This article has been written by Anindita Bhowmik, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Introduction

The examination of witnesses forms a crucial part of the legal system in India, playing a pivotal role in both criminal and civil proceedings. Witnesses, often referred to as the “eyes and ears of justice,” provide critical evidence that can determine the outcome of a case. However, the process of witness examination and the rights of witnesses in India are complex issues that intertwine with human rights and legal protections. This article delves into these aspects, focusing on the legal provisions, landmark cases, and the Witness Protection Scheme, 2018.

Rights of witnesses in India

According to the website eitherview.com, more than 60% of the acquittals in the Indian criminal legal system are a result of witnesses turning hostile. A hostile witness is a witness who testifies against the party who called them to testify with the testimony intending to support their side of the case presented within the court. Threats to life, monetary benefits induced by coercion or compulsion, violence, and threats to near and dear family numbers are a few reasons why this happens. In reality, the myriad of reasons for this could be quite vast. 

It is crucial for a witness who is unfamiliar with the criminal justice system or uncomfortable with the police environment be well versed with some basic rights that he/she possesses as a witness in India:-

1. When a person is arrested or detained for examination by the police, he/she has the right to contact a familiar legal aid professional or a lawyer to be briefed about rights, procedures and charges. 
2. The person has the right to disagree and provide statements that are officially recorded by the police during the examination without the presence of his/her lawyer or legal aid.
3. For witnesses of the female gender, the person has the right to be examined by the police at the safety of their own residences without being forced to attend an examination in the police station. This, of course, needs to be facilitated by the legal aid provider. The same is also applicable to underage witnesses below 15 years of age of both the male and female genders in India.

Rights of child witnesses

As per the Protection of Children  from  Sexual Offences Act, 2012 in India, the guidelines for interviewing children as witnesses are as follows:

• The statement of the child must be in a language that the child understands and interprets. If needed, a translator or interpreter should be provided.
• The child should not come into contact with the accused at any point during the investigation.
• The child should not be detained in a police station for the night for any reason.
• The identity of the child should be protected from public media unless otherwise directed by the court in interest of the child.
• The statement of the child must be recorded in presence of parents of the child or any person that the child trusts. This can also be a person from the Child Welfare Commission in exceptional circumstances.
• The statement or testimony of the child must be recorded within thirty days of the court taking cognizance of the offence. The trial should be completed as far as possible within one year of the court taking cognizance of the offence.
• The court needs to ensure that the child is not called repeatedly to testify in court. Additionally, during cross-examination aggressive questioning or character assassination of the child should not be permitted and the dignity of the child should be maintained at all times during the trial.
• The child or his/her parents or guardians have the right to legal counsel of their choice for any offence committed. If they are unable to afford legal counsel, the National Legal Services Authority (NALSA) should provide a lawyer to them free of charge.

Other basic rights for adult witnesses

Similar to the case of child witness testimony, an adult can also testify in the language of their choice or with the help of an interpreter, avoid  face encounters with the accused as a basic right and  remain silent when encountering public media during the pendency of the case in court.

Additionally, according to Section 195-C of the Indian Penal Code (IPC), a person who threatens the witness to turn hostile can be punished with imprisonment for up-to 7 years, fined or both if the witness complains about the same to the police.

However, in spite of all this, the conviction rate in India is unfortunately quite low. In cases related to terrorism, it has been repeatedly observed that witnesses are more likely to face harm than receive protection from the administrative system. This is also true when the accused is a political figure or a person of high respect and command in society. Even in cases that may not be of the nature stated earlier, the witnesses face way too many hassles during the investigation and trial and are not always treated with the respect and dignity they deserve. Hence, there was a need for an explicit Witness Protection Scheme by the authorities addressing the guidelines for witness protection in any situation that the witness may face.

Examination of witnesses and witness hostility

The Indian Evidence Act, 1872, and the Code of Criminal Procedure, 1973 (Cr.P.C.), provide the legal framework for the examination of witnesses in India. The trial procedure  includes chief examination, cross-examination, and re-examination. In simple terms, the trial typically includes stages wherein the prosecution specifies its evidence, and the defence can cross-examine the credibility of the evidence presented by asking questions to the witnesses either on the same date or on a different date. Similarly, the defence can present evidence favouring their side of the case and the same can be cross-examined by the prosecution for credibility and relevance to the acquisition put up in the given case. The magistrate can themselves cross-examine the witnesses if need be in certain cases where a police report wasn’t filed against the accused.

