PROTECTION OF WITNESSES: SHOULD INDIA TAKE CUE FROM NATIONAL CRIMINAL JURISDICTIONS AND INTERNATIONAL COURTS AND TRIBUNALS?
Author: Rajat Banerjee*
Assistant Professor, Law,School of Law and Justice,Adamas University
ISSN: 2581-8465
ABSTRACT
Witness protection is central to the entire discourse on criminal justice administration not only because it ensures unfettered participation of witnesses in the justice dispensation process but also because it promotes rule of law and access to justice. While almost all contemporary international criminal courts and tribunals and many other national criminal jurisdictions have explicit laws to protect witnesses, countries such as India are still stuck on the horns of a dilemma with regards to having such a law. Arguably, one such reason why India did not craft a sturdy witness protection law is that such a system would not be cost-effective. Another possible reason behind India’s seeming apathy to create such a law is rooted in the anonymity factor; scattered pieces of authorities on the matter indicate that anonymity of a witness (especially during trials) frustrates the fair trial rights of an accused. The two aforementioned reasons provide a reasonable explanation as to why India did not draw up a strong witness protection law till date. While the Witness Protection Scheme, 2018 marks the beginning of a nuanced approach in India’s criminal justice system, the need of this hour is a comprehensive legislation on witness protection. The purpose of the paper is to vouch for a federal all-encompassing law on witness protection. The paper argues that neither the cost factor nor the anonymity factor should serve as a deterrent against the creation of a comprehensive law governing the subject. The study and interpretation of this paper are based on doctrinal legal research that uses analytical, descriptive, and comparative methods to reach at apriori findings.
Keywords: Witness Protection, Witness Protection Programme, International Courts and Tribunals, Cost Factor, Anonymity Factor, Witness Protection Scheme, 2018
- Introduction
Since witnesses constitute an integral part of the criminal justice system,[1] and since in every criminal trial, national or international, the depositions of the witnesses decide the future course of trials, witness protection is an important feature in criminal justice administration, both in civil law and common law jurisdictions. In fact, witness protection is central to the entire discourse on criminal justice administration not only because it ensures unfettered participation of witnesses in the justice dispensation process but also because it promotes rule of law[2] and access to justice. Witness protection largely helps the criminal justice system to bring the offenders to book, thereby ensuring that the ends of justice are served. Such a protection regime also helps to reduce caseloads by creating a situation wherein witnesses can depose without any overt or covert threat. Undoubtedly, threat acts as a deterrent to witnesses, leading to a reduction in the rates of their testimony.[3]
While almost all contemporary international criminal courts and tribunals and many other national criminal jurisdictions such as the US, South Africa, Canada, Portugal, the Philippines, etc., have explicit laws to protect witnesses, countries such as India are still stuck on the horns of a dilemma with regards to having such a law. Arguably, one such reason why India did not craft a sturdy witness protection law is that such a system would not be cost-effective. Another possible reason behind India’s seeming apathy to create such a law is rooted in the anonymity factor; scattered pieces of authorities on the matter indicate that anonymity of a witness (especially during trials) frustrates the fair trial rights of an accused. The two aforementioned reasons provide a reasonable explanation as to why India did not draw up a strong witness protection law till date. While the Witness Protection Scheme, 2018 marks the beginning of a nuanced approach in India’s criminal justice system, the need of this hour is a comprehensive legislation on witness protection. The purpose of the paper is to vouch for a federal all-encompassing law on victim protection. The paper argues that neither the cost factor nor the anonymity factor should serve as a deterrent against the creation of a comprehensive law governing the subject. The paper reviews and analyses the safeguards on witness protection available under various statutes/rules of the national criminal jurisdictions and of international courts and tribunals. The paper also refers to a few national and international case laws concerning witness protection to ensure that a fair comparison between the existing witness protection regimes is done. To supplement the arguments in support of a strong witness protection law, the paper relies heavily on the 198th Law Commission Report and other existing authorities governing the subject.
The Black’s Law Dictionary defines a witness as someone “who sees, knows or vouches for something and gives testimony under oath or affirmation in person, by oral or written deposition or by affidavit.” Witnesses are the eyes and ears of the justice system not only because they bear testimony to acts or omissions (criminal acts or omissions, in the perspective of criminal cases) but also because they possess information that are critical to suits and proceedings.[4] The most routine function of witnesses is to give evidence by deposing in a court of law. If we look through the lens of evidence laws, witnesses may be classified as eye-witnesses, character witnesses, expert witnesses, etc., depending on how they are legally related to the impugned matters and what type of information is sought from them. In criminal law, another way of categorising witnesses is by evaluating the factual nexusbetween witnesses’ and the accused, and/or the victim. Based on the factual nexus theory, witnesses may be classified into a few categories out of which three are of special mention. The first category of witnesses includes independent witnesses, whose identity is not known to either the offender or the victim; the second category includes accomplice-witnesses;[5] and the third category includes victim-witnesses, survivors who are relegated to the margins in the criminal justice system as mere witnesses to their own cases, with very limited procedural rights.[6] This special category of witnesses (the third category, as per the factual nexus theory) undoubtedly creates an unjust legal arrangement[7] and provides an inflection point to this very deliberation on witness protection. Apart from the above-mentioned categorizations, the United Nations Office on Drugs and Crime (UNODC) categorizes witnesses into justice collaborators, victim-witnesses, and other types of witnesses such as bystanders.[8] Furthermore, witness categorization may also be done on the basis of threats perceived by the witnesses and the nature of such threats.
