Introduction
Witness protection has become prominent in popular culture thanks to its depiction in books and movies. Yet, the reality of this system extends beyond thrilling plot twists to encompass real-life tales of bravery, justice, and everything in between. The quintessential purpose of witness protection remains to safeguard individuals who bravely take a stand to testify against criminal groups and syndicates. Through this measure, law enforcement shields these individuals from potential retaliation, thus helping justice to prevail. This article delves into the nature of witness protection, exploring its necessity, potential pitfalls, and overall impact on the justice system and the individuals it serves.
Witness protection has been a slow-evolving aspect of criminal justice administration due to a lack of a structured and codified system. Conversely, a handful of measures such as in-camera trials, secrecy of the witness’ identity, and police escorts as per court instructions were the only available provisions. However, the conversations about institutionalising a comprehensive witness protection scheme started being amplified after the ghastly 26/11 Mumbai terrorist attacks.
The Witness Protection program in India isn’t strong per se. There have been hardly any cases, except a few like the Jessica Lal murder case which helped shape the witness protection program after a long journey. In that case, the witnesses turned hostile against the culprits. The case was reopened to give a fair chance to those witnesses to testify against the real accused finally. Evidence plays a major role in the investigative process and the Indian Evidence Act provides certain provisions as to the persons capable of testifying in court of law and admissibility. Thus, a witness in legal proceedings plays a very crucial role.
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Meaning/References over the years
Witness has not been defined specifically in the Code of Criminal Procedure or even the Indian Evidence Act but there are references made to those words in various documents, reports, articles, schemes and the like.
The Committee on Reforms of the Criminal Justice System- popularly known as the Malimath Committee- was the first to expressly refer to the need of the hour to enact a comprehensive law for the protection of the witness and his family. The report also suggested numerous measures to ensure witness protection; physically, financially and legally.
A statement loosely defining a witness is observed in the Witness Protection Scheme 2018, under definitions in Part 1- A witness means any person, who possesses information or documents about any offence.
Black’s Law Dictionary defines it as: “In the primary sense of the word, a witness is a person who knows an event. As the most direct mode of acquiring knowledge of an event is by seeing it, ‘witness’ has acquired the sense of a person who is present at and observes a transaction.”
Jeremy Bentham, a great English philosopher and jurist, once said “Witnesses are the eyes and ears of justice.”
Delhi High Court in the case of Ms Neelam Katara v. Union of India defined witness as: “Witness means a person whose statement has been recorded by the Investigating Officer under Section 161 of the CrP.C, 1973 about a crime punishable with death or life imprisonment”. Witness Protection guidelines were formulated after the judgement of this case.
The Supreme Court of India held in the case of State of Gujarat v. Anirudh Singh (1997) 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.”
The first ever reference to Witness Protection in India came in the 14th Report of the Law Commission of India in 1958.
Importance of Providing Witness Protection
The importance of witness protection in maintaining the integrity and effectiveness of the justice system cannot be overstated. It provides key evidence for criminal trials, acting vitally in the quest for justice. Without the assurance of protection, many witnesses would avoid testifying.
A critical perspective to understanding the need for witness protection draws from the classic concept of the weak versus the strong, where the strong equates to criminal organizations with immense resources at their disposal. These entities have the means to intimidate or eliminate any threat; in this context, witnesses pose a significant threat to their operations.
Whether dealing with minor offences or large-scale illicit organizations, the safety of witnesses remains paramount. Without this assurance, witnesses are less likely to aid in the judicial process, hindering the fight for justice. The provision of witness protection is, thus, an essential deterrent against intimidation tactics used by criminals.
Additionally, witness protection programs often provide a feasible path to a safe life for informants or former associates of criminals who wish to disassociate guilt from their past actions. These individuals possess firsthand information regarding criminal activities. Their testimonies carry immense weight in court proceedings. By incentivizing their cooperation with the assurance of protection, law enforcement enables these testimonies to come to light, significantly bolstering their case against perpetrators.
Various kinds of witnesses are subjected to much arduousness, like hostile witnesses in the epoch-making case, Mahender Chawla vs Union of India.
