By Manav Chakraborty

Abstract:

The role of witnesses in criminal trials is indispensable in ensuring the administration and efficacy of the criminal justice system. However, the Government of India and investigating agencies have sometimes fallen short in providing adequate protection to witnesses against the frequent threats, intimidation and coercion which they face. In this article, we examine how this issue has been frequently highlighted by various judicial bodies and authorities and how the Government of India in collaboration with States have tried to address it.

Introduction

Witnesses play a crucial role in ensuring the administration and efficacy of the criminal justice system, yet the Government of India and investigating agencies have often fallen short in providing adequate protection. Indian courts have consistently emphasized the importance of a robust witness protection scheme to ensure the safety of witnesses. However, the Government of India and investigating agencies have often fallen short in fulfilling this obligation. The Witness Protection Scheme of 2018 (WPS) was the first comprehensive framework addressing this issue, aiming to ensure that the investigation, prosecution, and trial of criminal offenses are not compromised by witnesses being scared or intimidated. The newly introduced Bhartiya Nagarik Suraksha Sanhita (BNSS) contains a specific section dedicated to addressing this issue. This article examines the history of witness protection schemes in India and explores the impact of the newly introduced bill.

Highlighting the Importance of Witnesses 

The right to a free and fair trial is one of the most vital and important rights guaranteed to us under Article 21 of our Constitution. A fair trial implies a criminal justice system where there is an impartial Judge, and a fair prosecutor and witnesses are not threatened or forced to give false testimonies.  As Jeremy Bentham aptly stated, “Witnesses are the eyes and ears of justice.” To ensure that the integrity of the trial process is not compromised, it is imperative to ensure that witnesses are not incapacitated from performing their essential role. If witnesses are hindered in any way from acting as the eyes and ears of justice, the trial process becomes corrupted and paralyzed, rendering it as no longer a fair trial.

The Supreme Court in Anjanappa v. State of Karnataka, underscored how circumstances had necessitated for the State to play a role in protecting witnesses due to the frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power. These corrupt and unfair practices smother and stifle the truth and realities from coming out, and ultimately justice and fairness have to suffer.

Calls for the Protection of Witnesses

Given the vital role witnesses play, courts have repeatedly called for stronger protections, as seen in cases like NHRC v. State of Gujarat, PUCL v. Union of India, and Zahira v. State of Gujarat. Courts across India have consistently emphasized the need for legislation on witness protection. They have stressed that such schemes should not merely be viewed from the aspect of protection of the witness whose life may be in danger if their identity is disclosed, but also in the interests of the community to ensure that heinous offenses, like terrorism, rape, and murder and effectively prosecuted, and persons found guilty are punished to the fullest extent.

Similarly, in Zahira Habibulla H Sheikh vs State Of Gujarat, the Supreme Court analyzed witness protection schemes across various jurisdictions and said that they are imperative as well as imminent in the context of an alarming increase of flip flops by witnesses with ulterior motives and purely for personal gain or fear for security. The Court urged the government to bring in some steps similar to such schemes across various and that such a move would be a crucial step in guaranteeing the right of a fair trial.

Law Commission Efforts

Various Law Commission Reports have researched and analyzed these issues comprehensively to formulate a plan to protect witnesses. In the year 1958, the 14th Report of the Law Commission indicated for the first time about the need to protect and safeguard witnesses from extraneous influences. In addition to this, the 172nd and 178th reports of the Law Commission addressed this matter extensively, recommending that witnesses be protected from any possible retaliation by the accused or any of his accomplices or henchmen. 

In its 198th Report, the Law Commission dealt with this matter in its broadest effort ever, preparing a Consultation Paper on Witness Identity Protection and Witness Protection Programmes. The Commission recommended comprehensive measures for ensuring witness anonymity and protection in cases where there is a potential threat to the witness, their property, or that of their relatives. These protections are to be enforced at every stage of the criminal justice process, including investigation, inquiry, trial, and appeal, as well as in any subsequent proceedings. On the basis of this report, a bill titled ‘Witness Protection Bill, 2015 was proposed to enforce some of the recommendations made in the report. However, owing to the bills being private member’s bills and subsequent legislative disagreements, no consensus was reached and the bill died.

Witness Protection Scheme, 2018

In the year 2018, the Ministry of Home Affairs in consultation with the National Legal Service Authority, the Bureau of Police Research & Development and various State Governments introduced the “Witness Protection Scheme, 2018” to provide for the protection of witnesses based on perceived threat assessment and various protection measures including protecting or changing the identity of witnesses, relocating them to a different jurisdiction, installation of security devices at the residence of witnesses etc.

