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Witness Protection

"The edifice of administration of justice is based upon witnesses coming forward and deposing without fear or favour, without intimidation or allurements in Court of law. If witnesses are deposing under fear or intimidation or for favour or allurement, the foundation of administration of justice not only gets weakened, but it may even get obliterated."

In most cases involving influential people, it has been regular practice for witnesses to retract from their original statements or to go into hiding because of intimidation and threat to life and destruction of property. The situation gets further aggravated when he realises that there is no legal obligation by the State for extending any security, if need arises. What India needs at present is a Witness Protection programme that can guarantee that witnesses will not be harmed in any way and to ensure that justice and truth prevails in the largest democracy in the world.

The importance of the witnesses to the trial process could be inferred from the words of an eminent thinker Jeremy Bentham: "witnesses are the eyes and ears of justice."

DEFINITION OF WITNESS

The ordinary meaning of the term "witness" is a person present at some event and able to give information about it. The word has its origin in Old English word witness which means attestation of fact, event, and so on, from personal knowledge, also one who so testifies, originally "knowledge, wit," formed from wit (n.) + -ness. To witness is to experience important events or changes, to see things happen.

Blacks Law Dictionary gives the following definition: "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."

A witness is one of the indispensable parts of the criminal justice system, as his stand determines the very backbone of the decision of the case. Therefore, the truthfulness of the witnesss testimony becomes the cornerstone of justice and hence the witness is made to offer statement under oath. A witness must depose without force, fear and pressure and out of his or her own free will and consent. The quality of the statements given by a witness also determines the pace of a particular case.

IMPORTANCE OF WITNESS AND THEIR PROTECTION

New Testament of the Holy Bible teaches us: "Thou shalt do no murder, thou shalt not commit adultery, thou shalt not steal, and thou shalt not bear false witness."

The Honble Supreme Court of India also held 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." Committee on Reforms of Criminal justice System said in its report that "By giving evidence relating to the commission of an offence, he performs a sacred duty of assisting the court to discover the truth. It is because of this reason that the witness either takes an oath in the name of God or solemnly affirms to speak the truth, the whole of the truth and nothing but truth". In Zahira Habibulla H. Shiekh and Another v. State of Gujarat and others the definition for a fair trial was given as one "in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial."

The irony is that while offenders have a range of rights, (both Constitutional and legal), the victims and more particularly, witnesses, have a limited range of rights. Thus, this unequal distribution of rights results in a situation where witnesses are rendered helpless as they lack sufficient rights to protect themselves and thereby compelling them to turn hostile.

The issue of Witness Protection should be studied in light of the fact that conviction rate is low in India and acquittal rate is high. The Supreme Court too observed in Swaran Singh v. State of Punjab, that the procedure being followed is one of reasons for a person to abhor becoming a witness.

The disturbing fact that such a big democracy as India does not have a Witness Protection law. In the event of the creation of such a law, the focus should be the protection of witnesses, not only before, but also during and after the trial.

REASONS FOR WITNESS TURNING HOSTILE

The threat to the lives of witnesses is one of the primary reasons for them to retract their earlier statements during the trial. Apart from these sections, there is nothing in the law to protect witnesses from external threats, inducement or intimidation. Political pressure, self-generated fear of police and the legal system, absence of fear of the law of perjury, an unsympathetic law enforcement machinery and corruption are some of the other reasons for witnesses turning hostile in the course of trial.

Another factor responsible for this widespread phenomenon is the snail paced working of the judicial process. Witnesses tend to be frustrated because of being summoned repeatedly only to find that the date is adjourned.

DEVELOPMENTS IN INDIA

Indian Statutes

The word witness has not been defined anywhere in the Code of Criminal Procedure. Any Court may, at any stage of any inquiry, trial or other proceeding under the Criminal Procedure Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case.

Subject to any rules made by the State Government, any Criminal Court may, if it thinks fit, order payment, on the part of Government, of the reasonable expenses of any complainant or witness attending for the purposes of any inquiry, trial or other proceeding before such Court under this Code.

Evidence as defined in Section 3 of the Indian Evidence Act, 1872 covers evidence of witnesses and documentary evidences. Chapter IX titled "OF WITNESSES" of the Indian Evidence Act, 1872 consists of Seventeen Sections spreading from Sections 118 to 134. The main aspects are dealt with here are:

Competency- A witness is said to be competent when there is nothing in law to prevent him from being sworn and examined if he wishes to give evidence.

Compellability- Further a witness though compellable to give evidence may be privileged or protected from answering certain questions. Even if witness be willing to depose about certain things, the court will not allow disclosure in some cases.

