Legislative and Judicial contours of Witness Protection in India

“In search of truth a witness plays the role of a sun that eliminates the darkness of ignorance and illuminates the path to justice.”

The significance of the witnesses in every criminal trial is clearly established by the foregoing remark made by Justice A.K Sikri1. Their participation in a criminal trial freely is sine qua non for adjudication of any matter. Criminal proceedings of any adversarial system, places a strong emphasis on the role of a witness. The foundation of any case is a witness and as a result, they are unavoidable and play a vital part in the case's outcome. Whether the case is civil or criminal, they are the backbone of the proceedings. Without witness testimony, no prosecution case can be made out.

An ideal criminal justice system is one that is independent of oppression, and the core premise that drives the case in a court of law is fairness. Witnesses play an integral role in any criminal justice system as they are responsible for giving a first-hand account of what transpired. Thus, their role and importance becomes integral for a fair trial and the same can be achieved by granting protection to witnesses so they can give free and fair testimonies. The real situation is very grim because the witnesses are more often harassed or forced into giving false testimony. The criminal justice system suffers a lot because the integral witnesses turn hostile during examination or the complaints are retracted and the victim refuses to testify. Thus, this article seeks to examine and highlight what steps have the judiciary and legislature taken towards protecting witnesses and whether these steps are sufficient to solve the issue.

Legislative Safeguards pertaining to Witness Protection

  • Unlawful Activities (Prevention) Act, 1967 and Unlawful Activities (Prevention) Amendment Act, 2004
    Section 44 of the Amended Act deals with the concept of witness protection and borrows the idea from certain predecessor anti- terror legislation such as Terrorist and Disruptive Activities Act, 1987 and Prevention of Terrorism Act, 2002. The provision under sub-clause (3) makes it compulsory to take steps to hide the identity of witnesses who have been protected by the procedure laid down under this legislation. The provision mandates that any and all information relating to such protected witness has to be redacted from the chargesheet and steps must be taken so as to ensure that their identities are not revealed.
  • Witness Protection Scheme, 2018
    The Union Home Ministry in consonance with the order of the Supreme Court in the case of Best Bakery2 and State of Gujrat vs Anirudh Singh3 highlighted that there is a need to protect witnesses and the threat or intimidation of witnesses goes to the violation of principles of fair trial. Thus, the scheme came into existence. The scheme deals in great extent with the scope and practical measures of witness protection such as relocation, expenses and even to the extent of change of identity. But this as a statutory requirement for witness protection does not suffice because the same is titled as scheme and thus a sub-ordinate legislation which is discretionary upon the Executive may create issues of actual implementation. Thus, there is a necessity of a statutory protection not only in cases of terrorism but other criminal offences also to secure the witness and their testimony.
  • Whistle Blowers Protection Act, 2011
    This Act was legislated with an intent to reduce corruption in government agencies and public bodies and to prohibit the victimization of citizens at the hands of powerful people who may abuse their position so as to facilitate bribery. But the intent of the Act does not conform to the practices that exist in other countries and this Act fails to address very relevant issues such as the application of this Act over agencies which are private or semi-private in nature thereby exclusively granting them immunity from the provisions of this law. Furthermore, the Act also allows the disclosure of identity when the inquiry commences and thus the same is completely contrary to the purpose of identity protection. This impedes the ability of any whistleblower to act as a witness impartially and give a true and correct testimony.

Judicial Safeguards Pertaining to Witness Protection

  • Smruti Badbade vs State of Maharashtra4
    This criminal case was filed by the Petitioner against her perpetrator and she had raised a grievance that her case was not being heard properly and there was no provision for a proper mechanism which would facilitate the proper testimony of witnesses. It was the Petitioner’s contention that the state authorities had not made a secure facility for testimony of witnesses and as such the same should be facilitated to the witnesses in her case.

    The Supreme Court in this case dealt with the issues that witnesses face on a daily basis and thus concluded that there exists a category of witnesses who are vulnerable in nature and subject to extreme levels of trauma. This creation of a category thus encouraged the court to grant special levels of protection that enables proper testimony and the court went on to hold that Article 21 of the Constitution of India, 1950 does not leave any place for procedural insensitivity and hostile environment. The court further stated that positive actions must be taken to create a barrier-free environment in order to ensure access to justice. These barriers include those that operate on the minds and personalities of vulnerable witnesses as well as those that exist within the physical venues of traditional courts. There is an urgent need to promote the beneficial goal underlying the construction of a barrier-free environment in which depositions can be recorded freely and without physical or emotional constraints. This necessitates not just the construction of infrastructure but also the education of all parties.

    The court in this case brought forward a new category of witness who were more likely to turn hostile due to the efforts of the accused person and thus affirmed that any witness who may be threatened can rightfully avail such facilities and witnesses should be allowed to avail such facilities and also must be educated about the existence of such rights.
  • Hari vs State of UP5
    The factual background in this case related to honor killings pertaining to the marriage of a girl belonging to an upper caste to a boy of a lower caste which was not acceptable to the family of the girl and it led to the murder of the boy and assaults on his family. The case had 54 accused persons when the trial began in 1998 who were charged with offences punishable under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and murder among other offences.

    The Supreme Court in this appeal while perusing the details of the case came across a glaring fact that out of the 20 witnesses that the prosecution examined, 12 witnesses turned hostile and did not support the prosecution’s case. The court ascertained that the reason for this hostility was due to the inability of the Witness Protection Scheme, 2018 to be put into practice so as to protect witnesses from threat and intimidation. The court stated that when they speak about right to life under the Constitution, it also within its wide scope includes right to live in a crime free society. The court determined that all states must ensure that the witnesses are able to testify in courts in a free and fair manner and external considerations such as caste, creed or negative action for such testimony does not prohibit this right of such witnesses. The court even went on to say that when they deal with freedom of speech and expression under Article 19(1)(a) of the Constitution, it entails protecting people who are participating as witnesses in a court of law.

    This case becomes of utmost relevance as the court for the first time enshrined that it is a fundamental right of any witness to freely testify and like any other fundamental right this right must also be protected. The court thus elevated a procedural consideration to the status of fundamental right and it became necessary to properly implement witness protection measures in India and address the problem of hostile witnesses that prohibit the court from reaching the truth and deliver justice. The case was considered as a landmark case because it expanded the fundamental rights basket by even including a specific right in the nature of “right to testify”.

With the turn of each decade the criminal justice system of India has undergone tremendous change and revamp. One such change that was necessitated due to the issues faced by witnesses such as intimidation, monetary greed or need was pertaining to witness protection. It can be seen from various legislative provisions that some laws do exist in our country that deal with witness protection but they have been majorly implemented in cases relating to national security or terrorism only. The Witness Protection Scheme, 2018 is just at best a written scheme which has not been effectively implemented and lacks teeth to ensure that witnesses give a free and fair testimony. It can therefore be said that the judiciary and its activism has made us all acquainted with the idea and the need of witness protection. Certain steps by the Legislature is required to be taken to ensure that a good and effective law pertaining to witness protection is brought fore by them.

By - Aadit Ved

  1. Mahendar Chawla vs UOI 2018 SCC Online SC 2679
  2. Zahira Habibulla vs State of Gujrat (2004) 4 SCC 158
  3. (1997) 6 SCC 514
  4. Criminal Appeal No. 1101 of 2019 (Supreme Court)
  5. Criminal Appeal No. 186 of 2018 ( Supreme Court)