Author: Deepanshi Jain
Student of Indore Institute of Law, Indore
A witness is an indispensable key in any justice delivery system. They are the foundations on which the system of justice and equity rests. The fate of a case is decided by the witness. Philosopher Batham refers to witnesses as the “eyes and ears” of justice. They are the one who decides the commission or omission of an act. Due to the pivotal role played by the witness, there are certainties that a witness may turn hostile during a case or may detract from the original statement or gives a misleading statement because of the powerful and influential predators who threaten them of their life, liberty, and personal safety. They face extreme pressure and assault from the parties of a case. The lack of adequate Witness Protection Programme is felt with each passing case. The weakness of our justice system is the lack of adequate Witness Protection Policy to safeguard the witnesses who are prone to abuse and violence by the wrongdoers which could be resolved by an effective Witness Protection Act at a place and through proper implementation of Witness Protection Policy to ensure safety to the Witness.
Seeing the plight and pathetic conditions of the witness in India the parliament has enacted a Witness Protection Scheme to ensure that trial and investigation of witnesses can be done at ease. However, the scheme suffers from proper implementation and has certain lacunas. The Legal System needs a proper law for ensuring uniformity in the protection of witnesses and to maintain the principle of natural justice as conceived by the Constitution.
The present article highlights the important role played by the witness in a case, reasons for witnesses turning hostile, and analysis of Witness Protection Scheme 2018 and the urgent need for the Witness Protection Act in India.
Importance of a Witness in a Case
A witness can be defined as one who provides first-hand information of something seen, heard, or experienced. He furnishes ‘evidence’. Witness, in law, in Britain and the United States, is a term used to designate either a person who testifies or gives evidence in a judicial or quasi-judicial proceeding.
Black’s Law Dictionary gives the following definition of a witness “In the primary sense of the word, a witness is a person who has first-hand information of an event. As the most direct mode of acquiring knowledge of an event is by seeing it, the witness has acquired the sense of a person who is present at and observes a transaction.”
Witnesses are as important as the lawyers and judges because without the light thrown by witnesses, lawyers and judges would be lost in the jungle of facts and it would be difficult to impart justice. This is the reason why Bentham states that they are the eyes and ears of justice.
The Malimath Committee Report adequately explains the role of Witnesses in Criminal Justice Administration in the following words: “Witness is an important constituent of the administration of justice. By furnishing the evidence of the guilty party to a case he performs a sacred duty of assisting the court to discover the truth. That is why before giving evidence he either takes an oath in the name of God or makes a solemn affirmation that he will speak the truth, the whole of truth, and nothing but the truth. The witness has no interest in the decision of the criminal court as he is neither the accused nor the victim but he performs one of the utmost important public duties of helping the court in deciding the guilt of the accused in the case. He sacrifices his time and undergoes the trouble to travel to the court to give evidence. He has to be patient with all the proceedings of the court. He agrees himself be cross-examination and has to bear the brunt of questions asked by the Lawyers and Judges. He also has to incur the displeasure of persons against whom he gives evidence. He takes all the trouble and risk, not for any personal benefit but to advance the cause of justice and benefit the society.
Reasons for witness turning hostile
The danger to the life of witnesses is one of the main reasons for them to retract from their earlier statements during the trial. Apart from this, there is no proper provision in the current law to protect witnesses from external threats, inducement, or intimidation. As we have talked about the various forms of intimidations that lead a witness to turn hostile, it is important to note here that the witness becomes more susceptible to such threats and enticements since there is no such duty or obligation on the state to provide any security for the state if the need arises in our legal scheme. Thus, the need for a law to protect the witnesses stands undisputable.
No law in India at the moment defines who a witness is. There exist some ancillary provisions about witnesses; for instance, the Section 312 of the Code of Criminal Procedure,1973 pertains to the payment of some monetary consideration to a witness subject to the satisfaction of the court. Similarly, there are few provisions of law that deals with the concept of witness protection in India. One such provision is Section 17 of the N.I.A. Act, 2008 which provides physical protection to a witness if he makes an application during the trial stating that he/she is feeling physically threatened. Similarly, Section 195A of the Code of Criminal Procedure,1973 also provides for a witness to file a complaint in the case of him/her being threatened. However, there is a lack of proper implementation of these measures. Witness Protection continues to be a grey area of the Indian Criminal Justice System as there is no specific provision of law in reference to any monetary assistance to witnesses in India.
The Witness (Identity) Protection Bill, 2006
The Law Commission proposed a Bill to provide for identity protection to threatened witnesses in criminal cases involving serious offences and to provide for procedure and mechanism for such protection and such other matter’s incidental thereto. However, the proposed Bill regarding Witness Protection Programmes was not converted to an Act.
