Open Access Research Article
THE NEED FOR WITNESS PROTECTION IN CRIMINAL TRIALS: AN INDIAN PERSPECTIVE (By: Sunidhi Singh B J)
Published Paper
Article Details
THE NEED FOR WITNESS PROTECTION IN CRIMINAL TRIALS: AN
INDIAN PERSPECTIVE
Authored By: Sunidhi Singh B J
SCHOOL OF LAW CHRIST (Deemed to be University)
Abstract:
Under
the Black’s Law Dictionary, “in the primary sense of a word, a witness is a
person who has the knowledge of an event. As we know that the most
direct mode of acquiring knowledge of an event is by seeing it, a witness has
acquired the sense of a person who is present at and observes the transaction”.
One of the most essential features of a democracy is the Right to Fair Trial.
It is the primary duty of the Court to arrive at a fair and just result and to
ensure this, the role of a witness is very crucial which makes it a very
dependable one. They hold an immense amount of power during the proceedings of
a trial. In many trials, it is the testimony of the witness that determines the
conviction or acquittal of an accused, determining justice to be served in its
true sense.
Due
to their importance and reliability in a criminal trial, parties often
intimidate the witnesses, forcing them to turn hostile and creating barriers in
the quest for truth. In many instances witnesses have been subjected to threats
and fear of being murdered, due to which they have refused to give their
testimony where there could be an actualization of the impending threat on
their life and property, thus interfering with the justice delivery system.
Therefore, it becomes vital to protect the witnesses so that their testimony
can be given in a proper and definite way. This calls for adequate measures to
be taken to protect the witnesses in the country, to ensure a fair and just
trial. The main intention of this research paper is to study the importance of
a witness in a criminal trial and the need to protect them. The inadequacy of
Witness Protection Laws in India highlights the imperative need for a proper
independent legislative framework to protect the witnesses. The paper will
dwell into the concept of Witness Protection Laws and the various Witness
Protection Schemes Prevalent in India. It will lay emphasis on the various
challenges faced to witness protection and suggestions to overcome it. Towards
the end, a
conclusion
shall be drawn on the comparative study between India and other countries in
relation to the concept of Witness Protection Programs and associated schemes
implemented to uphold the concept of a fair trial.
KEYWORDS:
India,
fair, program, protection, trial, witness
Introduction:
A
witness holds a significant role in the criminal justice system. The
fundamental duty of the Court is to arrive at a fair and just result and to
ensure this, the role of a witness is very crucial which makes it a very
dependable one. They hold an immense amount of power during the proceedings of
a trial. In many trials, it is the testimony of the witness that determines the
conviction or acquittal of an accused, determining justice to be served in its
true sense. They can be considered as the eyes and ears of the justice system.
Witnesses have been subjected to threat to life and property, injury and
intimidation, only because of their deposition. Many have been murdered in
order to prevent them from giving their deposition in the court of law. Since
the primary object of the judiciary is to arrive at the truth and witnesses are
the medium through which this can be achieved it becomes extremely necessary
and important to protect them. In India, it is often noticed that witnesses
hesitate to provide their deposition in fear of threat to life and property.
There have been many instances where witnesses have been manipulated,
intimidated, threatened, murdered, etc, due to which they have either turned hostile
or tuned away from providing their testimony.
To
prevent this and ensure that the democratic principles of a fair and just trial
are upheld, adequate measures and infrastructure must be in place to protect
the witnesses. Confidence must be instilled in the witnesses that they would be
protected. This can be implemented in the form of Witness Protection Programs
and supporting statutory legislations that would protect the witnesses and in
case of breach of security, then there are strict penal implications for the
same. Through these witness protection programs, the witnesses will not only be
able to testify without fearing for their life but also uphold the spirit of a
fair trial. With the present scenario in our country, the inadequacy of Witness
Protection Schemes highlights the imperative need for a statutory legislation
to protect the witnesses.
