Protecting the Eyes and Ears of Justice

“A witness is a man whose life and faith are so completely one that when the challenge comes to step out and testify for his faith, he does so, disregarding all risks, accepting all consequences.” - Whittaker Chambers.

Who is a witness?

According to the Black’s Law Dictionary, a witness is one who sees, knows or vouches for something and gives testimony under oath or affirmation in person, by oral or written deposition or by affidavit.

What is the duty of a witness?

In State of Gujarat v. Anirudh Singh, the Supreme Court held 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. Also, the Malimath Committee on Reforms of Criminal Justice System, 2003, stated in its report that by giving evidence relating to the commission of an offence, the witness performs a sacred duty of assisting the court to discover the truth.

What is the history behind witness protection in India?

The first ever reference to Witness Protection in India found place in the 14th Report of the Law Commission of India, then in 154th report, 178th report and 198th Report of the Law Commission. It is important that the witnesses have trust and confidence in the criminal justice system so that they can come forward to help the prosecuting and law enforcement agencies. They have to be given protection from the harm that might be inflicted upon them so that they do not run away from the law enforcement agencies. In numerous cases, witnesses have turned hostile because of threat, intimidation, inducement by various means, use of muscle and money power by the accused, use of stock witnesses, protracted trials, etc. Hence, a comprehensive scheme was required for addressing the issues of witness protection in the country.

What is the Witness Protection Scheme?

In Mahender Chawla & Ors. v. Union of India & Ors., the Supreme Court of India approved the Witness Protection Scheme, 2018, (hereinafter referred to as the “Scheme”) formulated by the Central Government and finalised in consultation with National Legal Services Authority (NALSA).

What are the Scheme’s aims and objectives?

The aim and objective of the Scheme is to ensure that the investigation, prosecution and trial of criminal offences is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal recrimination. It aims to promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in aiding criminal law enforcement agencies and overall administration of justice.

Why is the Scheme important?

The witnesses need to be given the confidence to come forward to assist law enforcement and judicial authorities with full assurance of safety and the Scheme is aimed to identify the series of measures that may be adopted to safeguard witnesses and their family members from intimidation and threats against their lives, reputation and property.

Are there any categories of witnesses under the Scheme?

The Scheme provides for three categories of witness as per threat perception:

Category A: Where the threat extends to life of witness or his family members, during investigation/trial or thereafter;

Category B: Where the threat extends to safety, reputation or property of the witness or his family members, during the investigation/trial or thereafter;

Category C: Where the treat is moderate and extends to harassment or intimidation of the witness or his family member’s, reputation or property, during the investigation/trial or thereafter.

What are the directions passed by the Supreme Court and other High Courts for the effective implementation of the Scheme?

In Mahender Chawla & Ors. (supra), the Supreme Court directed the Union of India as well as States and Union Territories to enforce the Witness Protection Scheme, 2018, in letter and spirit and held the Scheme to be the law under Article 141/142 of the Constitution till the enactment of suitable Parliamentary or State Legislations. It was also directed that in all the district courts in India, vulnerable witness deposition complexes shall be set up by the States and Union Territories.

Recently, the Supreme Court directed that the Witness Protection Scheme, 2018 should be strictly enforced by the Union and States and Union Territories and the Trial Court may consider granting protection under the Scheme to witnesses without their making any specific application in this regard.

The Allahabad High Court, lately, has issued notice to the Uttar Pradesh Government seeking effective implementation of the Witness Protection Scheme, 2018, and asked the Government to furnish on record all the letters and documents, sent to the District Authorities for immediate and effective implementation of the Scheme.

The Karnataka High Court has also directed the State government to issue an order constituting a competent authority as prescribed in the Witness Protection Scheme, 2018. The Madras High Court, not long ago, opined that the Witness Protection Scheme, 2018, has been evolved to give confidence to the witnesses to come forward to assist law enforcement and judicial authorities with full assurance of safety and aiming to identify series of measures that may be adopted to safeguard witnesses and their family members from intimidation and threats against their lives, reputation and property.

What are the protection measures for witnesses under the Scheme?

According to Section 7 of the Witness Protection Scheme 2018, the witness protection measures ordered shall be proportionate to the threat and shall be for a specific duration not exceeding three months at a time. They may include - ensuring that witness and accused do not come face to face during investigation or trial; monitoring of mail and telephone calls; arrangement with the telephone company to change the witness’s telephone number or assign him or her an unlisted telephone number; installation of security devices in the witness’s home such as security doors, CCTV, alarms, fencing etc; concealment of identity of the witness by referring to him or her with the changed name or alphabet; emergency contact persons for the witness; close protection, regular patrolling around the witness’s house; temporary change of residence to a relative’s house or a nearby town; escort to and from the court and provision of Government vehicle or a State funded conveyance for the date of hearing; holding of in-camera trials; allowing a support person to remain present during recording of statement and deposition; usage of specially designed vulnerable witness court rooms which have special arrangements like live video links, one way mirrors and screens apart from separate passages for witnesses and accused, with option to modify the image of face of the witness and to modify the audio feed of the witness’ voice, so that he or she is not identifiable; ensuring expeditious recording of deposition during trial on day to day basis without adjournments; awarding time to time periodical financial aids/grants to the witness from Witness Protection Fund for the purpose of re-location, sustenance or starting a new vocation/profession, etc.

What facilities should a vulnerable witness deposition complex have?

The vulnerable witness deposition complexes need to be set up in all the district courts of India at the earliest and they must have a witness room, an accused room, area for playing for the child witnesses, toilet, pantry, a waiting area, etc. The complexes must also have video-conferencing facilities for communication between the Judge, the witness and the accused. There must be facilities for pick and drop of the witnesses from their residence. This would help the witnesses to give their evidence freely in criminal proceedings.

What are the other measures which can help in witness protection?

As per the scope of the Scheme, Witness Protection may be as simple as providing a police escort to the witness up to the Courtroom or using modern communication technology for recording of testimony. In complex cases, involving organised criminal group, extraordinary measures are required to ensure the witness’s safety like anonymity, offering temporary residence in a safe house, giving a new identity, and relocation of the witness at an undisclosed place.

When the witnesses are not able to give their best evidence, it paves the way for criminals to escape conviction, thereby affecting the public confidence in the criminal justice system. Therefore, it is germane to protect the witnesses by implementing the Witness Protection Scheme in letter and spirit and establishing vulnerable witness deposition complexes across the country.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India and he is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.

The contents of this article are intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.