Shalini Prem
Introduction
The criminal justice system in India defines, detects, and prevents crime. It involves processes for determining the guilt of the accused and the quantum of punishment to be awarded in order to rehabilitate and usefully integrate him back into society, in most cases. In an adversarial judicial system like India, witness testimony is one of the crucial pieces of evidence based on which the guilt of the accused is determined in criminal cases. According to Jeremy Bentham, “witnesses are the eyes and ears of justice.”[1] Yet, nowhere in the Indian Penal Code, 1860 (‘IPC’) or the Code of Criminal Procedure, 1973 (‘CrPC’) has the word ‘witness’ been defined. However, the Witness Protection Scheme 2018 defines ‘witness’ as “any person, who possesses information or document about any offence.”[2] The entire mechanism of the criminal justice system rests upon the truthfulness of the evidence gathered from the witness testimonies.[3] Unfortunately, witnesses often seem indisposed to come forward and assist the investigating agencies and the judiciary. Consequently, the truth remains unknown, making such witnesses a significant roadblock in the administration of criminal justice.
This post highlights the roadblocks to honest witness testimonials and undertakes a historical navigation through law commission reports, statutory provisions, judicial decisions, and the Witness Protection Scheme 2018 to establish the current legal framework for witness protection in India. Finally, it discloses the drawbacks within this framework and demands for a more holistic and comprehensive witness protection law.
Roadblocks to Justice
A witness may be incapacitated from telling the truth and turn ‘hostile’[4] for numerous reasons. For instance, frequent adjournment of cases without notifying the witnesses results in them repeatedly going to the Court.[5] When they appear before the police or Court, they are generally treated with suspicion or disrespect and are often subjected to harassment.[6] Moreover, there is no designated place with basic amenities to wait and rest until they have to be examined.[7] Witnesses are often summoned after a considerable period of time has passed since the alleged crime and, therefore, are not able to recall the full details of the said incident.[8] When summoned, witnesses’ financial and personal conditions, in terms of their loss of time, dietary needs, or travel expenses to and from the Court/police station, are ignored.[9] Further, the life, reputation, and property of the witness/ his family members are threatened at various stages of criminal proceedings.[10] In some cases, the experience of just seeing the accused might cause extreme fear and shock in the witness’s mind, disabling them from providing full details of the incident.[11] Despite all this, if a witness still decides to appear before the Court, he is subjected to prolonged cross-examinations that are often offensive and insulting,[12] resulting in Courtroom experiences that are needlessly stressful. Therefore, the trauma of attending Court regularly, in addition to the lack of protective measures, leads to a disinclination on the part of the witnesses to make a statement or testify before the police/court. This failure to hear a material witness amounts to the denial of a fair trial.[13] A fair trial is possible only when the witnesses can fearlessly and truthfully testify in Courts or cooperate with the investigation of the law enforcement.[14]
Law Commission Reports
The apparent need for better treatment and protection of the witnesses is reflected in several Law Commission Reports starting from the 14th Report (1958),[15] followed by the 154th (1996),[16] 172nd (2000),[17] 178th (2001),[18] and 198th (2006)[19] Reports. The 172nd Report, in particular, highlighted the need to protect child abuse victims/child witnesses and provided recommendations to that effect.[20] While the 198th Report was a comprehensive report on ‘Witness Identity Protection and Witness Protection Programmes’[21], the 198th Report also undertook a comparative analysis of the witness protection laws in various countries and proposed a draft bill called ‘The Witness (Identity) Protection Bill, 2006’ with several measures for the protection of witness’s identity (this has however not been enacted and made to be ‘law’).[22] In addition to the Law Commission Reports, the 4th National Police Commission Report (1980)[23] and the Justice Malimath Committee Report[24] also highlighted the need for protection of witnesses and recommended several measures to improve the position of the witnesses in the criminal justice system.
