This article is written by Parul Agarwal. This article is an attempt to analyse the efforts of the judiciary and the legislature in coming up with laws and guidelines rendering protection to the witnesses and to also observe the loopholes still existing in the Indian justice system in respect to the protection of witnesses.

Introduction

The role of a witness in the criminal Justice system is very crucial. His testimony many a time decides the future of the trial and without his/her assistance, the universally acknowledged principle of fair trial may suffer. However, the problem of witness turning hostile in the course of the trial is not something unknown or behind the closet. The prime reason behind such hostility is fear. Getting threatened and pressurized by the accused or his/her closed ones, they change their stand before or midway the trial. This leads to miscarriage or even death of justice. To address the above problems, time and again the law commission’s Reports and the courts have come up with appeals to the legislature to form an all-encompassing law.  

The term ‘witness’ is not defined anywhere in the Code of Criminal Procedure, 1973. Additionally, irrespective of the fact that the Indian Evidence Act, 1872  (hereinafter referred as IEA, 1872) is the lone legislation covering evidence, it offers no precise definition to the term ‘witness’. All that we can gather from IEA,1872 is section 3(1) – “all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence”, which contains the reference of witness in understanding oral evidence.

Thus, to get a fair definition of the term ‘witness’, it’s fair to rely on other acknowledged sources in law. For instance, according to Black’s Law Dictionary, “witness is a person who has knowledge of an event. As the most direct mode of acquiring knowledge of an event is by seeing it, witness has acquired the sense of a person who is present at and observes a transaction”. Therefore, in simple terms, we can understand that a witness is an individual who has the required knowledge about the occurrence of an incident and is thus capable of providing his testimony in court.

As gathered from above, Statements introduced by the witness are called oral evidence. They assist the court in coming to a reasonable decision. It is fair to say that the testimony of a reliable witness can ease the work of the judiciary in punishing the evil. Therefore, a witness plays an important role in the justice administration system. Though the law has not laid down any requirement for a fixed no of witness to highlight the ruth, even one reliable eye witness is just enough.

In the case of Swaransingh v. State of Punjab, the court observed that “A criminal case is built on the edifice of evidence, evidence that is admissible in law. For that witnesses are required, whether it is direct evidence or circumstantial evidence.” Furthermore, the committee on reforms in Criminal Law headed by Justice v. S Mallimath suggested – “The witness should be treated with great respects and should be considered as a guest of honour”. Also, Great English philosopher, jurist, and social reformer Jeremy Bentham voiced his understandings and measured witnesses as the ‘eyes and ears of justice’. Most importantly, the voice of the witness has a catalytic force that can alter the progression of a trial. Therefore, the witness, when delivering his testimony, should be always free from all fear and favour.

Right to Fair Trial and Witness Protection

The Hon’ble SC in the case of Rattiram v. State of M. P, observed – “denial of “fair trial” is a crucifixion of human rights.”  Furthermore, it is also recognized as a Fundamental Right under article 21 of the Indian constitution. Therefore, the right to a fair trial has been elevated to the position of being the heart of the Criminal jurisprudence. Witness forms a key part of the criminal trial. Therefore, Integral to fair trial is also the freedom and independence of the witnesses, produced before the Court for evidence. In the case of Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors.,  the Hon’ble SC observed that if the witnesses are forced and threatened to provide false evidence, that would defeat fair trial. Hence, the right to a fair trial and Witness protection go hand in hand and to protect the heart of the Indian Judiciary, it becomes vital to protect witnesses from being vulnerable and turning hostile.

Hostile Witness

The problem of Hostile witness in the Indian judicial system is deep-rooted. The Hon’ble  SC in the case of Sat Pal v. Delhi Administration, observed that though by not giving clear meaning to the term ‘hostile witness’, the IEA, 1872 has created a considerable amount of difficulty leading to conflict of opinions, it has done so to avoid controversy over the definition of a hostile witness, adverse witness or unfavourable witness so that the cross-examination of one’s own witness doesn’t depend on the condition of the witness being declared hostile.  Therefore, yet again to understand the meaning of the term ‘Hostile Witness’, we will refer to other acknowledged sources in law.

