In this article, Shrey Verma gives an overview of Witness Protection Scheme in India.

Introduction

Witness are regarded as one of the most indispensable element in the criminal justice system. It is because of them that the trial finds some substance so as to arrive at a fair conclusion. The inputs provided by the witness may have direct bearing on the conviction or acquittal of an accused, hence it is desired that such witness be protected from the wrath of extraneous factors that have the capability to change his stance over a particular case. Extraneous factors in form of corruption or threats form a majority which result in turning of the witness hostile, hence it becomes rudimentary for the state to ensure protection of such witness so as not to alter the prescribed course of justice.

Definition of Witness

‘Witness’ has nowhere been defined in the Code of Criminal Procedure Code, 1908 or in the Indian Evidence Act, 1872. The Black’s Law Dictionary defines it as: “In the primary sense of the word, a 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.”

Further, The Witness Protection Scheme, 2018 defines ‘witness’ as: “‘Witness’ means any person, who possesses information or document about any crime regarded by the competent authority as being material to any Criminal proceedings and who has made a statement, or who has given or agreed or is required to give evidence in relation to such proceedings.”

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.” Further, the bench regarded the scheme as a ‘law’ within Article 141/142 of the Constitution and the centre and state need to follow it until a competent legislation is made on the same subject.

Need for this Scheme

It is a rule of law that no rights of the witness should be prejudiced by way of threats, intimidation or corruption therefore, to allow him to testify for or against the case which he had been a witness to with full liberty.  In the words of Jeremy Bentham “Witnesses are eyes and ears of the Courts”, hence, it becomes imperative on part of the State to provide adequate protection to the witness to ensure ideal working of the wheel of justice. 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[1] 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[2] 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.”

The need for this scheme had been envisaged by various reports of the Law Commission of India and the Malimath Committee. The 14th Law Commission Report was the first ever instance where the issue of witness protection was brought forth. Further, the 154th Report dealt with the plight of the witnesses. The 172nd and 178th Report laid emphasis on protection of witness from the wrath of the accused. The 172nd Report in particular inherited a great deal from the judgement in Sakshi v. Union of India[3] which advocated for in camera trials to keep the witness away from the accused and to ensure her testimony is procured without any public fear. The 198th Report titled “Witness Identity Protection and Witness Protection Programmes” emphasized that the witness protection scheme need not be limited to cases of terrorism or sexual offences but should extend to all serious offences, thereby increasing the ambit of its applicability and functioning.

The ‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power’ adopted by the United Nations General Assembly in November 1985 regarded the victims of crime to be an important witness and gave forth four objectives, the applicability of whose need to be ensured by the member nations towards the victims of crime:

(i) Access to justice and fair treatment

(ii) Restitution

(iii) Compensation

(iv) Assistance

Rights of the witnesses

There needs to be a certain sense of safety that need to be given by the state to the witness who comes forward to testify and it is the responsibility of the State to impart adequate protection to the witness. The various Law Commission Reports and the Witness Protection Scheme had identified certain rights that a witness possess:

(i) Right to secure waiting place while at Court proceedings;

(ii) Right to information of the status of the investigation and prosecution of the crime;

(iii) Right to be treated with compassion and dignity and respecting privacy;

(iv) Right to protection from harm and intimidation;

(v) Right to give evidence without revealing identity; and,

(vi) Right to a stay at a safe place and transportation.

It shall be mandatory for Investigating Officer/Court to inform each and every witness about the existence of “Witness Protection Scheme” and its salient features.

Type of Protection Measures

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:

• To ensure that the accused and the witness are not put up together during a trial or investigation
• Contacting the telephone company to allot the witness an unlisted telephone number;
• Giving adequate security to the witness in form of body protection, regular patrol and by use of security devices such as CCTV, fencing, security doors in his home;
• Change in identity of the witness and suppressing the original identity;
• Changing the residence of the witness to somewhere else;
• Providing a conveyance in a Government vehicle to and from the court on the date of hearing;
• To ensure the presence of an additional person at the time of recording statements of the witness;
• Holding of in-camera trials;
• Using specially designed courtrooms equipped with one way mirrors, separate passage for the accused and the witness along with options to modify the face or using voice change mechanisms through software, of the witness to suppress his identity;  
• Giving timely financial aids for the subsistence of the witness from the Witness Protection Fund;
• Apart from the above protection measures, other miscellaneous measures may be taken up at the request of the witness;

Apart from the above protective measures, the witness may ask for himself any other measures by way of an application forwarded to the Competent Authority.

