WITNESS PROTECTION SCHEME: A SINE QUA NON FOR INDIAN CRIMINAL JUSTICE SYSTEM
Author: Veddant Majumdar
A witness protection scheme was long due in India and with the Supreme Court’s Verdict of December 2018, this requirement was fulfilled. Witnesses are the eyes and ears of the court as has been rightly stated by Jeremy Bentham. The statements of witnesses are of paramount importance for the court to come to a conclusive determination of facts of any case, based upon which the court delivers its verdict in accordance with the law. Witnesses are often subjected to external pressures and threats by persons against whom such witnesses are testifying in the court, because of which witnesses turn hostile and the very prospect of summoning a witness to the court, i.e, to reveal the true state of affairs in a case, gets frustrated. This leads to the subversion of the judicial process. In wake of these sorry state of affairs, the Supreme Court came up with the Witness Protection Scheme in 2018. There is, however, a downside to this as well, legislations work better in comparison to precedents to arouse public participation. All aspects of the Witness Protection Scheme are discussed at length in the following article. This is an attempt to evaluate a lacuna in the criminal justice system, and come up with an effective remedy for the same in the interest of justice.
The witness is an important part of the justice delivery system, and especially of the criminal justice delivery system. It is on his testimony that the court proceeds in any trial, the testimony of a witness is a significant aspect of direct evidence. As a natural successor to the stated fact, the safety of a witness and his near ones is always under threat in connection to the trial in which his testimony is required. Ensuring the safety of the witness and his near ones, in addition to his testimony being uninfluenced by external pressures of any kind, a witness protection scheme had been in the pipeline until recently, when the Hon’ble Supreme Court of India directed the Union and the State governments to come up with a legislation of the witness protection scheme and until then the directions given by the Supreme Court in December 2018 shall operate.
A witness protection scheme has been envisaged on a number of occasions in the past as well, but a decisive towards its actuation had not been taken until the Supreme Court’s decision in December 2018. The 14th Law Commission report, 1958 pitched this idea for the first time. The 172 and 178th Law Commission report also dealt with the said subject and suggested that witnesses are to be protected from the pressure tactics employed by the accused against the witness and his near ones.
The courts have acted towards witness protection in a multitude of ways in the past, some instances of the same being:
(b) Re-trial was allowed as there was the apprehension of threat to the life of witness [Sunil Kumar Pal vs. Phota Sheikh and Other]
(c) The identity of rape victims was kept anonymous in furtherance of the avoidance of threats to them. [Delhi Domestic Working Women’s Forum vs. Union of India]
(d) Discouraging the practice of granting adjournments in cases where the witness is present and accused is absent. [State of U.P. vs. Shambhu Nath Singh]
(f) Cross-examination via video conferencing — This particular method ensures that the testimony of a witness is not excluded solely because of his inability to reach the court.
Fortunately, ideas translated into actions in December, 2018, when a division bench of the Supreme Court, comprising of Justice A.K Sikri and Justice Abdul Nazeer called for the implementation of the witness protection scheme as per the directions of the Supreme Court under Article 141 and 142 of the Constitution of India, until the assemblies and the Parliament come up with a legislation in the said context. The Supreme Court directed the Union, States and Union Territories to implement the Witness Protection Scheme, 2018 in its letter and spirit.
THE WITNESS PROTECTION SCHEME, 2018
Preface, Aims & Objective: The ability of a witness to give testimony in a judicial setting or to cooperate with law enforcement and investigations without fear of intimidation or reprisal is essential in maintaining the rule of law. The rationale behind this scheme is to ensure that the investigation, prosecution, and trial of criminal offences is not adversely affected because of witnesses being influenced, intimidated or frightened to give evidence without protection from violent or other criminal recrimination. This scheme aims at gaining the confidence of the witness by providing adequate protection from all threats in relation to his testimony in a trial, thereby ensuring a fair trial with the transparency of facts. The end goal of this scheme is to provide a system of trials where the witnesses can testify in the absence of fear or favour.