By witness protection, we mean the safeguards and privileges available to witnesses in the pre-trial and trial stages (and sometimes in the post-trial stage) of a criminal proceeding. Such protection may be provided either procedurally through courts in which case the courts either follow a law passed by the legislature or create rules themselves (through the invocation of the rules of procedure and evidence). Procedural witness protection programmes exist even in countries that do not have an inclusive normative framework guiding witnesses; judges because of their respective roles in the justice delivery process are of course in a better position to appreciate the needs of the witnesses.[9] Witness protection may also be provided non-procedurally though administrative machinery such as police and other enforcement agencies. A few of the procedural measures include conduction of in-camera proceedings using videoconferencing or any other suitable platforms, allowing face distortion in-camera, allowing anonymous testimony, etc. Non-procedural measures include the adoption of covert witness protection programmes such as changing witness identity, relocating the witness to a different place, extending patrolling near the witnesses’ residence, etc.[10] According to UNODC, any witness protection programme must satisfy the admittance criteria, which include among other things the level of threat to a witness, the relative significance of the case, the personal circumstances and family conditions of the witness, the possibility of obtaining the same information from any other source other than the witness, etc.[11] UNODC also stresses that for the successful implementation of any witness protection programme, a state has to objectively analyse its needs versus its wants on the basis of certain factors, viz., the level and types of criminality existing within its society, the frequency and mode of violence against participants (especially witnesses) in criminal proceedings, established ability and the political will to prosecute serious crimes, availability of resources, etc.[12] The relative success of any witness protection programme is concomitant on threat reduction achieved through measures such as isolating offenders from witnesses, etc., and on retaliation reduction achieved through measures such as relocation of witnesses.[13]
Although it is the pious obligation of a state to ensure the protection of witnesses, irrespective of whether they represent the prosecution or the defence, many states, including India, do not have an effective law or even a robust policy circumscribing witness protection. In the absence of such, witnesses have been relegated to the position of practical invisibility.[14] Many of them have been killed during the course of criminal trials and quite a few of them have eventually turned hostile or have stopped responding to the numerous questions that they are generally confronted with in the course of the trials. They rarely enjoy any positive experience and often do not know what is expected out of them.[15] More so, sometimes they have to wait for long under unfriendly conditions to get their turn,[16] and face unwarranted adjournments because of the conspicuous absence of the contending parties on the dates of hearing.[17] In fact, witnesses in these states hold no real value as agents of change and as facilitators of the justice dispensation process; on the contrary, they suffer anxiety,[18] harm, interference, and in some cases intimidation,[19] which eventually leads to a travesty of justice and to violation of rule of law.[20] Also, the sense of perception of threat, whether overt or covert, deter witnesses from participating in the judicial process by testifying in the courts of law. The threat perception is higher in prosecutions involving serious organized crimes.[21] Because of the sense of threat perception, witnesses sometimes give false testimony,[22] stressing the criminal justice system further. Resultantly, the courts fail to arrive at critical conclusions in cases, which then drag on for years, thereby defeating the very purpose of the criminal justice system to keep pace with the rising number of criminal cases.
Witness protection and witness participation are directly proportional to each other; more protection leads to higher participation and less protection leads to lesser participation. In countries where witness protection regimes are weak, witnesses do not actively participate in criminal proceedings. Apart from the structural barriers posed due to lack of strong witness protection laws and policies, cultural factors also play a role in determining the participation of witnesses; a study concerning the effectiveness of the Kenyan witness protection programme indicates that sociocultural factors influence participation and that cultures determine who shall testify against whom and under what circumstances.[23]
This paper will initially discuss the various witness protection measures and programmes adopted by a few national criminal jurisdictions and by some of the international criminal courts and tribunals. It will then analyse the Indian position on witness protection in light of the two factors, viz., the cost factor and the anonymity factor. Finally, based on the evaluation of the existing principles and normative frameworks, the paper will underscore the need to have a comprehensive witness protection law for the effective administration of criminal justice in India.
- Witness protection regimes under national criminal jurisdictions
Many national criminal jurisdictions irrespective of whether they are adversarial or inquisitorial ones have statutory provisions to support the cause of protection of witnesses. For the purpose of this essay, we have randomly selected and discussed a few of them. In Thailand, for example, witness protection through measures such as relocation, change of identity, close protection, etc., is extended in accordance with the mandates of the Witness Protection Act, 2003, which protects witnesses of serious crimes such as organised crime, drug trafficking, corruption, money laundering, human trafficking, etc.[24] Protection of witnesses in South Africa is done under the aegis of the Witness Protection Act, 1998 through witness protection officers and security officers. A witness has to formally apply for protection invoking Section 7 of the Act if he/she has reason to believe that his/her personal safety is at stake. Under Section 8 of the Act, the Director or a witness protection officer may grant interim protection till a due decision on an application[25] made under Section 7 is taken in cognisance of the impending risk and other threats. Section 11 of the Act requires an express agreement between the witness and the Director (the formal head of the office for witness protection). Interestingly, unlike in many countries, the South African law provides protection to witnesses even in civil cases.