Witness Protection Scheme
The Apex Court on 6th December 2018 gave approval to the Draft of Witness Protection Scheme which had been prepared by the inputs from 18 States/Union Territories.
The provisions provided in the Witness Protection Scheme provides for taking up measures to protect the Witness. It states that the protection given to the witness must be equivalent to the threats faced by the witness.
The Witness Protection Act include the following schemes to protect the witness
To make sure that the accused and the witness are not put up together during a trial or investigation.
To ensure that the witness is alloted an unlisted telephone number by contacting the telephone company.
To provide proper security to the witness in the form of body protection, regular patrol and by use of security devices such as CCTV, fencing, security doors in his home.
To change the identity of the witnesses by suppressing their original identity until the proceedings of the court rest.
To Change the residence of the witness to a safe place.
To provide a conveyance in a Government vehicle to and from the court on the date of hearing.
To ensure the presence of a third person at the time of recording statements of the witness.
To use specially designed courtrooms equipped with one-way mirrors, separate passage for the accused and the witness along with options to modify the face or using voice change mechanisms through software, of the witness to suppress his identity.
To provide financial aid to the witness from the Witness Protection Fund.
To provide for other miscellaneous measures at the request of the witness.
Apart from the protective measures provided above the witness may ask for any other suitable measure by way of an application forwarded to the Competent Authority.
Drawbacks of the Scheme
The Witness Protection Scheme provides a great respite to the witnesses regarding their wellbeing and safety during the continuance of the trial and in exceptional cases even after the trial proceeding is complete, however, it also suffers from certain flaws such as:
(i) The proper functioning of the criminal justice system is the responsibility of the State and some of the states may not have adequate resources to implement this scheme effectively. The Central Government could provide some assistance to the state but nowhere it is mentioned in the scheme that the centre has been entitled to give in a single penny for the Witness Protection Fund.
(ii) The functioning of the Witness Protection Order has been made confined up to a period of three months;
(iii) The task of deciding the contents and preparation of the Threat Analysis Report has been accorded to the head of the police in the district, so there are chances that in high profile cases involving influential people the police officer can be put under pressure to provide those people with the information regarding the witness.
Need for Witness Protection Act
One of the quintessential elements for any society to race up the path of development is the establishment of peace and security in the society which in turn depends on the proper administration of justice in the society. Thus, towards these ends, it is high time that the Government of India comes up with either a Witness Protection Legislation or a Comprehensive Scheme to fill this void that prevails in the sphere of witness protection in India. The author suggests that effective law should be made to deal with this situation. Moreover, the legislature should also take reference from Witness Protection Schemes and Laws of different nations to ensure that efficient legislation with sufficient checks and balances sees the light of the day so as to realise the dream of truly fair criminal trials in India.
The main aim of the Justice System is to administer peace and harmony in society by maintaining law and order. This could be possible only if justice is guaranteed to the victim and the wrongdoer is punished for his acts. During the process of administering justice, the witness plays an important role. The witness cooperates with the courts by furnishing their testimony during the trial process. However, if the witness is threatened and forced to depose in favour of one of the parties then it would not be termed as a fair trial followed by the due process. Therefore, the state must protect the rights of witnesses during the course of the trial so that they could dispose of their version in a free and fearless environment. Though the Witness Protection Scheme, 2018 provides for the protection of the witness during the trial a robust system of Witness Protection Law is the need of the hour to protect the Witness from the threats of wrongdoers and to safeguard their life and liberty.
1. Vijay Kumar Singh, Emerging Need for Witness Protection Laws in India – Analyzing the Success and Failures, 1, SSRN Electronic Journal, (2009), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1351136 (last visited Nov 26, 2020)
2. Prashant Rahangdale, Witness Protection: A Fundamental Need in Criminal Justice System, 31, Research Gate, Electronic Journal, (2020), https://www.researchgate.net/publication/341622629_Witness_Protection_A_Fundamental_Need_in_Criminal_Justice_System/link/5ecbd37692851c11a88870ab/download , (last visited Nov 26, 2020)
3. H. Suresh, New Law Needed for Witness Protection, 4, India Together, Electronic Journal (2005), http://www.indiatogether.org/combatlaw/vol4/issue1/witness.htm , (last visited Nov 26, 2020)
4. Sweta Sapar, Statutory Witness Protection: A Cardinal Urgency, International Journal of Law, Management and Humanities, Electronic Journal, (2018), Available at https://www.ijlmh.com/statutory-witness-protection-in-india-a-cardinal-urgency/ (last visited Nov 26, 2020)
Please note that the views expressed above represent the opinions of the author. All the information on the website of Jus Rerum is published in good faith and for general information purpose only. We does not make any warranties about the completeness, reliability and accuracy of this information.