The Indian Evidence Act, 1872, lays down the rules for leading questions, hostile witnesses, and expert witnesses, ensuring that the examination process is fair and just. A hostile witness testifies against the party calling them with untruthful, evasive or contradictory statements presented in court as opposed to the statements earlier made by the same person in the context of the case. The opposite party’s lawyer may declare the witness a hostile witness to get permission from the court to ask leading questions, which aren’t allowed in general circumstances. The purpose of doing so is to clarify information, expose inconsistencies, and ultimately weaken the witness’s credibility in the eyes of the honourable judge deciding on the matter.

In the Zahira Habibullah Sheikh & Anr. vs. State of Gujarat & Ors. (2006) case, the Supreme Court has ruled that if a witness is unable to fulfil their duty in court in providing accurate information, the trial becomes ineffective and corrupted. The same cannot be considered a fair trial anymore. There are various reasons that incite a witness to do so; negligence due to unfamiliarity with court systems, corrupt collusion or even circumstances beyond their control. Hence, the protection of witnesses is a serious matter. It is the responsibility of the state entities to take this seriously.

The Honourable Supreme Court, in the case of Swaran Singh vs. State of Punjab (2000), expressed deep concern about the harassment and inconveniences that witnesses typically had to face while testifying. They travel from far and wide only to find the case adjourned. It has become a common tactic for unscrupulous lawyers to seek adjournments repeatedly, causing financial as well as emotional loss to the witness and their families. Witnesses are not only threatened but also abducted, harmed or bribed. They have no protection. When a court adjourns a case without a valid cause, it unknowingly contributes to the miscarriage of justice. Witnesses are not treated with respect in court and are usually pushed aside by the court staff. They wait for hours, only to find out that the matter has been adjourned. They have no place to sit or even get a glass of water. When they do appear in court, they endure prolonged examinations and cross-examinations leaving them in a helpless situation. Because of all this, more and more people are unwilling to become witnesses, which hampers fair trials and ultimately the administration of justice.  

In the case of Dayanand B. Nayak vs. Ketan K. Tirodkar and Anr. (2003), the Bombay High Court provided police protection to Ketan Tirodkar, a former journalist, because he had received threats after filing a police complaint that revealed a series of illegal activities carried out by police in collaboration with the underworld. However, the public prosecutor opposed granting police protection, claiming that Tirodkar himself had involvement with the underworld.

In the rape case against the self proclaimed spiritual leader “Bapu Asaram,” a key witness had been given police protection by court orders. This came after another witness in the case was tragically shot dead. The bench of justices A.R. Dave and A.K. Goel had instructed the trial courts to take the necessary measures to provide witness protection in cases of threats.

With the landmark case of Mahender Chawla & Ors. vs. Union of India and Ors. (2018), the court formally introduced the Witness Protection Scheme in India. The court stated in their judgement that the current justice system in India takes witnesses for granted. They are summoned to court without consideration for their financial and personal circumstances. They are often made to appear in court long after the alleged crime, making it difficult for them to recall important details. One of the main reasons why witnesses turn hostile is the lack of proper protection provided by the state.

The court interpreted Article 21 of the Constitution, stating that if witnesses are unable to testify in court due to threats or pressure, it is a clear violation of their right to life. The right to life includes the right to live in a society free from crime and fear, and witnesses have the right to testify without fear or pressure in court.

Witness Protection Scheme, 2018

Recognising the challenges faced by witnesses, the National Legal Services Authority (NALSA) and the Bureau of Police Research and Development (BPR&D) drafted the Witness Protection Scheme, 2018. This scheme was approved by the Supreme Court in the case of Mahendra Chawla and Ors. v. Union of India and Ors. (2016) and provides a comprehensive framework for the protection of witnesses based on threat perception.

It is important to note that the level of protection provided to the witness can differ on a case to case basis under this scheme. The same totally depends on the threat perception level identified by the threat analysis report.

The threat analysis report is prepared and submitted by a competent authority investigating the case. The report is expected to detail the specifics of the seriousness and credibility of the threat with respect to damage to reputation and property and damage to the life and wellbeing of the witness and his/her family members, as well as the people making the threat having the intent, motive and resources to implement the threat.

The definition of a witness has also been made clear as a person who possesses information or documents about any offence.

All the threats received by any witness need to be classified into any one of the below stated categories as per the report given:

1. Category A: When the threat extends to life of witness or his/her family members during pendency of the trial or as an aftermath.
2. Category B: Where the threat extends to safety, reputation or property of the witness or his family members during investigation or trial or as an aftermath.
3. Category C: Where the threat is moderate or extends to harassment or intimidation of witness or his family members, reputation/property during the investigation, trial or thereafter.