[26] In the US, the provisions of the Victim and Witness Protection Act, 1982 supplements the causes of the protection of witnesses. Section 2(a)(1) of the Act explicitly highlights that in the absence of cooperation from witnesses, the criminal justice system would cease to function. Section 2(a)(5) emphasises how witnesses are treated in the course of criminal trials; most of the times, they are not notified whether the defendant has been released on bail, or whether the case has been dismissed, etc. Section 4(a) of the Act amends Title 18, Part 1, Chapter 73 of the United States Code (USC) and adds sections 1512 through 1515 in the USC. Section 1512(a) of the USC stipulates that anyone who knowingly uses physical force or intimidates someone with the intention to either influence the testimony of a person or induce a person not to give testimony or prevent a person from providing information to a judge or a law enforcement agency may be punished with imprisonment which may extend till 10 years or with fine of not more than $ 250,000 or with both. Under section 1513(a) of the USC, anyone who retaliates against a witness commits an offence and is therefore subject to the same punishment as is mandated under Section 1512(a) of the Code. Although the 1982 statute is seemingly all-embracing, it has its own operational flaws and procedural deficiencies, especially those emanating out of the local-federal nexus of crimes; courts, while rejecting the application of the provisions of the Act, would often argue that the acts of intimidation of witnesses relate to local crimes and that they occurred before it could be determined that federal crimes were involved.[27] Also, in view of the changing nature of crimes, particularly those affecting national security, there is probably a need to review the law and to attune it to the changing needs of the American society.[28] In Canada, the provisions of the Witness Protection Program Act, 1996 consolidate the foundations of witness protection. Section 3 of the Act highlights that to uphold national security and national defence, and to promote law enforcement, it is essential to extend protection to witnesses, who are either directly or indirectly providing assistance to law enforcement agencies. Section 4 of the Act stipulates the establishment of a witness protection programme to be overseen by the Commissioner. Section 7 of the Act lays down the factors[29] that the Commissioner must consider while determining who should be eligible for the programme. Section 8A creates an obligation on both the protector and the protectee to abide by the terms of agreement entered into by them. Section 11 deals with the protection of information. In the Czech Republic, the cause of witness protection is addressed by Special Protection of Witnesses and Other Persons in Connection with Criminal Proceedings, 2001. The statute creates a special law and applies to those witnesses whose safety and security cannot be ensured in any other possible way, indicating further that a witness’ right to be protected in not a natural right, and that the operation of such a right depends on the type of crime he/she is witness to and the kind of threat that he/she faces. Section 3 of the Act mentions the types of measures[30] that witnesses may be entitled to. Section 6 of the Act obligates a witness to (a) abide by the conditions based on which protection and assistance were offered (b) fulfil police order and orders from the members representing the Penitentiary Service[31] (c) inform the police and the members representing the Penitentiary Service about any emerging facts. The Act confers plenary powers on the police and to an extent to the Penitentiary Service to conceal their activities, use cover documents, adopt special financial means, etc., while extending special protection and assistance to witnesses.
- Witness protection regimes under international criminal courts and tribunals
Under the contemporary international criminal law regime, various justice delivery platforms and institutions such as courts and tribunals have worked stupendously towards the protection of witnesses. Although the earlier military courts such as the Nuremberg Tribunal and the Tokyo Tribunal[32] did not envisage any specific provision relating to witness protection, the later international courts and tribunals, which were specifically established to address serious violations of international humanitarian laws, vouched for substantive and procedural safeguards guiding witness protection. Many of these courts and tribunals have gone that extra mile and have created a regime wherein the judges are empowered to extend privileges and protection to witnesses during the pre-trial, trial, and even the post-trial stages.
Debatably, the International Criminal Tribunal for the former Yugoslavia (ICTY) was the first international criminal tribunal to have supported the matter of witness protection. Article 15 of the ICTY statute enjoins that the judges of ICTY shall adopt requisite procedural rules and evidence to ensure that the rights of the witnesses are protected. Further, Article 20(1) envisages that the Trial Chamber of ICTY has to make sure that the rights of witnesses are protected during trials. Furthermore, Article 22 obligates the ICTY judges to adopt necessary witness protection measures such as conducting in-camera proceedings, etc., by invoking Rule 34 read with Rules 69 and 75 of the Rules of Procedure and Evidence. Especially, Rule 69 empowers the Prosecutor to ask the judge/trial chamber for witness anonymity to minimise danger or risk that may be caused to a witness.
The ICTY in quite a few of its judgments allowed anonymity,[33] although in a restrictive sense, indicating further that the fair trial rights of an accused are not frustrated if a witness is testified under the veil of anonymity. In Tadic’s case,[34] for example, the Appeals Chamber of ICTY held that the testimony of the main witnesses would not be vitiated only because their identity had been shielded from the defence. The Tribunal also allowed witnesses to be anonymous to the public and to depose in private before the Trial Chamber of the Tribunal or before any single judge of the Chamber. The Tribunal protected the witnesses on the pretext of the ongoing war and on the ground that an effective witness protection programme would help in meeting the ends of criminal justice. The Blaskic’s case[35] though marked a departure from the norm of providing unqualified protection to witnesses; the Tribunal therein adopted a nuanced approach in determining how and when to extend witness protection. Further, the Tribunal asserted that witnesses should be protected both from the public and from the defence at the pre-trial stage. However, when the trial begins,[36] the rights of an accused to an equitable and fair trial should get precedence and the witnesses’ veil of being anonymous should be lifted.
