dilemmas as well. The same political influence has somehow kept away the implementation of any laws for the protection of witnesses. Punishing the innocent is far worse than acquitting a criminal. Lack of evidence and hostile witnesses often leave a dead-end for rightful delivery of justice.
Can we blame the people for not fulfilling their duty as citizens of the country? Or has the organs and functionaries of the State failed to capture the trust of the people? The fact that the State hasn’t discharged its duties to the fullest, questions the relevance of the whole system in place. This article tries to examine the need for witness protection, the laws existent and its implementation.
A witness is a person who can testify by giving an account of something seen, heard or experienced by him. Witnesses are an integral part of the justice system be it civil or criminal. The testimony of a witness is what proves the guilt of the accused.[i] The information given by a witness plays an extremely crucial role in most cases and is sometimes the only evidence that can be used to conclude a case.
As rightly said by Jeremy Bentham, “Witnesses are the eyes and ears of a criminal justice system”. Due to the importance a witness testimony holds, the same is subject to many external threats. A witness can turn hostile by threatening his life or by corrupting him. Such a scenario would result in an unfair trial and the conclusions of such a trial would only lead to miscarriage of justice. As upheld by the Hon’ble Supreme Court, “Denial of fair trial is crucifixion of human rights”. [ii]
WITNESS PROTECTION IN INDIA
There isn’t any clear-cut definition of who exactly a witness is in the Indian Penal Code, 1860, the Criminal Procedure Code, 1908 or the Indian Evidence Act, 1872. Section 2(g) of The Witness (Identity) Protection Bill, 2006 attempts to define a witness and includes victims as well in its purview. That being said, the Indian Evidence Act in its Section 118 does demarcate who are not competent to testify. The attendance of a witness at a judicial or quasi-judicial proceeding is compelled by the issuance of a subpoena to the witness.[iii]
In State of Gujarat v. Anirudh Singhh and Another, Honorable Justice K. Ramaswamy and Justice D. Wadhwa observed that it is the salutary duty of every witness who has the knowledge of the commission of crime, to assist the State in giving the evidence; unfortunately for various reasons, many a witness turn hostile and in some instances even direct witnesses are being liquidated before they are examined by the Court. In such circumstances, it is high time that the Law Commission looks into the matter.[iv]
With the rise in incidents of hostile witnesses, the need for a new legislation was evident that would protect the rights and liberty of a witness and enhance delivery of justice. The need for protecting witnesses has been upheld by the Supreme Court in Zahira Habibulla H. Sheikh and Another v. State of Gujarat and Others wherein it was observed that if the witness is threatened or is forced to give false evidence that shall not result in a fair trial.[v] We need to understand that the role of the judiciary is limited in granting absolute protection to the witness in a matter.
Recently, the Hon’ble Supreme Court specifically outlined that one of the main reasons for the witnesses to turn hostile is that they are not accorded appropriate protection by the State. Clearly, threat to life, induced by coercion, compulsion, violence, etc., may often result in witnesses from contracting from truth, even if the same may go against their conscience or will.[vi]
The Witness Protection Scheme 2018
The Law Commission has many a times emphasized on the need for stronger laws for the protection of witnesses. The first report of the Commission in this respect was the 14th Law Commission Report. In many other reports that came out in the following years such as 154th, 172nd and 178th Report, the Commission observes the current plight of witnesses and highlighted the need for witness protection, and also advocated for in-camera trials to keep the witnesses away from the accused in order to obtain testimonies without fear.[vii]
Subsequently in the 198th Report, the Law Commission did an extensive research on the witness protection measures currently existent in the country and, proposed the “Witness (Identity) Protection Bill, 2006” along with its Report. However, no Draft Bill regarding Witness Protection Programmes was proposed.[viii]
The Hon’ble Supreme Court of India in the case of Mahendra Chawla v. Union of India on 5th December 2018, approved the Draft Witness Protection Scheme. It was prepared by the National Legal Services Authority (NALSA) by collecting inputs from 18 States and Union Territories and through various open sources that invited suggestions from police personnel, judges and civil society members.[ix]
The scheme provides the guidelines for protection of witnesses in proportion to the apprehended threat and such protection shall be provided for only specific durations, say, for three months.[x] It clearly defines and categorises the witnesses into three categories viz. Category A where threat extends to life of witness or his family, Category B where threat extends to safety, reputation or property of witness or family, and finally, Category C where there is moderate threat of intimidation or property to witness or family.
The scheme prevents witnesses and accused from meeting face to face and if needed, conceals the identity of a witness by referring to him/her by a changed name. All means of communication of the witness can be kept under close surveillance and he/she can also be assigned an unlisted telephone number for ensuring anonymity. The scheme also provides for in-camera trials and close private protection for the witness by assigning him/her with escort on the day of hearing in State funded conveyance, regular patrolling around the witness’s house and installing security devices in and around his house for surveillance.
A State Witness Protection Fund has also been proposed under this Scheme. The source of revenue for this fund shall be assignments from State Annual Budget, fine amounts levied as per Section 357 of the Criminal Procedure Code, donations from International/National Charitable Organizations and funds contributed under Corporate Social Responsibility.[xi]
Under the English law, threatening a witness from giving evidence, is contempt of Court.[xii] The Government not only protects the witness but also protects anyone who helps the witness or aids the investigation process as under Section 51 of the Criminal Justice and Public Order Act, 1994.