Statutory Protection
The legislature, recognising the need to protect witnesses, has enacted certain provisions to that effect. Under Sections 31 and 327(1) of The Bengal Suppression of Terrorist Outrages Act, 1932 and the CrPC, respectively, any particular person or the public, in general, could be excluded from the Courtroom or building, to protect the witnesses. While Sections 17, 30 and 16 of the National Investigation Agency Act, 2008, Prevention of Terrorism Act, 2002 (‘POTA’), and Terrorist and Disruptive Activities (Prevention) Act, 1987 respectively provided for in-camera trials[25] and protection of the witness’s identity. The proviso to Section 161(3) of the CrPC allows for the witness’s statement to be recorded using audio-video electronic means. Moreover, Sections 151 and 152 of the Indian Evidence Act, 1872 empower the Court to protect the witnesses from being asked indecent, scandalous, insulting or annoying questions during their cross-examination. Apart from this, Section 195A of the IPC criminalised the act of threatening witnesses to provide false evidence and a complaint to that effect can be filed by the witness as per Section 195A of the CrPC. Section 3(7) of POTA also criminalised the act of threatening a witness.
Furthermore, in cases where the witness is already present in Court, the proviso to Section 309(2) of the CrPC prohibits the Court from granting adjournment without examining such witness. Additionally, under Section 312 of the CrPC, any Criminal Court may order the Government to pay the witness any reasonable expenses incurred by him to attend any Court proceedings. According to the Proviso to Section 160 of the CrPC, the attendance of any male below the age of 15 or above the age of 65, or woman, or a person with a physical or mental disability, for an investigation by a police officer, is not required at any place other than the residence of such vulnerable witness. In addition to these, special statutes such as Juvenile Justice Act, 2015, The Whistleblowers Protection Act, 2011, and The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, among others, have been enacted with provisions for the protection of specific classes of witnesses.
Judicial Intervention
To empower witnesses to testify truthfully and fearlessly, the Indian judiciary has time and again emphasised on the need for witness protection measures.[26] The Supreme Court in Ram Govind Upadhyay v. Sudarshan Singh[27] held that threatening of witnesses is a ground for cancellation of bail. While in Zahira Habibulla Sheikh v. State of Gujarat,[28] the Supreme Court ordered for the protection of witnesses and a fresh trial outside the State of Gujarat. Sunil Kumar Pal v. Phota Sheikh[29] also allowed a re-trial due to apprehension and threat to the witness’s life. Moreover, the Apex Court in Sakshi v. Union of India[30] put forth certain procedural safeguards to be followed to protect the child witness or child abuse victim during a trial. Further, the Supreme Court in State of U.P. v. Shambhu Nath Singh[31] discouraged the practice of adjournments when the accused is absent, and the witness is present. Additionally, in Naresh Shridhar Mirajkar v. State of Maharashtra,[32] the Supreme Court observed that the Courts had inherent jurisdiction to hold in-camera trials to satisfy the ends of justice. Finally, the Supreme Court in NHRC v. State of Gujarat[33] issued certain guidelines for protecting witnesses while reiterating the critical role that the witnesses play in the criminal justice system.
