. Abstract

A witness forms a primary constituent in the process of administration of justice by facilitating the court in its path for discovery of the truth. The witness renders an important public duty by lending a hand in establishing the guilt or innocence of an accused, in the course of which, more often than not, witnesses end up compromising their safety by proceeding against the accused.

They are faced with threats, intimidation, corruption, or bodily injury, as evident in the Asaram Bapu and Unnao rape case. These threats reach their peak right before the witness testifies in the court, compelling the witnesses into turning hostile.
Hence, protective measures before, during and after the trial for ‘at risk’ witnesses are very crucial. In the absence of sufficient witness protection laws, the position of the offenders and organized criminal groups is strengthened in the society. The pertinent document is, thus, a novice and humble attempt at studying the concept of witness protection in India, and a few other countries, including USA and South Africa.
Considerable amount of attention has been given by the legislature and judiciary in India to the much-needed protection of witnesses. This need has been emphasized upon by the Law Commission in its reports. The Draft Witness Protection Scheme of 2018, the first attempt of its kind, has been approved by the Supreme Court of India, which has been taken up in detail in the paper. The paper further analyses statutory provisions regarding witness protection in India, their inadequacy, and finally suggestions to improve it.

Keywords– Witness, witness protection scheme, hostile, judiciary, statutory provisions.

1. Prologue

The testimony of a witness is of utmost value for the investigation and prosecution of a crime. The Supreme Court of India has held 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’[1]. The word witness originates from the old english word ‘witnes’ which means ‘attestation of fact, event, and so on, from personal knowledge’. According to the Indian Evidence Act, any individual who can understand the questions put to him and rationally answer them qualifies to be a witness.[2]

The significance of the testimony of a witness can be traced back to the ancient India. Rules regarding the examination of witnesses have been deliberated upon by Manu—the ultimate Hindu law-giver—in Manusmriti, by Kautilya (Chanakya) in Arthshastra and in Dharmashastras as well. Moreover, classification of evidence into oral and documentary[3]—as is done today —has been observed under the Mohammedan law of ancient India.

The witness aids the state in establishing the guilt or innocence of an accused, which is mostly why the accused often resort to—and often succeed in—the intimidation of a witness. Therefore, the physical and mental vulnerability of the witness[4] needs to be protected. In the present-day India, the witnesses are entitled to neither any legal remedies, nor to a suitable treatment. The apathy and unsympathetic attitudes of the investigating agencies towards the witnesses further corroborates their loss or lack of faith in the criminal justice system. This inadvertently results in precipitously low conviction rates in India. Balance ought to be struck between the protection of a witness and the rights of the accused.

III. Witness Protection in India

A number of studies and reports have been undertaken while focusing on the protection of witnesses in the Indian criminal justice system. The matter of witness protection in India was highlighted when the identity of one of the main witnesses in the Mumbai Twin Blast (August, 2003) case, Shivnarayan Pandey[5], was revealed by the police in violation of Section 30 of the Prevention of Terrorism Act, 2002 following which Pandey was shifted to a sequestered place with extra protection.

In India, witnesses have turned hostile in a number of high-profile cases, including the Jessica Lal Murder case, the best bakery case and Varun Gandhi’s hate speech case in which he was acquitted after a total of 88 witnesses[6] turned hostile. On a more recent note, Mukhtar Ansari (a legislator from the Bahujan Samaj Party, Lucknow) was acquitted of murder of a jail superintendent after all thirty-six witnesses turned hostile.[7]

The need for the protection of witnesses has been emphasized upon by the 14^th, 154^th, 172^nd and 178^th Reports of the Law Commission and the 4th Report of the National Police Commission, 1980 as well.

III.I Statutory Perspective

A criminal case in its entirety chiefly relies on the evidence dispensed by the witness, which is regulated mainly by the provisions of the Code of Criminal Procedure, 1973 and the Evidence Act, 1872.

The direct evidence of a witness is adequate for proving any fact in the court of law. Evidence of witnesses and documentary evidences have been discussed elaborately in Chapter IX titled “Of Witnesses” in the Indian Evidence Act, 1872. It spans from Section 118 to 134 revolving around the competency, privileges and compellability of witnesses. The examination of the witnesses has been taken up in detail in sections 135 to 166 of the act.

The Code of Criminal Procedure provides for holding of in-camera proceedings in certain instances like rape. Extension of such provisions to other cases where there’s a probable chance of the safety of the witness being jeopardized is essential.[8] Moreover, section 312 of the Code of Criminal Procedure allows for the payment of some monetary consideration to a witness subject to the satisfaction of the court.

