Author: Nikhil S. Nair, 3rd Year, LL.B, Government Law College, Ernakulam
The value of a witness in the judicial environment is as good as a gold bar to a poor man. Witnesses play a vital role in the administration of justice. But their protection has always been an area that needs to be focused on immensely to ensure that law and justice prevails. It is well known how witnesses are threatened and attacked, to coerce them to depose, or to depose falsely, or irrelevantly (witnesses turning hostile). These are some everyday realities of law enforcement and can be seen in some very landmark cases like that of Zaheera Sheikh, Shayan Munshi, Sateyndra Dubey, and others. There are various factors which make a witness to an incident reluctant to depose or to depose falsely or irrelevantly (hostile witness). This is mainly because of the state failing to provide proper protection to these crucial witnesses. This paper discusses the legal provisions that have been put in place, and the extent to which it has been effective in protection of witnesses. Keywords: Witness protection schemes, Witness protection programmes, Judicial Intervention, Jurisprudential development, Legislative authority.
The research paper was geared to achieve the following objectives:
• To outline the relevant legal provisions pertaining to witness.
• To examine the issue of security of witnesses and the emerging debates on the issue especially in the light of leading judgments of courts and other publications.
• To study the experiences and problems of witnesses in their interaction with police, prosecution and court.
• To critically review the idea of witness protection in the light relevant legal provisions.
• To critically analyse the various dangers the witnesses have to face in India.
• To understand the kind of reforms needed in Indian legal framework for the protection of witnesses.
The research questions the practicality of various witness protection programmes and why these hurdles are not taken care of by the concerned governments and authorities?
The research has been focussed on the study of jurisprudential development in the areas of witness protection and problems of witnesses and the legislative and executive intervention to solve the problem.. This has been done primarily with the help of case laws and leading judgments of various courts. The reports of committees and commissions have been scanned to sift the issues relating to the research problem.
Killing of witnesses in broad daylight and forcing them to change their statements are few of the dismal plight of witnesses in various court cases in our country over the past few decades. Not a month goes by without hearing of trials in the lower courts or the higher judiciary where a witness has recanted his/her testimony or has been declared hostile.
Ancient Indian rulers used to call the witnesses the ‘the Third eye of justice “. From there, how did we come to this pass? How is it that we have managed to shut the “Eyes and Ears of the Justice System”, as Jeremy Bentham put it while describing witnesses? To understand this, we must first discuss the role of witnesses in the judicial process.
Witnesses have been indispensable in the administration of justice since the very beginning of jurisprudence. We derive the word witness from the Old English, Witan, which means ‘to know’. According to Black’s Law Dictionary1, “a witness is a person who has knowledge of an event by seeing it; a person who is present at and observes a transaction; or a person whose declaration under oath is received as evidence for any purpose, whether such declaration be made on oral examination, by deposition or affidavit.” Though there is no definition of a witness in the Code of Criminal Procedure Code, 1908 or in the Indian Evidence Act, 1872, the Halsbury’s Laws of India2 describes the various types of witnesses and their categories. In this instant paper, our focus shall be on the phenomenon of ‘hostile’ or ‘adverse’ witnesses.
‘I thy Witness’
In any investigation, under Chapter XII of the Code of Criminal Procedure, Section 161(3) empowers investigating officers to record the statements of witnesses. But Section 162(1) renders these recorded statements inadmissible in a court of law, unless the witnesses reiterate them during a trial, to ensure that they are not the victims of coercion or pressure from the police officers. When a witness recants the statements given to the police officers or states facts differently during trial, such a witness is deemed hostile. This act of recanting may be attributed to several different causes such as threats of physical harm (or property damage) to the witness or his/her family from powerful or influential accused parties; monetary or non-monetary inducements; fatigue and/or monetary loss due to frequent adjournments of the trial; the potential threat of social boycott or communal/caste hostility; exposure or threat of exposure to the public eye in the case of vulnerable classes such as women or children or from the deprived classes; and so on.
A witness is an important constituent of the administration of justice. By giving evidence relating to the commission of the offence he performs a sacred duty of assisting the court to discover the truth. That is why before giving evidence he either takes oath in the name of God or makes a solemn affirmation that he will speak truth, the whole of truth and nothing but truth.
