ZAHIRA SHEIKH TO KULDEEP SENGAR: THE PROBLEMS IN WITNESS PROTECTION AND SUGGESTIONS

INTRODUCTION

There are few cases which put their stamp on the national psyche, either by showing grave errors in public policy or by exposing transgressions committed by the executive, the legislators and at times, even the judiciary. If there is a case that can definitely be said to be iconic and landmark,  it is that of Zahira Habibullah vs State of Gujarat – The Best Bakery Case. The author argues that the case is iconic not only because of the judgement it rendered, but because of the entire trial, from sessions court to the Supreme Court and the turns it took. In the case, Zahira, the prime eye witness and the victim in the case, turned hostile numerous times and was declared a hostile witness by the Prosecution in the special Mumbai court. She even said that she lied under oath out of fear for her life. By giving evidence on oath, a witness fulfills the paramount duty (to get the wrongdoers punished) of being a responsible citizen of the country where they reside. The whole criminal case is built on the basis of evidence which is admissible in law and witnesses are required for such evidence, be it direct or circumstantial evidence. While the case of Zahira is more than a decade old, the questions the whole trial had raised regarding fair trial and witness protection still remain the same. The same themes have been present in multiple courts cases, an example being the not that old case of Kuldeep Singh Sengar vs State of Uttar Pradesh where the witnesses got killed one after the other and the system kept sleeping. 

WITNESSES AND THE PROTECTION THEY NEED

Supreme Court has 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.” The ability of a witness to give testimony in a judicial setting or to cooperate with law enforcement agencies and investigating officers without fear of intimidation or reprisal is essential in maintaining the rule of law. Yet one of the challenges faced by many criminal justice systems in the investigation and prosecution of crime is obtaining such cooperation. If in a case the witnesses are threatened or forced to give false evidence, then the case has not resulted in a fair trial. Witness protection, therefore, becomes an essential ingredient of the criminal justice administration. They must feel safe to give unbiased and true testimony in a judicial setting without the fear of any reprisal. They must be convinced that the criminal justice system will help them and protect them if they decide to help the system. They are the ones who are helping in the process of giving or infact ensuring justice so it must be ensured that they should not be harassed by the same process. If they are harassed by the process, the whole criminal justice system will be jeopardized. The cooperation of victims and witnesses is crucial to achieving successful prosecutions of criminal offenders and dismantling organized criminal groups. In the era of increasing offenses against the human body, it further becomes extremely important to devise proper legal provisions and provide adequate protection to the prosecutrix and other related witnesses during the entire course of trial. 198th report of the Law Commission of India titled as “Witness Identity Protection and Witness Protection Programmes, 2006” is dedicated to this subject.

PROBLEMS

The major lacuna that exists in protection of witnesses is the absence of any scheme or mechanism for the same. Victims and witnesses may be reluctant to give information and evidence because of perceived or actual intimidation or threats against themselves or members of their family. The Supreme Court in 2018 approved the Witness Protection Scheme and put the responsibility on the Centre and State Government to implement it. But, witnesses still get killed despite having a mechanism for their protection. The Kuldeep Sengar case is a suitable infamous example for the same. Inadequate infrastructure in the Courts and ineffective provisions of law lead to hardships like the witness being unable to find a particular place to sit, and being called again and again for examination and cross examinations. Problems arise when the witnesses are expected to come to court from their workplace and end up getting no remuneration or leave of absence. This becomes even more problematic in case of daily wage earners or those coming from particularly vulnerable sections of society. 

Extraneous factors in the form of corruption or threats form a majority of the reasons that result in the witness turning hostile, hence it becomes rudimentary for the state to ensure protection of such witnesses so as not to alter the prescribed course of justice. Understaffed police personnel results in a lack of round-the-clock protection which is required to ensure the safety of these witnesses. There is a mandatory requirement for application for protection by the witness and a minimum period of five days to dispose of the application. There are various other problems such as inadequate provisions regarding the change of identity of the witness, rehabilitation, and privileges like jobs after rehabilitation. Such problems and the privileges have been provided under the Australian Model in very sensitive cases. The provisions in the law for counseling, medical, psychological and social care and other appropriate assistance to victims and witnesses are inadequately implemented. Law Commission’s 154th report had dealt with the witnesses’ plight  while the 172nd report emphasised on the need to protect the witnesses from the wrath of the accused. These reports must be seriously considered and brought into effect for the safety of the witnesses. 

