KNOW THE WITNESS PROTECTION SCHEME
Author: Aadarsh Kumar Shrivastava, Advocate, District & Session Court Rewa MP.
“Witnesses are the eyes and ears of justice”-Jeremy Bentham
The Apex court of India has recently approved the Witness Protection Scheme, drafted by the Union Government for the protection of witnesses from unlawful and coercive acts/incidents against them, which is one of the biggest reasons for witness hostility. The witness is considered one of the most important aspects of the criminal justice system. Witnesses are an important part of the criminal justice system as they provide the purpose or reason through which the court considers enough substance for a reasonable decision to be drawn in any particular case.
OBJECTIVE OF SCHEME
The aim and objective of the scheme are to ensure that the investigation, prosecution, and trial of criminal offenses is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal recrimination.
The witness statements are directly affecting the conviction or acquittal of an accused, and it is therefore important that such a witness should be shielded from the wrath of external forces capable of changing their statements on a particular case. Witnesses needs full confidence and a free mindset to assist the judicial proceedings, and none of the rights of witness should be prejudiced by way of threats or corruption.
It is also important to safeguard the family members from intimidation and the threat of life, property and reputation. The witnesses turn hostile mostly in cases of heinous crimes, as they see there are no protection or safety measures for them and their family from the part of the state government.
The question of witness protection had come up in a PIL that sought protection for witnesses in cases against self-styled Godman Asaram Bapu. The Witness Protection scheme was formulated by the union government with support of different states, legal services authorities and open sources including civil society, high courts and police authorities.
‘Witness’ is not defined anywhere in the criminal laws of India, but as per The Black’s Law Dictionary, the definition is: “In the primary sense of the word, a witness is a person who has knowledge of an event. "The most direct means of gaining knowledge about an event is by looking at it, the ‘witness’ gains the impression of a person who is present and observes a transaction”.
Later on after the formulation of the Witness Protection Scheme, 2018, the definition of witness was added which is as follows: ‘Witness’ means any person, who possesses information or document about any crime regarded by the competent authority as being material to any Criminal proceedings and who has made a statement, or who has given or agreed or is required to give evidence in relation to such proceedings.”
There are three categories of witnesses as per threat perception in witness protection scheme:
Category A: Those cases where threat extends to the life of a witness or family members during the investigation, trial or even thereafter.
Category B: Those cases where the threat extends to safety, reputation or property of the witness or family members during the investigation or trial.
Category C: Cases where the threat is moderate and extends to harassment or intimidation of the witness or his family members, reputation or property during the investigation, trial or thereafter.
NEED OF THE WITNESS PROTECTION SCHEME
The need for this scheme had been envisaged by various reports of the Law Commission of India and the Malimath Committee and by the Hon’ble Supreme Court of India in Zahira Habibulla H. Sheikh and Another v. State of Gujarat where the apex court held that “If the witnesses get threatened or are forced to give false evidence that also would not result in fair trial”.
While reversing the acquittal and ordering a retrial outside Gujarat, in the State of Maharashtra, the Apex Court made several observations on the question of protection of witnesses. In this case, the Supreme Court observed that “Legislative measures to emphasize prohibition against tampering with witnesses, victim or informant, have become the imminent and inevitable need of the day.”(Para 395)
The 14th Law Commission Report was the first ever instance where the issue of witness protection was brought forth. Furthermore, the 154th Report dealt with the plight of the witnesses. The 172nd and 178th Report laid emphasis on protection of a witness from the wrath of the accused.
In another landmark case, Sidhartha Vashisht (Manu Sharma) v. State of NCT, Delhi, which is famous as Jessica Lal murder case, 80 witnesses turned hostile at the trial of the case.
In this case, a private party was organized where the accused was invited and served alcohol. Jessica Lal and one Shyan Munshi were the bar attendants. Sidhartha Vashisht joined with his friends and asked for liquor from Jessica. She refuses to serve them alcohol as the bar closes, causing the man to become enraged and fire two rounds from his pistol, the first into the ceiling and the second to Jessica Lal, which leads to Jessica's death.