Even though the Code of Criminal Procedure, 1973 assures the accused the right to an open trial under section 327, the evidence under section 273 and to cross-examine the witnesses under section 299, the Supreme Court has held video recorded evidence to be admissible[9]—and not in contravention of the rights of the accused—and it has also permitted the witness to be examined using a video screen[10]. 

Provisions for safeguarding the witnesses and victims—including in-camera proceedings, expulsion of media, and non-disclosure of identity— can be found in the Indian Penal Code and the Protection of Children against Sexual Offences Act (POCSO) as well.

III.II Special Statutes for Witness Protection

Some special statutes have been set up in India that deal with specific provisions relating to the protection of witnesses. For instance, under the West Bengal Act of 1932, the general public or particular persons could be excluded from the criminal trial, under section 31[11].

Under the Terrorist and Disruptive Activities (Prevention) Act, 1985, provisions for the protection of the identity and address of the witness were made available under its section 13, along with in-camera proceedings. Similar provisions were provided for in section 16 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, section 17 of the National Investigation Agency Act, 2008, section 21 of the Unlawful Activities (Prevention) Amendment Act, 2004, section 21 of the Juvenile Justice (Care and Protection of Children) Act, 2000, the Criminal Law (Amendment) Act, 2005, and section 30 of the Prevention of Terrorism Act, 2002.

III.III Judicial Response

Considerable amount of attention has been given by the judiciary in India for the establishment of witness protection programmes.  The Supreme Court of India has repeatedly reiterated that the failure to hear material witness is denial of fair trial.

The Courts have in their capacity tried to ensure witness protection over the years, but there needs to be a stringent legislation. For instance:

• In the case of Sunil Kumar Pal v. Phota Sheikh and Other[12], re-trial was permitted after the safety of the witness was at risk;
• In State of U.P. v. Shambhu Nath Singh[13], the court strongly discouraged adjourning of the case in the absence of the accused, but presence of the witness;
• In Swaran Singh v. State of Punjab[14], emphasis was laid on the difficulties hurdled towards the witnesses in the form of threats, harassment and repeated adjournments;
• In the case of Ram Govind Upadhyay v. Sudarshan Singh[15], the accused was not granted bail after the witness in the case received threats to his life and limb.

Guidelines were issued by the High Court of Delhi in October 2003 for safeguarding the witnesses in response to a petition filed by Neelam Katara[16]. Hereunder the Member Secretary of the Delhi Legal Services Authority[17] was empowered to decide the protection to be provided to a witness after going through the risks associated with the case, vitality of the evidence, and the nature of punishment if convicted.

Issues of protection of identity of witnesses and witness protection programme have been raised in a number of other judgments as well, including Ramesh v. State of Haryana[18], NHRC v. State of Gujarat[19], PUCL v. Union of India[20], Zahira Habibullah Sheikh v. State of Gujarat[21], and Sakshi v. Union of India[22]. More than 150 recommendations for the improvement of the status of witnesses in the Indian criminal justice system have been put forward by the Committee on Reforms of Criminal Justice System[23] under Dr. Justice V. S. Malimath, but these were generic in nature and failed to provide any particular course of action.

III.IV The Witness Protection Scheme, 2018

The Witness Protection Scheme, 2018 was approved in the case of Mahender Chawla v. Union of India[24]. Mahender Chawla, a key witness in the rape case against Asaram Bapu and his son, has been leading a life of constant fear after being repeatedly targeted, and even fired at[25] by the godman’s followers. Witnesses in the infamous rape case have had to face brutal attacks at the hands of the followers of the self-styled godman.[26] Justice AK Sikri and Justice S. Abdul Nazeer have stated that the right of witnesses to testify freely constitutes a part of the witnesses’ right to life.

III.IV.I Procedural Aspect

Ministry of Home Affairs prepared the draft witness protection scheme, 2018 and the same was passed onto the states and the union territories for their comments.[27] The Union Government finalized it in consultation with National Legal Services Authority (NALSA) after gaining inputs from 18 States/Union Territories, 5 States Legal Services Authorities and other open sources, by circumventing the legislative process.

III.IV.II Key Features

As per section 2(k) of this scheme, a witness means ‘any person, who possesses information or document about any offence’. Witnesses have been classified into three categories (A, B and C) depending on the threat perception, which may extend to their life, or property, or harassment. They have to submit an application for protection with the ‘competent authority’, which after going through the threat analysis report has to pass its order within a span of five days. This order may include provision of armed protection, installation of cameras, monitoring of phone calls, and change in identity or relocation of the witness. The said order will be acted upon by the Witness Protection Cell of the state or Union Territory. The witnesses are provided protection for just a period of three months irrespective of the continuous existence of the threat.