The scheme identifies three categories of ‘witnesses’ and classifies them as per the threat perception into Category A, Category B and Category C. Clause 7 of the Scheme clarifies what measures will taken to ensure proper and effective protection of witnesses including:

• Ensuring that the witness and accused do not come face to face during investigation or trial;
• Monitoring of mail and telephone calls;
• Changing the witness‟ ‘s telephone number or assigning them an unlisted telephone number;
• Concealing the identity of the witness by referring to him/her with the changed name or alphabet;
• Temporarily changing residence to a relative’s house or a nearby town.

These measures will be proportionate to the threat faced by the witnesses and shall be for a specific duration which is to be reviewed regularly. 

The expenses for this programme will be met from a Witness Protection Fund which is to be established by States in collaboration with Union Territories and operated by

the Department/Ministry of Home under the State/UT Government. The states will make annual budgetary allocations for the funds, and it will also remain open to donations

from national and international philanthropic organizations.

The Supreme Court in Mahender Chawla v. Union of India, called it a beneficial and fruitful scheme which would go a long way in strengthening the criminal justice system in our country. They also directed the Union of India and States to ensure proper implementation of this scheme both in its spirit and letter.

Criticisms of the Scheme and Way Forward 

The definition of offenses as provided under clause 2(i) takes a very narrow view which does not serve the purposes of the scheme. Clause 2(i) of the Scheme, defines ‘offence’ as those which are punishable with a penalty of death or life imprisonment, or imprisonment up to seven years and above and those which concern crimes related to women (Sections 354, 354A, 354B, 354C, 354D and Section 509 of the Indian Penal Code). Therefore, the legal protection under the purview of this scheme is only restricted to witnesses of heinous crimes or crimes against women from any harm. 

Such a narrow view of the Scheme does little to advance the true intent behind the scheme. This principle, which assumes that offenders of heinous crimes are more likely to endanger the witnesses, is a very parochial and myopic view of societal realities and not based on any empirical evidence.

Secondly, the categorisation of witnesses into different categories of A, B and C does not follow any objective criteria for deciding the threat-proneness of a witness. According to the Scheme, the Head of Police would submit a Threat Analysis Report analyzing the seriousness and credibility of the threat perception to the witness on the basis of which protection would be accorded. Such a provision lacks any definite rubric or metric to measure the risk the witness might be facing and is at risk of being a subjective interpretation based on the discretion of the Head of Police.

To address these issues, the scheme could adopt a more evidence-based approach to threat assessment and include broader criteria for defining offenses. Similarly, a Witness Assistance Program could be introduced which would provide witnesses with a different range of assistance, care and dignity as many experts have pointed out the efficacy of such schemes. Establishing dedicated courtrooms for vulnerable witnesses and enacting a distinct witness protection law would further strengthen the framework, making crucial improvements to the overall witness protection structure in the country.

The Bharatiya Nagarik Suraksha Sanhita, 2023

On the heels of the Witness Protection Scheme and numerous judicial pronouncements espousing the need for a comprehensive framework for witness protection; Section 398 of the Bharatiya Nagarik Suraksha Sanhita, 2023 stipulates that, “Every State Government shall prepare and notify a Witness Protection Scheme for the State with a view to ensure protection of the witnesses.” Even though numerous provisions across many statutes including the Indian Penal Code, the Indian Evidence Act provide for specific protections for witnesses to ensure fairness in trial, this is the first type of provision which explicitly mandates all states to formally institute their own witness protection schemes. The clause leaves the preparation of witness protection schemes to each individual state so as to allow them flexibility in adapting a scheme according to their state’s respective needs and demands.  

The Government has not specifically clarified what impact this clause would have upon the pre-existing Witness Protection Scheme of 2018, so it could be assumed that this scheme would still remain operational in the absence of any specific guideline. 

Assam became the first state in 2024 to approve its own Witness Protection Scheme to ensure adherence to Section 398 of BNSS 2023. The Scheme would require witnesses to submit a Witness Protection Application in a prescribed format to a competent authority to obtain a protection order. The provisions of the Scheme and many of its protective measures follow the same lines as the WPS of 2018. 

Conclusion

The WPS of 2018 and the newly added provision in BNSS show a commitment on the part of the government to finally address the long-standing issue of witness protection in India. These measures signal a significant shift towards creating a more secure and just environment for witnesses, thereby enhancing the overall integrity of the criminal justice system. However, it remains to be seen how effective the protection schemes and their measures are, and whether they prove to make any difference in enhancing the safety and security of witnesses

Author’s Bio:

Manav Chakraborty is a third year law student currently pursuing B.B.A LLB (Hons.) from Jindal Global Law School, Sonipat. His interests lie in exploring the intersectionality between the current modern day politics and law, and the realm of international affairs.

Image Link: (https://cjp.org.in/factsheet-on-witness-protection-in-india/ )