The statute of the International Criminal Tribunal for Rwanda (ICTR) read with its Rules of Procedure and Evidence also vouch for the protection of witnesses. The Preamble of the Statute explicitly acknowledges that the Security Council acting under Chapter VII of the UN Charter considers access to witnesses as a key to achieving better administrative efficiency. Article 14 of the ICTR Statute says that the judges of the Tribunal shall adopt essential rules of procedure and evidence to make certain that the rights of the witnesses are protected. As per Article 19(1), the Tribunal’s Trial Chamber has to ensure that the rights of the witnesses are protected during trials. Under Article 21, the Tribunal must provide the rules of procedure and evidence to protect victims. Also, under Article 21, witnesses can seek for in-camera proceedings rather than an open trial and can also seek protection of their identity. Rule 34 of the Rules of Procedure and Evidence speaks about the establishment (through the Registrar of the Court) of a Victims and Witnesses Support Unit to implement provisions in accordance with Article 21. Rule 69 read with Rule 75 speaks about the witness protection measures. In Musema’s case,[37] both the Trial Chamber and the Appeals Chamber of the ICTR allowed testimony of anonymous witnesses in light of ICTY’s majority opinion in Tadic’s case.[38] The Tribunal held that it is obligatory for the court to interpret its provisions while balancing the rights of an accused to a fair trial with the right of a witness to anonymity. The Appeals Chamber also held that merely because a witness has testified anonymously would not reduce the probative value of the statements made by him/her.[39]
The ICC, which draws heavily from the experiences of criminal tribunals such as the ICTY and ICTR on the protection of witnesses, adopts a multi-layered decision-making model to protect witnesses of serious international crimes. Various provisions on witness protection are interspersed in the ICC statute so that rights and the corresponding obligations of the witnesses do not overlap each other in a manner that defeats the very purpose of international criminal prosecutions. Article 43(6) read with Rule 17 of the Rules of Procedure and Evidence empowers the Registrar to institute a victim and witness protection unit, which shall provide protection, security arrangements, counselling, and assistance[40] to the victims and witnesses of international crimes. The unit shall comprise specialist staff with experience in trauma management. Further, Article 54(1)(b) bestows a positive duty on the Prosecutor to respect the interests and circumstances of the witnesses while investigating crimes. Furthermore, Article 68(1) read with Rules 87 and 88 of the Rules of Procedure and Evidence empowers the ICC to take suitable measures, including special measures, to not only ensure the safety (physical and psychological), security, and well-being of the witnesses of international crimes but also uphold their right to privacy and dignity. Since ICC adopts a multi-layered decision-making model in addressing the issue (among other issues) of protection of witnesses and since it empowers both the Prosecutor and the Chambers to decide on the protective measures that may be made available to the witnesses, there is an impending need to implement an inter-organ approach so that the decision of the Prosecutor does not come in conflict with the decision of the Chambers.[41] Inter-organ cooperation and coordination will not only help in minimising frictions between the Prosecutor and the Chambers but also simplifying interpretations of the text of the Rome Statute and its Rules. The decisions of the Prosecutor and the Chambers regarding the protection of high-risk witnesses in the Lubanga[42] and the Katanga[43] cases speak volumes about the inherent infirmities of the ICC regime with regard to who shall have the power to decide on the actual protection of witnesses and to what extent can such powers be exercised without jeopardising the fates of the witnesses.
Witness protection under the Residual Special Court of Sierra Leone (RSCSL)[44] is mandated under Article 18 of the RSCSL statute. According to Article 18, it is incumbent on the court to extend all possible forms of assistance such as security arrangements, counselling, etc., in conjunction with Rule 34 of the Rules of Procedure and Evidence and Article 6 of the RCSCL Agreement. Further, in exceptional circumstances, a witness may apply (invoking Rule 69 read with Rule 75) to the President of the Court, or a judge or the Trial Chamber seeking anonymity.
Witness protection under the Special Tribunal of Lebanon (STL) is covered under Articles 12(4) and 28 of the STL Statute. While Article 12(4)[45] read with Rule 50 empowers the Registrar to establish a Victims and Witnesses Unit in order to ensure protection, safety, well-being (physical and psychological), dignity, and privacy of the witnesses, Article 28 allows the judges of the Tribunal to adopt appropriate rules of procedure and evidence for the protection of witnesses. Rule 133 lays down in detail the protective measures for witnesses.
The right of a witness to testify in a court of law is not only mandated under the norms of international criminal courts and tribunals but also supported by international human rights instruments. For example, Article 10(3) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights enjoins that the Court, i.e., the African Court on Human and Peoples’ Rights, shall protect the witnesses and extend, in conjunction with the rules of international human rights law, all possible facilities that are necessary for the discharge of their functions, tasks, and obligations vis-à-vis the Court. The human rights protection regime mandated under the Inter-American Court of Human Rights also supports the cause of witnesses.
Apart from the provisions envisaged under the statutes and the rules of various international criminal courts and tribunals discussed above, the UN Convention against Transnational Organized Crime, 2000 along with its additional protocols[46] also addresses the issue of protection of witnesses. Article 24(1) of the Convention creates an obligation on the state parties to adopt necessary witness protection measures so that witnesses and any person closely related to them are not intimidated or are faced with retaliation in the course of criminal proceedings. Article 24(2) attests that witness protection measures, which may include instituting procedures for the physical protection of witnesses and creating rules of evidence that may allow giving witness testimony in a convenient manner and mode, do not jeopardise the due process rights of an accused. By virtue of Article 24(3), state parties are required to enter into mutually reinforcing arrangements to ensure effective relocation of witnesses. Article 24(4) extends the protection scheme to victim-witnesses.
- The Indian Position on Witness Protection
Till the last decade of the 20th Century, opinions were divided whether India should have a law on witness protection. While a few Law Commission Reports[47] had explicitly urged for a law on the subject and many court judgments were supportive of such a regime, there was hardly any political will on having such a law. With the change in the crime ecosystems following the early years of globalisation and liberalisation, the need for a comprehensive witness protection regime was echoed by the courts in India, including the highest courts in many of their judgments. Eventually, during the early years of the 21st Century, especially between 2003 and 2006, the Apex Court and several High Courts underscored through their judgments the imminent need to craft a law on identity protection of witnesses and witness protection programmes. In 2003, in the NHRCs case,[48] the Apex Court had indicated that fair trial must not exclude witnesses and that protection of witnesses becomes mandatory in many cases.[49] On almost similar lines, the Apex Court in Zahira’s case[50] held that fair trial would not ensue if witnesses are threatened or forced to give false evidence. All these path-finding judgments obliged the Law Commission of India to take suo motu cognisance of the matter and draw up its 198th Report in accordance with the earlier recommendations of the Commission on the concerned matter and in light of the Supreme Court decisions. The 198th Law Commission Report not only underlined the relevance of protection of identity of witnesses and witness protection programmes it had also explained through interview transcripts, consultation papers, and other relevant data the reasons for providing protection. The Report created the much-required fodder for the legal academia although the legislature was still unwilling to transpose the recommendations into a living statute. About a decade later, ‘The Witness Protection Bill’[51] was floated in the Parliament in 2015/2016. Unfortunately, the Bill did not transpire into an act. Finally, in December 2018 in Mahender Chawla’s case,[52] a Division Bench of the Supreme Court had pointed out the growing incidence of organised crimes and had noted that extraordinary measures such as providing a new identity, ensuring anonymity, keeping the witnesses in a safer place, relocating them to undisclosed locations, etc., are required to be taken to effectively address the issue. However, the Apex court had observed that a nuanced approach (keeping in mind the threat perception and the apparent vulnerability of witnesses) needs to be adopted to confront the issue. The Court in pursuance of its powers under Article 142, created a law called ‘Witness Protection Scheme, 2018.’
