This article has been authored by Himeesha Dhiliwal, a third year student at Jindal Global Law School, Jindal Global University.
In a democracy like India, the crime rate is swelling at a burning speed. India ranks 106 of 128 countries in the Safest Country Ranking. India was ranked as the world’s most dangerous place for women due to the increasing crimes meted out at them. To our horror, justice rendered through our Criminal Justice System is not at a parallel pace with the crimes. Witnesses play a sacred and integral role in assisting the court in delivering justice. Jeremy Bentham quoted, “Witnesses are the eyes and ears of justice” and the lack of Witness Protection Laws places them in a precarious situation abhorring them from becoming witnesses. In India, witnesses turn hostile due to external threats, inducement, harassment, intimidation, abduction, political pressure, absence of fear of the law of perjury, self-generated fear of police and the legal system, corruption, and unsympathetic law enforcement machinery.
Reasons for Hostility of Witnesses
The Criminal Justice System in India is left in a dilemma as experience has shown that witnesses turn hostile, retracting statements before the police, during Trials. By virtue of Section 162 of Cr.P.C., the statement to the police serves as a reference to the veracity of the witness. If the witness denies/modifies the earlier statement, he/she has turned hostile. Witness Hostility is attributed to monetary inducement, muscle power, and intimidation. In cases involving powerful/influential people, habitual or organized set of offenders, witnesses have withdrawn their original statements since they dreaded the threats to life and property. The easy availability of Bail to the accused leaves the witnesses vulnerable to threats. Although Section 439 of Cr.P.C, provides for the arrest of a person released on bail. The State applies it only when it apprehends witness tampering by the accused. Section 309 of Cr.P.C provides for speedy and expeditious disposal of cases but the essence of this provision is missed as adjournments are granted at the drop of a hat. The snail-paced working of the judiciary, repeated summoning tends to frustrate the witnesses. Hassles and harassment due to prolonged Trials fall in the favour of the defence due to statements retraction by witnesses.
It is estimated that over 60% of acquittals are a result of the hostility of witnesses. The recurrence of witness’ hostility has risen dramatically in the recent past. Sensational cases like Best Bakery, Jessica Lal, and BMW hit-and-run shook the foundation of our Criminal Justice System reminding us of Karl Marx’s words, “History repeats itself first as tragedy and then as farce”. National Human Rights Commission intervened when witnesses modified their statements not justifying the reason for the same and the police incorrectly recording the statements. In the absence of a law, witnesses are likely to turn hostile. Parliamentary Standing Committee’s report on home affairs revealed that the criminal conviction rate is below 10% due to witness perjury due to individual volition or external stimuli. In Priyadarshini Mattoo rape- cum-murder case, the judge, due to the shoddy work by the investigating agency, recorded that, “Though I know that he is the man who committed the crime I acquit him, giving him the benefit of doubt”.
The irony of imbalances of rights available to the accused and witnesses is glaring. The justice system in India provides the offenders with several constitutional and legal rights whereas; witnesses have limited rights protecting them, compelling them to turn hostile. This compromises prosecution’s already heavily burdened case to prove guilt, “beyond reasonable doubt”.
Importance of Witnesses and their Protection
The Witness Protection Scheme, 2018 defines “witness” as material individuals to criminal proceedings. Statements by the witnesses directly bear the acquittal or conviction of an accused, therefore, witnesses must be protected from the wrath of threats so as to not alter the justice rendered. In the State of Gujarat v. Anirudh Singh, the Apex court held 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.” A report by Committee on Reforms of Criminal Justice System emphasized the importance of a witness rendering evidence to the court solemnly affirming to speak all truth. In Zahira Habibulla H. Shiekh and Another v. State of Gujarat and others, while defining “fair trial” stated, “if the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of a fair trial.”
It is disturbing to acknowledge that India lacked a Witness Protection law when every statement by the witness is important as it entails a magic force that can change the course of a case while administrating justice.
The earliest reference to Witness Protection was Naresh Shridar Mairajkar v. State of Maharashtra where evidence publication was allowed to avoid hampering witness’ business interests. In Delhi Domestic Working Women’s Forum v. Union of India, maintenance of anonymity of the witnesses for rape Trials was laid down by the Supreme Court. In Neelam Katara v. Union of India, the Delhi High Court laid down the Witness protection guidelines, but the court skipped to insert the clause of concealment of the witness’ identity during and after Trial proceedings. The High Court in Bimal Kaur Khalsa mentioned about witness protection from media, although it did not address the problem. In the Asaram Bapu rape case, the Supreme Court laid down the Witness Protection Scheme (Draft), 2018 for enforcement by all states until the law is passed in the Parliament. Recently, the Bombay High Court directed the police to provide survivors and witnesses with free protection in cases of prostitution and sexual assault till the court’s further notices. The need arose when witnesses in the course were fatally attacked. The Scheme highlighted proportional application for a definite period, identity protection, police escort, witness deposition complexes, and no confrontation of accused and witnesses.
