Protection of Witnesses: A Need of the Hour

The present article, therefore, discusses the need for protection of witnesses, safeguarding their rights in any criminal justice system, with a special focus on the efficacy of the Witness Protection Scheme, 2018.

The Indian Criminal Justice System protects the fundamental rights and freedoms of its citizens as guaranteed under the Constitution of India, by enforcing the law and punishing the offenders. Following the principle of “Ensure the good and punish the wicked”, the functionaries of the justice system endeavour to diminish criminal misconduct in the country. India follows an adversarial criminal justice system where witnesses play a major role in the disposal of criminal cases.

I. Introduction

The term ‘witness’ is referred to “a person who is familiar with the certainties and conditions, or is in control of any data or has learning, important with the end goal of examination, inquiry or trial of any crime including serious offense, and who is or might be required to give data or create an impression or produce any record during investigation, inquiry or trial of such case.”[1] As per the definition of Delhi High Court “Witness means a person whose statement has been recorded by the Investigating Officer under section 161 of the Cr.P.C, 1973 pertaining to a crime punishable with death or life imprisonment”[2]

Jeremy Bentham says that ‘witnesses are eyes and ears of justice’ and their incapacity to act can putrefy or paralyze the trial against the offender. Therefore, in any jurisdiction, a witness of a case requires protection from the system so that they can give their statements and proof to the court without any external pressure. To quote the judgment of the Supreme Court in the case of State of Gujarat v. Anirudh Singh,

“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.”[3]

Therefore, it is evident that witnesses are the foundation of any trial, be it, a civil or criminal case. They play a significant role in assisting the court which decides the fate of the case. No indictment case can be developed without the statement of witnesses; however, the condition of witnesses in the Indian Legal System is very deteriorating. Let’s see in detail the present scenario of witness in India.

II. Current Indian Scenario on Protection of Witnesses

In the Indian legal system, the condition of witnesses can be coined as’ highly pathetic’. Witnesses’ dithers in most of the cases as without proper protection from the authorities, they have to face wrath, pressure, and threat to their life from accused to which they end up turning as a hostile witness, giving statements and testimony in favour of the offender. They neither have proper legal remedy nor do they get any suitable treatment or protection for their life which results in the phenomenon of witness turning hostile in most cases.

This is a serious concern for the Indian Judiciary as it is seen in many instances that a witness gives a statement which is deliberately ambiguous and hence would be of no help in determining the guilt of the offender. The Supreme Court reiterated that “legislative measures to emphasize prohibition against tampering with witness, victim or informant, have become the imminent and inevitable need of the day.’’[4]

The immediate realization of the importance of the subject of witness protection in India motivated the Law Commission of the country to suo motu take up the subject of ‘Witness Anonymity’ and ‘Witness Protection’ in its 198th Report Law Commission and discussed these issues quite widely.

Further, the commission under the chairmanship of Dr. Justice V.S. Malimath was formed to make recommendations on the reforms of the criminal justice system in India. The committee on the subject of protection of witness states that:

“By giving evidence relating to the commission of an offence, he performs a sacred duty of assisting the court to discover the truth. It is because of this reason that the witness either takes an oath in the name of God or solemnly affirms to speak the truth, the whole of the truth and nothing but truth. He/She performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. He submits himself to cross-examination and cannot refuse to answer questions on the ground the answer will incriminate him.”[5]

III. Witness Protection Scheme, 2018

Where the society is administered by rule of law, it becomes imperative to make sure that investigation, trial, and prosecution of criminal offences is not preferential in light of dangers to witness of a crime. While emphasizing the need for protection of witnesses, the Hon’ble Supreme Court has observed that “If the witnesses get threatened or are forced to give false evidence that also would not result in fair trial”[6].