The Supreme Court passed a historic judgment, observing that one of the main reasons for witnesses turning hostile is that they are not extended any protection by the state. This verdict put forward the necessity of having a well-structured protection program for witnesses, thus marking a new wave in Indian criminal jurisprudence. The Supreme Court directed the Central and State Governments to enforce the 'Witness Protection Scheme, 2018' drafted by the Central Government in consultation with the Bureau of Police Research and Development (BPR&D) and the National Legal Services Authority (NALSA).
Child witnesses are yet one of the most suffered. These witnesses need protection especially in the cases of child abusers as asking the abused child to testify, may be exposing the child to more harm. The child suffers the trauma of the abuse he or she went through, which leads to the charges against the defendant. But that also means the child will face unspeakable hardships- both mental and physical, by just being made to recall those horrific things in the cold courtroom, that too in the presence of the perpetrators.
Various other witnesses like related witnesses, official witnesses, eyewitnesses, stock witnesses, and chance witnesses do need an ample amount of protection from the accused party and their threats which may adversely affect the judgement of the case in the end.
Thus, there is a need for effective laws for witness protection. We cannot administer a straight-jacket procedure for all cases. It would not be feasible to carry out their execution smoothly. But, we can ensure that efforts are made to deliver remedies to the needy and that the powerful do not abuse the legislation.
An extremely time-consuming and leisurely justice system is also the reason for witnesses to lose morale. When a witness reaches the court and finds out that his case has been adjourned, he loses hope.
Hence, the need for a comprehensive witness protection scheme arose. Some important reasons for the need for a Witness Protection scheme are as follows-
1. Witnesses carry a moral and legal duty to give their account of information to the police voluntarily.
2. The complainant or the accused is also a witness. They ought to be in a safe environment where they do not feel coercion of any kind into giving evidence or statements incriminating them.
3. Court systems, lawyers, jury and each person involved must pay respect to the witness as he/she appears before the court, sacrifices his time and takes the trouble of travelling all the way to attend the court just to provide evidence. Despite these life-threatening instances, some witnesses come forward because they wish to see that justice has been done.
4. At times, witnesses are also reluctant to speak the truth in the environment of a courtroom, especially in the presence of the accused, if such a person happens to be a very influential or hardened criminal. Witnesses turn hostile in this kind of environment and they need to be protected.
5. Any child who passes the competency exam can become a witness. But children sometimes do not understand the gravity of the case. Testimony of a child witness should not be rejected outright but it is to be scrutinised with great caution (held in State of Bihar v Kapil Singh 1969).
Types of Witnesses
These are the few types of witnesses:
1. Expert Witness
An expert is defined under Section 45 of the Indian Evidence Act. These professionals in their fields aren’t directly related to the fact-in-issue or relevant facts, but their opinions are relevant to the case. Certain cases require a special opinion, like a doctor or a child psychologist. These expert witnesses speak to facts that the average judge, lawyer, or jury might not know.
2. Character Witness
These types of witnesses give information about the character of the individual who is on trial. They provide either good moral characteristics of the person on trial or bad moral characteristics. They can be anyone who is well acquainted with the person on trial, like a former teacher or a colleague.
3. Hostile Witness
A person who testifies against the party who has called them to testify is known as a hostile witness. Another name for a hostile witness is an adverse witness. Section 154 of the Indian Evidence Act deals with a hostile witness. It provides that the party who called up on the hostile witness, can with the permission of the Court, cross-examine the hostile witness. This is an exception to the rule that a party can only cross-examine witnesses from the opposite party.
4. Child Witness
Section 118 of the Indian Evidence Act provides that every person is allowed to be a witness, if he/she is capable of understanding the questions that are asked and are also able to give a rational answer to those questions. Hence, In certain special circumstances, even a child can be a witness too. However, special care must be taken while conducting the examination of a child witness.
5. Eye Witness
Any person who is present at the crime scene and who sees with his own eyes the events that unfolded at the crime scene is known as an eyewitness. The courts strictly examine the witness according to the procedure established by law. They are considered an important source of evidence in solving any case as they provide first-hand instances of the crime.
Measures of Witness Protection
Following are some measures which may be taken to ensure the protection of a witness:
Ensuring that the accused and the witness don't interact in person while the case is being investigated or tried.
In order to prevent the offender from harassing the witness or even learning their whereabouts, it may be necessary to keep an eye on their phone calls or make arrangements to give them an unlisted number.