Privileges.

Quantity of Witnesses required for judicial decisions (No particular number of witnesses is required for proof of any fact and this section enshrines the maxim that Evidence has to be weighed and not counted.)

Section 151 and 152 of the Evidence Act protects the witnesses from being asked indecent, scandalous, offensive questions, and questions which intend to annoy or insult them. Also, when an accused is released on bail, one of the terms and conditions imposed by the Court on the accused is that he shall not tamper the evidence, or approach the witnesses. This, again, is not as a provision for protection of the witnesses per say, but only to ensure the trial is not tampered with.

There are provisions to protect witnesses, though not physically, under the special statues like The West Bengal Act of 1932, Juvenile (Care and Protection of Children) Act, 2000. Section 17 of the National Investigation Agency Act, 2008 says that on an application made by a witness in any proceeding before it or by the Public Prosecutor in relation to such witness, if the Special Court is satisfied that the life of such a witness is in danger, it may take measures it deems fit for keeping the identity of such witnesses secret. Any person who contravenes any decision or direction with regard to this will be punished with imprisonment for a term which may extend to three tears and with fine up to one thousand rupees.

Law Commission Reports

The Law Commission in its 14th Report (1958) referred to witness-protection in a limited sense and the main feature with respect to this was the provision for adequate arrangements for the convenience of the witness within the court premises and provision of allowance enabling them to arrive for testimony promptly and thus avoiding delay. There was no mention for the provision of any physical protection for the witness within this report.

The 154th Report of the Law Commission contains a chapter on Protection and facilities to Witnesses. One of the recommendations was: "Witnesses should be protected from the wrath of the accused in any eventuality", but the Commission did not suggest any measures for the physical protection of witnesses. This Report suggested to prevent witnesses from turning hostile by taking the signature of the witness, if he is literate, on his statement, giving a copy of the statement to the deponent under acknowledgement and to send copies of the statements to the appropriate magistrate as well as to the superior Police office.

In the 172nd Report of the Law Commission, the Law Commission took up the subject on a request made by the Supreme Court of India in Sakshi v. Union of India and discussed the issues raised by the Petitioner NGO and other women organizations. After taking into consideration the various suggestions by these organisations, it was held that a minor who has been assaulted sexually, should not be required to give his/her evidence in the presence of the accused. The 178th Report of Law Commission, suggested an amendment to insert S.164 A to the Code of Criminal Procedure.

The Committee on Reforms of Criminal Justice System under the chairmanship of Dr. Justice V. S. Malimath, submitted a Report containing 158 recommendations. It contains a casual statement that a law should be enacted for giving protection to witnesses and their family members, without specifying any provision or scheme whatsoever. The prosecution and the Court could direct that the identity and the address of the witness be kept secret. The Court could even avoid the mention of the names and addresses in its order or judgment. A chapter of the report named, "A Hybrid System of Criminal Justice" has sought to incorporate certain features of the inquisitorial" system of trial into the adversarial system, namely "empowering judges further with the duty of leading evidence with the object of seeking the truth and focusing on justice to victims." It is felt that, focusing on "justice to victims" is possible, only if careful consideration is paid to "the rights of witnesses", "considering them as a special category of victims" and acknowledging their insecurity and vulnerability in general.

The Criminal Law (Amendment) Act, 2005 (No.2 of 2006) has made many important amendments including the introduction of Section 195A to the Penal Code, whereby threatening or inducing any person to give false evidence is made punishable. Other changes include amendment of Section 195 of Cr.P.C and Section 154 of Evidence.

In the 198th Report of the Law Commission, a Consultation Paper on Witness Identity Protection and Witness Protection Programmes was prepared. In the Final Report, the Commission identified three categories of witnesses: (i) victim-witnesses who are known to the accused; (ii) victims-witnesses not known to the accused (e.g. as in a case of indiscriminate firing by the accused) and (iii) witnesses whose identity is not known to the accused. Category (i) requires protection from trauma and categories (ii) and (iii) require protection against disclosure of identity.

The committee comprising Members of Parliament from the Rajya Sabha was reviewing the status of promises made by the government in 2009 to amend necessary laws to protect witnesses. The commission recommended witness anonymity and protection where there is danger to the witness, to his properties or to those of his relatives, at all stages - investigation, inquiry, trial, appeal - and thereafter also.

Comments by the Judiciary

The earliest judgment that dealt with the aspect of witnesses protection was in the case of Naresh Shridhar Mirajkar v. State of Maharashtra, wherein protection of publication of evidence of the witness was allowed by the High Court and later re-affirmed by the Supreme Court as otherwise the business interests of the witness would have been hampered.