SUGGESTIONS

Special autonomous witness protection units having power to take suo motu cognizance of the necessity should be created which should directly coordinate with the judiciary. Also, the confidentiality of the witnesses be maintained; the breach of which should be dealt with in IPC. Laws should be amended to outline a separate punishment for the accused if they try to intimidate, lure or threaten the witness in any way. 

Witnesses should be made aware of a set of rights and privileges, under a strict protocol, as and when they agree and decide to aid the criminal justice system and the officials therein. This will in turn make sure that witnesses come forward and help the system. Every place the witness is called, be it the police station or the court premises,  they must have in their sights  a banner or poster or likewise stating the rights of the witnesses. Awareness regarding their rights would help in doing away with any apprehension regarding potential threats or harm . Also, the judges, police personnel, and prosecutors must be sensitized and made aware of the witness protection measures. 

Witnesses should be called to the court as per their convenience and so that they do not face any difficulties in their jobs. To save the witnesses time and any loss, there should be a provision of giving testimony through virtual means. COVID-19 has proved that it is possible and virtual testimony can go a long way if it is implemented in all courts for the witnesses. It was advocated in Sakshi vs Union of India for in camera trials to keep the witness away from the accused and to ensure her testimony is procured without any public fear. 

Witnesses should be given a special waiting room in the court and not be harassed in any way while testifying. There should be a creation of a special fund dedicated to witness protection. A detailed comprehensive legislation containing provisions with regard to the authorities protecting the witness be passed paving way for a transparent and citizen centric Criminal Justice Administration. The legislation should ensure the physical, legal, and psychological safety of the witnesses at all times, and bear the financial costs incurred by the witnesses during the trial. 

As per the latest data analysis by Bureau of Police Research and Development, Ministry of Home Affairs, Government of India, Police per lakh Population Ratio (PPR) against sanctioned total Police (Civil + DAR + Armed) during the year 2018 was 198.65 as compared to 192.95 in 2017. The highest ratio is 1,314.84 in Manipur. In all the regular work of investigation and all other works undertaken by the police personnel, round the clock witness protection is not possible for the police to offer  the witness. Thus, there is a need for the establishment of special units for the protection of witnesses and the employment of more police personnel all over the country to guarantee round the clock safety to the witnesses and help minimize the disruption in the regular life of the witnesses.

Witnesses should be given protection till the completion of the trial and the time till they are marked safe and no threat is perceived upon them be it physical, emotional or psychological. Relocation and rehabilitation of the witnesses should be particularly dealt with. 

The Supreme Court in the case of Swaran Singh v State of Punjab has also recognized the plight of the witnesses and advised to pursue an inclusive approach to treat the witnesses in a dignified manner. Construction of waiting rooms, and giving expenditure and remuneration to the witnesses for travelling to the court could help in facilitating a sound environment for witnesses. Witnesses should be granted duty leaves if and when they are called by the court so that they do not suffer any professional loss for being an aid to the criminal justice system. 

Witness Protection Scheme, 2018 provides for protection of witnesses based on the threat assessment and protection measures inter alia include protection/change of identity of witnesses, their relocation, installation of security devices at the residence of witnesses, usage of specially designed Court rooms, etc.

The scheme 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. It aims to identify a series of measures that may be adopted to safeguard witnesses and their family members from intimidation and threats against their lives, reputation and property. 

CONCLUSION

All criminal justice systems have a duty to put in place procedures to provide measures for the protection of persons whose cooperation with the criminal justice system in an investigation or prosecution puts them, or people closely associated with them, at risk of serious physical or emotional harm.  In India we do have a witness protection scheme but there are a lot of lacunae apart from it not being implemented that surround the witness protection. These all lacunae need to be addressed so that the witnesses do turn up and help the criminal justice system which would ultimately help lessen the burden of an ever increasing pile of cases on the judiciary. 

Vaibhav Gaur is a law student at Dr. Ram Manohar Lohiya National Law University Lucknow and has an avid interest in Gender, Human Rights, Constitutional Law and Public Policy.

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