Installing security features in the witness's house, such as alarm systems, security doors, CCTV cameras, fencing, etc.
Changing the witness's name, giving them an emergency contact to call if they see or suspect danger, and even changing their residence are all ways to hide their identity from the accused.
Monitoring the witness's home 24x7 on all fronts.
Arranging for an escort car to drive the witness from their house to the courtroom and back; this may occasionally involve arranging for a secure government vehicle with adequate protection.
By conducting in-camera trials.
Total confidentiality is ensured during the investigation and trial. To guarantee that the witness is not harassed in any manner, the witness is provided with total protection.
In addition, the following measures need to be taken:
• Support to deal with their trauma, emotional difficulties, and mental health concerns both before and after the investigation and trial.
• Additionally, all reasonable precautions must be taken to safeguard the witness before, during, and after the trial if there is a substantial risk of injury.
• It is imperative to guarantee and protect the safety of witnesses both during and after their testimony.
Statutory Laws for Witness Protection
Witnesses are a boon for the case to help achieve justice but they do so at the expense of their lives. They risk everything by giving their testimony, which helps convict the accused/criminal. A witness shows great courage and confidence by appearing in the intimidating environment of the court.
Women/Girls who are victims of any sexual violence or are witnesses to any such act face a greater risk as evident from a report by the Human Rights Watch. The Supreme Court has also observed the importance and need for laws protecting witnesses of violent crimes, child witnesses, witnesses who are unable to speak and the like.
The most important initiative taken to date is by the Delhi authorities which is the comprehensive Witness Protection Program Scheme, passed in 2015. Overall, there are a plethora of acts and laws which provide guidelines, rules and various benefits to protect witnesses.
1. Code of Criminal Procedure, 1973
The Code of Criminal Procedure, 1973 provides for examination of witnesses by police personnel only which is given under Section 161, trial in open courts and also provides for in-camera trials as evident in Section 327 and 327(2). Witnesses can be summoned by a Court for examination and re-examination under Section 311.
Further, the act highlights the importance of witness statements which can be taken in absence of an accused under Section 299. In addition to this, under Section 171, the code states that the witness on his way to give testimony or evidence shall not be unnecessarily accompanied by police escorts, restrained, or make anything inconvenient for the witness by the police.
2. Whistleblowers Protection Act, 2011
Under Chapter V of the Whistleblowers Protection Act of 2011, Section 12 contains provisions that states, if the Court is satisfied that any of the complainant or public servant or witness needs protection, then such court shall provide appropriate directions to the concerned authority which shall render assistance and protection to the witness or complainant.
Further, Section 13 also states that the identity of the complainant or the witness shall be protected at all costs. Failure to protect the identity or exposing identity with malafide intention attracts penalty under this act under Section 16.
3. Indian Evidence Act, 1872
The Indian Evidence Act of 1872 has many sections specially curated for witnesses and their protection. It also states who can be a witness. Chapter IX of the Indian Evidence Act of 1872 contains provisions as to Witnesses, their protection, character, measures to safeguard their integrity and reputation, cross-examination of any witness and the like.
Section 132 states that a witness shall be not excused from answering any question as to any matter relevant to matter in issue in any suit or proceeding, upon the ground that the answer to such question will criminate or tend directly/indirectly to criminate such witness, or that it will expose or tend to expose, such witness to a penalty or forfeiture of any kind.
Further, Section 148 provides that if any question is not relevant to the suit or proceeding and it affects the credit of a witness by injuring his character then the court has the authority to decide if such questions shall be asked and if the witness can answer it. Similarly, Section 147 gives the situation when a witness is compelled to answer.
4. Juvenile Justice (Care and Protection Act), 2000
The Juvenile Justice (Care and Protection of Children) Act, 2000 provides for prohibition of publication of name, etc. of juveniles involved in any proceeding under the Act in Section 21. It says that the name or any picture of any juvenile in conflict with law shall not be disclosed by any report in any newspaper, magazine, news-sheet or visual media of any inquiry.
5. The Unlawful Activities (Prevention) Amendment Act, 2004
Under the Unlawful Activities (Prevention) Amendment Act of 2004, Section 22 provides punishment for threatening witnesses. It states that whoever threatens any witness with violence or wrongful restrain or confinement or does any other unlawful act, is punishable with imprisonment up to 3 years and is also liable to fine.