We have all seen the popular depiction of the swearing in of the witness in movies, plays and stories where the witness takes an oath to speak the truth and nothing but the truth. But, in reality, there are oppressing factors that may weigh heavily upon the witness during the trial which would necessarily prevent the truth from being spoken out.
Ruma Pal J., while ruling on Swaran Singh versus State of Punjab had held that the foundation of a criminal case is based on evidence, evidence which are legally admissible. Witnesses are an indispensable element of criminal cases, direct or circumstantial evidence.Unethical lawyers play with justice to get adjournments anyhow by hook or crook, till a witness is either won over or is tried. Not only that a witness is threatened but he is abducted and maimed,bribed or even killed. There is practically no glimpse of protection for a witness.The criminal trial in our country requires a witness to even come from places that are miles and miles away, just to find the mockery of adjourning his case. A witness is made to come to the court several times risking not only his life but also putting his dear ones in danger. It has actually become a trend to have a criminal case adjourned several times till the will power of the witness dries and he gives up.However, these adjournment of the matter without any true cause or reason is where a court unwillingly becomes a part in miscarriage of justice.
A similar sentiment is echoed in the report presented by the Justice Malimath Committee that looked into reforms in the criminal justice system, 2000. Explaining the role of a witness in criminal justice administration, it states:
“The witness has no stake in the decision of the criminal court when he is neither the accused nor the victim. The witness performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. He sacrifices his time and takes the trouble to travel all the way to the court to give evidence. He submits himself to cross-examination and cannot refuse to answer questions on the ground that the answer will incriminate him. He will incur the displeasure of persons against whom he gives evidence. He takes all this trouble and risks not for any personal benefit but to advance the cause of justice.’
Given these conditions, the wrongful convictions or wrongful acquittals, arrived at on the basis of false or forced testimony, strike at the very foundation of the justice system.
How have we failed can only be learnt from the past!
Recent history is replete with lamentable examples of such egregious failures in prosecution due to false testimony or recanting of witness statements that one is forced to painfully suffer an embarrassment of these dubious riches.
We are able to woefully recount the sad state of affairs during the course of Zahira Habibullah Sheikh & Anr. vs State of Gujarat, in the Supreme Court where the witnesses were coerced into recanting, rendering the proceedings vitiated.
Again in Manu Sharma vs State (NCT of Delhi) We witnessed the dismal performance of the criminal justice system in the failure to record statements by the police and recanting of witnesses due to intimidation, threat or bribes.The case was famously known as Jessica Lal case remains a sore reminder of our failure to provide protection against witness tampering or recanting of statements.
We are also reminded of the series of cases related to the Vyapam scam in Madhya Pradesh where many of the potential witnesses were chillingly silenced.
Similarly, in the case of the prosecution of Asaram Bapu and his son, three witnesses were murdered and several simply disappeared before they could provide testimony. It was in the light of a host of such blatant cases that the Judiciary was forced to acknowledge the need for witness protection.
A Crying Need – To wipe the tears of the eyes that see.
There had been no law in India for adequate safeguards and the protection of witnesses. The Indian Evidence Act, 1872. Section 151 and Section 152 merely protects the witnesses from being asked indecent, outrageous, offensive or insulting questions. But there is no specific section that protects them from harassment or intimidation outside the courts. Some special Acts like Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and the Prevention of Terrorist Act, 2002 (POTA) provided for the protection of witnesses. After the Mumbai Terror Attacks, the National Investigation Agency Act was passed in 2008, which had provisions for witness identity protection – that is by conducting trials on camera, not mentioning names in judgments etc.
This was tacitly acknowledged by Supreme Court in the case of NHRC vs State of Gujarat when it said that
“no law has yet been enacted, not even a scheme has been framed by the Union of India or by the State Government for giving protection to the witnesses. It is high time that India introduced a witness protection programme”.
In the case Mrs. Neelam Katara vs Union of India & Others,the Delhi High Court exercised the power granted to it within ambit of article 141 and 142 of the Constitution of India, 1950 and issued guidelines in October 2003 to the police to provide protection to the witnesses in cases pertaining to life imprisonment or death sentences till suitable legislation was brought on the statute books. However, that did not deal with the manner in which the identity of the witness can be kept confidential either before or during the trial.