Moreover, in complex cases, where cooperation by a witness is necessary for successful prosecution of a powerful criminal group, extraordinary measures are required to ensure the witness’s safety viz. anonymity, relocation of the witness under a new identity in a new, undisclosed place of residence.[7]

In India, there is no law or witness compensation scheme at the national level for the protection of witnesses. Therefore, the apex court approved India’s first witness protection scheme. Keeping that in view the Hon’ble Supreme Court has approved India’s First Witness Protection Scheme drafted by the central government.

The Witness Protection Scheme, 2018 was approved by the court in the Mahendra Chawla & Ors. v. Union of India & Ors.[8] case where the court has asked the Centre, states, and Union Territories to enforce the scheme in letter and spirit. The scheme shall be considered as law under Article 141 and 142 of the Indian Constitution until a suitable enactment is passed by the legislature on the subject.

In the present case, the bench comprising Justice A.K. Sikri and Justice S. Abdul Nazeer identified the witnesses’ rights to affirm within the ambit of Article 21 of the Constitution and said:

“The right to testify in courts in a free and fair manner without any pressure and threat whatsoever is under serious attack today. If one is unable to testify in courts due to threats or other pressures, then it is a clear violation of Article 21 of the Constitution.”[9]

The main aim and objective of the Witness Protection scheme, 2018 is to ensure that the investigation, prosecution, and trial of criminal offenses is not prejudiced because the sole witnesses of the case are intimidated or frightened to give evidence without protection from violent or other criminal accusation.[10]

The scheme aims to advance the law requirements by encouraging the assurance of individuals who are getting directly or indirectly indulged in providing help to criminal law enforcement agencies and facilitate in the administration of Justice. Depending on the degree of peril provided to witnesses, the witness protection scheme categorizes kinds of witnesses mainly into three classes and lists down point by point methods for the security of the individual classifications.

The protection scheme, 2018 distinguishes witnesses into three categories based on the threat perception:

• Category A: Those cases where threat extends to the life of witness or family members during the investigation, trial or even thereafter.
• Category B: Those cases where the threat extends to safety, reputation or property of the witness or family members during the investigation or trial.
• Category C: Those cases where the threat to witness is moderate and extends to harassment or intimidation of the witness or his family members, reputation or property during the investigation, trial or thereafter.

Moreover, it is to note that the State Witness Protection Fund has been proposed under the 2018 Scheme. The wellsprings of the state witness protection funds are as follow:

• Budgetary assignment made in the Annual Budget by the State Government;
• Receipt of measure of fines forced (under Section 357 of the CrPC) requested to be kept by the courts/councils in the Witness Protection Fund;
• Donations/commitments from International/National/Philanthropist/Charitable Institutions/Organizations and people allowed by Central or State Governments and Funds contributed under Corporate Social Responsibility.[11]

IV. Conclusion

There is no doubt that India has come a long way in regard to ensuring the safety and security of witnesses, which is considered a very crucial part of the criminal justice system. However, due to lack of a proper statutory mechanism in place with no strict penal implications may result in leaving the entire mechanism, so adopted through judicial process go in vain.

As the Indian Courts have time and again observed that the efficacy of administration of justice is significantly based on the true statements made by witnesses, the importance of an effective and strict Witness Protection Scheme can’t be stressed enough. It is the need of the hour that the entire states step into its role of parens patriae and provide comprehensive legislation on dealing with the protection of witnesses in the criminal justice system. It is only then the stream of justice would be able to flow freely and independently.

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[1] Akshat Aggarwal, Witness Protection for Effective Legal Regime in India, Available Here

[2] Ms. Neelam Katara v. Union of India, ILR (2003) II Del 377.

[3] (1997) 6 SCC 514.

[4] Zahira Habibullah Sheikh v. State of Gujarat, 2004 (4) SCC 158.

[5] Headed by Justice Malimath, Volume I, p. 151.

[6] 2004 (4) SCC 158 SC.

[7] Sampath Meena, Witness Protection Scheme, 2018: The New Paradigms (May 6, 2021), Available Here

[8] Writ Petition (Crl.) No. 156 of 2016.

[9] Ibid.

[10] Witness Protection Scheme, Available Here.

[11] Supra at 5.

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