Under Article 141/142 of the Constitution, the Witness Protection Scheme, 2018 is ‘law’ and is binding on all Courts within the territory of India and enforceable in all States and Union Territories, till the enactment of a legislation to that effect. States and Union Territories are supposed to maintain a Witness Protection Fund and enforce the scheme in letter and spirit.

The court also demanded establishment of vulnerable witness deposition complexes in all the district courts within a year. Four Vulnerable Witness Deposition Complexes with facilities like rooms for witnesses and accused, play area, waiting area etc have already been setup in the National Capital Territory by the Delhi judiciary.[28] In December 2018, A Supreme Court bench headed by Justice A K Sikri brought some changes in the draft plan.[29]

III.IV.III State-Specific Witness Protection Schemes

Delhi was the sole state to have a Witness Protection Scheme, with the support of the Delhi State Legal Services Authority, back in 2015. Maharashtra Witness and Protection and Security Act 2017, was notified in January 2018 by the state of Maharashtra, but sadly, the Centre and most of the States, are yet to act on the directive.[30]

1. International Take on the Matter

There is a need to expand the scope of comparative politics, as the stream itself does not have a focus, but employs a methodological focus. Using the tool of comparative politics, this segment makes an attempt at comparing and contrasting the Witness Protection Programmes of Australia, the USA, Hong Kong and South Africa. The countries have been chosen in an attempt to broadly represent the geographical expanse of the planet.

IV.I Witness Protection Schemes in Other Countries

In Australia, under both, the Victoria Witness Protection Act, 1991 and Australian Capital Territory Witness Protection Act, 1996, a witness is provided extensive protection.[31] The law gives the Chief Commissioner of Police exclusive powers to create any document necessary, including ones that will establish a new identity for the witness or family members of the witness.[32] It also empowers the commissioner to order the relocation of the witness and provide transport for the property of the witness. Any person who acquires a new identity through this process is not required to reveal their old identity to anyone for any purpose henceforth. In Queensland, the Evidence (Witness Anonymity) Act, 2000, goes one step further and states that during the investigation process, no question may be asked to a witness who possesses the ‘Witness Anonymity Certificate’ that may lead to the disclosure of their identity or their residence.

The recent widespread ‘pro-democracy’ movement in Hong Kong was triggered by the decision of Carrie Lam, the Chief Executive of Hong Kong to make amendments to the Extradition Law. The ‘One Country Two Systems’[33] set-up of Hong Kong also allows for an elaborate witness protection programme. This includes the right of the witness to claim his/her new identity as their only identity and the original identity to be restored only if the Approving Authority terminates the programme.

The United States of America, under their witness protection programme, have a provision for the issue of a temporary restraining order to protect both victims and witnesses from any harm. The Witness Protection Program[34] has been in existence in the United States since 1967. The Attorney General is empowered to take all action necessary to protect the witness, their associates, and to not only ensure their physical safety but also look into their psychological well being. Their responsibilities range from providing the witness housing, creating documents to procure them a new identity, to assisting them in finding new employment and help them become self-sustaining again.

South Africa has established an ‘Office for Witness Protection’ under the Witness Protection Act, 1998. This office allows for any person who fears for their safety, due to their position as a witness, to apply for police protection. The request can be made directly to the office, or on behalf of someone, or even to prison in-charges, public prosecutors and registered social workers. For a period not extending beyond 14 days, the director of the office is empowered to keep the applicant under protection, while his/her application is finalized. The extensive law also has special provisions for ‘minors under protection’ and ‘non-publication of information of a protected person’.

IV.II Other International Standards

The necessity of protection of witnesses has been recognized at an international level. For instance, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power was adopted by the UN General Assembly in 1985, according to which States should take measures to ‘minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation’. It also guided the states to ensure the fulfillment of four basic goals, which include provision of access to justice and fair treatment, restitution, compensation and assistance to the witnesses.

