This article has been written by Sonia Shrinivasan. The article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders) and Vanshika Kapoor (Senior Managing Editor, Blog iPleaders).

Introduction

It is a well-established fact in criminal jurisprudence that witnesses, in any case, are crucial to determine the outcome to ensure that justice is served. In its most basic and simplest form, a witness can be said to be any person having knowledge of an event. Renowned legal thinkers like Jeremy Bentham, while realizing their importance, have described them as the eyes and ears of justice.

Who is a witness?

The Oxford Dictionary defines a witness as ‘one who gives evidence in a cause; and an indifferent person to its party, sworn to speak the truth, and nothing but the whole truth.’

The Ballentine’s Law Dictionary defines a Witness as ‘someone with sufficient knowledge of a matter, to testify in regard to it.’

The Black’s Law Dictionary defines a witness as a person under oath having any evidentiary value. 

To sum it all up, a witness can be understood as someone having or possessing knowledge about certain matters and agrees to testify orally or in writing, about whatever they know, in reference to a thing or incident they know or claim to know.

Witnesses may be of many kinds- 

• Eye witness- Also known as a percipient witness, an eye witness is a person who has obtained the knowledge of the fact/ issue in question through his/her own senses of smell, touch, hearing, etc.
• Expert witness- A person specializing in a certain field, having more than adequate knowledge, aiding in the corroboration of other material evidence. Eg. fingerprint experts, handwriting experts, etc.
• Crown Witness- A former accomplice in a crime, who incriminates the co-accused persons charged with the same offence to settle for a lesser punishment, certain immunities, and it is these witnesses who seek the protection of their families and themselves under Witness Protection Programs.

What is their importance?

All those familiar with criminal jurisprudence will agree with the fact that when it comes to ensuring the functioning of the trial, witnesses occupy a position of great importance. Many jurists have gone so far as to describe them as the ‘foundation’ of any trial- whether civil or criminal, on whose shoulders the fate of the case depends.

However, it is seen that being a witness in crucial cases comes with challenges of its own- which have been discussed in length in this article.

Need for witness protection programs 

Witnesses in contemporary times are faced with numerous challenges on their own. Since they are crucial in determining the outcome of any trial between two parties, they often involve serious crimes of fraud, assaults, sexual crimes, etc. Such trials open up the possibilities of the witnesses on either side being subjected to inducements, intimidation, political pressure, corruption, the hostility of witnesses, corruption, etc. 

The consequences of these pressurizing instances lead to the witnesses being reluctant to depose in courts, retract from their earlier depositions resulting in vitiating the entire trial and ultimately leading to miscarriage of justice.

The litigation system, both civil and criminal, has often been subject to the common critique that it has led to the marginalization of witnesses, giving very little or almost zero recognition to the rights of witnesses.

Due to the reasons mentioned above, witness protection programs are necessary to prevent any miscarriage of justice, restore human dignity in witnesses, and realize their immense importance in a country’s justice system.

Witness protection programs

In its simplest sense, witness protection programs can be understood as security programs for those threatened to refrain from testifying or induce them to falsely testify before the court of law, usually provided by the local police authorities. This protection may be required, during the trial or after the pronouncement of the judgment, depending on the seriousness of a case. This kind of protection is usually given in cases involving organized crimes, war crimes, etc.

Witness protection programs around the world

United States of America (USA)

Among all the countries globally, the United States of America has the most extensively formulated witness protection program- known as the United States Federal Witness Security Program, WITSEC. The WPA was formally established under the Organized Crime Control Act of 1970, and before that, the Federal Bureau Agency was well known to give new identities to protect such witnesses.

Many of the federal states of the USA are known to run their own specific witness protection programs, though less extensive than their central counterpart, majorly focusing on those crimes not covered by the central law. These states include the likes of New York, Illinois, Washington, Connecticut, Texas, etc.

The law enforcement agencies conduct an extensive assessment, taking into account the threats and danger involved, with a major focus on the credibility and seriousness of these threats. When these threats come off as serious enough, these agencies use specialized funds to provide assistance to keep these witnesses safe and ensure that they are able to testify in court. 

These funds are also used in the relocation, rehabilitation (in the form of housing & health care, vocational training, etc.) of such witnesses and their families.

Australia

Australia is credited with having formed the ‘model’ legislation in the sphere of witness protection, titled ‘The Witness Protection Act, 1994’; which has formed the basis of various regional witness protection programs in the continent.

China

China has enacted the ‘Witness Protection Ordinance, 2000’ to provide the needed assistance to the witnesses along with their families and those closely associated with them.

United Kingdom

The Criminal Justice & Public Order Act, 1994 and the Youth Justice and Criminal Evidence Act,1999 consist of penal provisions regarding threatening and intimidating witnesses and provides for the courts to direct special measures for the protection of witnesses, and the judiciary is empowered to issue anonymity orders for such witnesses, under the Coroners and Justice Act, 2009.