Law Commission Reports on Witness Protection
Witness Protection implies the protection of witnesses from physical harm. But in India, it has a restricted scope, i.e., protection of witnesses from the discomfort in court and inconvenience of travel caused as mentioned under the Law Commission’s 14th Report(1958). 154th Report of Law Commission contained a chapter on witness protection which recommended protection of witnesses from the wrath of accused but did not state any measure to safeguard from physical harms. In 172nd Report of Law Commission addressed a matter raised in Sakshi v. Union of India, asserting that an assaulted minor deposed from giving the statement in the presence of the accused. Insertion of Section 168 of Cr.P.C. was suggested in 178th Report of Law Commission. The Committee on Reforms of Criminal Justice System submitted a Report with 158 recommendations acknowledging the witness’ vulnerability and giving victimized witnesses justice. The Criminal Law (Amendment) Act, 2005(No.2 of 2006), introduced Section 195 to I.PC. and amended Section 195 of Cr.P.C. and 154 of Evidence Act. In 2003 the Malimath Committee recommended a distinct law for Witness Protection and in the 198th Report of Law Commission, a draft was provided. The Malimath Committee comprising of Rajya Sabha members enquired on the status of the laws and amendments. The recommendations by the committee included protection witnesses at all stages of the case, witness anonymity and protection of life, and property of the witnesses and his relatives.
Challenges towards Witness Protection Laws in India
27.5% of Indians are stricken by poverty and India doesn’t seem to have the resources to overcome/reduce the same. The first step to overcome would require a unanimous approval and acknowledgment of the law as a duty by all the States and Enormous costs would be involved in providing bodyguards, security, another area of relocation, the building of new police stations and courts, recruitment of staff in the judiciary, etc. which doesn’t appear to be viable in the current setup. To top it all is the problem of corruption in the administration and judiciary which would prevent the smooth enactment of this law.
In an Indian situation, an individual would refrain from testifying at the cost of this family, job, social obligations in the community and hence refrain from incurring such drastic measures. Currently, expert witnesses in forensic disciplines do not receive protection in any form. And with criminal cases adjourning for 10-15 years on an average, providing for witness protection for all witnesses for such an extended period seems to be unrealistic. However tedious providing for a witness protection law could be, it is undoubtedly a key facet of justice administration.
Conclusion and Recommendations
For the law to be workable and pragmatic, the implementation could be governed with certain limitations. Sizeable financial implications should be assigned to the States by formulating well-thought legislative and structural arrangements to deal with witness hostility, protection, and assistance. Due to practical limitations, not every witness can be provided with a protection cover; hence, prioritization of protection in cases should be practiced. Cost-effectively, police, prosecution, and judicial officials must start treating witnesses showcasing little sensitivity and assistance at all stages. The harmonious functioning of the police, the judiciary and government can result in effective implementation of the witness protection law. The government should implement necessary Acts displaying political will with judiciary addressing the legal aspects while the police should be entrusted with the execution of the act.
Rebuilding trust to increase witness statements is required. The witness should be well- assured that testifying has an impartial system backing them up. Measures should be undertaken to conceal the identity, profession, and address of the witness. Video-conferencing, teleconferencing, pseudonym, voice, and face distortion must be encouraged. Right to a speedy and prompt trial must be ensured. Witnesses must be assisted with transport and lodging in exceptional circumstances of poverty. Witnesses should be penalised for perjuring laws, Section 344 of Cr.P.C. and 195,196,199 of I.P.C. wherever Courts willful and malicious variations of statements. The status of the application and investigation must be accessible to the witness. An independent cell catering to issues of relocation, false identities, and follow-up should be set up. Police officers of certain rank could be given the freedom to protect witnesses like surveillance, emergency relocation assistance, escorting to court or work, etc. Section 309 of Cr.P.C. must be truly realized by the court requiring examination of all witnesses in attendance on the same day of trial. Computer networking could help in monitoring unnecessary adjournments. Lastly, witnesses must be treated with fairness, respect, and dignity devoid of intimidation and harassment.
Witness Protection being a progressive initiative in India, where modernization and innovation is resisted often in government practices, it would take some time to fructify. Nevertheless, we need to begin somewhere and someday to move towards generating and replying to the witness issues. Devising criminal justice policies with unbureaucratic and efficient implementation would assist in serving the purpose.