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  • Sejal Parve

NEED FOR WITNESS PROTECTION ACT IN INDIA: A SOCIAL-LEGAL ANALYSIS

Updated: Jan 16

Author: Sejal Parve,

GH Raisoni Law College

ABSTRACT

In the criminal justice system, witness testimony is essential because it establishes the truth and results in a decision. As the most important participants in legal procedures, witnesses are often the target of coercion and blackmail from both sides. Because of this, it is difficult to find a sensible solution to a problem. The victims' desire for justice is obstructed by the legal system. When compared to the rights of the guilty, the rights of victims and witnesses are severely restricted. Thus, keeping witnesses safe becomes crucial to the main goal of the criminal justice system.

INTRODUCTION

The criminal justice system's complexity makes it difficult to describe what constitutes fair justice and how challenging it is to obtain. Two of the many requirements for a fair trial are its expediency and objectivity. Because the Indian court system is adversarial, procedural fairness is crucial for ensuring the legitimacy of decisions. In terms of process, justice aims to inform the public as much as possible throughout the course of the investigation and trial. To enhance the administration of justice, government, law enforcement, and public defenders must act responsibly and pro-actively.

All parties must have an equal chance to be heard in court, there must be no delays, and the trial must proceed as scheduled. These are only a few of the most crucial characteristics of a fair trial. All witnesses, both written and oral, must appear in open court and be open to confirmation and, if necessary, cross-examination.[i] Remembering the vulnerable situation of the victims and witnesses is essential throughout the witness, trial, and appeal procedures. A lawsuit's likelihood of success is largely based on the version put forward or the testimony used to support it. Any witness' credibility can only be determined after carefully reviewing their supporting documentation. Even when there is a conflict of interest in the pertinent facts, a witness's trustworthiness is essential to maintaining their objectivity and upholding natural justice.

It should go without saying that a witness's testimony may either make or destroy a case depending on its credibility. The Indian Evidence Act of 1872 does not define the term "witness" specifically. "Competent persons" may testify in court under oath in line with section 118 of the Indian Evidence Act, which will be used to seek to define the term "witness." An expert is a person with extensive knowledge of issues relating to a certain area of study or field of work, as well as expertise and experience in that subject. It also identifies someone who was there at crucial occasions.[ii]

But there is some information on the beginning of an inquiry and the value of a witness in the Criminal Procedure Code of 1973. In order to learn more about the specifics of the case, it is thought that police have the power to call witnesses at two different police stations. Police officers have the right to question you and ask for a written witness in support of their investigation. A witness may only testify before a judge in a court of law, according to section 3 of the Indian Evidence Act of 1872, hence statements made to police officials at a police station are not acceptable as prima facie evidence. Similarly, gathering witness testimony might help the fight for justice provided it is done objectively and without making any false, misleading, or deceptive claims. To prevent the accused or a close witness from exerting excessive pressure or influence on any possible witnesses, we must move the investigation and trial ahead quickly. However, there are additional factors that make it more difficult to administer justice fairly, including a lack of properly trained police officers, the media's lack of interest in these issues, the involvement of influential people (politicians, mafia gangsters), the state's lack of full cooperation due to a lack of legal obligations, the ability to persuade witnesses through persuasion techniques like offering bribes, and threats of any kind. The witness will experience some level of intimidation or dread in each of these situations.[iii]

As a result, the witness either loses confidence in his ability to give an accurate testimony in court or declines to show up when called. According to the High Court's ruling in 4 Union of India & others, justice demands that a witness who is not a party to the case testify in court and tell the truth without fear or inducement.[iv] Because of his candour, a separate set of facts will be used to determine whether he is guilty or innocent. However, making a case under duress would jeopardise the fairness of the trial.

Any criminal trial should end with the presentation of all pertinent documentary and other evidence. All parties concerned must behave honestly and promptly in completing their assigned obligations if the investigator and the court are to make a convincing and fair case. Withholding the truth puts the social order, the court's decision, and the criminal justice system's reputation at risk.

CASE OF BANDU

In State of Maharashtra v. Bandu, the Supreme Court made a decision that is consistent with its most recent statements on the subject of untrustworthy witnesses (2018).[v] The respondent, here designated as Bandu, is accused of raping a 14-year-old girl who is deaf and mute. Because the victim was wrongly cross-examined, the High Court vacated the respondent's conviction. The victim was not subjected to any cross-examination, yet the Apex Court found enough evidence to find in favour of the respondent in this case. Following the issuance of its Order, the Court gave some thought to a request for the creation of private examination rooms for delicate witnesses so that they may give testimony comfortably.[vi] The court sought additional details regarding their conditions before recommending the creation of facilities for vulnerable witness depositions.