Witness Protection Scheme 2018
Though the legislature and judiciary have taken steps towards witness protection, there was no comprehensive law that holistically applied throughout the nation. However, this changed in 2018 when the Supreme Court in Mahender Chawla v. Union of India[34] observed that any incapacitation of the witness to testify freely due to threats or other pressures would violate Article 21 of the Constitution. Consequently, the Court recognised the paramount need for robust witness protection mechanisms and, in the absence of a statutory regime, issued a ‘Witness Protection Scheme 2018’[35] (‘Scheme’). The Court declared this Scheme as law under Articles 141 and 142 of the Constitution and directed the States and Union Territories to duly adopt the same until a suitable law was passed by the Legislature.[36]
CATEGORY THREAT PERCEPTION
A - Threat to the witness/ their family members’ life
B - Threat to the witness/ their family members’ safety, reputation or property
C - Moderate Threat extending to intimidation or harassment of the witness/ their family members’ reputation or property
Above is the Categorisation of Witnesses based on Threat Perception as under the Witness Protection Scheme 2018.[37]
The Scheme provides certain procedural safeguards to ensure that the witnesses do not have to confront the accused either during trial or investigation and also provides for adequate security measures for the safety of the witness. Under the Scheme, upon an application being made, a Threat Analysis Report (TAR)[38] is prepared in which the witnesses are classified into one of three categories based on the threat perception (Table 1) and the type of protection measures adopted is proportionate to the perceived threat.[39] The Scheme provides for a range of witness protection measures that may be adopted by the ‘Competent Authority’[40]. These include, ensuring no confrontation between the accused and witness,[41] monitoring calls and mails,[42] changing the witness’s telephone number or assigning him with an unlisted number,[43] installation of security devices in the witness’s home,[44] concealing the witness’s identity by using an alternative name while referring to him,[45] regular patrols around witness’s home,[46] temporary shift in residence,[47] an escort and government vehicle or a state funded conveyance while travelling to and from the Court,[48] in-camera trials,[49] emergency contact persons,[50] presence of support persons while recording the statement/testifying,[51] usage of Vulnerable Witness Courtrooms,[52] recording depositions expeditiously and avoiding adjournments,[53] and periodical financial aid for relocation and sustaining/starting a profession.[54] In addition to these measures, the Scheme also empowers the Competent Authority to direct the adoption of any other protective measures that it would consider as necessary.[55] All hearings under the Scheme, relating to the witness protection application,[56] would be held in-camera.[57] The Head of the Police has the overall responsibility of implementing the protection orders passed by the Competent Authority while the responsibility in case of orders related to protection of identity,[58] change in identity[59] or relocation of witness[60] is with the Department of Home of the State/UT[61].
The Witness Protection Scheme 2018 is the first attempt at providing a comprehensive witness protection mechanism that would apply nation-wide. The Scheme would significantly eliminate secondary victimization and strengthen India’s criminal justice system by making sure that witnesses receive adequate and appropriate protection. Thus, ensuring both access to and administration of justice. Within the criminal justice system, there is a trade-off that takes place between the rights of the accused and that of the witness. For instance, the suggestions that vulnerable witnesses should be examined in the absence of the accused were rejected by the 172nd Law Commission Report. It undermined Section 273 of the CrPC and was consequently believed to be against the interest of natural justice.[62] The availability and usage of modern audio-video electronic communication mechanisms such as video-conferencing solves this issue by balancing the interest of both, the accused as well as the witness. The Vulnerable Witness Courtrooms/Vulnerable Witness Deposition Complexes have facilities that include separate toilets, exclusive and comfortable waiting areas, separate rooms for witnesses and accused, separate entry for vulnerable witnesses, one-way mirrors, screens, live links, and option to modify the face/voice of the witness to conceal identity.[63] This results in a Courtroom environment that is more conducive and comfortable, consequently encouraging witnesses to come forward and depose truthfully and fearlessly.
Drawbacks & Conclusion
There can be no doubt that the judiciary and the legislature's efforts have significantly progressed the Indian criminal justice system in terms of ensuring the protection and preservation of the rights of the witnesses. However, it is necessary to note that the existing laws, especially the Witness Protection Scheme 2018, also have their drawbacks, mostly in the form of financial and logistical challenges in its implementation. For instance, complexities arise when any change in the identity of the witness has to be done without compromising his education, professional, and property rights.[64] These complexities increase as the Scheme requires the production of supporting government documents in case of a change in identity.[65] This means that it is not just the name and address of the witness/his family members that needs to be changed but he will also have to be provided with a fresh birth certificate, ration card, Aadhar card and other official documents.[66] Moreover, the Scheme does not apply to every offence but only to those specified in Part I (2)(i) of the Scheme, thereby limiting its scope. This further highlights the need for a more comprehensive law that offers protective measures for witnesses in any and all offenses. Another challenge is the paucity of workforce in India, where the ratio of police personnel to 100,000 people was 151 in 2017,[67] compared to around 222, which was the UN’s ratio.[68] The low ratio makes it difficult for police officers to be effectively assigned witness protection duty (usually as escorts).