Procedure for filing and processing the application under the scheme:

(i) the applicant seeking protection under this scheme has to file an application (application form attached in Annexure 1) before the competent authority having territorial jurisdiction along with supporting documents through the Superintendent of Police or at the time of the trial;

(ii) on receipt of application by the competent authority, the Commissioner will formulate a Threat Analysis Report keeping in mind to impart full confidentiality to the information mentioned therein and forward the report to the competent authority within five working days;

(iii) in matters of urgency where there is imminent threat an interim order for the protection of witness and his family members can be passed;

(iv) the Threat Analysis Report shall contain the threat level perception and may also contain some suggestive measures for adequate protection of the witness and his family members;

(v) hearings in matter of Witness Protection Application shall be held in-camera by the competent authority to maintain full confidentiality;

(vi) overall implementation of the witness protection order to be made by the head of Police of the State/UT;

(vii) if in case there is a need to revise the Witness Protection Order previously passed, the Competent Authority may forward the same to the Commissioner of Police to draft a fresh Threat Analysis Report.

Protection of witness is directly proportional to the threat level perception:

The scheme has divided the witnesses as per threat perception into three categories:

The Category ‘A’ forms the gravest among all because the threat extending therein may find its presence even after the trial or investigation is complete.

Protection of Identity

The scheme recognizes the protection of identity of the witness. If the witness desires to protect his identity he may file an application in the prescribed form as per the Scheme before a Competent Authority. The competent authority there looks out for the Threat Analysis Report for ascertaining the quantum of threat possessed by the witness or his family members and whether it meets the requirements to be eligible for an identity protection order. However, during the course of examining the application, the identity of the witness should not be revealed to any person and after the aforesaid examination the competent authority to dispose off the application basis the material available on record.

Once an order of concealment of identity is passed by the Competent Authority it shall be the responsibility of Department/Ministry of Home of State/UT/Witness Protection Cell to ensure that identity of the witness or his family members be fully protected.

Change of Identity

The witness also has the option to change his identity in appropriate cases, the request for change in identity by the witness is to be entertained by the Commissioner of Police or the SSP in District Police on the parameters of threat perception.

The witness can be conferred with new identities including new name, profession and parentage and providing supporting documents acceptable by the Government agencies. However, such change in identity shall have no bearing over the educational, professional or property rights of the witness.

Relocation of Witness

In the similar manner as above by following the procedural formalities and eligibility, the witness has to option to be relocated to a different place within the limits of State/Union Territory or territory of Union of India keeping in view the safety, well-being and welfare of the witness.

Witness Protection Fund

Under the scheme, there shall be a Witness Protection Fund operated by the Ministry or Department of Home Affairs under the State or Union Territory, from which the expenses of implementation of the Witness Protection Order have to be met. The fund is to be maintained by the States and Union Territories and shall comprise of:

(i) budgetary allocation made by the Annual Budget presented by the State Government;

(ii) receipts of fines imposed under Section 357 of Code of Criminal Procedure ordered to be deposited by the courts;

(iii) donations and contributions from various charitable trust, philanthropist and individual permitted by the Government;

(iv) funds contributed under Corporate Social Responsibility.

Drawbacks of the Scheme

Even though the scheme offers a great deal of respite to the witnesses regarding their safety during the continuance of the trial and in exceptional cases even after the trial is complete, but it also suffers from certain flaws such as:

(i) the functioning criminal justice system is the responsibility of the State and some states may not have adequate resources to implement this scheme effectively. The alternative to this is assistance by the centre but nowhere in the scheme the centre has been entitled to give in a single penny for the Witness Protection Fund;

(ii) the functioning of the Witness Protection Order has been made limited only to three months;

(iii) the task of deciding the contents and preparation of the Threat Analysis Report has been accorded to the head of the police in the district, so in high profile cases involving politicians or influential people the police officer can be put under pressure to provide those people the information regarding the witness.

Conclusion

The Witness Protection Scheme, 2018 has been approved by the Supreme Court in its landmark judgement of Mahendra Chawla v. Union of India, making it the first attempt to bring the protection of witness under the ambit of law and putting the responsibility on the State to implement it effectively.

Annexure 1 – Application Form under Witness Protection Scheme:

Witness Protection Scheme, 2018

Witness Protection Application

under

Witness Protection Scheme, 2018

Before,                                                                                                             (To be filed in duplicate)

The Competent Authority,

District Legal Services Authority

…………………………………………………………

Application for:

1. Witness Protection ………
2. Witness Identity Protection ………
3. New Identity ………
4. Witness Relocation ………

• Witness shall file a separate undertaking under his/her signature that he/she shall fully co-operate with the Competent Authorities and Department/Ministry of Home of State/UT and Witness Protection Cell.

• Applicant/witness can use extra sheets for giving additional information.

                                                                                                                  _____________________

                                                                                                                        (Full Name with signature)

Date: …………………………

Place:…………………………

Endnotes:

[1] (2004) 4 SCC 158.

[2] (1997) 6 SCC 514.

[3] 2004 (2) ALD Cri 504.