An application for witness protection must be moved by the witness, his/her family, the appointed legal counsel, the jail superintendent in charge, the investigating officer, the station house officer or  the sub divisional police officer concerned. This application must be filed under the standing committee consisting of the district and session judge as the chairperson, the head of police in the district as a member and the public prosecutor as a member. 

As and when the application is received, any member of the standing committee can pass the order for the preparation of the threat analysis report by the assistant commissioner of police or deputy superintendent of police in charge. The threat analysis report should ideally be prepared within five days of receiving such an order. The suggestive protection measures should also be included in the threat analysis report.

The various types of protection measures included can be:-

• Monitoring of mail and telephone calls by the police.
• An arrangement made with the telephone company to assign the witness an unlisted telephone number.
• Installation of security cameras across the witnesses homes.
• Close protection and regular patrolling by the witness house.
• Temporary change of residence.
• Police escort on the date of the hearing.
• Holding in-camera trials.
• Usage of specially designed vulnerable witness court rooms, which have special arrangements like live video links, one way mirrors and screens apart from separate passages for witnesses and accused, with the option to modify the image of the face of the witness and the audio feed voice of the witness so that he or she is not identifiable.
• Identity protection, by virtue of which during court hearings the identity of the witness wouldn’t be revealed and the statements provided remain as material on record, with confidentiality obligations binding the police not to ever reveal the identity of the witness anywhere, even after the statement is provided and case is disposed of.

The responsibility to protect the witnesses is entrusted either to a dedicated state police cell or a central police cell that is responsible for acting on the orders passed by the standing committee. However, if an order is passed for the change of identity/temporary relocation, the responsibility of execution of the same lies with the department of home of the concerned state.

The standing committee deciding on the witness protection application is also bound by the act to conduct the hearings on the application in confidentiality. Also, they need to be provided with regular reports by the executing authority in cases where the protection mechanisms need to be stepped up. If the witness disagrees at any point with the orders passed, he/she can file for a review with another application before the designated standing committee.

Given that the Witness Protection Act tries to enforce the principles of transparency, human rights of witnesses and fairness in trials and court procedures, after seventy years of a constitutionally driven criminal justice system, the below statistics are a reality as well as frightening:

1. Criminal cases take an average of five to fifteen years to reach completion.
2. Convictions are as low as four percent (4%)  in mass crimes and about thirty three percent (33%) in individual crimes.
3. In over seventy percent (70%) of cases, the witnesses turn hostile.

These statistics indicate the failure of the state to provide witnesses with adequate security cover even after the existence of the Witness Protection Act for almost five years now.

Recommendations for enhancements to the Indian witness protection scheme

Witness protection in India is hence a much needed concept but unfortunately not a well implemented concept within the criminal justice system. Internationally, many countries have identified and accepted similar challenges in their witness protection schemes, especially when they are related to organised crimes. The report titled “Good Practices for the Protection of Witnesses in Criminal Proceedings Involving Organised Crime”, published by the United Nations Office on Drugs and Crime ( UNODC ) in 2008, provides references to amendments made in witness protection schemes over time internationally across different countries of the world to strengthen administrative cooperation targeted for witness protection. 

A few of the noted amendments are listed below as references to be considered as recommendations for enhancements to the Indian witness protection scheme:-

Germany

Witness protection programmes have been in place in Germany since the mid-1980s.They were first used in Hamburg in connection with crimes related to motorcycle gangs. In the following years, they were systematically implemented by other German states and the Federal Criminal Police Office.

In 1998, the Witness Protection Act was introduced in Germany. This formalised the new witness protection wings of the police at the federal and state levels. 

Police personnel within this wing are specifically trained to handle unique challenges associated with protecting witnesses, like psychological support, risk assessment, relocation strategies and identity change procedures.

The files on protected witnesses are maintained separately by the protection units and not included in the main investigation files, preventing access to these even by specific state agencies.

These specialised wings are also granted a degree of operational autonomy, with the protection of witnesses as the primary focus without being influenced by the ongoing investigation. 

The purpose is to focus on the efficiency of these specialised units, which can develop streamlined processes and controls leading to quicker response times and more efficient operations for a secure approach to ensuring the safety and well being of witnesses, especially in high risk cases.

South Africa

Before 1996, witness protection in South Africa was governed by Section 185A of the Criminal Procedure Act of 1977.This provision was repressive and used to coerce witnesses into giving evidence.

In 2000, South Africa introduced a new law on witness protection, promulgating the old law in place for the same. 

The new law provided for the establishment of a national office for witness protection, which operates under the authority of the Ministry of Justice and Constitutional Development. It is headed by a national director at the country level and has branch offices in South Africa’s nine provinces.