The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power was adopted by the United Nations General Assembly in resolution 40/34 of 29 November 1985.[xiii] It advocates for the need to protect victims of power abuse.
The United Nations Convention against Transnational Organized Crime urges all nations to implement laws for protecting witnesses. In furtherance of the same, the United Nations Office on Drugs and Crime (UNODC), organized meetings with regional experts in various fields such as law enforcement and other judicial authorities to formulate guidelines for witness protection programmes across the globe.[xiv] Article 24 and 25 of Organized Crime Convention pushes its member States to bring into force all effective protection and assistance to victims and witnesses of crimes.[xv]
The International Criminal Court (ICC) investigates and if required tries such grave criminal cases that concern the international community. It is located in Hague, Netherlands. They have a system in place that gives utmost protection to witnesses. ICC provides its witnesses with various services such as obtaining visas for travelling, assistance during travel and stay in Hague and also provides video link services for witnesses to testify from their place of residence, in such cases as permitted by the Chamber.[xvi]
They also give the witnesses a chance to familiarize themselves with the Court Room and explain to them where they will be seated and where the Defence, the Prosecution and the Judges will be seated during the hearings of the case. Such assistance is provided so that witnesses get comfortable with the new surroundings and will be at ease during the hearings which will enhance the efficiency of the trials.
The witnesses are to be compensated for the personal expenses incurred during they can also claim compensation for loss of wages and time lost during their absence from their place of residence for the purpose of testifying in the case. The International Criminal Court Bar Association (ICCBA) is the independent association that takes care of the interests of the Counsel and legal Support Staff who represent victims, defendants and witnesses at the ICC.[xvii]
Though India has improved in terms of providing security to witnesses, we still have a long way to go. Without the presence of strict penal liability along with the existent statute, there cannot be much progress in the current plight of witnesses. Therefore, mere guidelines for their protection would not suffice, a legislation has to be implemented by the Government. Perhaps, a reason why such a legislation never came into force till date, even after so many Law Commission Reports and Judicial decisions, could be attributed to the high levels of corruption prevalent in the country.
If such is the situation, then the judiciary has to take extra care in ensuring that witnesses are provided with sufficient protection and guarantee fair trials by evaluating the genuineness of all the evidences and testimonies. The unnecessary delays in conducting trials that occurs mostly due to adjournments is another reason why witnesses remain reluctant in coming forward. Public at large have started to lose faith in the efficiency of courts in delivering justice to the society.
In order to build confidence amongst witnesses that the State shall respect and value a witness and his testimony, all possible measures must be taken to ensure security and anonymity of a witness. By preventing influence of power politics in judicial proceedings and by creating a police system that can take independent decisions at least in matters of witness protection, can improve the plight of their security.
[i] Sanjeev Kumar and Abhishek Goyal, ‘Witness Protection: Safeguarding the Eyes And Ears Of Justice’ (Mondaq, 23 April 2020) <https://www.mondaq.com/india/trials-appeals-compensation/914274/witness-protection-safeguarding-the-eyes-and-ears-of-justice#_ftn3> accessed 11 January 2021
[ii] Rattiram v. State of M.P., (2012) 4 SCC 516
[iii] Vijay Kumar Singh, ‘Emerging Need for Witness Protection Laws in India – Analyzing the Success and Failures’ (2009) Vol. 1 GNLU Law Review
[iv] State of Gujarat v. Anirudh Singhh and Another AIR 1997 SC 2780
[v] Zahira Habibulla H. Sheikh and Another v. State of Gujarat and Others (2004) 4 SCC 158
[vi] Mahender Chawla and Ors. v. Union of India and Ors., 2019 (14) SCC 615
[vii] Saatif, ‘Need For A Witness Protection Law In India’ (Legal Services India) <http://www.legalserviceindia.com/legal/article-3498-need-for-a-witness-protection-law-in-india.html> accessed 12 January 2021
[viii] Supra note 1
[ix] Shrey Verma, ‘Witness Protection Scheme in India’ (Blog iPleaders, 31 December 2018) <https://blog.ipleaders.in/witness-protection-scheme-india/#:~:text=The%20Witness%20Protection%20Scheme%2C%202018%20has%20been%20approved%20by%20the,State%20to%20implement%20it%20effectively> accessed 12 January 2021
[x] Witness Protection Scheme, 2018 <https://www.mha.gov.in/sites/default/files/Documents_PolNGuide_finalWPS_08072019.pdf> accessed 13 January 2021
[xi] Akshat Aggarwal, ‘Witness Protection for Effective Legal Regime in India’ (Latest Laws, 22 April 2020) <https://www.latestlaws.com/articles/witness-protection-for-effective-legal-regime-in-india-by-akshat-aggarwal/> accessed 13 January 2021
[xii] H Suresh, ‘New law needed for witness protection’ (2005) Vol. 4 Combat Law
[xiv] ‘Protecting witnesses’ (United Nations Office on Drugs and Crimes) <https://www.unodc.org/unodc/en/frontpage/protecting-witnesses.html#:~:text=The%20United%20Nations%20Convention%20against,appropriate%20measures%20to%20protect%20witnesses.&text=UNODC%20has%20also%20developed%20a,the%20area%20of%20witness%20protection.> accessed 13 January 2021
[xv] ‘Victim Assistance and Witness Protection’ (United Nations Office on Drugs and Crimes) <https://www.unodc.org/unodc/en/organized-crime/witness-protection.html> accessed 13 January 2021
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