The Apex Court in the case of Zahira
Habibullah Sheikh v. State of Gujarat[1], observed that to uphold
the spirit of a fair trial, a witness is of utmost importance and to ensure
this it emphasised on the urgent need for “Witness Identity and Witness
Protection Programs” in India.
The Need For Witness
Protection:
The
fundamental principle of a criminal justice system is that a particular crime
must be proved beyond a reasonable doubt. The prosecution bears the burden of
proof, to prove the crime supported by
the testimonies of the witnesses in turn leading to establishing the guilt of
the accused. With extensive developments in the criminal jurisprudence system,
along the rights of the accused, the model of a fair trial and permissibility
of evidence, the importance of a witness has been avoided. A fair trial is one
which entails a triangulation of interests of the accused, the victim and the
witness, but there exists a mismatch of rights between the accused and the
witnesses[2].
The accused have the right to a fair and public trial[3],
the freedom of expression and information[4],
to have evidence recorded in their presence[5]
but these rights are not absolute and maybe withdrawn in the interest of
justice.[6]
Witness protection programs are necessary to strike a balance between the
rights of the accused and the witnesses in a trial. Taking note of the fact that when a witness testifies
in court, there are no personal benefits that the witness obtains. In spite of
this, there seems to be no obligation on the State under any legal schemes to
protect and secure these witnesses, making their rights as good as
non-existent. There are no concrete provisions
in the law to protect the witnesses from external threats, inducements or
intimidation and also no clear-cut legislation to punish or deal with a hostile
witness.[7] Under monetary inducements or any kind of
threats, it is often noticed that witnesses turn hostile. Further, due to the
lack of protection of their rights and insufficient security, they refuse to
provide for their testimonies and be involved in the long judicial process.
This could hamper a fair trial, in order to avoid this there is a need to
protect to the witnesses and implement various protection schemes to prevent
hostility and ensure a fair justice delivery system.
Since
1958, concrete deliberations on the need for witness protection programs in the
county has been
done.
The 14th report of the Law Commission critically scrutinised the
reasons responsible in preventing the witnesses to give their testimony. With
this, the Apex Court along with the Law Commission and other committees have
highlighted the necessity for “Witness Identity Protection and Witness
Protection Programs”, and in various judicial pronouncements have elaborated on
its necessity, the framework that is required and the urgent need for its
application in India.
1.
The Law Commission Reports:
One of the
first developments in the need for “Witness Protection” was identified by the 14th
Law Commission where they were recognized as legal entities who were entitled
to be treated with dignity and protection. In the report submitted it was
concluded that there were inadequate arrangements for witnesses in the
Courthouses”[8]. In a
number of States in the country, there is no adequate facilities done to
accommodate, protect or uphold their rights which may cause a hindrance to the
spirit of justice. It was stated by the Commission that “due respect is
rendered to the convenience and comfort of witnesses and must be provided with
compensation for sparing their valuable time[9]”. Further, it was observed that if these
requirements were not fulfilled, then there would be no incentive for the
witnesses, making them indifferent in helping the Court in the administration
of justice.
The 14th
Law Commission Report elaborated upon the harassment and ill-treatment that
witnesses face, while the 42nd Report focused on the problem of the
growing frequency of threats that witnesses are subjected to in turn causing
them to turn hostile and not appear in Court. The subject matter of the report,
had the commission proposing an addition of three new section to the Indian
Penal Code[10], where
one of the sections penalized any acts which interfered with the testimonies of
witnesses.
The
proposed Section 299-A stated that, “Whoever, by threats, bribes or other
corrupt means, dissuades or attempts to dissuade any person from giving
evidence before a public servant, legally competent to examine him as a
witness, shall be punished with imprisonment of either description for a term
which may extend to six months, or with fine, or with both[11]”. Further, it was highlighted that mere punishment of the offender was not
sufficient and for the eradication
of the
problem of hostile witnesses, then their rights must be protected and they must
be given security. The 154th Law Commission taking reference from
the 14th Law Commission Report opined that “plenty of justification
for the reluctance of witnesses to come forward to attend Court promptly in
obedience to the summonses, the Law Commission was of the view that
inconveniences meted out to the witnesses coming to courts, lack of facilities
to the witnesses, frequent adjournments and inadequate allowances are the
reasons behind the reluctance of the witnesses to cooperate with the law
enforcement agencies[12].
