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WITNESS PROTECTION IN INDIA

Publications, Research paper

ABSTRACT

In Indian criminal justice system, witness plays a very important role in the proceedings of the case. A witness is a person who testifies under oath at regarding experience of a relevant information to a case, which he or she has personal knowledge of. In India, criminal justice system is based on adversarial system which believes on the presumption that every accused is innocent until proven guilty in a court of law provided all principles of natural justice were followed in a fair and just trial is carried out with each party putting their contentions before the judges. Investigation is the process of  understanding the crime which comprises of collecting facts and circumstances of the crime committed  by the investigating  officers, a witness adds much more clarity to the situation  by his testimony that had first-hand information of the crime committed. Main obligation of the witness is to assist the court in delivering justice by just attending the proceedings when required. Sometimes statements of witnesses work as a magic force to change the course of whole case. But many times, they are threatened and induced by the parties to change the statement, and sometimes they had been murdered by the opponent party, for changing the judgement of the court of law.  To combat this issue, the Supreme Court approved witness protection scheme, 2018 to protect the witness’ right to life (article 21) without fear and to express themselves the true course of events occurred in his presence. However, despite these mandates the position of witnesses is deeply troublesome and hence in this paper the author will discuss how to Improve the justice system in India, we must increase the range of rights of witnesses as well and increase their protection mechanism while keeping their identity secretive and safe with the judiciary.

Keywords: Witness, Adversarial system, Witness protection, Opponent, Trial, Article 21, 

Introduction

The established principle “Justice must not only be done but must also be seen to be done” is given by LORD HEWART, the ten lord chief justice of England in case of Rex v. Sussex justices (1924), this principle shows that the primary objective of criminal justice system is to guard the society against criminal conduct, deter the law breaker and sanction those who violate or attempt to violate the law of the land. In India, there are two main statutes dealing with the adjudication of criminal cases that are Indian penal code 1860 and code of criminal procedure 1973 being substantive and procedural respectively. An effective criminal justice system constitutes methodical investigation in order to identify the course of action leading to crime. The mechanism of evidence by way of systematic collection and presentation in a court of law in civil as well as criminal matters, enables the adjudicatory bodies to effectively dispute or prove a fact. This is where the role of a witness comes into play. Witness plays a crucial role in delivering the justice in criminal justice system, in this context Bentham once said that “witnesses are the eyes and ears of justice”. Their each and every statement is very important to the court as they can change the complete decision of the case, thus witnesses are most important party other than accused and complainant. They performs their public duty by providing evidence to the court. They are the foundation of the successful criminal justice system, as their successful prosecution is essential to the successful prosecution of the crimes. In India, Adversarial system was set up, with the accused with unconditional support, but there is no any such safeguard with the witness. External and internal pressures pose a hazard to witnesses.  Reforms in criminal justice system is only possible then the system safeguards the victim and witnesses. Witness plays a prominent role in ensuring a free trail. however, a witness should be impartial, independent, and unbiased in order to serve goal. Law requires them to give statements under the oath of the god because testimony of an honest witness is the foundation of justice. The testimony of the witness may result in the accused’s conviction or acquittal. The ocular witness’s credibility cannot be questioned even if an expert opinion exists. The speed with which justice is delivered and amount of time it takes is mainly determined by the witness’s impartial and independent evidence during the trial. He submits himself to cross examination and cannot refuse to answer questions on the ground the answer will incriminate him. The ability of a witness to give the testimony in a judicial setting or to cooperate with the law enforcement investigation without fear of intimidation or reprisal is essential to maintaining the rule of law. In a criminal trial, witnesses do not have to always testifies in favour of the prosecution and against the accused. It is necessary that a witness must testifies the truth without the fear or pressure and of his or her own free consent and will. The competence of the criminal justice system to function effectively is primarily dependent on the willingness of witness to provide information and evidence without being threatened or enticed. Due to failure of the proper criminal justice system in our country, witnesses are no longer ready to come forward to testify. He is hopeless as he faces the accused party’s rage, pressure and intimidation, which threatens his life and existence. The situation become worse when he gets to know that the state has no legal obligation to provide him security. In today’s world there are many cases of hostile witnesses, who changes their statement at the last moment, these cases are growing rapidly in our today’s society, we have developed some rules for punishing them even though our legislators were not willing to make some laws for the witness protection. As witnesses are assisting the court for the judgment but then also they are not get compensated for the amount of money he spends for his travelling and staying in the town where the court is located, these some allowances are prefixed by the authorities but on the ground level they are not given to them Due to some corrupt officials of administration who draws the allowances and do not pay them to the witness. these are some unpardonable crimes against the witness. There must be an full proof arrangement should be made to see that the allowances are paid to them immediately or not. But on the top of all, the witnesses and their families have to face the problems regarding the safety, the witness help the court to give better justice without any fear of life and property. The court in return should also show its gratification in an proper manner by providing them safety.