India has had a few draft bills on witness protection in the past, which never saw the light of day. There was the Witness Protection Bill (2015), The Witness (Identity) Protection Bill (2006) which failed to come into existence. Due to non-consensus among the states, the witness protection programme was shelved. In 2016, the Union Government entrusted the Bureau of Police Research and Development (BPR&D) with the task of examining the concerns raised by them regarding the feasibility of the programme and also look into the financial implications of the scheme. In 2017 – during the Asaram Bapu case prompted the apex court to issue directions to the Centre and the States to frame laws for protection of witnesses. Subsequently, Maharashtra state passed the Maharashtra Witness and Protection and Security Act (2017) becoming the first state to enact a concrete law on witness protection.
The 14th Law Commission Report (1958) was the first to highlight the issue of witness protection. Thereafter, the 154th law commission, the 172nd law commission, the 178th law commission and the more recent 198th law commission published reports that highlighted the necessity of a proper law or scheme for witness protection in India. The 198th Report titled “Witness Identity Protection and Witness Protection Programmes” emphasized that the witness protection scheme need not be limited to cases of terrorism or sexual offences but should extend to all serious offences, thereby increasing the ambit of its applicability and functioning.
The Supreme Court of India in Mahendra Chawla & Ors. Vs. Union of India & Ors., observed that the reason most witnesses turn hostile is due to the lack of protection given by the State. With this in mind, the Supreme Court approved India’s First Witness Protection Scheme drafted by the union government to be the law under Art. 141/142 of the Indian constitution. The Witness protection scheme, 2018, inter alia, provides for classifying witnesses into three categories as per threat perception;
Category A -Where the threat extends to life of witness or his family members, during investigation/trial or thereafter.
Category B -Where the threat extends to safety, reputation or property of the witness or his family members, during the investigation/trial or thereafter.
Category C -Where the threat is moderate and extends to harassment or intimidation of the witness or his family member’s, reputation or property, during the investigation/trial or thereafter.
The bill also provides for the establishment of State Witness Protection Fund to be operated by the Department/Ministry of Home under State/Union Territory Governments for meeting the expenses incurred during implementation of any Witness Protection Order passed by a Competent Authority .
This scheme also recognizes the need for protection of identity of the witness and the witness may request it on application and by passing an order of concealment by the competent authority. The witness may also request to change their identity depending on threat perception. This scheme also puts forth the option of witness relocation within the territory of the union of India.
Even though the Witness Protection Scheme is a welcome step towards ensuring protection and justice towards the witnesses, there are certain inherent lacunae existing therein. The duration of protection as per the witness protection order is limited to three months. The orders to be passed must go through officials like the police who may be prone to corruption or undue external influence. Various issues like these make this scheme potentially and deeply problematic.
The other aspects of the issue.
While it is certainly true that a witness protection program may improve the quality of the criminal justice system, there is another aspect that has led us to this precipice in the first place that is not often addressed.The Indian Penal Code, 1860 defines Perjury in Chapter IX “OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE” under Section 191. The punishment for the offence of Perjury is defined under section 193 of Indian Penal Code, 1860. The procedure in dealing with cases mentioned u/s 191 of Indian Penal Code, 1860 are dealt in Chapter XXVI of The Code of Criminal Procedure, 1973 under section 340. Perjury happens to be a much neglected topic in the judicial system. Although the laws prescribed can adequately be used to handle false testimony or blatant cases of perjury, they are seldom applied. One of the vital steps to be taken in improving the quality of justice is to ensure that perjury is severely censured whenever it is encountered. The presenting of false evidence, false testimony or perjury allows an accused to walk away scot-free and causes such grave miscarriages of justice that it ought to be followed up stringently and diligently. With a rash of cases being thrown out because of perjury, we must ensure that the strictest action is taken against those presenting false evidence or testimony. The Witness Protection Program should act as the carrot and stringent punishment for perjury must be the inevitable stick to balance the scales of justice the right way.