The most historic and relevant case that brought witness protection into focus was the Zahira Habibulla Sheikh v. State of Gujarat. In this case, the Supreme Court decided to shift the venue of the case from Gujarat to Maharashtra since the Court felt that the witnesses would not be able to depose their statements freely in the said state. The Supreme Court reiterated "legislative measures to emphasize prohibition against tampering with witness, victim or informant, have become the imminent and inevitable need of the day." In Delhi Domestic Working Womens Forum v. Union of India, the Supreme Court emphasized the maintenance of the anonymity of the victims of rape who would be the key witnesses in trials involving the offence of rape. The guidelines for witness protection laid down by the Delhi High Court in Neelam Katara v. Union of India but they did not deal with the manner in which the identity of the witness can be kept confidential either before or during the trial. The judgment of the Full Bench of the Punjab and Haryana High Court in Bimal Kaur Khalsa, which provides for protection of the witness from the media, does not deal with all the aspects of the problem.

CHALLENGES TOWARDS WITNESS PROTECTION

There are many practical problems like costs of implementation and infrastructure. When talking about providing bodyguards, security, relocation to another area etc., the costs that are involved are bound to be enormous. But the more pertinent problem is that of corruption in the administration and judiciary. The first step in developing a witness protection law is to acknowledge that witness protection is a duty of States. Other problem is whether the statements of the witnesses should be recorded by a Judicial Magistrate. It is practically not viable in the present set-up with the low number of Courts and staff deficient Judiciary.

At present in India even the expert witnesses of the various forensic disciplines do not have any protection. A witness in Indian situation, who is living comfortably with a job and family, may not intend to undergo such drastic changes in his life for the sake of being a witness in a Court of law. In the Indian situation, where we have so many social obligations and relatives to attend to, proper implementation of the Witness protection programmes will not be possible for a variety of reasons.

SUGGESTIONS

Protection may be given before, during and/ or after the judicial proceeding depending on the type of the witness or the degree of co-operation. Effective witness protection legislation, should ideally involve all the three concerned agencies - police, government and judiciary.

An independent witness protection cell should be constituted and it must arrange for the provision of false identities, relocation and follow up. The witnesses should be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process. Medical facilities, social services, state compensation, counseling, treatment and other support may be provided. Right to a speedy trial and prompt and final conclusion of the case after the conviction and sentence must also be ensured. If violations are found to exist on part of witnesses enrolled in this programme, they should be penalized.

The police force should be given the freedom to take basic measures to protect witnesses like surveillance, escorting the witness to work and court, assisting with emergency relocation etc. Measures should be taken by the courts to restrict public access to the witnesses identity including having a witness testify under a pseudonym. The use of practices such as videoconferencing, teleconferencing, voice and face distortion, and other similar techniques must be encouraged as well as allowing witnesses to conceal their address or occupation. Rebuilding trust of the people in the formal system of law is the best form of witness protection. The witnesses should be assured that those who want to testify have, on their side, the police and an impartial system.

CONCLUSION

Critics like Fali. S. Nariman, he says that criminal jurisprudence in India being a British concept, the Best Bakery case relies heavily on the Blackstonian maxim that "It is better that guilty persons go unpunished than one innocent person suffers" and that it is why all the 21 accused were acquitted due to the supposed "lack of proper evidence." He quotes Dr. Owen Dixon, who said that in a court of appeal, a large number of the facts are excluded, either because of negligence of the legal profession, fading memory and also by archaic laws of evidence. The tools under the Criminal Procedure code are not properly used in a trial court at the stage of inquiry, trial and other proceedings or in the summoning of witnesses, their examination, cross examination and re examination. The judge, in his anxiety to maintain neutrality never takes an initiative to discover the truth and he relies on the excuse that ours is an adversarial system which does not impose a positive duty on the judge to discover truth.

Law is a means to achieve an end, and that is justice. If this end is to be achieved law cannot remain stagnant and must change according to the transition of the society. No nation may afford to expose its righteous and morally elated citizens to the peril of being haunted or harassed by anti social elements, for the simple reason that they testified the truth in a court of law.

Edited by Sinjini Majumdar

[i] Neelam Katara v. Union of India, ILR (2003) II Del 377 260.

[ii] Dorling Kindersley Illustrated Oxford Dictionary, 958 (1998).

[iii] Online Etymology Dictionary, available at http://www.etymonline.com/index.php?term=witness&allowed_in_frame=0, (last visited on September 19, 2013).

[iv] D. Murali, Thou shalt not bear false witness, Business Line, Dec. 24, 2004 available at http://www.thehindubusinessline.in/2004/12/24/stories/2004122400270900.htm (last visited on September 19, 2013).