The United Nations Convention against Transnational Organised Crime, 2000, that aims to be the platform to combat transnational crime effectively, dedicated Article 24 of the Convention to the protection of witnesses. In this article, the onus is put on the country in which the witness testifies, to take elaborate measures to ensure their safety and well being. It urges countries to establish procedures for physical protection such as non-disclosure of identities and whereabouts, relocation, permission to testify through distant modes like video links and so on. Here, states need to adopt adequate measures to ‘provide effective protection from potential retaliation or intimidation for witnesses in criminal proceedings’[35] who testify under offences mentioned in the instrument. The same has been reiterated in the United Nations Convention against Corruption, 2003 under articles 32 and 37(4). Both these conventions have been ratified by the government of India in May, 2011.[36]

1. Conclusions and Suggestions

It is an undeniable fact that witness protection is of extreme importance to discern and repress organized crime, and ascertain the truth without endangering the life or limb of a witness. The non-criminalization of the intimidation or harassment of witnesses reflects the inadequacy of the current criminal justice system. Law ought to be altered in tandem with the evolving society. Some imperative suggestions have been mentioned below:

• A proper legislation or a comprehensive scheme needs to be devised to fill up the present grey area while simultaneously taking into consideration the efficacious welfare schemes of other nations like the United States and Netherlands. All the matters of witness protection, assistance, and hostility should be taken care of in this single legislation.

• There is an urgent need for the emancipation of the police personnel from the influential clenches of the rich political entities, which is achievable with the combined effort of the government, the judiciary and the police. The policemen appointed for the protection of the witness often⁠—in nexus with the influential accused—end up compromising the well-being of the witness, as had happened in the Unnao rape case, and no punishment or penalization has been provided for the same.

• Fast-track courts must expeditiously record and examine the witnesses while allowing them to testify under a pseudonym or through video-conferencing; and at the same time steer clear of unnecessary adjournments. Moreover, monetary allowances should be provided to the witnesses to cover their travelling and other related expenses. In the case of Swaran Singh v. State of Punjab[37], the court emphasized on the provision of proper diet money to the witnesses.

• The slack implementation of the Witness Protection Scheme, 2018 and absence of incorporation of stricter laws is a part of the problem. Efficacious mechanisms, a broader approach and more deliberations are required for the witness protection scheme to instill confidence in the public and to not be a disservice to the cause of witness protection. For instance- the threat perception, in line with which the witnesses are categorized under the witness protection scheme, is undertaken by the investigating agencies that are themselves likely to be predisposed to vested interests.

• Witnesses must be provided with official assistance and access to the status of the investigation throughout the trial. Protection to the witness should be extended through every phase of investigation after systematic assessment of the threat, as is done in countries like Italy and Netherlands.

• Currently, there is acute paucity of accountability on the part of the police as even registration of a First Information Report is subject to unusual delay and is undertaken only after receiving orders from the court. Joint development of more witness-oriented strategies and procedures with inputs from the Bar Council of India and the State Bar Councils is the need of the hour.

• Protection of witnesses is a high-cost and logistically difficult affair, hence sufficient funding needs to be ensured with the cooperation of the centre and the states.

• Relocation or change of identity is likely to take a toll on the psychological wellbeing of the witness as he is placed under considerable strain of having to undergo a social death and rebirth, which seems inordinate in front of the attainable benefits. Therefore, such witnesses should consistently be followed-up with and facilitated with professional psychological support during and/or after the trial.

[1] State of Gujarat v. Anirudh Singh, (1997) 6 SCC 514 (India).

[2] The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872.

[3] A. K. Sarkar & S.K. Awasthi, Oral And Documentary Evidence (Civil And Criminal) 17 (Ashoka Law House, 2001).

[4] Law Commission of India, Consultation Paper on Witness Identity Protection and Witness Protection Programmes 15 (2004).

[5]Vignesh Iyer, Taxi driver’s statement was vital, HT Media Limited (Aug. 07, 2009, 01:41 IST), https://www.hindustantimes.com/india/taxi-driver-s-statement-was-vital/story-Sy4d87iY9QIbRXKmX6ROYP.html.

[6] Sandip Roy, When witnesses go hostile: From Jessica Lal to the present, Network 18 Sites (May 25, 2013, 15:13 IST), https://www.firstpost.com/india/when-witnesses-go-hostile-from-jessica-lal-to-varun-gandhi-809851.html.

[7] PTI, As eyewitnesses turn hostile, Delhi court acquits Mukhtar Ansari in 2005 murder case of UP BJP Leader, Times Internet (July 3, 2019, 20:07 IST), https://timesofindia.indiatimes.com/city/lucknow/as-eyewitnesses-turn-hostile-delhi-court-acquits-mukhtar-ansari-in-2005-murder-case-of-up-bjp-leader/articleshow/70060907.cms.

[8] Law Commission of India, Consultation Paper On Witness Identity Protection And Witness Protection Programmes 21 (2004).

[9] Sakshi v. Union of India, AIR 2004 SC 3566.