A somewhat parallel witness protection regime operates under a few Indian laws, especially those that are at the intersection of national security and terrorism. For example, section 44 of the Unlawful Activities (Prevention) Act,[53] 1967 bestows unlimited powers on the court to not only ensure identity protection of the witnesses but also adopt appropriate measures such as issuing directions to prohibit the disclosure of witness identity, holding the proceedings at a different place, etc. Section 44 must be read with section 22 of the Act which stipulates that whosoever threatens, confines, restraints a witness, or commits any wrongful act against such witness shall be punished with imprisonment that may extend to three years and shall have to pay fine.
Let us now delve into the most discerning and critical question: why has India not enacted a law on witness protection? Arguably, cost is one of the factors that had stopped India from creating an over-arching law on witness protection. A few components of a stipulated witness protection programme are seemingly cost-ineffective; for example, the overhead cost of providing police protection or of relocating witnesses to a different place may be high.[54] The runaway costs relating to the administration of a witness protection system may also be apparently high, but looking at the long-term benefits, such a protection system becomes necessary. Also, the reverse logic is, many components of the programme such as holding in-camera proceedings using video conferencing or otherwise would hardly involve any cost. Further, if we adopt a graded system of protection based on an offence-based classification, many of the witnesses would not even need police protection or relocation in the entire course of their trials! Also, since witnesses play an instrumental role in the effective administration of criminal justice and since without their cooperation no conclusive decisions could generally be reached, it is quintessential that witnesses are sufficiently safeguarded all throughout the process.[55]
Another major contention of this paper is whether anonymity of witnesses strikes at the very root of criminal justice administration by frustrating the right of an accused to a fair trial, especially from the point of view of the right to confront a witness and cross-examine his/her depositions appropriately in the course of a public trial. The right to a fair trial is a bundle of procedural rights that includes the right to cross-examine and confront witnesses, the right to legal counsel, the right to fair public hearing, etc. Although a defendant’s right to confront witnesses constitutes an intrinsic part of his/her right to a fair trial in criminal proceedings, it may sometimes lead to unjust outcomes by providing illegitimate advantage to defendants;[56] in adversarial jurisdictions, such unjust outcomes may just be blown out of proportion fortifying the rights of the defendant, to the utter detriment of the witnesses, especially victim-witnesses.[57] This provides a possible explanation as to why such right must be reasonably restricted so that it does not impinge on other rights such as the right to anonymity, which shields a witness from divulging critical personal information, such as location, address, and contact number so that the witness is physically and psychologically safe, and so that he/she does not become a party to witch-hunt! One must understand that the right of a witness to be anonymous does not operate as a natural right and it is only under special circumstances that a court would ask a witness not to lift his/her veil. Also, we must regard that the constitutional right of an accused to a fair public trial as mandated under Articles 20 and 21 of the Indian constitution operates on a much higher plane and the witnesses’ right to anonymity would not frustrate the broader rights that are made available to the accused in the pre-trial and trial stages. To put it more unambiguously, the constitutional protections available to a criminal defendant constitute a higher law and no parallel legal provisions created for witnesses would violate the defendant’s right to confront the witnesses.[58] In high-profile criminal cases, especially those involving organised crimes, courts in order to avoid greater public harm may allow a witness to be anonymous and yet testify before them. Such an arrangement also allows accomplice-witnesses to depose without interruption; quite a few countries have drawn up accomplice-witness regulations that inspire such witnesses to act as whistle-blowers and cooperate with the prosecution in lieu of concessionary benefits.[59]
The defendant’s right to confront a witness in a public trial is not jeopardised if such confrontation is likely to generate a sense of indisposition or threat to a witness. Under such circumstances, trial courts may permit to exclude such a witness or may temporarily disallow the public and the press to take part in the proceedings.[60] By adopting this exclusionary practice, the courts would not prima facie violate a defendant’s fundamental right to fair trial or the right to freedom of speech and expression. In fact, many countries admit statements, oral or written, of anonymous witnesses as evidence although convictions may not be based solely on the testimony of anonymous witnesses.[61] In fact, making a witness anonymous by moving him/her away from the danger zone, then by relocating him/her to a different place, and then by changing his/her identity is possibly the best way to help the witness stay safe.[62] As regards vulnerable witnesses such as child witnesses[63] and/or those who suffer from disability, especially intellectual disability, anonymity may be allowed in all stages including the post-trial stage. In such circumstances, a defendant’s right to cross-examine such witnesses with inapt techniques and methods that may mislead or confuse them may be bypassed for greater interests of justice.[64]
In a nutshell, neither the cost factor nor the anonymity factor provides a reasonable explanation as to why India should not embrace a Witness Protection Act. The law, the Witness Protection Scheme, 2018 created by the Supreme Court by invoking its extraordinary powers under Article 142 read with Article 141 of the Indian Constitution to facilitate the protection of witnesses in serious crimes is sufficient proof that neither cost nor anonymity of witnesses would stand in the way of the Indian Parliament in creating a law on the subject.
- Dissecting the Witness Protection Scheme, 2018!
