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Witness Protection under the Justice System: Law in India & Overseas

Writer's picture: Sukanya BasuSukanya Basu
Jan 11, 20226 min read

Witnesses are the eyes and ears of Justice

-Jeremy Bentham


The right concerning free and fair trial is entailed under Article 21 of the Indian Constitution. Fair trial encases principles of fair prosecution, impartial and independent judiciary and a conducive atmosphere of judicial calm. Witnesses form key aspect in a criminal trial, for it is the testimonies of the witnesses, which establishes the guilt of the accused and as indicated by the Hon’ble Supreme Court of India in State of Gujarat v. Anirudh Singh 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”.


As a sequitur, witness protection is foremost as it is quite common that witnesses turn hostile during the trial. The Indian Judiciary has emphasized on the need of witness protection in series of judicial pronouncements. The Supreme Court in Mahender Chawla & Ors. v. Union of India & Ors., observed that one of the prime reason for witness to turn hostile is that they are not provided with appropriate protection by the State. It often happens that factors like threat to one’s own life and family, violence etc. result in witnesses from contracting from truth. Thus, keeping in mind the importance of witness testimony, the Supreme Court in Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., has specifically observed that if the witnesses get threatened or are forced to give false evidence that would not result in a fair trial. The Hon’ble Supreme Court in its most recent ruling in the matter of Hari & Anr. v. State of Uttar Pradesh, judgement passed on 26 November 2021, emphasizing on the need of witness protection laws in the country and ensuring continuity of fair criminal trial in the absence of a specific witness protection legislation in the country held that “even if the witnesses have turned hostile, their evidence can be accepted, if they are natural and independent witnesses and have no reason to falsely implicate the accused.”


In order to ease the difficulties associated with witness protection, the Law Commission in its 14th Report and National Police Commission in its 4th Report extensively examined and suggested substantive measures. The 154th Law Commission Report specifically sensed the concern that necessary confidence has to be created in the minds of the witnesses that they would be protected from the attacks of the accused in any contingency. Need for Witness Identity Protection, Witness Protection Programmes, inter alia, was realized in the 178th Law Commission Report and accordingly, the Witness (Identity) Protection Bill, 2006 was proposed.


In the case of National Human Rights Commission v. State of Gujarat[5], the Supreme Court deliberated on the law relating to witness protection in various other countries and expressing concern over not having an established law in this area in India, ordered to set up a Special Investigation Team to decide which witnesses require protection and the kind of protection be made available to such witnesses.


Law relating to witness protection- International Scenario

In the United States, the Organized Crime Control Act, 1970 and later the Comprehensive Crime Control Act, 1984 authorized the Witness Security Programme. The Witness Security Reform Act, 1984 provides for relocation and other protection of a witness or a potential witness in an official proceeding concerning an organised criminal activity or other serious offence. Protection is accorded to immediate family members, closely associated persons as well.


As per the English law, threatening a witness from giving evidence or revenge against a witness after he has given evidence in Court, is considered as contempt of Court. In 1994, the U.K. Government enacted a law known as Criminal Justice and Public Order Act, 1994 which provides for punishment for intimidation of witnesses.


Similar Laws are enacted in Hong-Kong as the Crimes Ord. (Cap. 200) HK, which specifies that if the threat or intimidation is directed even as against a friend or relative of the witness, that becomes a punishable offence.


The Witness Protection Act, 1998 of South Africa provides for the establishment of the Office for Witness Protection within the Department of Justice. The Director of this office is responsible for the protection of witnesses and related persons and exercises control over Witness Protection Officers and Security Officers.


In Canada, the Witness Protection Act, 1996 has been adopted to promote the law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance in law enforcement matters. The protection accorded to witnesses depends on the nature and gravity of cases. Protection given to a witness may include relocation, accommodation and change of identity as well as counselling and financial support to ensure the security of the witness or to facilitate his becoming self-sufficient.


The Australian Witness Protection Act, 1994 establishes the National Witness Protection Programme in which (amongst others) the Commissioner of the Australian Federal Police arranges or provides protection and other assistance for witnesses.


It is pertinent to note here that the Justice Malimath Committee on Reforms of Criminal Justice System addressed the issue and observed that a law should be enacted for providing protection to the witnesses and their family members on the lines of the laws in USA and other countries.


Protection of witnesses- Indian Scenario

The Legislature has introduced Section 195A IPC in the year 2006 making Criminal intimidation of witnesses as a criminal offence punishable with seven years imprisonment. Likewise in the statutes – Juvenile Justice (Care and Protection of Children) Act, 2015, Whistle Blowers Protection Act, 2011, Protection of Children from Sexual Offences Act (POCSO Act), 2012 and National Investigating Agency Act, 2008, provisions were adopted for shielding the witnesses against any threat or harm.


The Witness Protection Bill, 2015 was prepared and introduced in parliament with an objective to put in place a strong law for witness protection in a manner which ensures a fair trial to both the parties. Formulation of witness protection programme to be provided to a witness at all stages i.e. during the course of an investigation, during the process of trial and after the judgment is pronounced. The Bill mandates Constitution of a “witness protection cell” to prepare a report for the judge of the trial court to examine and grant protection to the witness referred as “protectee” after being admitted in the programme are certain important features of the Bill. The Bill also envisaged Constitution of National Witness Protection Council and State Witness Protection Councils to ensure implementation of witness protection programme in its letter and spirit. It sought to provide safeguard to ensure protection of Identity of witness, transfer of cases out of original Jurisdiction to ensure that the witness can depose freely, providing stringent punishment to the persons contravening the provisions and prescribing stringent actions against false testimonies and misleading statements.


The Witness Protection Scheme, 2018 as envisaged by the Ministry of Home Affairs provides for protection of witnesses based on the threat assessment and protection measures inter alia include police protection, their relocation, installation of security devices at the residence of witnesses, usage of specially designed Court rooms, etc. The Hon’ble Supreme Court of India in the matter of Mahender Chawla & Ors. v. Union of India & Ors has endorsed the Scheme and declared that till any specific legislation is passed in this regard, the same shall be considered “law” under Article 141 and 142 of the Indian Constitution. The Witness Protection Scheme, 2018 endorsed in the said Judgment of the Supreme Court is binding on all Courts within the territory of India and enforceable in all States and Union Territories.


The Scheme provides for three categories of witness as per threat perception. Category 'A' for witnesses who have threat to life of his own or his family members, during investigation/trial or thereafter. Category 'B' for threat which extends to safety, reputation or property of the witness or his family members, during the investigation/trial or thereafter. Category 'C' for witnesses who face moderate threat which extends to harassment or intimidation of the witness or his family member's, reputation or property, during the investigation/trial or thereafter. The Scheme provides for a State Witness Protection Fund operated by the Department/Ministry of Home under State/UT Government for meeting the expenses of the scheme.


To conclude, we see that apart from the Bill and the Ministry of Home Affairs Scheme on Witness Protection envisaged to protect the interest of the witnesses, no codified law has been adopted in the country to address the issues of witness protection in a comprehensive manner unlike countries like United States of America, Canada, South Africa, Australia, United Kingdom etc. A legislation specifically enacted for this purpose will indeed be a welcome gesture.

 
 

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