The director has the power to decide on admission to the programme based on recommendations from the branch office and other relevant law enforcement agencies. 

The Act defines the types of crimes for which the witnesses may request protection, the procedure to be followed and the persons eligible to apply. This list is not exclusive, as the director has discretionary powers to approve protection for witnesses in respect of any other proceedings if the safety of the witness warrants it.

The Act defines offences and severe penalties for any unauthorised disclosure or publication of information regarding persons admitted to the programme or officials of the office of witness protection. 

The act also facilitates international collaboration, wherein the minister of justice and constitutional development can enter into agreements with other countries and international organisations regarding the conditions and criteria for relocating foreign witnesses to South Africa or admission to the witness protection programme.

The report also introduces the role of additional members of society beyond the witness, the family member of the witness, competent authority, police and witness protection cell.

These are listed below:-

• A justice collaborator:

A justice collaborator is an individual who has participated in offences connected with criminal organisations and possesses crucial knowledge about the organisation’s structure, operations, activities and links with other groups. Their motivation to cooperate is generally not based on moral grounds. 

Many of them cooperate with the expectation of receiving immunity or at least a reduced prison sentence and physical protection for themselves and their families. Such an individual is especially important in testifying for organised crimes.  

Special measures are often required to protect the lives of justice collaborators. These measures could include separation from the general prison population if the justice collaborator is imprisoned, change of identity within prison and outside, financial support and re-settlement options and default admission of family members to the witness protection scheme.

• A witness assistant:

Witness assistance differs from witness protection, with the goal being to ensure the support and mental well-being of the witness rather than physical protection. 

A witness assister  is expected to alleviate the anxiety that an individual might face while testifying in a trial. He/She is therefore expected to support the witness during trial participation.

An important duty is also the identification of a vulnerable witness. The vulnerable witness could be any adult, or child or physically impaired  individual who needs special consideration during their interaction with the criminal justice process.

The goal of witness assistance is to prevent secondary victimisation or revictimization of the witness in the trial process. This refers to victimisation not from the criminal act but due to response of institutional individuals to the victim.

• An informer:

While witnesses provide testimony in court based on their observations and experiences, an informant provides intelligence or information to law enforcement agencies, often covertly. Given the risks they face due to their cooperation, countries like Australia, Austria, Canada, Latvia, the Netherlands, Norway and the United Kingdom have legislation in place to directly admit informants to witness protection programmes.

Police officers who use informers as sources keep their names and identities confidential. In general, informants may be provided with physical protection due to the nature of their job. But once they become witnesses, it is important to dissociate their relationship from the investigation and intelligence agencies to ensure a clear distinction between their roles as an informer and as a witness in the Indian justice system.

The introduction of the stated roles and codification of the expectations of each role towards witness protection has the ability to transform the witness protection system in India drastically. From a human rights perspective, these roles emphasise the importance of balancing the rights of the individuals involved in the criminal justice process, irrespective of whether they are witnesses, an informer or witness assisters, with the broader goal of ensuring justice and public safety. 

The practice of using a justice collaborator can raise ethical concerns as it may be perceived as rewarding criminals with impunity for their crimes. But the objective is not complete impunity but a sentence reduction granted only at the end of full cooperation in the trial process.

Conclusion

While significant differences exist among the legal traditions, political environment, stage of development, society and culture, and levels and types of criminality in the various countries, the witness protection programme within the Indian judicial system needs to incorporate a deeper understanding of the societal and cultural context. 

The success of witness protection operations, as seen in the jurisdictions of other countries, is an outcome of a clear legal policy for designing a methodology and carrying out operations. 

Close coordination with judicial and other government authorities engaged in law enforcement and intelligence, prison administration, public housing and health and social security services is essential for the accountability and transparency that this programme necessitates for effective implementation.

References

• https://sabrangindia.in/article/witness-protection-india-idea-gathering-dust/
• https://www.researchgate.net/publication/341622557_Witness_Protection_A_Comparative_Analysis_of_Indian_and_Australian_Legislation
• https://eitherview.com/rights-of-a-witness-in-india
• NALSA Handbook of Formats: Ensuring Effective Legal Services.
• https://sabrangindia.in/witness-protection-india-idea-gathering-dust/
• https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3708214
• https://districts.ecourts.gov.in/sites/default/files/Paper%20Presentation%20by%20A%20Pradeep%20on%2013-07-2020.pdf
• https://www.unodc.org/documents/middleeastandnorthafrica/organised-crime/Good_Practices_for_the_Protection_of_Witnesses_in_Criminal_Proceedings_Involving_Organized_Crime.pdf

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