Several attendees witnessed the incident where the co-bar attendant Munshi was a key witness in the case and at the time of FIR, he said “the statement he gave was recorded in Hindi while he had narrated the whole story in English.” Munshi in his previous statement said he saw two guns that night. He, however, turned from his statement and later said he just saw two gentlemen at the bar counter and nothing about the gun.
REASONS FOR WITNESS TURNING HOSTILE
Threat/Intimidation to the witness or his family.
Undue influence by various means.
Use of muscle and money power by the accused.
Use of stock witnesses
Hassles faced by the witnesses during the investigation and trial.
The non-existence of legislation to check and protect hostility of witness
FORMULATION OF SCHEME OF WITNESS PROTECTION
1. The Law Commission of India, Fourteenth Report – The committee observed that it is imperative that the witnesses in court houses be provided with proper conveniences.
2. The Law Commission of India, Forty-Second Report.- The issue of threatening and harassing witnesses was discussed for the first time in the Indian judicial system where the issues related to threatening and bribing of witnesses was mentioned in chapter eleven of the report.
The Commission proposed penal provisions and punishments for threatening a witness and the threatened witness should also be given adequate relief in the form of physical protection, as required in a particular case.
3. The Law Commission of India, One Hundred and Seventy-Eighth Report- The witnesses most frequently become hostile either because of the inducements or threats given to them or because of the promises made to them by mafia gangs or wealthy persons or sometimes authority holding persons such as politicians, etc. The Commission noted that adequate steps to avoid these incidents should be formulated.
4. The Report of the Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, 2003.- The sufferings of witnesses were addressed in depth in this report and also highlighted various inconveniences and problems suffered by the witnesses in the court premises or other places during the trial or thereafter. This report contained 158 recommendations for the protection of witnesses.
The committee has recommended protecting the identity of witnesses in the cases of serious threats and danger to the life of the witnesses. It has also recommended for in-camera proceedings to protect the interests of the witnesses.
5. The Law Commission of India, One Hundred and Ninety-Eighth Report- ‘Witness Identity Security’ and ‘Witness Safety Plan’ was proposed in the Indian Law Commission’s 198th report in 2006 where a draft bill on the protection of witness identity, entitled ‘The Witness (Identity) Protection Bill, 2006’ was proposed to be enacted. The Commission highlighted the importance of witness protection programs in India to achieve reliable evidences and corroboration in judicial proceedings.
On 6 December 2018, the Supreme Court gave its nod to the approval of the Draft Witness Protection Scheme prepared by inputs from 18 States/Union Territories, various open sources inviting suggestions from police officers, judges and civil society which were finalized by the National Legal Services Authority afterward.
In the matter of Mahender Chawla and Ors. v.s. Union of India & Ors. The bench comprising Justice A.K. Sikri and Justice S. Abdul Nazeer has recognized the witness’ right to testify within the framework of Article 21 of the Constitution and has confirmed that-
The right to life and personal liberty under article 14 of the Indian Constitution also includes the right to testify as a witness in court without fear or pressure and also includes within them the right to live in a society free of crimes and fears
The considerations that have influenced this Court to have a holistic witness protection regime should be considered a law under Article 141 and Article 142 of the Constitution until and adequate law is framed.
The protection measures as per the witness protection scheme 2018 are as follows, but they are not limited to the following, and apart from these protective measures, the witness may require any other measures by way of an application forwarded to the Competent Authority.
To ensure the separation of the accused and the witness during a trial or investigation.
Manage to allot the witness an unlisted telephone number from the service provider.
Giving adequate security to the witness in the form of body protection, regular patrol and the use of security devices such as CCTV, fencing, security doors in his home;
Change in identity of the witness.
To provide protective and separate residence till the trial ends.
To provide conveyance to a witness in reaching to and from court on the date of hearing.
To ensure the presence of an additional person at the time of recording statements of the witness.
Holding of in-camera trials.
Giving timely financial aids for the subsistence of the witness from the Witness Protection Fund.
The Witness Protection Scheme, 2018, is India’s first national-level draft for the comprehensive protection of witnesses, which is indeed a way of eliminating witness victimization. This scheme attempts to ensure that witnesses receive adequate protection and will contribute greatly to the strengthening of the criminal justice system in the country and, consequently, will improve the national security scenario.