Part II of the scheme mentions the persons to whom protection under this scheme is extended to.
CATEGORIES OF WITNESS AS PER THREAT PERCEPTION:
1) Category ‘A’: Where the threat extends to the life of witness or his family members, during investigation/trial or thereafter.
2) Category ‘B’: Where the threat extends to safety, reputation or property of the witness or his family members, during the investigation/trial or thereafter.
3) Category ‘C’: Where the threat is moderate and extends to harassment or intimidation of the witness or his family member’s, reputation or property, during the investigation/trial or thereafter.
The scheme also entails a framework for allocation of funds for the protection of witnesses, under S.4. A fund, namely: The Witness Protection Fund, from which the expenses incurred in the compliance to a witness protection order, shall be met.
Speaking of protection measures, S.7 of the scheme enumerates several types of protection measures to deal with the protection of witnesses in the most comprehensive way possible. The witness protection measures ordered by the court shall be proportionate to the threat looming upon the persons concerned and shall be for a stipulated duration, suiting the situation of the case at hand, but not exceeding three months at a time.
The protection measures herein include:
(1)No interaction between the accused and the witness during/before the trial or investigation.
(2) The telephone calls of the witness are to be monitored by a competent authority
(3) Directing the telephone companies to change the phone number of the witness or to assign him an unlisted phone number.
(4) Security equipment such as CCTV and alarms are to be installed at the residence of the witness.
(5) Concealment of the identity of the witness by referring to him/her with the changed name or alphabet;
(6) Contacts of the witness are noted by competent authorities, who are to be called in times of exigencies.
(7) Provision for in-camera trials
(8) Setting up of one-way mirrors using through which the witness could see the accused but not vice versa.
(9) financial aid to the Witness, out of the witness protection fund if required.
PROTECTION OF IDENTITY: -While the investigation of an offence or a trial for the same is in process, an application seeking identity protection can also be filed before the Competent Authority through its Member Secretary. After receipt, such application, the Member Secretary of the Competent Authority shall call for the Threat Analysis Report. The Competent Authority shall, after examining the witness and his near ones, pass an identity protection order for the persons who require the same as per the competent authority.
CHANGE OF IDENTITY: -The identity of the witness is changed for the purposes of the trial with the intention of safeguarding him against the persons the said witness would be testifying. A changed identity would disable the prospective offender to trace the witness from harming him in the future.
Relocation of Witness: Orders for the relocation of witnesses can also be passed by the court, as per which the residence of the testifying witness is changed temporarily to protect him from being attacked, harmed or pressurized by the persons against whom such person is testifying.
The United Nations General Assembly adopted the ‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power’ in November 1985, which considered the victims of crimes to be important witnesses and put forth four ground objectives, the said objectives being:
(ii) Access to justice and fair treatment
DEFINING A WITNESS & HOSTILE WITNESS
The Indian Evidence Act, 1872 does not explicitly define “Witness”. A witness is any person who had been the onlooker or observer of an incident that amounted to an offence, or of any other event which is a relevant transaction while adjudicating the offence in question. In the words of Jeremy Bentham, Witnesses are the eyes and ears of the court. Some duties/responsibilities have been attached. Witnesses often find that there is no legal obligation for him to submit their statements in the court. Hon’ble Supreme Court of India addressed the said issue in the case of State of Gujrat v. Anirudh Singh, wherein it held that: “It is the salutary duty of every witness who has the knowledge of the commission of the crime, to assist the State in giving evidence.” Even the Malimath Committee Report on Reforms of Criminal Justice System, 2003 spoke along the same lines, stating that “By submitting evidence pertaining to the commission of an offence, he performs a sacred duty of assisting the court to discover the truth”.