If we dissect and analyse the Witness Protection Scheme as espoused by the Apex Court in Mahender Chawla’s case,[65] we will see that the Scheme has its own pros and cons. But before we deliberate upon the pros and cons of the Scheme, let us glance through a few of its provisions. Interestingly, the interpretation part (Clause 2) of the Scheme includes among other things the definition of offence, which in the context of the Scheme means those offences for which the punishment is one of death or life imprisonment or imprisonment of more than seven years. The definition also includes offences punishable under sections 354, 354A, 354B, 354C, 354D, and 509 of the Indian Penal Code. The interpretation section also includes the definitions of ‘concealment of identity of witness’, ‘witness protection measures’, ‘threat analysis report’, etc. Clause 3 of the Scheme classifies witnesses into three categories, Categories A, B, and C, based on the threat perception of witnesses. ‘Category A’ witnesses are those who or whose family members face life threat; ‘Category B’ witnesses are those who or whose family members face threat to their safety, property or reputation; ‘Category C’ witnesses are those who or whose family members face moderate threat, intimidation or harassment relating to their safety, property, or reputation. Clause 4 of the Scheme stipulates the establishment of a Witness Protection Fund (WPF) to meet the expenses relating to the protection of witnesses. Vide Clause 5 of the Scheme, a witness seeking protection may apply to the ‘Competent Authority’ of the respective district for a protection order. On an application by a witness seeking protection,[66] the head of the police of the concerned district in conjunction with the provisions laid down under Clause 6 of the Scheme must do an assessment of the threat based on the threat perception and the nature of the threat. The threat assessment report shall then be placed before the Competent Authority, which shall then take a final call on the issuance of a witness protection order. Clause 7 of the Scheme lays down in details the types of protection measures such as ensuring that the witness and the accused do not face each other in the pre-trial and trial stages, monitoring mails and phone calls, installing security devices near or inside the house of the witness, escorting the witness as and when required, etc. Clause 8 creates an obligation on the Competent Authority to monitor and review the implementation of the protection order. By virtue of Clause 9 of the Scheme, an obligation is bequeathed on the witness protection cell[67] to make sure that the identity of a witness or his/her family members is protected. Clause 10 allows a witness to seek before the Competent Authority to change his/her identity and if the Authority is satisfied based on the evidence available (the threat analysis report in this case), it can confer a new identity and provide supporting documents for building the new identity. As per Clause 11, based on the threat analysis report, a witness may be relocated to a different place. The expenses for such relocation shall be borne by the WPF. Clause 12 of the Scheme requires that witnesses be made aware (through investigating agencies and courts) that such protection system exists. Clause 13 requires that all stakeholders shall maintain confidentiality and help in the preservation of records.
The most notable side of the Scheme is that it calls for a cooperative and synergistic engagement between and among stakeholders thereby requiring the district court, the district prosecution office, and the district police to develop a robust threat-assessment framework. Another good part of the Scheme is that it strives to extend witness protection, including to anonymous witnesses, even during the post-trial stage. For anonymous witnesses, the ‘concealment of identity’ clause till the post-trial stage indisputably provides a great relief! Yet another positive aspect of the Scheme is that it obligates the district-level authorities to create a robust monitoring and implementation framework on the issue of witness protection. On the flip side, the Scheme suffers from some structural infirmities, for example, the definition of ‘offence’ is seemingly loose; a plain reading of the provision indicates that only sessions-triable (apart from some of the magistrate-triable offences against women) IPC offences have been contemplated under the Scheme. Also, the definition of ‘witness’ under Clause 2(k) seems far from satisfactory; the definition reads “witness means any person who possess information or document about any offence.” Although the Scheme appears to be a well-knit one, whether witnesses would be comfortable facing the robust procedure (from application to the sanction of the witness protection order) is an insurmountable question; whether such a Scheme would work unambiguously in favour of defence witnesses is another critical question circumscribing this matter. Further, the Scheme fails to create a normative witness protection framework for vulnerable witnesses such as child witnesses and witnesses who are differently-abled. Despite, some of the structural-functional loopholes, the Scheme continues to operate as the maiden law, a judge-made law, and definitely has the potential to get transformed into a full-fledged federal legislation.
- Conclusion
The main argument that resonates through the breadth and width of this paper is that there is a conspicuous dearth of an overarching witness protection law in India and that it is ripe time for the Indian Parliament to create a law on the subject. A comprehensive witness protection regime based on a law passed by the union parliament will pave the way for an effective criminal justice administration and would help reduce caseloads on courts dealing with criminal matters. Taking a cue from the arguments posited above it can be safely inferred that neither the cost factor nor the anonymity factor inhibits the creation of a comprehensive law governing the subject. The view that a broad witness protection law will be cost-ineffective is highly skewed and is subject to enquiry. Further, the belief that extending inclusive protection to witnesses will affect the truth-gathering process and will subsequently impede the accused person’s due process right to a fair and impartial trial is subject to scrutiny, both theoretical and experimental. It is also misleadingly believed that the practice of anonymous testimony of witnesses will endanger the effectiveness of cross-examination not only because the accused cannot plead adequate defence if the identities of the witnesses are shielded but also because the right of an accused to public confrontation of witnesses is jeopardised.
The author suggests[68] that the proposed witness protection law must apply to witnesses to all types of criminal offences, general or special, regulatory or un-regulatory. It should also be made applicable to both prosecution and defence witnesses.[69] However, an offence-based witness classification may be drawn up so that different witnesses are provided different types of protection depending on the seriousness of the respective offences. The offence-based witness classification would not only support a more nuanced and multi-layered witness protection scheme but also promote the principles of distributive justice (albeit in the Rawlsian sense).
A witness protection law would undoubtedly be a big step forward in ensuring the personal safety, privacy, and dignity of those witnesses who testify in the courts of law.[70] Only an effective witness protection system can ensure that rule of law triumphs and that the eyes and ears of the justice system get the due safeguard in the justice delivery process. The day India embraces a witness protection law would of course be marked a red-letter day.