Based on these, recommendations and suggestions were given for the protection
and preservation of the rights of witnesses. Though these were given by the Commission,
it failed to present an elaborate framework to elaborate on the criteria and
guidelines to do so.
The 172nd
Law Commission Report further discussed the concept of Witness Protection but
rather narrowly, which was originally the result of writ petition[13]
being filed that demanded for various amendments to be made to the Indian
Evidence Act, the Code of Criminal Procedure and the Indian Penal Code. The
Apex Court requested the Law Commission to examine the issues submitted in the
petition. The petitioners contended for various amendments with respect to the
definition of “sexual intercourse”, minor witnesses and oral testimony.
The Law
Commission with its report recommended the addition of a provision to Section
273. The report mainly dealt with the reasons for the hostility of witnesses.
To this, they elaborated on various recommendations that needed to be adopted
in order to prevent witnesses from turning hostile. The Commission was
successful in identifying the existence of a problem, but with respect to the
question of actual physical protection and maintain anonymity of the witnesses,
no such methods were thrown light upon.
Conceivably,
the most inclusive and complete law commission report with respect to the
Protection of Witnesses is the 198th Law Commission Report. The entire report
dealt with “Witness Identity Protection and Witness Protection Programs”. The
Witness Identity Protection implicates the necessary steps that need to be
taken in order to maintain the anonymity, concealment and protection of witness
identities. In order to do so, screen techniques are used where their name is
hidden and does not appear in court documents. The Law Commission opined that,
different witnesses needed different levels of protection and to this they categorized
the
witnesses into three types – “Victim-witnesses who are known to the accused,
Victims-witnesses not recognized to the accused and witnesses whose identity is
not revealed to the accused[14].
Protection to witnesses must be provided during all three stages of a criminal
trial – before a trail, during a trail and after a trial. Recommendations with
respect to adoption of in-camera sessions, anonymity, concealment and
protection of witness identities and for protection of witnesses post the trial
creation of various “Witness Protection Programs”. The main aim of such
programs would be to make the witness disappear and untraceable. Through these
programs, the witnesses testifying who are subjected to constant threats and
fear, can be relocated to a different city or State where they can be given a
new name and identity, to ensure that they are safe and secure. There was a
model suggested for the Witness Protection Program by the commission which
later went onto form the basis of the Witness Protection Scheme of 2018.
2. Judicial Trends:
The
need for Witness Protection and its associated programs which is required in
order to ensure a fair trial has been emphasized by the Apex Court and the High
Courts, through the various judgements given by them. The main objective is to
be deliver justice in its true sense and when witnesses are subjected to
threats and intimidation affecting their testimony, this objective remains
unfulfilled. The Apex Court, in the landmark case of Neelam Katara v. Union of
India[15], elaborated on the need
of a judicial calm environment and held that if witnesses were testifying under
fear or any sort of intimidation then the administration of justice is
weekended and obliterated. In the same case guidelines for witness protection
were laid down. In the case of Swaran Singh v. State of Punjab - it was held,
“when a witness is threatened, maimed, done away with or even bribed and there
is no protection for him, the purpose of a criminal jurisprudence is defeated[16]”
The
need for witness protection programs in order to ensure a fair trial was
emphasized by the Apex Court in the case of Zahira Bibi Sheikh v. State of
Gujrat[17]. It was noted that if
witnesses
are
forced or threatened to give false testimonies then also this would not result
in a fair trial and the Court elaborated on the role of the State to protect
its witnesses, where it held that this was a constitutional obligation to
protect the life and liberty of the witnesses and they were entitled to this[18]. The need for witness
protection programs taking into consideration the present circumstances and
hostility of witnesses was the call of the hour. In the case of Hira Nath
Mishra v. Principal Rajendra Medical College - the Court held that cases in
which the accused is a hardened criminal then care must be taken to protect the
identity of the witness[19].