CENTRES FOR VULNERABLE WITNESSES

To accommodate the most vulnerable witnesses, it was mandated that each High Court with national jurisdiction construct at least two deposition facilities. It was emphasised that witnesses often experience fatigue and uneasiness during court proceedings. At these facilities, children and young people who have experienced or seen heinous crimes like rape or sexual assault may receive comfort and healing. The facilities will have the required security measures in place to protect the witnesses. In the Gujarati city of Vadodara, a safe deposition facility was built in the year 2019. A cutting-edge entrance and exit system linked the structure to the Chhota Udaipur District Court. The middle setup will make sure the witness doesn't have to interact with anyone else. The structure includes a kitchen, pantry, television, children's play area, etc.

WHY A WITNESS PROTECTION ACT IS NECESSARY?

In a court of law, a witness' evidence often plays a key role in the decision of the result. In Krishna Mochi v. State of Bihar, the Supreme Court ruled that both erroneous convictions and acquittals have a harmful impact on society.[vii] Hostile witnesses may decline to testify against an accused witness if they fear for their safety, the safety of their loved ones, or the safety of their property.

In a news release on the Best Bakery case on July 2, 2003, the People's Union for Civil Liberties (PUCL) outlined two situations in which a hostile witness would be suitable. First, the police misrepresented what they stated in court. Second, the defendant or their attorney coerced or intimidated witnesses into changing their testimony.

International law does not have a generally agreed-upon concept of a witness, although certain organisations have recognised the importance of creating victim and witness protection teams to help with major criminal investigations.

The British government approved the Criminal Justice and Public Order Act of 1994, defining the penalties for intimidating witnesses. Anyone who is or may be a witness in a criminal case is protected under Section 51 of the Act. According to Sections 16 through 33 of the Youth Justice and Criminal Evidence Act of 1999, the court must take special measures to protect witnesses who may be intimidated when testifying in court.[viii]

The definition of "witness" is absent from the Indian Code of Criminal Procedure. A court may call witnesses to testify at any point during a hearing, trial, or other action, or may re-examine a witness who has already testified, if the court judges that the witness' evidence is required for a fair settlement of the dispute. Both documented evidence and witness testimony are admissible according to Section 3 of the Evidence Act.

No witness giving testimony in line with Sections 151 and 152 shall be subjected to any kind of unjust treatment or humiliation. When a witness is released on bond, they must swear not to tamper with the evidence or speak to other witnesses. Witness protection is a provision of both the Juvenile Justice Act of 2015 and the West Bengal Act of 1932.

The Law Commission of India's 14th Report concentrated on ensuring that he had suitable courtroom amenities and made a passing reference to witness safety. To guarantee the witness's safety, nothing was done.

The Law Commission's 154th Report goes into further detail on the topic of witness protection and accommodation. The Commission advised that the witness should always be shielded from the aggressor's wrath but did not provide any suggestions for the witness's real physical safety.

Section 195A of the Indian Penal Code, enacted by the Criminal Law (Amendment) Act of 2005, makes it unlawful to pressure or threaten someone into producing a false statement. The updated versions of Section 195 of the Criminal Procedure Code and Section 154 of the Evidence Act include two additional revisions.[ix]

CRITICAL ANALYSIS

This year's Witness Protection Scheme (WPS) includes a number of measures to ensure the safety of witnesses, from physically escorting them into courtrooms to using audiovisual recording equipment to capture their testimonies to more drastic measures like ensuring their anonymity, moving them to safe houses, or assuming new identities while they are still in the country. According to the Scheme, an application must be made to the Member Secretary of the relevant district in order to acquire a Witness Protection Order. The Member Secretary will then forward the application to the district's Competent Authority. In Clause 6 of the Scheme, the assessment standards for these applications are outlined. The Threat Analysis Report ("TAR") is created by the Additional Commissioner of Police/Deputy Commissioner of Police in charge of the relevant Police Station and must be completed within five working days of being received. The aforementioned Clause also permits the Competent Ability to monitor and assess permanent protection orders on a monthly basis and to grant interim protection orders while a final decision is being made on a witness' application. A court may impose a protective order that is appropriate in light of the need for protection, lasts for a certain period of time, and is subject to continued monitoring and review in order to safeguard a witness. In accordance with such a directive, the witness's residence may be often patrolled, their identity kept secret, the trial held in secret, their mail and phone conversations are monitored, etc. The Scheme also outlines the procedures to follow in order to verify the witness' identity, conceal it, change locations, assure their safety, and maintain witness records (Clauses 9 through 13).