[1] Prashant Rahangdale, Witness Protection: A Fundamental Need in Criminal Justice System, 31 Purakala 114, 115 (2020).
[2] Kadri ARIFI, Witness Protection in Kosovo: Progress and Challenges, 1 ejist 248, 248 (2015).
[3] Brendan O’Flaherty & Rajiv Sethi, Witness Intimidation, 39 J. Leg. Stud. 399, 403 (2010).
[4] Wilson Kiprono et al., Witness Protection: Socio Cultural Dilemmas, 2 ijsrit 50, 50 (2015).
[5] In many jurisdictions, including in India, evidence laws treat an accomplice as a suitable witness, as against the accused. Whether the testimony of an accomplice-witness is trustworthy or not is although a separate question.
[6] Hildur Fjóla Antonsdóttir, ‘A Witness in My Own Case’: Victim–Survivors’ Views on the Criminal Justice Process in Iceland, 26 Fem. Leg. Stud. 307, 308 (2018).
[7] Id. at 327.
[8] Antonio Maria Costa, Good practices for the Protection of Witnesses in criminal proceedings involving organized crime 19 (2008). Among the three, justice collaborators, who are also known as witness collaborators, crown witnesses, supergrasses, state witnesses, etc., refer to those who are related to the offence or the offender but would offer to testify themselves for and on behalf of the state and cooperate with the prosecution accordingly. They are akin to accomplice-witnesses who are motivated to cooperate provided they get the desired protection.
[9] Anne M. Morgan, Victim Rights: Criminal Law: Remembering the “Forgotten Person” in the Criminal Justice System, 70 Marq. L. Rev. 572, 595 (1987).
[10] Piotr BAKOWSKI, Witness protection programmes EU experiences in the international context, European Parliament (Jan. 28, 2013), https://www.europarl.europa.eu/thinktank/en/document.html?reference=LDM_BRI(2013)130408.
[11] Id.
[12] Costa, supra note 8, at 43.
[13] O’Flaherty & Sethi, supra note 3, at 416.
[14] Nicholas R. Fyfe & Heather McKay, Desperately Seeking Safety: Witnesses’ Experiences of Intimidation, Protection and Relocation, 40 Brit. J. Criminol 675, 675 (2000).
[15] Kiprono et al., supra note 4, at 51.
[16] Id.
[17] Rahangdale, supra note 1, at 117.
[18] The anxiety factor is more relevant in cases involving child witnesses. Anxiety impairs a child’s testimony and therefore may frustrate the very purpose of truth-seeking. For more details see: Dawn Hathaway Thoman, Testifying Minors: Pre-Trial Strategies to Reduce Anxiety in Child Witnesses, 14 Nev. L.J. 236, 237 (2013).
[19] Many witnesses face intimidation in their own communities, and much before they could even reach the respective courtrooms. For details see: Fyfe & McKay, supra note 14, at 677.
[20] Steven Kayuni and Edister Jamu, Failing Witnesses in Serious and Organised crimes: Policy Perspective for Witness Protective Measures in Malawi, 41 Commonwealth Law Bulletin 422, 423 (2015).
[21] In the wake of globalisation, organised crime groups, because of their access to sophisticated technologies and tools, are becoming diversified and are aggravating threats to international peace and security. The developing states, whose mechanisms and institutions are still in transition, are more vulnerable to becoming victims of such crime groups. For details see: Karen Kramer, Witness Protection as a Key Tool in Addressing Serious and Organized Crime, unafei (Mar. 12, 2014), https://www.unafei.or.jp/publications/pdf/GG4/Fourth_GGSeminar_P3-19.pdf.
[22] Giving of false testimony by a witness may trigger a perjury prosecution and the state may bring criminal charges against that witness. For more details, see: Nora V. Demleitner, Witness Protection in Criminal Cases: Anonymity, Disguise or Other Options, 46 Am. J. Comp. Law 641, 659 (1998).
[23] Kiprono et al., supra note 4, at 56.
[24] Costa, supra 8, at 26.
[25] Witness Protection Act, 1998, sec. 10 (South Africa).
[26] Witness Protection Act, 1998, sec. 15 (South Africa).
[27] Pamela E. Hart, Falling Through the Cracks: The Shortcomings of Victim and Witness Protection Under § 1512 of the Federal Victim and Witness Protection Act, 43 Val. U. L. Rev. 771, 773 (2009).
[28] Raneta Lawson Mack, The Federal Witness Protection Program Revisited and Compared: Reshaping an Old Weapon to Meet New Challenges in the Global Crime Fighting Effort, 21 U. Miami Int’l & Comp. L. Rev. 192, 195 (2014).
[29] Altogether eight factors have been considered under sec. 7. These include the nature of the risk that the witness faces, the value of the witness’ participation or the value of the information that the witness would likely share, the cost of maintaining such programme, etc.
[30] The measures include personal protection, identity protection, moving of a witness to another location, etc.
[31] This is generally a correctional service or a prison service that engages officers to effectuate reforms in big-time criminals. The term ‘Penitentiary’ is derived from the Latin expression ‘paenitentia,’ which means repentance.
[32] Arguably, both the Nuremberg and the Tokyo tribunals depended primarily on documentary evidence. For details see: Joanna Pozen, Justice Obscured: The Non-disclosure of Witnesses’ Identities in ICTR Trials, 38 Int’l L. & Politics 281, 281 (2006).
[33] The first few cases that the Trial Chamber heard, the question of allowing anonymity created a stumbling block especially because the war was still continuing there while the Tribunal was rendering its judgments.
[34] Prosecutor v. Tadic Case, Case No: IT-94-1-A (Appeals Chamber) (2001). In the said case, the Trial Chamber of ICTY defined five conditions for anonymity. For details see: Pozen, supra note 31, at 287.
[35] Prosecutor v. Blaskic, Case No: IT-95-14-A (Appeals Chamber) (2004).