The
immediate need for legislations and the introduction of witness protection
programs in the country to uphold the spirit if justice was highlighted in the
case of National Human Rights Commission v. State of Gujarat[20]. In the case of Neelam
Katara v. Union of India[21], guidelines with respect
to witness protection were laid down, 15 years after this the Witness Protection
Scheme, 2018 was finally passed by the legislative body which was boosted by
the case of Prem Chand v. State of NCT Delhi[22].
Witness
Protection Scheme, 2018 - Current Scenario:
The witnesses testifying in the Court of law must be instilled confidence in the fact that they would be protected if they testified and helped the judicial authorities in their enforcement process. The prime objective of the Witness Protection Scheme is to protect the witnesses from being intimidated or threatened in order to give any sort of testimony without any protection and to guarantee that the investigation, prosecution and the trial carried out are not intolerant. The scheme intends to uphold the law enforcement procedure and help in protecting the testifying witnesses who are directly or indirectly involved in this. It lays down the framework and guidelines that is required for the protection of the witnesses and their family members and see to that that they are not intimated or threatened in any way. Under this particular scheme, witnesses are categorized on the footing on the potential threat they are faced by. They are grouped under Category A, B and C. The Witness Protection Scheme elaborates on the categories of witnesses based on the potential threat that they would receive, with respect to this there is also a procedural framework that has been laid down. This framework guides the steps that are mandated and which need to be fulfilled in order to see witness protection. This includes a threat analysis report. Lastly, on the basis of threat perception, the scheme throws light upon the different kinds of protection measures that are functional. The time period of these protection measures is considered to be specific and would automatically cease to function when the protection measures are lifted.
Witness
Protection Programs Worldwide: Comparative Analysis
The Witness Protection
Scheme, 2018 was one of the first steps taken to protect witnesses and
considered to be a legitimately fresh addition to the Indian Criminal
Jurisprudence.
In most countries
across the globe, one can see that these witness protection programs are an
inherent part of their justice systems. Drawing inspiration from countries such
as the United Kingdom, the United States of America, Australia and New Zealand,
the Witness Protection Scheme, 2018 has been laid down.
United
Kingdom:
Protection measures are provided to witnesses and
other individuals under Section 82 of the Serious and Organized Crime Police
Act, 2005(SOCPA), who meet the eligibility criteria mentioned under the
Standard Operating Procedure (SOP). These measures are applicable to all police
officers, police staff and their respective families and other officers who
work for the department on contractual basis. Protection is given to
individuals who are involved in judicial proceedings such as law enforcement
officers, witnesses, informants and their family members, this is provided for
under Schedule 5[23]
of Section 82 of the SOCPA. Unlike the Indian Witness Protection Scheme that
only extends to witnesses,
the U.K
witness protection scheme extends to police officers, witnesses, police staff
and informants too covering a wider scope. But this is applicable only if
certain criteria are met as per provisions laid down in the Act. Further, to
determine the level of protection that needs to be provided, the Criminal
Justice Protection Unit is committed to conduct a Threat Assessment to access
whether they should be included in the protection scheme. The protection scheme
primarily focusses on identity-change and relocation of the witnesses and their
family members to keep them off the radar.
United
States of America:
The first witness protection program that has served
as a model for many other countries is the US Federal Witness Security Program
(WITSEC). For over four decades now, the WITSEC is being operated by the US
Marshall services. Its core feature is the secret and permanent relocation,
often coupled with an identity change, offered to witnesses and their immediate
families[24].
When a witness is testifying in the court of law and this act puts his/her life
in grave threat then protection is to be provided for him under the WITSEC
program. Further, the decision to decide whether a witness requires protection
lies with the Office of the Attorney General along with the US Department of
Justice, where the authorizing power is with the Office of Enforcement
Operations. The scheme provides for protective services to those individuals
who have testified in organized crimes, state/federal felonies or drug
trafficking, etc. The protection services mainly focus on relocation and change
of identity of the witnesses and their families.
