Ratul Dhiman
In the Criminal Justice administration, witnesses play a key role as the testimony given by the witness has direct bearing on the conviction or the acquittal of the accused. Thus, for arriving at a fair conclusion, the testimony given by the witness is of paramount importance. Jeremy Bentham, one of the greatest legal scholars, regarded witness as ‘the eyes and ears of justice.’ Black’s law dictionary defines witness as a person who has knowledge of an event.
Hon’ble Delhi High Court in Neelam Katara v. Union of India (2003) rightly observed: “the edifice of the administration of the justice is based upon the witnesses coming forward and deposing without fear or favour, without intimidation or allurements in the courts of law, if witnesses are deposing under fear or intimidation or for favour or allurement, the foundation of the administration of justice not only gets weakened, but may even get obliterated.”
In many cases, witnesses turning hostile has been a peculiar phenomenon. It is also one of the road-blocks causing delay in criminal justice administration. The reason behind turning hostile range from minor threats, coercion, monetary allurements to fear of loss of life, limb, reputation and property. The Supreme court while considering the case of Ramesh v. State of Haryana (2017) described the act of witnesses turning hostile as “culture of compromise”. Again, in NHRC V. State of Gujrat (2009) the Supreme court noted that witnesses form the key ingredient in a criminal trial and it is the testimonies of these very witnesses, which establishes the guilt of the accused. Thus, the protection of the victims and the witnesses becomes imperative.
Back in 1958, the Law Commission in its 14th report paid attention to this issue and considered the idea of a witness protection scheme. In this report the Law commission took account of the inconvenience faced by witnesses, the inadequate facilities for witnesses in courthouses and the amount of allowances. The problems faced by witnesses and the witness protection measures as a solution thereto found due references in 158th and 174th reports of the Law Commission. The 198th report of the Law Commission (2006) specifically dealt with Witness Identity Protection and Witness protection schemes. The report came along with the Witness protection bill, 2006 but it could not see the light of the day.
In absence of any legislation, the judiciary by the means of several landmark decisions came forward to extend protection to witnesses. While emphasising on the need of the witness protection scheme, Supreme court in Zahira Habibulla Sheik v. State of Gujrat (2004) observed that if the witnesses get threatened or are forced to give false testimonies, it would not result in fair trial. The court stressed that the state has to ensure that during trial in the court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. The Apex Court in Sakshi v. Union of India (2004) accepted ‘video conferencing’ and ‘written questions’ in trials determining sexual offences. The court noted that mere sight of the accused may induce an element of fear in mind of witness.
The courts have made one thing clear through various judgments that in pursuit to provide accused a fair trial, the victims and witnesses should be cared for and not be unduly harassed. In 2015, Delhi government notified Delhi Witness protection scheme 2015, which was first of its kind in India. On the lines of the Delhi scheme, National Legal Services Authority (NALSA) in consultation with Bureau of Police research & Development (BPRD) came up with a Witness Protection scheme in 2018 which has been prepared with the inputs from various domain experts and representatives from various states & UTs. The Supreme Court gave nod to this scheme in Mahender Chawla v. Union of India (2019). The bench comprising Justice AK Sikri and Justice S. Abdul Nazeer identified the rights of the witness to testify within the ambit of Article 21 of the Constitution. Further, the bench regarded the scheme as a law within the ambit of Article 141/142 of the Constitution until a legislation in this regard is brought into effect.
The Scheme comes with the objective to ensure that the investigation, prosecution, and trial of criminal offenses is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal recrimination. It further aims to promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance to criminal law enforcement agencies and overall administration of justice.
Clause 2(k) of the scheme lays down a broad definition of witness as any person who possesses information or document about an offence. The scheme provides for three-fold categorization of the witnesses as per the threat perception. The protective measures shall also be extended to the witnesses proportionate to the threat. To seek protection, the witness may approach the competent authority which shall consist of the District & Sessions judge of the district along with the District Head of police and prosecution of each district as members. The Threat Analysis report shall be prepared by DSP/ACP in-charge of concerned Police Sub-Division. In cases of urgency the Competent Authority may pass order for interim protection.
Clause 7 of the scheme lays down various types of protection measures. These measures include – arrangements in court where witness and accused do not come face to face; monitoring phone calls & mails; escorting the witnesses to and from the court; concealment of the identity; close protection & patrolling around witness’s house and ensuring expeditious recording of depositions during the trial on day to day basis without adjournments. In appropriate cases and on request of the witness, Competent Authority may confer a new identity to the witness. Also, where required, a decision may be taken for the relocation of the witness by the Competent authority. Clause 12 of the Scheme mandates that the Investigating officer (IO) and the court shall apprise witnesses with the existence of this scheme. For implementation of the scheme, State Witness fund shall be composed which shall be primarily funded by state’s budgetary allowances.
The introduction of this scheme is a welcome step. However, it is only an initial step as it is not adequate due to certain inherent limitations. As the onus of implementation lies largely on police, which itself is over-burned and under-staffed, the ground level implementation becomes unfeasible. Also, lack of proper judicial infrastructure also acts as a bottleneck to effectively satisfy the mandate of the scheme.
In May 2019, J&K High court notified protocol for recording evidence of vulnerable witnesses. Recently, Justice Gita Mittal while visiting the Vulnerable Witness Deposition room & Child Witness Room established at Pulwama court complex stressed upon adoption of witness protection facilities all across J&K.
A comprehensive Witness protection legislation which is effective, witness- friendly and practical is still a dire need of the hour. Though, framing such legislation won’t be an easy endeavour as it would require a delicate balancing between the rights of accused and those of victims & witnesses. Nonetheless, a full-hearted attempt in the field of witness protection would certainly be a revolutionary development in the realm of criminal justice administration.
(The author is Student, The Law School, Jammu University)
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