The Black Law Dictionary defines hostile witness as – “A witness who is biased against the examining party or who is unwilling to testify”. Therefore, in simple terms, ‘Hostile Witness’ means a witness who rebuts his statement during the trial, which he has already presented before the police officials. Hence, in simple terms, it can be concluded that ‘Hostile Witness’ are those witnesses who alter their stand during the trial or speak against the party who calls for them. There are various reasons for a witness turning hostile. Some common reasons are Threatening and intimidation, Monetary enticement, Unwarranted delay in disposal of cases, Political pressure, Absence of effective witness protection policy during or after trial, etc. This phenomenon of witnesses turning hostile has now turned into a reason for grave worry for the judiciary in India.

For instance, in one controversial case of Extra-Judicial killing of Sohrabuddin Sheikh and his Wife, over 90 witnesses turned hostile as the accused were people with strong political backgrounds. 

Witness Protection needed: in light of present scenario of witness in India

The state of witnesses in India can be coined as ‘extremely wretched’. Witnesses don’t turn hostile arbitrarily or out of ill will unless they are driven by money. There are powerful outside forces driving them to take such steps. There is a lot of fear between the process of being a witness to being a Hostile Witness. Witness hesitates as they face rage, pressure and threat to their lives and being from the accused, for which they end up turning hostile and gives testimony in favour of the accused party. These witnesses have no adequate legal remedy and they aren’t even suitably treated. The current legal arrangement takes witnesses entirely for granted.

For instance, the recent case of Asha Ram Bapu and VYPAM are the best instances in which not only the leading witnesses but also numerous journalists and other individuals who were associated with the case were killed. Additionally, in most of the high-profile cases like Jessica Laal Murder Case and B.M.W. Hit and Run Case, the leading witnesses turned hostile not only due to intimidations, pressure, enticements, pecuniary considerations but also the terror of capture and life, leading to acquittals. Further, Mrs. Bina Ramani, a leading witness in Jessica lal case said after the closing of the case by Delhi High Court that “There will be no Zaheera Sheikhs and Shayan Munshis if have more protection for witnesses”. 

This persistent problem of witnesses turning hostile is what generates the need for Witness Protection. Moreover, it barely needs to be highlighted that one of the chief whys for witnesses turning hostile is that they are not rendered suitable safety by the State. “Law is like a spider web, if some powerless thing falls into them, it is caught but the bigger one can break through and get away”.

Law Commission on Witness Protection

The Law Commission of India is a significant body in the legal system of India. Its purpose is to keep a check that Law keeps up with the contemporary times as to guarantee maximize Justice. The Law Commission in its several reports has also considered the issue of ‘witness protection’. The Primary reference to Witness Protection in India was in the 14th Law Commission Report in 1958. Thereafter, in the 154th report of the commission, it was highlighted that the situation of the witnesses appearing on behalf of the state is miserable on many accounts. Not only do they suffer due to improper facilities and arrangement but also, they have to go through the terror of the accused party to the extent that their very existence is threatened. Furthermore, the commission in its 178th report also stressed on the problem of hostile witnesses and the precautions that the police ought to take to prevent such happening at the later stage of the trail.

Therefore, through the above reports, it can be concluded that the issue of witness protection still needs light as it is not adequately addressed in India.

Indian Judiciary on Witness Protection

The Indian Supreme Court and the State High Courts are both powerful and potent. In dozens of major cases each year their orders have had and continue to have far reaching political, economic, and social consequences. These Courts have time and again acknowledged the need for witness protection. Especially in the case of Sakshi v. Union of India, The SC ensued extraordinary measures for witness protection and laid down that – “The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice.

Therefore, a screen or some such arrangement can be made where the victim or witness do not have to undergo the trauma of seeing the body or face of the accused.” Furthermore, in the case of National Human Rights Commission v. State of Gujarat and Ors., SC highlighted that state has an important role to play in witness protection. Also, in the case of Zahira Habibullah Sheikh v. State of Gujarat, the SC reiterated “legislative measures to emphasise prohibition against tampering with witness, victim or informant, have become the imminent and inevitable need of the day.’’ Additionally, the Bombay high court in the case of Rajubhai Dhamirbhai Baria and Ors. v. The State of Gujarat and Ors, also acknowledged the role of the state to introduce a mechanism for the purpose of providing protection to the witnesses in sensitive matters. Most Importantly, now the courts went to the extent of issuing guidelines for the protection of witness unless suitable legislations were at place, for instance, the Hon’ble Delhi high court in the case of Neelam Katara v. Union of India, issues such guidelines. 

Therefore, from time old, the Indian Judiciary has felt the need of states to come out with adequate witness protections measures. Moreover, recognising the current needs of the society, the judiciary like a parent has also taken the initiative of providing strict guidelines in this matter to ensure that witnesses are afforded adequate protection. 