Additionally, the estimated cost of guarding a man in India for a year was Rs. 4-5 lakhs in 2015.[69] It is doubtful whether the State Witness Protection Fund would be sufficient to afford such large expenditures. Moreover, the Scheme is silent with respect to complex and challenging questions regarding pre-existing legal/contractual obligations (especially in case of changes in identity and relocation), the need and enforceability of a memorandum of understanding of the rights and obligations of the enrolled witness, and the procedure to be followed if a witness protected under the Scheme, is killed or hurt.[70] Furthermore, the task of preparing the TAR is with the head of the police, who are themselves often susceptible to corruption and political pressures, which would enable them to either manipulate the report or disclose information regarding the witness/his family members. There are no penal provisions provided under the Scheme, especially in case of violating the confidentiality provisions. So, these police personnel and others who are pressurised or incentivised to provide such information will face no repercussions for their actions or the role they play in bringing about a miscarriage of justice. There is also poor implementation of the reimbursement provisions provided in CrPC. This results in witnesses waiting for a long period of time to be compensated for their help in speeding up the process of administration of justice. Despite all these complexities, the state has a constitutional duty to protect the witnesses and ensure that they can testify freely and truthfully. Hence, there is a paramount need to solve the drawbacks, develop a comprehensive witness protection scheme with strict penal provisions that empower witnesses, ensure a fair trial, and develop an effective criminal justice system. Justice Nariman appropriately said “There are several ways vulnerable witnesses can be protected from a powerful accused person. But every law is only as good as it works.”[71]
[Shalini Prem is a third-year law student at Jindal Global Law School.]
[1] Mahender Chawla v. Union of India, (2019) 14 SCC 615. [2] Witness Protection Scheme 2018, Part I (2)(k). [3] Akash Anurag, Witness Protection in India – The Need for an Effective Legislation to Achieve a Fair Criminal Trial, The Criminal Law Blog Nlu Jodhpur (Sept. 29, 2018), https://criminallawstudiesnluj.wordpress.com/2018/09/29/witness-protection-in-india-the-need-for-an-effective- legislation-to-achieve-a-fair-criminal-trial/. [4] “Under the common law a hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him…”, Gura Singh v. State of Rajasthan, (2001) 2 SCC 205. [5] Swaran Singh v. State of Punjab, (2000) 5 SCC 668. [6] Law Commission of India, Fourteenth Report: Reform of Judicial Administration, Vol. II, 657, 744-745 (1958). [7] Swaran Singh v. State of Punjab, (2000) 5 SCC 668. [8] Mahender Chawla v. Union of India, (2019) 14 SCC 615. [9] Law Commission of India, Fourteenth Report: Reform of Judicial Administration, Vol. II, 657, 744-745 (1958). [10] Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice System, Vol. I, 152 (2003). [11] Sakshi v. Union of India, AIR 2004 SC 3566. [12] Law Commission of India, Fourteenth Report: Reform of Judicial Administration, Vol. II, 657, 744-745 (1958). [13] Zahira Habibulla Sheikh v State of Gujarat, AIR 2004 SC 346. [14] Mahender Chawla v. Union of India, (2019) 14 SCC 615. [15] Law Commission of India, Fourteenth Report: Reform of Judicial Administration, Vol. II, 657 (1958). [16] Law Commission of India, One Hundred and Fifty Fourth Report: The Code of Criminal Procedure, 1973, (1996). [17] Law Commission of India, One Hundred and Seventy Second Report: Review of Rape Laws,(2000). [18] Law Commission of India, One Hundred and Seventy Eighth Report: Recommendations for Amending Various Enactments, Both Civil and Criminal, (2001). [19] Law Commission of India, One