Definition of witness

The term “witness” refers to a person who has made a statement, or who has given or accepted or is required to give evidence regarding such proceedings, and who possesses information or documents about any crime recognised by the competent authority to be material for any criminal proceeding. Indian Evidence Act does not give a direct definition for the witness, but under section 3, evidence means and include oral and documentary evidence alone.” All statements which the court permits or required to be made before it by witness, in relation to the matter of fact under inquiry, is called oral evidence.” According to section 2(k) of the Witness protection scheme 2018, “Witness means any person, who possesses information or document about any offence”.
A witness is a person who testifies under oath at a trial, or in are deposition regarding experiences of which he or she as personal knowledge. A witness gifts a supervise recital of things he or she experienced, whether by sight, hearing, smell, or other sensory perception. A witness may voluntarily offer such information in a legal matter, or may be compelled to testify, they can testify in both civil and criminal legal matters. 

Witnesses and their role

The witness is an important player in the administration of justice. His role is vital in both at the stage of investigation and the trial stage, active support of witness is necessary to conclude the investigation of a crime. Significance of witness has been observed in the case of Swaran Singh vs. State of Punjab where court held that “a criminal case is built on the edifice of evidence, evidence that is admissible in law. For that, witnesses are required whether it is direct evidence are circumstantial evidence.” but due to some lacuna in the criminal justice system most of the witnesses are unable to perform their duty as they turn hostile due to various reasons.

If you talk about the competency off the witness then section 118 of Indian Evidence Act 1872 talks about it, Any person who is able to understand the question post to them and is able to give the rational answers based upon those questions, based upon those questions, a. Qualification of witnesses,

b. liability of ensuring presence and testimony of witnesses in the court, and

c. the grounds for disqualification of the testimony,

allegedly competent witness must provide evidence section 118 of Indian Evidence Act 1872 concerns the competency of fitness that a person to testify as a witness is a condition precedent, if the witness cannot be prevented from appearing in court to testify the witness is deemed capable. Competency refers to the legal competency to provide evidence in a court of law. His testimony is totally based on the judge as if he refuses is testimony then witness has no right to testify. 

What is hostile witness?

The term hostile witness is not defined in any statute of Indian law, but it is very common in our society. Hostile witness refers to a person who refuses to disclose the truth at the instance of party who has summoned him. 

The 4th national police Commission report noted that “prosecution witnesses are turning hostile because of the pressure of accused and there is need of regulation to check manipulation of witness.”

there may be many reasons off turning the witness into hostile, it could be the fear of testifying against the accused, political pressure, family pressure or other sociological issues. One of the reason for this maybe the greed of witness as witness are corrupted with monetary consideration. Hostile witness could be identified by the cross questioning of the court to them. Witnesses turning hostile has become a common thing in the criminal justice system. One false statement of a witness can makes the whole case of the prosecution tumble. As long as the witnesses continue to go hostile and refrain from making honest depositions in the court, justice will always suffer. Public will lose faith in the effectiveness of the judicial system in delivering justice to the victims. The citizens of the country will lose faith in the efficiency and credibility of the judiciary. Government should enact some law to punish hostile witnesses, as they divert the decision of the court. 