[10] State of Maharashtra v. Dr. Praful B. Desai, 2003 (4) SCC 601.

[11] The West Bengal Act, 1932, No. 12, Acts of Parliament, 1932 (India).

[12] Sunil Kumar Pal v. Phota Sheikh and Other, AIR 1984 SC 1591 (India).

[13] State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667 (India).

[14] Swaran Singh v. State of Punjab, (2000) 5 SCC 68 at 678 (India).  

[15] Ram Govind Upadhyay v. Sudarshan Singh, II (2002) SLT 587 (India).

[16]Ananya Sengupta, Call for cover to witnesses, The Telegraph (May 07, 2015, 10:17 AM),

 https://www.telegraphindia.com/india/call-for-cover-to-witnesses/cid/1511425.

[17] Abhinav Garg, HC issued first guidelines on Neelam Katara plea, Times Internet (July 31, 2015, 07:30 IST), https://timesofindia.indiatimes.com/city/delhi/HC-issued-first-guidelines-on-Neelam-Katara-plea/articleshow/48288461.cms.

[18] Ramesh v. State of Haryana, (2017) 1 SCC 529 (India).

[19] NHRC v. State of Gujarat, (2009) 6 SCC 767 (India).

[20] PUCL v. Union of India, (2004) 9 SCC 580 (India).

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

[22] Sakshi v. Union of India, (2004) 5 SCC 518 (India).

[23] Ministry of Home Affairs, Government of India, Committee on Reforms of Criminal Justice System, 1 265-298 (2003).

[24] Mahender Chawla v. Union of India, Writ Petition (Criminal) No. 156 of 2016 (India).

[25] India Today Web Desk, ‘I fear for my life, family’ says prime witness in rape cases against Asaram Narayan Sai, Living Media India Limited (Apr. 25, 2018, 08:45 IST), https://www.indiatoday.in/india/story/i-fear-for-my-life-family-says-prime-witness-in-rape-cases-against-asaram-narayan-sai-1219548-2018-04-25.

[26]India Today Web Desk, India now has a witness protection programme, Living Media India Limited (Dec. 05, 2018, 13:52 IST), https://www.indiatoday.in/india/story/india-witness-scheme-programme-supreme-court-1402830-2018-12-05.

[27] Ahona Sengupta, SC Approves Centre’s Witness Protection Scheme, Asks Govt to Implement it, Cnn News18  (Dec. 05, 2018, 11:43 PM IST), https://www.news18.com/news/india/sc-approves-centres-witness-protection-scheme-asks-govt-to-implement-it-1961889.html.

[28] Nitish Kashyap, Vulnerable Witnesses Deposition Complex Inaugurated in Delhi, Live Law (Feb. 04, 2017, 19:05 IST), https://www.livelaw.in/vulnerable-witnesses-deposition-complex-inaugurated-delhi/https://www.livelaw.in/vulnerable-witnesses-deposition-complex-inaugurated-delhi/.

[29] India Today Web Desk, India now has a witness protection programme, Living Media India Limited (Dec. 05, 2018, 13:52 IST), https://www.indiatoday.in/india/story/india-witness-scheme-programme-supreme-court-1402830-2018-12-05.

[30]M.P. Nathanael, A law for those who testify, The Hindu (Aug. 19, 2019, 00:05 IST), https://www.thehindu.com/opinion/op-ed/a-law-for-those-who-testify/article29127685.ece.

[31] United Nations Office on Drugs and Crime, Good practices for the protection of witnesses in criminal proceedings involving organized crime 9-10 (2008).

[32] Australian Federal Police, Annual Report 210 (2017-18), https://www.afp.gov.au/sites/default/files/PDF/Reports/witness-protection-annual-report-2011-12.pdf.

[33] Cui Tiankai, One Country, Two Systems Is the Best System for Hong Kong, China and the World—Including America, Newsweek, (Aug. 2, 2019 11:05 EDT), https://www.newsweek.com/One-Country-Two-Systems-Hong-Kong-China-1452317.

[34] United Nations Office on Drugs and Crime, Good practices for the protection of witnesses in criminal proceedings involving organized crime 7-8 (2008).

[35] The United Nations Convention Against Transnational Organized Crime, 2000, art. 24.

[36] Ministry of External Affairs, India ratify UN Conventions against Transnational Organised Crime and Corruption, Press Informationa Bureau, Government Of India (May 13, 2011, 13:23 IST), https://pib.gov.in/newsite/erelease.aspx?relid=72119.

[37] Swaran Singh v. State of Punjab, (2000) 5 SCC 68 at 678 (India).