The other problematic aspect is that of anonymity of the accuser to the accused, for instance. Section 327 of the Code of Criminal Procedure in India ensures an open trial. The accused has a right to know who is testifying against him/her and prepare his/her defence accordingly. Section 299 does provide an exception when it says that if the accused is not available or has absconded and cannot be found by reasonable means, the court can order the prosecution witnesses to testify without the presence of the accused.
Another worry is the scale of the program and the costs attached to it because of the sheer enormity of the manpower resources, infrastructure and time required to conduct the protective efforts. Meanwhile, there is also the problem of maintaining secrecy in the face of continuing corruption and the potential leakage of data/information from all sources within the system, from the lowest ranks to the highest. In the absence of a dedicated department for the purpose of witness protection, the scheme cannot be implemented seamlessly across the states. There is also the matter of consensus among the various entities in the federal structure that remains problematic to this day. Since policing is a State subject, there is the question of conflict between the entities in the federal structure– either Centre-State or Inter-State.
Experiences from other countries
The United States, perhaps, has the most comprehensive Witness Protection Program of all the nations in the world. The United States Federal Witness Security Program (WITSEC) was enacted in 1970. The protection of the witnesses is mostly the duty of the U.S. Marshals Service. Some states such as California, Connecticut, Illinois, New York, Texas, and Washington, D.C. have their own witness protection programs for crimes not covered by the federal program. The U.S. Federal Government relocates and gives new identities to witnesses as well as provides them with financial and employment aid. The Federal Government also gives grants to the states to enable them to provide the same program. The Witness Security Reform Act of 1984 made this system more comprehensive.
The United Kingdom has a nationwide witness protection system managed by the UK Protected Persons Service (UKPPS), part of the National Crime Agency. The service is delivered regionally by the local police forces.
The New Zealand Police provide protection for witnesses against members of criminal gangs and serious criminals who feel threatened or intimidated. They run a Witness Protection Programme to monitor the welfare of witnesses and help create new identities.
The witness protection program in Italy was officially established in 1991, managed by the Central Protection Department of the Polizia di Stato.
The Witness Security Programme in the Republic of Ireland was officially established in 1997 and is operated by the elite Special Detective Unit (SDU) of the Garda Síochána, the National Police Force. It. Witnesses in the programme are given a new identity, armed police protection either in Ireland or abroad, and provided with financial assistance.
The Israeli Witness Protection Authority, a unit within the Ministry of Public Security is in charge of witness protection in Israel. The unit was created by law with the passing of the Witness Protection Law, 2008.
Several departments of the Security Bureau of Hong Kong have specialized units to provide protection for witnesses and their families who face threats to their life. A new identity could be given to a witness in a trial and the government may relocate them far from Hong Kong if the witness is still being threatened after the end of the trial.
Thailand maintains a witness protection office under the jurisdiction of the country’s Ministry of Justice.
Things that can be done.
India should take constructive steps for the protection of the witnesses. Mere creation of some legislation is not going to provide ample security but we need to implement a strong witness protection policy involving creative and sustainable witness protection programmes like that in the USA and UK.
The police force should be upgraded with new techniques of approaching and securing the witnesses and should work closely with the NGOs and social workers working for the protection of such people who are being harassed for standing up for justice.
In short India should Implement a national programme comprising various state police forces and home departments of the Union and State Governments.
Devise a witness protection protocol or plan where the safety and security of the witnesses are maintained by the state police forces and the Court should also play a crucial role by making the procedures more witness friendly.
Confidentiality is the soul of every successful witness protection program around the world. Compromising the confidentiality factor is a severe issue that is as good as pushing the witness to the trap of the victim and risking the lives of not only the victim but also of his close ones. Therefore the program should focus on keeping the details of the witness hidden. India is among those countries where the internal news and updates of the investigations are often leaked to the media by the insider personnel for either publicity or other perks making the investigation sensational, and the challenge lies here to keep the entire process confidential. The good thing about our country’s judicial system is that it follows an adversarial system of justice where the state, the investigating police officers, the prosecutors, etc acts against the defendants, which will help in keeping the details of witness confident from the reach of the defendants. If the state and its various agencies can keep a check on such a system then the confidentiality of the witness or any other crucial evidence against the defendants will not face any issues as such.
