“In search of truth, he plays that sacred role of the sun, which eliminates the darkness of ignorance and illuminates the face of justice, encircled by devils of humanity and compassion”.[i]-Justice A.K. Sikri
Witnesses are the eyes and ears of the justice system. Their word plays a pivotal role in determining the guilt of the accused and it thus becomes imperative to ensure that their testimony remains untainted by fear or favor. However, it is not uncommon to see witnesses turn hostile in courts due to threats, coercion, violence, inducements, or the play of money and muscle power. When the witness submits false evidence due to fear or threat, the trial ceases to be fair, as was held by the Supreme Court in the case of Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors.[ii] Given that the state has a constitutional responsibility under Article 21 of the Indian Constitution to ensure a free and fair trial, which would stand unaccomplishable if the testimony of the witnesses stands compromised, it becomes the duty of the state to protect the witnesses.
This duty of the state was recognized for the first time in the 14th Law Commission Report 1958. At that time, witnesses seldom faced extreme threats and so the Commission limited itself to provide only basic arrangements for the witnesses, like daily allowance and travel reimbursements.[iii] Over the years, this proved to be inadequate, and the Law Commission in its 178th report in 2001 supplemented with new recommendations. The Commission found that in cases where the accused came from a rich or influential family, the accused managed to escape law by turning the witness hostile. The commission thus recommended that the statement of the witness should be recorded before the magistrate at the earliest to ensure accuracy in the testimony as well as not give the accused enough time frame to influence the witness. The commission also recommended that if the witness later retracts his statement in court and turns hostile, the judge should have the discretion to refer to the prior statement after due consideration.[iv] Later, the Malimath committee in its report in 2003 noted that a witness would refrain from giving evidence in the court if his or his family’s life is in danger, unless the court assures him of protection. The committee thus recommended keeping the identity of the witness anonymous in high-risk cases.
Despite these recommendations, India lacked a comprehensive legislation on witness protection. The Indian Evidence Act, 1872 provides the manner in which a witness can be questioned in court. It states that a witness cannot be compelled to answer where the response might trigger a traumatic past memory. The advocates questioning the witness should also not put-up insensitive questions to only annoy or insult the witness.[v] However, the Act fails to provide any express provisions to protect the witness from potential threats and risks. In addition to the Indian Evidence Act, there are certain special legislations that explicitly provide for witness protection. For Instance, The Protection of Children from Sexual Offences Act, 2012 clearly lays down guidelines to ensure that a child witness is able to give his testimony with any threat. The statement of the child is recorded in camera and without the presence of the accused, the child’s identity remains anonymous and he is accompanied by his parent or guardian.[vi] The National Investigating Agency Act, 2008 also provides that the identity of the witness should be protected and the proceedings should be held in camera.[vii]
Realizing the inadequacies prevalent in the system, the government enacted the Witness Protection Scheme in 2018[viii], which came into force immediately in various states. The aim of this legislation was to ensure that criminal proceedings, at any stage, against the accused should not be prejudiced because of the witnesses being threatened or intimidated due to lack of state protection. This scheme classified witnesses into the following 3 categories, based on the level of threat perception:
i. Category A: cases where the witness or his family perceive a threat to their lives during the investigation, trial or even post-trial.
ii. Category B: Cases where the witness or his family perceive a threat to their safety, reputation or property during the investigation or trial.
iii. Category C: cases where the threat perceived is moderate and may extend to include intimidation or harassment of the witness or his family during the investigation, trial or thereafter.
This scheme also provides that all the states and Union Territories would have to establish a witness protection fund that would meet the expenses for protection provided. The state government would have to make budgetary allocations for this fund and it will be operated by the department of home under the respective state or Union territory. In order to avail protection under this scheme, the party has to file an application in the prescribed form before the competent authority of the concerned district, through its member secretary.
Clause 6 of this scheme entails that a threat analysis report is to prepared by the ACP/DCP of the concerned police sub division in complete confidentiality and has to be sent to the competent authority within 5 working days. Clause 7 of the scheme describes in detail the various protection measures that are available to safeguard the witness. The witness and accused do not come face to face at any stage of the proceedings, be it the investigation or the trial. The witness’ mail and phone number are monitored, and in extreme cases, a new number may also be assigned. To ensure physical safety, security devices like CCTV, alarms and fences are installed in the witness’ house. During the case proceeding, the witness is referred by a changed name or alphabet to keep his identity secret. In extreme situations, his residence may also be temporarily shifted to a new location. The identity of the witness may be changed with government support by giving him a new name, occupation and supporting legal documents.
Although the scheme is a step in the right direction, it is not free from certain lacunae.[ix] The degree of protection provided to the witness depends on the TAR report made by police officials, who are themselves prone to corruption and political pressure. Even where protection is provided, it is only for a limited time period of 3 months, post which the witness and his family are largely on their own. A violation for any of the aforementioned safeguards by officials, like disclosing the identity of the witness, does not attract any penal punishment. In addition to these, the actual implementation of the scheme is not without obstacles. The states have often citied paucity of resources like inadequate financial funds, lack of protection personnel as the reason for non-implementation of this scheme. Infact, petitions have been filed before the Supreme Court to order the states to implement this scheme. The Allahabad High court, the Madras High court, and the Karnataka High Court have even directed the authorities for the immediate implementation of this scheme. Despite this, the on-ground situation has not changed much.
The way forward to ensure the safety of the witness lies in increased governmental efforts. The witnesses themselves should become more aware of their own rights and know whom they can contact for help. The state should establish a separate division of personnel who would be responsible for witness protection. Any corrupt practice, negligence or lackadaisical approach on behalf of public officials should attract a disciplinary proceeding and penal punishments. In doing so, the criminal justice system would be able to ensure free and fair trials.
[i] Whittaker chambers.
[ii] Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., (2006) 3 SCC 374
[iv] Law Commission of India, 178th The Law Reforms (Miscellaneous Amendment) Bill, 2001 (2001).
[v] Indian Evidence Act, 1872.
[vi] The Protection of Children from Sexual Offences Act, 2012
[vii] National Investigating Agency Act, 2008
[viii] Witness Protection Scheme 2018.
[ix] Sanjeev Kumar and Abhishek Goyal, Witness Protection: Safeguarding The Eyes And Ears Of Justice, Mondaq; April 28, 2021; https://www.mondaq.com/india/trials-appeals-compensation/914274/witness-protection-safeguarding-the-eyes-and-ears-of-justice.