It is imperative that we come up with a better justice system, one that provides adequate safeguards to the witness. There is no law for the protection of witness in India barring a few sections of the Indian Evidence Act, 1872. Section 151 and Section 152 protects the witnesses from being asked indecent, scandalous, offensive questions, and questions which intend to annoy or insult them. Apart from these sections, there is no provision for the protection of witnesses in India. This fact was acknowledged by Supreme Court in the case of NHRC v. State of Gujarat where 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 program. In fact, the Law Commission recognized the need for the same and came up with a consultation paper on witness protection on 13, August 2004.
There are two broad aspects to the need for witness protection in India.
1. To ensure that the evidence of witnesses is protected from the danger of them turning hostile
2. To relieve the physical and mental vulnerability of the witnesses.
Therefore, any law for witness protection must take into account both points. The first aspect has received attention in the form of a proposed amendment to Section 164 of the Cr. P C. In its 178th Report (2001), the Law Commission recommended the insertion of s.164A in the Cr. P C to provide for recording of the statement of material witnesses in the presence of Magistrates on oath where the offenses were punishable with imprisonment of 10 years and more.
However, the second aspect has hardly received any attention in India. The Law Commission looked for the second aspect in the consultation paper on witness protection and has suggested measures like witness anonymity and physical protection to the witnesses. It also drew attention to special statues on terrorism like TADA and POTA which have provisions for protecting the identity and address of witnesses; and suggested a general law dealing with witness anonymity be implemented
The need to protect witnesses has been emphasized by the Hon’ble Supreme Court of India in Zahira Habibulla H. Sheikh and Another v. State of Gujarat wherein while defining ‘Fair Trial’, the Hon’ble Supreme Court observed that “If the witnesses get threatened or are forced to give false evidence that also would not result in fair trial”. Further, the Hon’ble Supreme Court of India also held in State of Gujarat v. Anirudh Singh 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.”
Thus, both the Law Commission and the Courts are advocating for a witness protection program. India should soon implement a witness protection program if it does not want its criminal justice system to fall.
Witness protection program in other countries
India is not the first country to have seen the necessity for a witness protection program. Many countries such the United States of America, Canada, Thailand, Australia, South Africa among others have enacted witness protection legislation, while many others have informal physical security systems such as the United Kingdom. Therefore, it would be of importance to consider the legislation enacted some countries and study them in the Indian context
United States of America: The USA has one of the most well-developed witness protection programs. The United States Federal Witness Security Program better known as the Witness Security (WITSEC) Program was enacted in 1970 under the Witness Protection Act. The protection of the witnesses is mostly the duty of the U.S. Marshals Service, although some states have their own state-specific witness protection enactments for crimes not covered by the federal program. The U.S. Federal Government both relocates and gives new identities to witnesses who risk their lives by giving testimony as well as providing financial and employment aid. The Federal Government also gives grants to the states to enable them to provide the same program. However, due to a lack of specific guidelines in the program, the Witness Security Reform Act of 1984 was enacted which made the system more comprehensive. It has been claimed that in the 25 years after the Reform Act, over 6,600 witnesses, along with over 8,000 family members, have been provided services as participants in the Program.
Australia: The witness protection program constituted under the Witness Protection Act 1991 is an extremely comprehensive system and nearly everything has been contemplated while enacting the legislation. The definition of witness itself is wide in its ambit and is not seen merely in the strict sense of a witness with regard to a statement before a criminal court under oath. S. 4 (2) (d) (of the Amending Act of 1996) include the flexible phrase of a person who, for any other reason, may require protection or other assistance under this Act.
Another very interesting feature of the Act is the very express inclusion of changed identities (S. 3A (a)) and the specific guidelines for changing identities with regard to the Register of births, deaths and marriages (under the Registration of Births Deaths and Marriages Act, 1959,
S. 24 of which does not apply) under S. 4 of the said Act. Although, it is to be noted that under the Act, specific authorities and a nominated member of the local authority can maintain a record of the original identity of the witness is to be given the details of the original identity of the person(s). At the outset, this may appear to defeat the purpose of the Act by widening the security circle, but the same provision is protected by a rigorous punishment of ten years for unauthorized breach of security and revealing identity. It is also protected by exclusion from the Freedom of Information Act.
Witness protection scheme, 2018
The Supreme Court on December 6th, 2018 gave its nod for approval of the Draft Witness Protection Scheme which had been prepared by the inputs from 18 States/Union Territories, various open sources inviting suggestions from police personnel, judges and civil society which was then eventually finalized by the National Legal Services Authority (NALSA). The bench comprising of Justice A.K. Sikri and Justice S. Abdul Nazeer identified the rights of the witness to testify within the ambit of Article 21 of the Constitution and said “The right to testify in courts in a free and fair manner without any pressure and threat whatsoever is under serious attack today. If one is unable to testify in courts due to threats or other pressures, then it is a clear violation of Article 21 of the Constitution.”
As per the provisions of the Victim Protection Scheme, 2018, the magnanimity of protective measures taken up by the competent authority shall always be proportional to the threat faced by the witness for the given period of time. They may include but is not limited to the following:
Contacting the telephone company to allow the witness an unlisted telephone number;
Providing a conveyance in a Government vehicle to and from the court on the date of the hearing;
To ensure the presence of an additional person at the time of recording statements of the witness
Giving adequate security to the witness in the form of body protection, regular patrol and by use of security devices such as CCTV, fencing, security doors in his home;
Change in the identity of the witness and suppressing the original identity;
The Witness Protection Scheme, 2018 has been approved by the Supreme Court in its landmark judgment of Mahendra Chawla v. Union of India, making it the first attempt to bring the protection of witnesses under the ambit of law and putting the responsibility on the State to implement it effectively.
Problems in the application of the witness protection program in India
The first and most important problem is with regard to the anonymity of witnesses and the balancing of interests of the prosecution in protecting the witness and the rights of the accused. Section 327 of the Code of Criminal Procedure in India specifies the importance of an open trial. Thus, the rights of the accused in knowing who is testifying against him are very important, especially if he has to defend himself against such testimony. Section 299 of the same statute gives one of the few exceptions to this rule and says that only if the accused is not available or has absconded and cannot be found by reasonable means, then the court can order the prosecution witnesses to testify without the presence of the accused. There are many practical problems when talking about such an extensive program.
The most obvious is that of the costs of implementation and infrastructure. When talking about providing bodyguards, security, relocation to another area, etc, the costs that are involved are bound to be enormous. The fact may remain the no cost is too great when it comes to providing justice, but practical realities must be kept in mind. Although, countries like Thailand and Puerto Rico have successfully implemented witness protection, despite their not being developed countries the same cannot be said of India, as India is comparatively much more vast and unwieldy.
The most important problem is that of corruption in the administration and judiciary. Though the argument seems rhetorical and trite, no witness protection program can function with a corrupt administration. If one is provided with false identities and relocated and the approved authority is bribed and sells the information, the whole system is undermined. Thus, corruption and political pressure remain the main problem when addressing the hostile witness situation.
Therefore, it is suggested that a completely different body that lies outside political control be constituted to ensure the protection of witnesses during all stages of the trial. Nearly all countries that have witness protection legislation have constituted a Witness Protection Cell, which may have a hotline that can be reached. The cell must also arrange for the provision of false identities, relocation and follow up Even if all the above provisions were enacted, the system would be futile if witnesses were not informed about their rights. They must have the right to be informed about the judicial process, their role, forms of protection available to them and possible reparations. Not only must they have a right, but it must be the duty of the magistrate and the public prosecutor to inform the witnesses about such rights.