[v] Blacks Law Dictionary, available at http://thelawdictionary.org/witness-n/#ixzz2cm686Dz8(last visited on September 19, 2013).

[vi] (1997)6 SCC 514.

[vii] (2004)4SCC158.

[viii] AIR 2000 SC 2017.

[ix] Supra note 13, p. 152- 157

[x] AIR 2003 SC 886.

[xi] Supra note 9

[xii] Supra note 13, p. 13- 14

[xiii] Warisha Farasat, Plea for witness protection laws, The Hindu, July 23, 2013 available at http://www.thehindu.com/opinion/op-ed/a-plea-for-witness-protection-laws/article4944925.ece(last visited September 19, 2013).

[xiv] (1996) 22 EHRR 330.

[xv] Tanuj Bhushan, Witness Protection in India and United States:A Comparative Analysis,2(1) INTERNATIONAL JOURNAL OF CRIMINAL JUSTICE SCIENCES 13(2007) available at http:// webcache.googleusercontent.com/search?q=cache:http://www.sascv.org/ijcjs/tanujpranatijcjsjan2007.pdf (last seen on September 20, 2013).

[xvi] Gareth Newham , Keeping the Wolves at Bay: Issues and Concerns in Establishing a Witness Protection Programme in South Africaavailable at http://www.csvr.org.za/index.php/publications/1720-keeping-the-wolves-at-bay-issues-and-concerns-in-establishing-a-witness-protection-programme-in-south-africa.html(last visited on September 19, 2013).

[xvii] Halsburys Laws (5th edn, 2010)

[xviii] Coroners and Justice Act, 2009, s. 97 (1)

[xix] Id. s 86(2)(a)(i)

[xx] Id.s 86(2)(a)(ii)

[xxi] Id. s 86(2)(b)

[xxii] Id. s 86(2)(c)

[xxiii] Id. s 86(2)(d)

[xxiv] Id. s 86(2)(e)

[xxv] The Code of Criminal Procedure, 1973, s. 311.

[xxvi] Id. , s 312

[xxvii] Indian Evidence Act, 1872, ss.118 - 121, 133.

[xxviii] Id.,ss. 122,124,125, 129.

[xxix] Id.,ss.123,126, 127.

[xxx] Id.,ss. 122 - 131.

[xxxi] Indian Evidence Act, 1872, s. 134

[xxxii] Ratanlal Ranchhoddas & Dhirajlal Keshavlal Thakore, Ratanlal & Dhirajlals the Law of Evidence (Act I of 1872), (21st edn. 2004).

[xxxiii] 14th Report of the Law Commission of India, Reform of Judicial Administration(1958 ).

[xxxiv] 154th Report of the Law Commission of India, Code of Criminal Procedure, 1973 (Act No. 2 of 1974) (1996).

[xxxv] 172nd Report of the Law Commission of India, Review of Rape Laws (2000).

[xxxvi] 2004(6) SCALE 15.

[xxxvii] 178th Report of the Law Commission of India, Recommendations for Amending Various Enactments, Both Civil and Criminal (2001).

[xxxviii] Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice System (2003).

[xxxix] 198thReport of the Law Commission of India, Witness Identity Protection and Witness Protection Programme (2004).

[xl] Gangadhar S Patil, 5 years on, witness protection proposal gathers dust, Daily News And Analysis Jan 14, 2013, available at http://www.dnaindia.com/mumbai/1788659/report-5-years-on-witness-protection-proposal-gathers-dust(last visited on September 19, 2013).

[xli] 1966 SCR (3) 744.

[xlii] Supra note 9

[xliii] (1995) 1SCC 14.

[xliv] Supra note 1

[xlv] AIR 1988 P&H 95

[xlvi] Ankit Kejriwal, Need For A Witness Protection Programme: The Solution To The Problem Of Hostile Witness, available at http://www.legalserviceindia.com/article/l259-Witness-Protection-Programme.html(last visited on September 19, 2013).

[xlvii] Dr G V Rao, Witness Protection Program : Are we ready, available at http://www.lawyersclubindia.com/articles/Witness-Protection-Program-Are-we-ready-5036.asp (last visited on September 20, 2013)

[xlviii] H Suresh, New Law Needed for Witness Protection, 4 Combat Law. (2005), available at http://www.indiatogether.org/combatlaw/vol4/issue1/witness.htm(last visited September 19, 2013)

[xlix] Fali S. Nariman, Indias Legal System: Can it be saved? (1st ed. Penguin Books India Pvt. Ltd 2006).

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