Section 154 of Indian Evidence Act 1872, gives the discretion to the court to permit such person to put up any question or cross question to own witnesses. Supreme Court has explained the concept of hostile witness in some cases like.,

In the case of sat Paul verses Delhi administration, The prosecution cross examined its own witnesses with the permission of court. But the question of their evidence was raised. Where the court described a hostile witness as one who is unwilling to tell the truth and unfavourable witness is one called by a party to prove a particular fact but ends up proving an opposite fact.

In the case of Panchanan Gogoi versus emperor, where court held that a hostile witness is described as ONE who is not willing to tell the truth to the court which includes the facts that he is willing to go back upon his previous statements. 

 Witness protection

As from the above discussion we can conclude that witness is the third most important party to the case after the victim and accused, there are many laws for the protection of victims in the case and some are there for protection of accused also but there are lack in the law for the witness protection in India, the witnesses and their families are to be threatened by the accused party to change their statements to the court it also results to many criminal offenses, and some of the cases it has happened that the witnesses are killed or injured. The need for the witness protection has been emphasized by the apex court in Zahira Habibullah H. sheikh and another V. state of Gujarat and others. The Supreme Court bench comprising of honourable justice Raju Doraiswamy and justice Arijit Pasayat observe that if the witness is threatened or in forced to give false evidence that shall not result in a fair trial. We need to understand that the role of judiciary is limited and granting absolute protection to the witness in a matter. The need of witness protection scheme has been emphasised again by various Law Commission reports and the Malimath committee recommendation. The honourable Supreme Court of India and the case of Mahendra Chawla vs. union of India decided on 5th September 2018, approved the draft witness protection scheme which was prepared by the inputs from 18 states and union territories, various open sources inviting suggestions from police personal, judges and civil society members which was ultimately finalised by the national legal service authority (NALSA). The bench for this case consists of on rival justice A.K. Sikri and justice s Abdul Nazeer held;

The right to testify in courts in a free and fair manner without any pressure entreat whosoever in under serious attack today. If one is unable to testify in court due to threat or other pressures, then it is clear violation of article 21 of constitution of India. The Supreme Court on 5th December approve the witness protection scheme 2018 which aimed at enabling a witness to depose fearlessly and truthfully. While this scheme is pending in parliament, the supreme court has ordered to imply the scheme immediately all the States and the scheme would be the law of the land .

Supreme Court also held that right to witness to testify freely in course is part of article 21 right to life.

Malimath committee on witness protection 

As Malimath committee has given many recommendations to the criminal justice in India which includes borrowing the inquisitorial system, right to silence, right to accuse justice to victims of crime, police investigation, public prosecution, courts and judges, and witness protection etc. For the witness protection, Malimath committee has recommended that;

  1. committee batted for a strong witness protection mechanism.
  2. witnesses should get their allowances on the same day which proper sitting and resting facilities and be treated with dignity.
  3. It’s suggested enacting separate witness protection loss be enacted again to the one in the United States.

Witness protection laws in foreign countries.

Various developed and developing countries of the world have come up with a comprehensive policy on witness protection in their countries some of them are mentioned below.