A Hostile Witness is a such a witness who turns antagonistic to the party calling them, which frustrates the purpose of calling a witness. This generally happens due to threats to the witness and his close ones. This has been a common phenomenon in India’s trial history, because of which there have been instances of “tailored testimonies’” by such witnesses. It shadows the truth and leads to denial of justice to the aggrieved parties and sets a precedent of a miscarriage of justice at large. The Supreme Court ruled in the case of Shyamlal Ghosh v. State of West Bengal, that the statement of even of a hostile witness can be relied upon by the court, to the extent that it supports the case of the prosecution. This ruling has both, a positive and a negative connotation. The positive one is that such witness is still serving the purpose for which he had been summoned by the court, i.e, giving a statement supporting the stance of the prosecution. The negative one is that, even though the said witness is giving his testimony in furtherance of the prosecution’s stance, but such testimony might not necessarily be free from alterations, and such alterations could weaken the prosecution’s case.
The Supreme Court is the final interpreter of the Constitution, and thus, immense faith in reposed in it to bring about justice. In realization of the said duty, The Hon’ble Supreme Court, in the case of State Tr. P.S Lodhi Colony v. Sanjeev Nanda, ()that the court cannot shut its eyes to the reality in the event of witnesses becoming hostile. Becoming oblivious to it would subvert the judicial process, therefore, the courts in such circumstances should not be mute spectators and make every possible effort to bring home the truth.
A lot of importance has been attached to witnesses over the years by courts. A glaring example of this fact can be seen in the court’s verdict in the case of Zahira Habibullah Sheikh v. the State of Gujarat, wherein the Hon’ble Supreme Court ruled that the State has a definite role to play in protecting the witnesses, it needs to start with sensitive cases involving those in power, who have political backing and could influence the witness by muscle and money power. The state is under a duty to ensure that during a trial in the court, a witness is able to safely depose the truth without any fear of being haunted by those against whom he had deposed.
The State is under a constitutional obligation to protect the life and liberty of its citizens. It is a sine qua non for the observance of the rule of law.
The court has observed in the case of Mahender Chawla &Ors. V. Union of India &Ors. that being unable to testify in courts due to threats or any other kinds of external pressures whatsoever is a clear violation of the right to life and personal liberty under Article 21 of The Constitution of India. Therefore, in furtherance of the protection of Article 21, witness protection was imperative and the same has been brought by the Hon’ble Supreme Court and rightly so!
India is sadly a country which lacks literacy and awareness to quite an extent, a sizeable part of India’s population does not recognize the judgment of the court as a law. The failure to recognize that the principle of law decided in any particular case operates in rem causes a big menace and cut shorts the authority of the courts substantially. Legislations are mostly understood as the only source of law, the examples of which can be taken up from the past. There are still FIRs being registered under S.66A of the Information Technology Act, Instantaneous Triple Talaq still takes place despite that practice being declared unconstitutional by the Supreme Court. The verdicts of courts still have the precedential power, regardless of people’s understanding of the law, but effective public participation towards the Witness Protection Scheme can be aroused only by passing legislation to that effect. It thus incumbent upon the Parliament and the State Assemblies to pass legislation to this effect for the effective implementation of the Witness Protection Scheme.
There had been a dire need for the inclusion of a witness protection scheme in our justice delivery system to ensure fair testimonies and moreover, fair trials. The actuation of the same will go a long way in assisting the court to discover the truth in any trial. The security and protection of witnesses and allied people are of paramount importance for the court to obtain untailored testimonies from the witnesses to ensure a fair and transparent system of trials. The projection of threats on witnesses had been a big barrier in the attainment of testimonies free of fear, but the newly implemented witness protection scheme should curb this evil.
Shrey Verma, Witness Protection Scheme in India, iPleaders (December 31, 2018, 9:20 pm), https://blog.ipleaders.in/witness-protection-scheme-india/
AIR 1984 SC 1591
(1995) 1 SCC 14
(2001) 4 SCC 667
INDIA CONST. art. 141
INDIA CONST. art. 142
supra note 1
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power Adopted by General Assembly resolution 40/34 of 29 November 1985
(1997) 6 SCC 514
AIR 2012 SC 3539
AIR 2012 SC 3104
INDIA CONST. art. 21
The Information Technology Act, 2001, S.66A