[36] The Tribunal used the expression ‘from that time forth’ to indicate the beginning of the trial stage.
[37] Prosecutor v. Musema, ICTR-96-13-A (2001).
[38] Supra note 34.
[39] Pozen, supra note 32, at 304.
[40] The Registrar of the ICC should consult the Prosecutor before extending protection and assistance to the victims.
[41] Markus Eikel, Witness Protection Measures at the International Criminal Court: Legal Framework and Emerging Practice 23 Crim. Law Forum 97, 99 (2012).
[42] The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-2842 (2012).
[43] The Prosecutor v. Germain Katanga, ICC-01/04-01/07-3436 (2014). In the said case, the Pre-trial Chamber of the ICC questioned the powers of the Prosecutor to relocate witnesses as a preventive measure under the ICC Protection Program.
[44] RSCSL is an extension of the erstwhile Special Court of Sierra Leone (SCSL), which was officially dissolved in December 2013. SCSL also supported the cause of witness protection. Article 16(4) of the SCSL statute read with Rules 34, 69, and 75 of the Rules of Procedure and Evidence empowers the Registrar of the Court to institute a Victim and Witness Unit within the Registry. The Unit is entrusted with the responsibility of extending protection, security arrangements, counselling, and assistance to the witnesses of the respective international crimes identified in the SCSL Statute.
[45] Article 12(4) further enjoins that the Unit shall provide assistance to witnesses those who testify themselves before the Tribunal and who is at risk for the depositions already made.
[46] The two main additional protocols that address the issue of witness protection are (1) Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2) Protocol against the Smuggling of Migrants by Land, Sea and Air. For further details see: Costa, supra 8, at 2.
[47] The 14th, 154th, 172nd, 178th Law Commission Reports had focused on the need for witness protection. For further details see: Law Commission of India, Witness Identity Protection and Witness Protection Programmes (198th Report) 16 (2006).
[48] NHRC v. State of Gujarat, 2003(9) SCALE 329 (India).
[49] Law Commission of India, supra note 47, at 78.
[50] Zahira Habibulla H. Sheikh and Another v. State of Gujarat and Others, 2004 (4) SCC 158 SC (India).
[51] The interpretation section (section 2j) of the Bill included inter alia the definition of ‘witness’ as “… a person who is acquainted with the facts of a crime and who is able to produce evidence of such fact either by providing oral, written or by any intelligible gestures in any judicial proceeding.”
[52] Mahender Chawla v. Union of India, 2018 SCC OnLine SC2679 (India).
[53] In Terrorism and Disruptive Activities (Prevention) Act (TADA), 1987 (earlier, TADA, 1985) and Prevention of Terrorism Act (POTA), 2002 similar provisions on witness protection were manifest. Although such protection regime only operated on behalf of the prosecution witnesses, the relevance of such protection vis-à-vis serious crimes such as terrorism was underscored. In fact, in Kartar Singh v. State of Punjab (1994) 3 SCC 569, the Apex Court had acknowledged and upheld the relevance of the provisions (Section 16 of TADA, 1987) on witness protection. Both TADA and POTA were repealed subsequently.
[54] Fyfe & Mckay, supra note 14, at 689. Also see: Law Commission of India, supra note 47, at 275.
[55] Hart, supra note 27, at 771.
[56] Phoebe Bowden et al., Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?, 37 Melb. U. L. Rev. 539, 584 (2014).
[57] Mary Fan, Adversarial Justice’s Casualties: Defending Victim-Witness Protection, 55 B.C.L. Rev. 775, 776 (2014).
[58] Demleitner, supra note 22, at 643.
[59] Antonio Acconcia et al., Accomplice‐Witness and Organized Crime: Theory and Evidence from Italy 116 Scand J. Econ. 1116, 1117 (2013).
[60] Demleitner, supra note 22, at 641.
[61] Law Commission of India, supra note 47, at 496.
[62] Mack, supra note 28, at 197.
[63] Child victims and witnesses enjoy a special position by virtue of the provisions of the Child Rights Convention (CRC), 1989 that bestow an obligation on the CRC Committee to consult a child victim/witness on matters that relate to its involvement in a particular case. For details see: Annemarieke Beijer & Ton Liefaard, A Bermuda Triangle? Balancing Protection, Participation and Proof in Criminal Proceedings affecting Child Victims and Witnesses, 7 UTS L. Rev. 70, 79 (2011).
[64] Bowden et al., supra, note 56, at 560.
[65] Supra, note 52.
[66] Such application has to be filed before the ‘Competent Authority,’ which includes the District and Sessions Judge of the respective district, the district police head, and the head of the District prosecution, in pursuance of Clause 5 of the Scheme.
[67] According to Clause 2(o) of the Scheme, a witness protection cell is the one that is maintained by the Central/State/UT police agencies to effectively implement protection order.
[68] The author’s suggestion is not in sync with the observations of the 198th Law Commission Report which states that witnesses to sessions triable cases might only be offered protection
[69] Whether witness protection should be extended to defence witnesses is a matter of frenzied debate. Many in the academic and judicial circles think that if such a protection regime is extended to defence witnesses, it may thereby defeat the ‘statist’ scheme of condemning offenders and/or their supporters. This may further explain India’s docile approach towards embracing such a witness protection law. Also, it seems that in India courts, in general, do not tend to formally recognise the procedural rights of the defence witnesses in the justice dispensation process. For the above reason(s), the matter was intensely scrutinised by the Law Commission while drawing up its 198th Report on Witness Protection. For details see: Law Commission of India, supra note 47, at 46-47.
[70] Sarah Zimmerman, Mending the Protection and Prosecution Divide: Looking at Saudi Arabia Human Trafficking Flaws and Possibilities, 15 Wash. U. Global Stud. L. Rev. 533, 546 (2016).