Lack of personnel and their training is the next hurdle. The police to people ratio is drastically low in our country. The smooth functioning of any witness protection program would need personnel in enough numbers. Witness protection is a very complex task involving special techniques, methods, and training.
Unlike the Specially trained police officers, the ordinary officer may compromise and risk the whole plan because of the lack of training to deal with such adverse situations. Therefore training of police officers to be accommodated in the witness protection programs or a special cell for the witness protection program can only improve the situation in our country.
Final nail would be from the judiciary to conduct timely hearings and close coordination with such witness protection cells or programs.
India has had countless cases of witnesses disappearing or turning up dead or, in most cases, turning hostile. It is a lamentable fact that threatening witnesses is the easiest way to influence a case. This age-old technique has been used in too many prominent cases that have shaken the entire nation. The power of pelf, muscle power, political influence, and corruption has led us down the path of disaster. The Jessica Lal murder case was one such case where 99 out of 100 witnesses turned hostile during the seven long years of trial. The necessity of a substantial and comprehensive witness protection scheme can be inferred from this case alone.
The security,legal and practical challenges regarding the witness protection before us are many. But let it not fail due to a lack of diligence or initiative. Justice cannot and must not endure the many travails and indignities it has suffered in the past few decades. The tales of horror and subterfuge may never quite leave our memories, when Justice stood helplessly by as the unjust got away with their crimes time and again. It is time we brought balance to the scales of justice that had gone awry so long ago. The rule of Law must and shall prevail, given the honesty and the diligence to change a system that has faltered one too many times in the pursuit of the Truth. They say that the Truth shall set us free, so let it be with the witnesses who shall be persecuted no more during the course of prosecution of the evil-doers. There is a line from a poem of Alfred Lord Tennyson that ought to sum up our resolve in this matter – “..And though we are not now the force which in old days moved heaven and earth; that which we are, we are – One equal temper of heroic hearts made weak by Time and Fate but strong in will To strive, To seek, To find and not to yield”.
 Swaran Singh v. State of Punjab, (2000) 5 SCC 668 (India).
 Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, Chairman – Dr. Justice V.S. Malimath, Para 11.1 page 160.
 Zahira Habibullah H Sheikh vs. State of Gujarat,(2006) 3 SCC 374(India).
 Manu Sharma vs State Nct Of Delhi(2010) 6 SCC 1(India).
Terrorist and Disruptive Activities (Prevention) Act,Section 16, Parliament Act of 1987 (India).
Prevention of Terrorist Act, Section 30, Parliament Act of 2002(India).
 NHRC vs State of Gujarat (2009) 6 SCC 767 (India).
 Neelam Katara v. Union of India, (2003)ILR 2003 2 Del 377(India).
198th Law Commission Report, Annexure I.p.199.
 Law Commission of India – Fourteenth Report – Reform of Judicial Administration, (Chairman – M.C. Setalvad).
 Law Commission of India – One Hundred and Fifty Fourth Report – Code of Criminal Procedure, 1973, (Chairman – K. Jayachandra Reddy), August 22, 1996, Chapter X, p.43-44.
 Law Commission of India – One Hundred and Seventy Second Report – Review of Rape Laws, (Chairman – B.P. Jeevan Reddy), March 25, 2000.
 Law Commission of India – One Hundred and Seventy Eighth Report – Recommendations for Amending Various Enactments, both Civil and Criminal, (Chairman – B.P. Jeevan Reddy), December 14, 2001, p. 117.
 Law Commission of India – One Hundred and Ninety Eighth Report – Witness Identity Protection and Witness Protection Programmes, (Chairman – Justice M. Jagannandha Rao), August 31, 2006.
 Mahender Chawla. v. Union of India (2016) Writ Petition (Criminal) No. 156 of 2016(India).
 Clause 4 of the Witness Protection Scheme, 2018
 Clause 2(n) of Witness Protection Scheme, 2018.
 Clause 2(c) of Witness Protection Scheme, 2018
 WITNESS PROTECTION PROGRAM, THE HAWAII CRIME COMMISSION ,NOVEMBER 1980
 2Alfred Lord Tennyson, Ulysses,(1833)
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