Australia:
In 1998,
a model and framework laid down by the
Parliamentary Joint Committee on The National Crime Authority which
investigated on the subject matter of witness protection, based on this the
Witness Protection Act of 1994 was drafted[25].
With the enactment of the Act, the National Witness Protection program (NWPP)
was introduced and the maintenance of the same was given to the commissioner of
the Australian Federal Police (AFP). Section 3 of the Act provides for the
definition of a witness. Fulfilling this, a witness is eligible to apply for
protection under the NWPP. Protection services namely relocation and identity
changes are not only provided to Australian nationals but also to foreign
nationals. But this can be only done on requests made by foreign law
enforcement agencies or the International Criminal Courts. With witnesses
relocating and identity changes they are fully given statutory rights for doing
so along
with supporting legal documents recognized by the common law. A
re-integration program that in included in the NWPP, thereby setting it aside
from the WPP enacted by the USA. The NWPP not only provides for basic allowances
and physical protection services to the witnesses and their families but also
helps in integration these families into their newly relocated communities.
They do this by the application of various operating methods in order to ensure
safe integration.
DRAWBACKS OF THE SCHEME:
The
Witness Protection Scheme, 2018 was one of the first legitimate attempts made
in order to protect witnesses in criminal trials. To protect and secure the
rights of a witness during the entire process of a trial, the scheme has been
well-drafted with preeminent intentions. Despite this the scheme seems to have
some inherent drawbacks and loopholes. The first one depending on the sincerity
and objectivity of Police Officials. Provisions in the scheme state that to
pass protection orders, the Threat Analysis Report must be done by the Head of
the Police in that particular district. These police officers can be subjected
to threats, inducement, political interference causing them to submit false
reports. With such a system in place, it can always be influenced and this
would hamper the justice system. Further, this would also lead to incorrect
categorization of witnesses. The next drawback is with respect to the
time-period of protection provided to the witnesses that is valid only for
three months. After the said time period, the protection is lifted and the
witness is again exposed to the threats. This provision makes it redundant as
the witness is again on the radar of the accused and there is a high risk
involved. The protection to the witnesses must be provided until there is no
sigh of imminent threat from the accused. Further, the scheme provides for no
provisions that would penalize such threats. The lack of adequate
infrastructure for the proper implementation of the scheme seems to be lacking.
Inadequate State funds may hamper the implementation of the scheme and the
overall functioning of the criminal justice system. In the system of lower
courts, the mandate of the Witness Protection Scheme may not be satisfied due
to the absence of suitable infrastructure.
Conclusion:
Witness
Protection is an integral part of the criminal justice system. It is a
necessity for every country to develop and implement Witness Protection Schemes
and Programs to uphold the principles of a fair trial. Moreover, in a populated
country like India where thousands of cases are being prosecuted on a daily
basis, it becomes even more important to do so. In many cases, the witnesses
are untraceable or turn hostile, only due to the fear of threats and
intimidation. Even though India has implemented a Witness Protection Scheme
which can be considered as one of the very first attempt towards witness
protection, the scheme inherently seems to have lacunae and ignore fundamental
ground realities. The Witness Protection Schemes need to be designed in such a way
that the growing and developing conditions of the country are taken into
consideration that influence the technicalities of the justice administration
system. Further, since there is no legit statutory provision to support the
same this may lead to citizens losing their faith in the justice disposing
system. Therefore, as discussed through the course of this paper it an
imperative call of the hour that there is a proper comprehensive legislative
framework that needs to be laid down to protect witnesses in the country and
any breach would result in penal consequences. In order to implement this,
inspiration and guidance can be drawn from other countries who have already
done this to protect their witnesses. Therefore, if witnesses are protected in
the spirit of a criminal trial and this is implemented in a well-guided manner
then justice could be delivered freely, independently and in its true sense.
Article Information
THE NEED FOR WITNESS PROTECTION IN CRIMINAL TRIALS: AN INDIAN PERSPECTIVE (By: Sunidhi Singh B J)
Authors: Sunidhi Singh B J
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/08/24
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.