  • United states of America– The United States federal witness security programme prevailing in the United States of America treated as a model for the other countries for framing witness protection laws in their countries. Therefore, it is also called as the paradigm program. The federal witness security program was incorporated under the organised crime Control Act 1970 a letter on recognised as comprehensive crime Control Act 1984. In USA the attorney general is empowered under this programme to grant protection to the potential witness they may provide physical protection, identity protection, relocation of witnesses, providing accommodation, financial assistance etc. To the witness office close associates.
  • United Kingdom– The United Kingdom enacted the Serious Organised Crime and police Act 2005 which protects a witness who is being threatened. United Kingdom police services are responsible to give protection to the witness. The art framed various norms for admitting a person under the witness protection program. The protection which is offered under the programme includes physical protection, identity protection and providing accommodation etc. to the witness or his family members.
  • Australia– in Australia the witness protection act 1994 provides for the provision of protection of fitness during the trial. The national witness protection program is empowered to provide protection to the witnesses. commissioner of Australia federal police has the duty to protect the witness.
  • South Africa-witness protection in South Africa is provided through witness protection act 112 of 1988. It provides for the establishment of an office for the protection, replacement and service to the witnesses and associated persons under the act the act empowered the establishment of office for witness protection which cell provide protection to the witness or related persons through the director.
  • Canada – Canada also enacted gap the witness protection program act 1996 with an objective to establish a program to enable persons to receive protection and relation to certain enquiries investigation of prosecutions. The commissioner shall be the chief authority who administer and maintain the witness protection program under the act and determine whether the witness can be admitted in the program. The proteins which are offered under the act include relocation accommodation and change of identity counselling and financial support for establishment are becoming self-sufficient to the witness.

Witness protection laws in India

In 2015 Delhi became the first state to enact and notify a witness protection scheme in which Section 7 provides that the witness protection measures shall be proportional to the threat and shall continue for limited duration. It provides for protection measures such as installation of security devices in the witnesses house close protection and regular patrolling around his house temporary relocation by granting financial aids from witness protection fund and from the court in a state funded conveyance etc. 

The Bombay High Court suggests the Maharashtra government to formulate a witness protection scheme on somewhat similar lines as an acted in Delhi the government submitted a draft scheme in the High Court which had provision for protection for witness, whistle-blowers, RTI activists.

Then witness protection scheme 2018 what’s the first scheme aimed at providing appropriate protection to the witness by the state. The draft witness’s protection scheme has been finalised in consultation with the national legal service authority (NALSA) and Bureau of police research and development (BPRD), the scheme shall extend to the whole of India except the state of Jammu and Kashmir, this scheme has categorised witness in three perceptions also this scheme has provided of witness protection fund and many other protection measures are there in this scheme.

Conclusion 

To protect the rule of law in India, witness must be able to testify in the court or participate in investigations without fear of being threatened. countries are progressively creating legislation or enacting measures to protect witnesses whose cooperation with the law enforcement or testimony in court would jeopardise their or their family’s lives. The key to witness program is the safety and security of witness before, during and after trial, which is missing in all these areas. Security after trial is virtually non-existent in India. Witness protection laws are simply the need of the hour. In fact, in absence of these laws that has further strengthening the criminals and offenders. But ironically, in India such programs and laws are a far cry from reality, where leave alone protection, the witness is not even treated with respect or asked for water. Most of the developed and developing countries had formulated and comprehensive witness protection programs to safeguard witness in criminal cases.

Thus , we conclude that we need to  enact strict laws on witness protection keeping in mind the needs of the witness in our system like;

  1. Protection must be given before, during, and after the judicial proceeding depending on type of witness or the degree of cooperation. Witness protection law should include- police, government, and judiciary.
  2. An independent witness protection cell should be constituted and it must arrange for the provision of false identities, relocation and follow up. They should be treated with fairness, respect, and dignity and to be free from the Intimidation.
  3. Medical services,  social services, state compensation, counselling, treatment and other may be provided.
  4. Police force should be given the freedom to take basic measures to protect witnesses like surveillance, escorting the witness to work and court etc. 
  5. The use of practices such as video conferencing, teleconferencing, voice and face distortion, other such techniques must be encouraged as well as allowing witness to conceal their address or occupation. Etc.

In an adversarial system, the prosecution must show the accused’s guilt beyond a reasonable doubt. In this case, witnesses plays an vital role by shedding light on the facts and assisting the judges in seeing the truth clearly. In order to defend justice, witnesses should be allowed to give independent and impartial testimony. As a result, system must safeguard witnesses in order to save the eyes and ears of the law.

References 

Shashvat Tiwari

Faculty of Law, United University