Hundred and Ninety Eighth Report: Witness Identity Protection and Witness Protection Programmes, (2006). [20] Law Commission of India, One Hundred and Seventy Second Report: Review of Rape Laws, (2000). [21] Law Commission of India, One Hundred and Ninety Eighth Report: Witness Identity Protection and Witness Protection Programmes, (2006). [22] Law Commission of India, One Hundred and Ninety Eighth Report: Witness Identity Protection and Witness Protection Programmes, (2006). [23] National Police Commission, Fourth Report, (1980). [24] Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice System, Vol. I, 152 (2003). [25] Court proceedings held in private without public or press, as opposed to an open Court. [26] See generally, Zahira Habibulla Sheikh v. State of Gujarat, AIR 2004 SC 346; NHRC v. State of Gujarat, (2009) 6 SCC 767; and Swaran Singh v. State of Punjab (2000) 5 SCC 668. [27] AIR 2002 SC 1475. [28] AIR 2004 SC 346. [29] AIR 1984 SC 1591. [30] AIR 2004 SC 3566. [31] (2001) 4 SCC 667. [32] 1966 (3) SCR 744. [33] (2009) 6 SCC 767. [34] (2019)14 SCC 615. [35] Pursuant to the request made by the Court to the then Attorney General of India, the Ministry of Home Affairs finalised the ‘Witness Protection Scheme 2018’ in consultation with the National Legal Services Authority. [36] Mahender Chawla v. Union of India, (2019) 14 SCC 615. [37] Witness Protection Scheme 2018, Part II (3). [38] See, Witness Protection Scheme 2018, Part I (2)(j). [39] Witness Protection Scheme 2018, Part II (7). [40] Witness Protection Scheme 2018, Part I (2)(c). [41] Witness Protection Scheme 2018, Part II (7)(a). [42] Witness Protection Scheme 2018, Part II (7)(b). [43] Witness Protection Scheme 2018, Part II (7)(c). [44] Witness Protection Scheme 2018, Part II (7)(d). [45] Witness Protection Scheme 2018, Part II (7)(e). [46] Witness Protection Scheme 2018, Part II (7)(g). [47] Witness Protection Scheme 2018, Part II (7)(h). [48] Witness Protection Scheme 2018, Part II (7)(i). [49] Witness Protection Scheme 2018, Part II (7)(j); Also see, Witness Protection Scheme 2018, Part I (2)(f). [50] Witness Protection Scheme 2018, Part II (7)(f). [51] Witness Protection Scheme 2018, Part II (7)(k). [52] Witness Protection Scheme 2018, Part II (7)(l). [53] Witness Protection Scheme 2018, Part II (7)(m). [54] Witness Protection Scheme 2018, Part II (7)(n). [55] Witness Protection Scheme 2018, Part II (7). [56] Witness Protection Scheme 2018, Part I (2)(l). [57] Witness Protection Scheme 2018, Part II 6(f). [58] Witness Protection Scheme 2018, Part III (9). [59] Witness Protection Scheme 2018, Part IV (10). [60] Witness Protection Scheme 2018, Part V (11). [61] Witness Protection Scheme 2018, Part II 6(h). [62] Sakshi v. Union of India, AIR 2004 SC 3566. [63] Mahender Chawla v. Union of India, (2019) 14 SCC 615. [64] Witness Protection Scheme 2018, Part IV (10). [65] Witness Protection Scheme 2018, Part IV (10). [66] Manoj Mitta, Urgent need for a witness protection programme: Law panel tells govt, THE INDIAN EXPRESS (Aug. 20, 2004, 02:29 AM), http://archive.indianexpress.com/storyOld.php?storyId=53483. [67] Bureau of Police Research and Development, Data on Police Organisations (As on January 1, 2017), Ministry of Home Affairs, Government of India, 35. [68] Sriharsha Devulapalli & Vishnu Padmanabhan, India’s police force among the world’s weakest, Live Mint, June 19, 2019. [69] Akshat Kaushal, Will India be able to protect its witnesses? Business Standard, Aug 1, 2015. https://www.business-standard.com/article/current-affairs/will-india-be-able-to-protect-its-witnesses-115080101007_1.html. [70] In the Philippines, under Section 8(f) of ‘The Witness Protection, Security and Benefit Act’, if the witness enrolled in a witness protection programme is killed, his heirs are entitled to compensation and other benefits. [71] Fali S. Nariman, Complexities of Witness Protection, The Hindu, Mar 27, 2007.