Landmark Cases
1. Mahender Chawla vs Union of India (2018) [Asaram Bapu Case]
This case, involving multiple petitioners, showed how vulnerable witnesses are in India. The main petitioner was a witness who survived a murder attempt related to a high-profile criminal case. Other petitioners included the father of a murdered witness and a journalist facing threats for their investigative work.
The case was linked to the rape charges against Asaram Bapu and his son Narayan Sai. The judgment urged the Central Government to create a thorough witness protection program.
2. Zahira Habibulla Sheikh and ANR V. State of Gujarat and ORS (Best Bakery Case)
On March 2, 2002, the Best Bakery in Vadodara was burned down by a large mob, resulting in the death of 14 people. The attack was said to be in retaliation for the killing of 56 people in the Sabarmati Express fire. Zaheera Sheikh, who lost family members in the bakery fire, was the main eyewitness.
The day after the bakery was burned, Zaheera filed a police complaint against 21 people. However, in court, she changed her statement, saying she was on the terrace during the incident and couldn't identify the attackers. The court noted that witnesses might change their statements due to threats, pressure, bribes, or political influence. Therefore, the state needs to protect witnesses.
Bhartiya Sakshya Adhinyam (Bhartiya Sakshya Bill)
The Bhartiya Sakshya (Second) Bill is a bill which aims to replace the Indian Evidence Act of 1857. The new bill is different from the The Indian Evidence Act of 1857, in the sense that the new bill is made to give justice and not to punish, while the old Act of 1857 was made with the purpose of punishing the convict and protecting and strengthening the British rule.
Hence, it was about time for that old act to be replaced. The soul of the Bhartiya Sakshya Adhinyam or Bhartiya Sakshya Bill is to protect all the rights of the Indian Citizen which are provided by the Constitution of India and its purpose will not be to punish but to give justice.
Under the Indian Evidence Act-
a) Limited Protection for vulnerable witnesses was available.
b) No specialized courts dedicated for witnesses.
c) There was limited support- psychologocial, physical and mental, which left them on their own to navigate the trauma they have been through.
On the other hand, in the BSB, there are enhanced safeguards put into place and stronger measures for the protection of witnesses. Special Courts are to be established for sensitive cases, hence prioritizing safety of the witness and security. The New Act also makes provisions of providing psychological support and counselling services to address the trauma experienced by the witnesses.
Conclusion
Witness protection is an essential facet and tool for the administration of justice. It not only serves to protect courageous individuals who dare to stand against wrongdoers but also serves as a crucial yardstick of a fair and efficient judicial system. While India's witness protection scheme is a significant move forward, its effective implementation remains a concern.
Therefore, the police, the judiciary, and the lawmakers must work in tandem to ensure the safety and security of the witnesses, thereby reinforcing people's faith in the judiciary and fostering a law-abiding society. Though certain strides have been made in this direction, a long road lies ahead for India to effectively administer witness protection on par with global standards.
Frequently Asked Questions
Q1) Why do witnesses need protection?
A) Witnesses need protection to ensure their safety and prevent intimidation or harm from those who might want to influence their testimony, ensuring the integrity of the judicial process.
Q2) What is Bhartiya Sakshya Adhinyam?
A) Bhartiya Sakshya Adhinyam, also known as the Indian Evidence Act, 1872, is a comprehensive legal framework in India that outlines the rules and standards for the admissibility of evidence in Indian courts. It governs the presentation, relevance, and evaluation of evidence in legal proceedings.
Q3) Who is a Hostile Witness?
A) A hostile witness is a witness who, while testifying, turns against the side that called them and may give unfavourable or unexpected answers. This allows the lawyers to ask tougher, cross-examination questions.
Q4) What is the Whistleblowers Protection Act?
A) The Whistleblowers Protection Act is a law that protects people who report wrongdoing or illegal activities at their workplace from being punished or harassed for speaking up.
Q5) Who is a Witness?
A) A witness is someone who sees or knows something about a crime or event and can provide information about it. They share what they know in court to help determine the truth.
This Article is written by Tanaya Moholkar, a final year law student at Yashwantrao Chavan Law College, Pune.
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Thanks a lot sir
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Well written!