Even if the Witness Safety Scheme is a beneficial development for witness/victim protection, there are still issues with it in 2018. First, you have a three-month limit on how long you can depend on the guaranteed protection. The fact that orders given under the Scheme seem to be based on recommendations or counsel given in TAR(s) by police officers, who may be vulnerable to corruption or influence from superiors or politicians, is another reason for concern. Under the Scheme, failure to keep records and ensure confidentiality is not punishable. The employment, education, or training of the witnesses is not currently covered by any Plan provisions.[x] The Witness Protection Bill, 201529, on the other hand, included, among other things, particular provisions regarding the penalties that may be applied for violating the terms of said Bill, orders for the protectee's safety and security from the start of the investigation until the stage after trial, on conditions that the Court deemed warranted based on the person's perception of threat, etc. The Scheme really omitted wording ensuring the protectee's right to start a new activity without jeopardising the validity of the case or the juvenile protectee's capacity to complete their education. In addition, a law to safeguard witness names was submitted to the Parliament. Unfortunately, none of the aforementioned Bills were passed into law.

There is little doubt that India's laws protecting witnesses, who are crucial to the criminal justice system's operation, have improved. But without a legislative procedure with major legal consequences, the whole system—which was created via the judicial process—might be in jeopardy. The Indian Supreme Court has established many precedents stating that all witnesses must testify in court without fear of retaliation, favour, or the danger of being coerced or bribed. Thus, it is inadequate to simply state that the Witness Protection Program is effective and well-run. The State must now take action to adopt thorough legislation in this area in its capacity as the protector of the populace. Justice will be prevented from flowing at its own speed until that time.

CONCLUSION

The witnesses are the court's "eyes and ears," in Jeremy Bentham's words. While witness protection in India has been a matter of discussion at least since 1958 (when it was first brought up in the 14th Law Commission Report), much has changed since then.[xi] The need of safeguarding witnesses' rights is mentioned in laws like the National Investigation Agency Act of 2008, the Protection of Children from Sexual Offenses Act of 2012, and the Scheduled Caste and Tribes (Prevention of Atrocities Act of 1989. Witness involvement must continue from the site of the crime until the court hearing. Their condition only becomes worse as a result of the accuser's abusive behaviour, which includes threats of murder, coercion, harassment, and other sorts of abuse. In these circumstances, victims are more prone to make unreliable witnesses. Many individuals give in to rage and irritation when faced with such a situation. Planning by the Indian government to prevent this is essential. The 2018 Witness Protection Scheme and the establishment of distinct vulnerable witness deposition facilities are the only two notable and advantageous government initiatives.[xii] Other than the rulings of the Delhi High Court, there are no other legal safeguards for untrustworthy witnesses. It is necessary to have both general and specialised legislation to safeguard the rights of witnesses who could be coerced into giving testimony against their will.[xiii] These witnesses are a clear target for criminals due to their desire to testify and susceptibility to intimidation. This necessitates ongoing safety measures.

REFERENCES [i]https://www.mha.gov.in/sites/default/files/Documents_PolNGuide_finalWPS_08072019.pdf [ii] Id. [iii] Supra note 1. [iv] “Justice V.S. Malimath Committee Report on Reforms of Criminal Justice System” (Ministry of Home Affairs 2003). [v] http://delhihighcourt.nic.in/writereaddata/upload/notification/notificationfile_lcwcd2x4.pdf [vi] Id. [vii] “Review of Rape Laws” (Law Commission of India, 172nd Report, 2000). [viii] “Reform of Judicial Administration” (Law Commission of India, 14th Report, 1958). [ix] Id. [x] Supra note 6. [xi] Rattiram v. State of M.P., (2012) 4 SCC 516. [xii] The National Investigation Agency Act, 2008, Section 17. [xiii] “Review of Rape Laws” (Law Commission of India, 172nd Report, 2000).

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