Presently, the United Kingdom Protected Persons Service (established in 2013) is responsible for the protection of such persons, under the supervision of the National Crime Agency, and it carries out its operations through the local police personnel.

Germany

Germany has boasted of such programs since the 1980s, but it was only in 1988 when the Witness Protection Act was formally adopted, which included the use of video recordings and other relevant technologies to record the witness’ testimony. With time, this legislation has evolved in order to serve as guidelines to ensure witness protection

India

When it comes to discussing the Indian scenario on the witness protection schemes/programs, various statutes contain different provisions.

• The Unlawful Activities (Prevention) Act, 1967: Section 44 talks about the protection of witnesses. According to the said section, the courts are empowered to take adequate measures for keeping the address and identity of a witness a secret upon being satisfied and having sufficient reason to believe that the life of such a witness is in danger, and these reasons must be recorded in writing. The section also specifies that, in order to protect the identity of such a witness, the proceedings may be held at a different place (to be decided by the court) and avoid mentioning the name or other personal details while issuing orders, judgments, or directions in the hearing of the case. Any person found guilty of contravening the said provisions of the Act is subject to imprisonment of not less than three years and a fine.
• The National Investigation Agency Act, 2008:  Section 17 of the NIA Act talks about protecting witnesses. Along with containing provisions exactly similar to that of Section 44 of the UAPA, the section prohibits publishing any sensitive witness’s name and personal details, even if the matter is in furtherance of public interest. Any contravention of the provisions of the section attracts three years imprisonment with a fine to the tune of one thousand rupees.
• Maharashtra Control of Organized Crimes Act, 1999: Section 19(2) of the said Act provides for keeping the identity and address of the witness a secret on the application made before it by the public prosecutor.
• The Code of Criminal Procedure, 1973: Section 195 A of the Code provides that whoever threatens any person with an injury, either to him, his property, or his reputation, with the intention to coerce him to testify falsely, such an offence is punishable with imprisonment up to 7 years or with fine or both.
• The 198th Law Commission Report: In its 198th report, the Law Commission recommended a consultation paper titled ‘Witness Identity Protection and Witness Protection Program,’ for the country to launch its own WPA at all stages of a trial, i.e., during the investigation, commencement and continuance of judicial proceedings and after the pronouncement of the judgment; through the introduction of a Witness Protection Bill, 2015:

• It recommended forming a witness protection cell, responsible for compiling information in a report, to be presented to the judge for examination and granting protection to any of the witnesses in the program.
• It also provided for the constitution of the National Witness Protection Council and State Witness Protection Councils to further the aims of the Witness Protection Program.
• Along with suggesting stringent provisions for punishment for those contravening the Act, the report also suggested safeguards to be put in place to protect the witness’s identity and provided for the transfer of cases from the original jurisdiction to ensure that the witness is able to depose freely.
• However, as fate would have it, the Bill was shelved due to non-consensus among the states and union territories. 
• Judicial Pronouncements:  in Zahira Habibullah Sheikh & Anr v State of Gujarat & Ors the Supreme court highlighted the growing need for protecting the witnesses to uphold the ideal of conducting free and fair trials.

In 2003, the Delhi High Court issued exhaustive guidelines in the matter of Neelam Katara v Union of India & Ors.

Ultimately, in Mahendra Chawla & Ors. v Union of India & Ors, the Supreme Court legally recognized the central government’s draft Witness Protection Scheme, 2018, and issued a direction, directing all states to implement the same until the implementation of a Parliament made law in this matter. This draft consisted of provisions providing for the protection of the witness’ identity, their relocation, and monitoring and reviewing on a follow-up basis.

International Declarations & Treaties

Since the protection of witnesses in furtherance of justice, is a matter of protection of one’s basic, fundamental human rights; there have been attempts at the international level to pursue states to enact such protection laws at the domestic levels, for the welfare of its citizens.

The Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power was adopted by the United Nations in 1985, according to which the states, in order to minimize any inconvenience to victims, their families and witnesses, protect their privacy and to ensure their safety from any kind of threatening and intimidation from the accused(s).

The United Nations Convention Against Trans-National Organized Crimes, 2000 mandates its signatory states to undertake the necessary steps to curb any kind of retaliatory measures, intimidation, and threats to witnesses in criminal proceedings pertaining to offenses like corruption, human trafficking, sexual assault, etc.

Conclusion

In today’s world, most of the countries in the world find themselves affected by crimes on a large scale. These crimes include smuggling of drugs, assaults of varied nature, terrorism, etc. Therefore, such witness assistance and protection programs play an important role in securing the ends of justice. However, practical experiences suggest that such programs are implemented to their fullest capacity in countries that have great monetary resources in their hands. Such protection programs need to be built through international cooperation in order to realize their fullest potential. Statutory provisions are a must to fully protect such witnesses’ rights to provide a proper legislative framework for effective implementation.

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