Witness Protection in India: an analysis of the recent Witness Protection Scheme, 2018

In India, there aren’t any strict laws protecting the witnesses in comparison to the laws in more developed countries like the UK, US, Australia and Canada. This leads to the situation of witnesses and their family members getting vulnerable, being subjected to life threats and intimidations. This vulnerability has even led the law commissions and the courts to break their silence and appeal for adequate witness protection laws as we can see from above.

Witness Protection Scheme, 2018

In the year 2018, the Central Government decide to incorporate an all-encompassing Witness Protection Scheme. Thereafter along with inputs from various state governments, the CG drew up the Draft Witness Protection scheme, 2018 which was finalised in coordination with the National Legal Services Authority. The Supreme Court on the 6th of December 2018 in its landmark judgement of Mahendra Chawla v. Union of India, gave its sanction for the Scheme thereby making it an opening attempt to bring the protection of witnesses under the ambit of law and thereby putting the responsibility on the state to effectively implement it.

The objectives of the scheme is to safeguard the prosecution, the investigation, and the trial from getting prejudiced because of the witnesses getting frightened or terrified to render evidence. It aims to identify measures that could be adopted to protect witnesses and their closed ones from threats and intimidations against their lives, property and reputation. Furthermore, the scheme provides for various rights to the witnesses such as – the right to render evidence anonymously, the right to be safeguarded against threat and harm, right to be treated with dignity, right to a safe waiting place, etc to protect the being of witnesses. 

The scheme lays down the category of witnesses as per the threat level to their being. A being the highest threat level to C being a moderate threat level. It aims to then protect witnesses according to their threat level reports by adopting measures such as –

1. Protection of Identity of the Witness
2. Change of Identity of Witness
3. Relocation of Witness
4. Creating a Witness Protection fund
5. Giving adequate security to the witness in the form of patrolling and the use of security devices such as CCTV, security doors, fencing, etc.
6. Providing safe transportation and dwelling place to the Witness
7. Holding IN-Camera trials
8. Other assistance as per the witness requirement.

Drawbacks of Witness Protection Scheme, 2018

However, even after providing a good deal of protection to the witnesses during and after the trial, the schemes suffer from various drawbacks and cannot be termed as the perfect or even a bit less than the perfect law because of the following reasons – 

1. Not all states will have adequate resources, both manpower and monetary, to implement the scheme properly in the absence of provision stating Centre to provide financial aid for the witness protection fund.
2. The running of the Witness Protection Order has been made restricted to three months only, which is not a good enough period knowing the fact that cases continue for years. 
3. The duty of determining the insides and preparation of the Threat Analysis Report has been rendered to the head of the police in the district. However, in doing so, it has indirectly compromised the safety of the witnesses as in high profile cases, big politicians and influential people can put pressure on the police to disclose the identity of the witnesses. 
4. Most Importantly, though the scheme provides for protection of identity and confidentiality of records, there has been no penal provision made against such violations, if any committed. 

Therefore, though this scheme brings out some aliveness in the otherwise dead laws regarding protection of witnesses, it still has a lot of loopholes, thereby preventing it to be the law which the nation requires right now given the gravity and seriousness of the problem of witness protection. However, with nothing to lose, this law would probably bring out some positive changes. 

Conclusion

It is an undebatable fact that effective witness protection is indispensable to detect and defeat the crime rate in our society. Fair trial, integral to which is witness protection, is to Indian Judiciary what heart is to the Human Body. Therefore, for the heart to keep beating, witnesses must be afforded adequate protection so that they can speak against the horror, of crimes, that has surrounded our country from time immemorial. The Indian Judiciary and also the law commission reports have recognised this sensitive problem for ages thereby pushing to initiate a response from the legislature in this regard.

No doubt, our country has come a long way in the area of witness protection. The legislature tried to make substantive changes by introducing the Witness Protection Scheme, 2018.  However, the lack of a strict statutory mechanism, with strict penal implications is what is keeping the country behind in terms of Witness Protection. The Judiciary in the case of Neelam Katara v. Union of India, has very well recognised the need of witness protection in the following words – “the edifice of administration of justice is based upon witness coming forward and deposing without fear or favour, without intimidation or allurement in Courts of Law”.

Therefore, the time has arrived for the country to up its game and take the role of ‘parens patriae’ i.e., legal protector of the citizens and to give an all-encompassing legislation in this direction. It is only then that the flow of justice would be uninterrupted and be able to flow at will, freely and independently.