The Growing Need for Witness Protection in India

Introduction

Every successful criminal trial requires witnesses. However, at times, when a witness agrees to testify against the accused in the court, their lives or the lives of their families are threatened. A witness may be a bystander present at the crime scene, an individual who has information pertaining to a crime, or even an accomplice. The identity of such witnesses must be protected otherwise they may turn hostile or get physically injured.

In the battle against crime, witness protection is highly pertinent. In fact, where serious and organized crimes are involved, criminals and their associates often attempt to stop the witness from revealing any sort of information. As it is a civic duty of a witness to assist the Court in order to provide a fair judgment, the State also has a duty to assist and ensure the safety of witnesses who have been threatened. The State needs to adopt appropriate measures to protect witness to ensure the safety of their life and prevent them from turning hostile.

Since 1958, numerous commissions have addressed and discussed the issue of witness protection. After much delay, Witness Protection Scheme was devised by the Ministry of Home Affairs in 2018.

This article explores the need and importance for protection of trial witnesses in India. It also analyses the Witness Protection Scheme, 2018.

The need to protect Witnesses

Witness plays an important role in the justice system, as the witness helps the court decide fate of the accused. They are regarded as the ‘eyes and ears of the justice.’

In some criminal cases, especially in high-profile cases, the State witnesses may often deflect from their testimony due death threats received and may turn hostile, obstructing fair trial. Justice can be served only after obtaining testimony from the witnesses and examining evidences. The witness must be able to testify and tell the truth to the court without any fear, therefore, protection of witness is indispensable in order to uphold the rule of law.

This issue was also pointed out by the Supreme Court of India in the case of Krishna Mochi v. State of Bihar. The Court in this case observed that “one of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high ups in the Government or close to power which may be political, economic or other powers including muscle power.”

Protection to the witnesses can be granted in various ways, such as providing police protection, preventing public from accessing the court, allowing witness use pseudonym, sealing records of the trial, allowing witness to use facial disguise, issuing new identity, providing residence in safe house, etc.

Some instances help us understand why witnesses turn hostile. In the Vyapam scam, many witnesses were mysteriously found dead and in the Asaram Bapu case, three witness were killed and nine others witnesses were assaulted and intimidated. Similarly, during the murder trial of Jessica Laal, witnesses turned due to death threats and coercion.

Based on the 198th report of Law Commission, which identified the problems faced by witnesses in India, the Witness Protection Bill, 2015 was produced to the Parliament, unfortunately, the States failed to reach consensus. It contained provisions for witness protection cell, punishments to hostile witnesses, identity protection etc.

The Witness Protection Scheme, 2018

According to Section 2(j) of the Scheme, witness is a person who holds information or records on any crime that the competent authority considers to be relevant to any criminal proceedings and who has made a declaration, or who has provided or agreed to, or is obliged to provide evidence in relation to such proceedings.

The Scheme divides the witnesses into three Categories based on interpretation of threat:

A. Where the threat extends to life of witness or his family members, during investigation/trial or thereafter.

B. Where the threat extends to safety, reputation or property of the witness or his family members, during the investigation/trial or thereafter.

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 purpose of the Scheme is to provide certain protective measures to the witnesses, such as informing witnesses about this scheme, identity protection, in-camera proceedings, witness relocation, trial record retention, recovery of costs borne by the witness etc. The States have been mandated to establish a Fund to cover such expenses of the Scheme. The Fund contains monies from annual budget of the State government, Union Territories, donations from charitable intuitions, contributions of Corporates under CSR, etc.

A witness, his family, his counsel, and police officers involved in the investigation are allowed to file an application in the court for witness protection. Once the protection is provided to the witness under the Scheme, it is the duty of the State to ensure the protection and facilitate necessary documents to the witness. Witness protection can be sought at any stage; during investigation, during trial or even after the trial u/s 4(2) of the Scheme.

The Scheme u/s 8 and u/s 12 provides for establishment of National and State Witness Protection Council to ensure the implementations of provisions under the Scheme.

The Supreme Court in a landmark case of Mahendra Chawla v. Union of India, approved the Witness Protection Scheme, 2018. It further directed that this Scheme shall be considered as law under the ambit Article 141 and 142 of the Constitution of India until the Parliament created a legislation for the same. The Court ordered all States and Union Territories to arrange deposition complexes for witness and install appropriate equipment to keep the accused away from the witness.

Drawbacks

This Scheme like any other, has certain drawbacks. Here we discuss some of the drawbacks in brief:

• The protection granted by the Scheme is limited to three months. This temporary protection may not be sufficient; therefore, protection should be granted till the threat ceases to exist.

• Indian government does not have the financial resources to the relocate the witnesses and provide them with everything to start a new life.

• Protective measures under the Scheme seem to be expensive and States do not have sufficient resources to execute this scheme effectively.

• As of 2018, the Police to population ratio in India is 198.65, which is profoundly low. Police do not have special training or the manpower to protect all the witnesses.

• At times, people with power and money may influence or pressurize officials to reveal information of the witnesses.

With such drawbacks, witnesses do not have the confidence in the Scheme.

Conclusion

The government of India has not prepared a legislation pertaining to witness protection. However, the Indian Penal Code, u/s 195A covers one aspect of witness protection and sets out to punish those who intimidate the witnesses.

It will help if the court provides certain facilities in order to make it easier and safer for witnesses to testify, such as conducting in-camera proceedings, equipment for voice distortion, speedy trial and witness protection. The Police should be mandated to ensure the safety and provide assistance with escorting and relocating the witnesses.

A witness plays an important role in criminal trials and thus, he must be protected. There is a compelling need for stringent laws to protect the witness in every way possible.

India should take inspiration and borrow ideas from countries like Canada, USA, UK and Israel that have successfully established laws for witness protection.