Analysing the idea of Witness Protection in India, in light of the Witness Protection Scheme, 2018
Introduction
Justice can be ensured only in cases wherein the witnesses are not dissuaded from testifying the truth due to fear of any kind of threat, harassment, or intimidation. The right to a fair trial is a right that should not be only available to the accused and the victim, rather the right should also be available to all the witnesses of the case, in order to ensure that no witness turns hostile and hampers the process of justice.
The extent of the precarious environment for the witnesses in India can be gauged from the fact that 21% of the witnesses in India have accepted that they feel intimidated by the process of court and the environment which seems to be very tortuous.[1]
The country has witnessed instances as grave as the death of 25 witnesses in the case of the Madhya Pradesh Professional Examination Board (popularly known as Vyapam Scam). The rape case of women in which Asaram Bapu was the accused has seen the suspicious killing of three witnesses who were instrumental in the case. These saddening incidents of witnesses getting exposed to multifarious threats for assisting the process of justice leads to a demoralising effect on the mindset of witnesses all over the country.
The perils attached to being a witness in India are so overwhelming that 26% of witnesses turn hostile, thereby leading to an abysmal state of the justice wherein the rate of conviction is marginal. It has been noted that 60% of the acquittals in the trials can be attributed to the problem of witnesses turning hostile.[2]
Problems Faced By Witnesses
India until the recent past had no concrete legislation or regulation for the protection of witnesses in general, only in some specific legislations, there were provisions addressing the issue of protection of witnesses.
The newly enacted scheme cannot be classified as a sudden move rather it is a result of years of evolving jurisprudence around the issue of Witness Protection, adoption of measures to ensure protection has been discussed by the judges of various courts from time to time, law commission reports have been making recommendations for the cause of Witness Protection.
The Supreme court in the case of Swaran Singh v. the State of Punjab observed that “A witness is not treated with respect in the Court. He waits for the whole day and then finds the matter adjourned and when he does appear, he is subjected to unchecked examination and cross-examination and finds himself in a hapless situation. For these reasons and others, a person abhors becoming a witness”
The Malimath Committee also batted for strong witness protection measures in order to ensure the due process of Courts in India is not hindered due to witnesses turning hostile under threat and intimidation.
Other than the fear of life, witnesses in India are also exposed to varied problems. Non-payment of allowances to the witnesses is a harsh reality of the justice imparting system. Only in marginal cases, the allowances were actually paid, even in those cases the witness had to go through harsh processes involved in getting those allowances. The grant of adjournments by the court, again and again, further adds to the problems, as they have to travel to the courts time and again, but due to adjournments their visit goes in vain, all these complications compounds the frustration in the lives of witnesses.
The indispensable role of the witness in imparting justice can be gauged from the fact that even the former Attorney General of India, Mr Soli Sorabjee, went on record to say that “no other reason is responsible for shattering public confidence in our criminal justice system than the failure of prosecution as a result of the witness getting hostile and withdrawing their initial true declarations”.
Measures Taken & Drawbacks
India kick-started its dedicated witness protection programme with the launch of a dedicated Witness Protection Scheme in 2018. The bench comprising of Justice A.K. Sikri and Justice S. Abdul Nazeer in the case of Mahendra Chawla & Ors. v. Union of India & Ors identified the rights of the witness to testify within the ambit of Article 21 of the Constitution and noted that “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 competent legislation is made on the same subject.
The scheme has various provisions aimed at protecting the witness. The provisions range from simple measures like escorting the witness or recording their testimony of the witness remotely to complex measures like creating a new identity of the witness or arranging a new undisclosed place for the witness to reside. The range from complex to simple measures depends upon the circumstances of the case, the power relations between the victim, the witness and the accused, the risk and the danger that the witness is exposed to if they agree to testify before the Court.
The scheme also mandates for classifying the witnesses in categories based upon the threat perception. The task of classifying has been vested upon a competent authority consisting of the District and Sessions Judge with Head of the Police in the District and Head of the prosecution in the District.
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.
Firstly, In the entire scheme, there is no provision which mentions about the responsibility of the Centre in contributing resources towards the witness protection, rather the states have the responsibility of protection of the witness, but as a matter of reality not all states have uniform access to resources and in such dearth of resources the scheme should have an alternate provision of fixing the responsibility on the Centre in case wherein the State fails to comply.
Secondly, the task of preparing the Threat Analysis Report(TAR) in the bestowed upon the Head of Police in the district, this leaves a certain degree of room leading to manipulation with the contents of TAR, because Police works under the state and in cases involving high profile politicians the possibility of shortcomings cannot be ruled out.
Concluding Remarks
The Witness Protection Scheme,2018 is still in its initial stage and even to some extent idealistic in approach. The fact that it has not yet been exposed and tested on the cornerstone of the ground reality of India makes it something that needs to be looked at with a certain degree of caution.
The scheme which has been enacted through the ruling of the Supreme Court ruling, on the basis of recommendations of various Law Commission Reports makes it a great initiative which should have been taken up much earlier, but this comes with greater responsibility on part of the States to ensure better implementation of this noble Scheme by ramping up resources and better training on part of the Police personnel to enhance the efficiency of the justice imparting system. Otherwise, the purpose and jurisprudence behind such a scheme which envisages an efficient system of protection of the rights and interests of witnesses would fail, and this exercise of confidence-building in the Judiciary would yield no good.
The Scheme with its novel provisions in ensuring protection is a laudable step taken up by the apex court but at the same time, it is essential to emphasize the need for dedicated well-crafted legislation by the state in this direction which rules out any possibility of shortcoming. Then only the stream of justice would be able to flow freely and independently.
[1] No Witness, no Justice’ Programme Office Report (2004), UK
[2] Justice K. Sreedhar Rao, Criminal Justice System-Required Reforms, 2002 Criminal Law Journal
About the Authors
Ms Aashi Saxena is an L.L.M from Gandhinagar National Law University, she is currently working as an Assistant Professor of Law at Subodh Law College, Rajasthan University and also pursuing Ph.D. in Constitutional Law from Manipul University, Jaipur.
Mr Aayush Saxena [2018-23] is pursuing B.A L.L. B (Hons) from National Law University, Delhi.
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