Right to fair trial has been recognized as the heart of Criminal jurisprudence and one of the most important facets of democratic polity. As per the Hon'ble Supreme Court2, "[d]enial of "fair trial" is crucifixion of human rights." Fair trial is also recognized3 as one of the fundamental rights emanating from Article 21 of the Constitution of India ("Constitution"). It has been further acknowledged4 that denial of the fair trial amounts to a denial of human rights. Fair trial encapsulates, principles of fair prosecution, independent and impartial judiciary/ Judge, atmosphere of judicial calm, etc. Witnesses form key ingredients5 in a criminal trial, for it is the testimonies of the witnesses, which establish the guilt of the accused. Therefore, inherent to fair trial is also the independence and freedom of the witnesses, produced before the Court for evidence. In Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., (2006) 3 SCC 374, the Hon'ble Supreme Court has categorically observed that if the witnesses get threatened or are forced to give false evidence that would not result in a fair trial.
It is not quite uncommon that witnesses turn hostile6 during trial. As per the Hon'ble Supreme Court7, basis an exhaustive review of several judgments8, threat/ intimidation, inducements by various means, use of money and muscle power, etc. are few of the reasons which make witnesses retract from their statements before Court and turn hostile. In Mahender Chawla and Ors. v. Union of India (UOI) and Ors., 2019 (14) SCC 615, the Hon'ble Court specifically observed that one of the main reasons for the witnesses to turn hostile is that they are not accorded appropriate protection by the State. Clearly, threat to life, induced by coercion, compulsion, violence, etc., may often result in witnesses from contracting from truth, even if the same may go against their conscience or will.
The Law Commission of India ("Law Commission") in its 14th Report9 and the National Police Commission in its 4th Report, thoroughly examined and recommended substantive measures to alleviate the difficulties of witnesses. In its 154th Report10, the Law Commission specifically observed, "[n]ecessary confidence has to be created in the minds of the witnesses that they would be protected from the wrath of the accused in any eventuality." The Law Commission, further, in its 198th Report11 carried out an exhaustive study on Witness Identity Protection and Witness Protection Programmes, inter alia, observing that there was an absence of Witness Protection Programmes in India, dealing with the protection of victims and witnesses, outside Court proceedings. Accordingly, the Law Commission proposed and annexed "Witness (Identity) Protection Bill, 2006" along with its Report. However, no Draft Bill regarding Witness Protection Programmes was proposed.
The Indian Judiciary12 has, time and again, emphasized on the need for witness protection. In National Human Rights Commission v. State of Gujarat and Ors.13, the Hon'ble Apex Court duly acknowledged the importance of witness protection and highlighted the role to be played by the State14 in this regard. After exhaustively reviewing the laws, policies and precedents regarding witness protection in several parts of the world and lack of any such mechanisms in India, the Hon'ble Court was pleased to permit the Special Investigation Team/ SIT so constituted in the said case to, inter alia, decide, "which witnesses require protection and the kind of witness protection that is to be made available to such witness." The Hon'ble High Court of Bombay in Rajubhai Dhamirbhai Baria and Ors. v. The State of Gujarat and Ors.15 stressed on the State's role16 to evolve a machinery for the purpose of giving protection to the witnesses in sensitive matters. In a proceeding before the Hon'ble Apex Court, directions17 were specifically issued to the States to indicate the steps taken/ to be taken for witness protection. At the same time, the (then) learned Attorney General for India was also requested to provide his suggestions in the form of a draft scheme. Pursuant thereto and based on the recommendations of several States/ Union Territories, "Witness Protection Scheme, 2018" ("Scheme") was finalized by the Central Government, in consultation with National Legal Services Authority. Subsequently, the Hon'ble Court vide its judgment dated 05.12.201818 noted a paramount need to have witness protection mechanism/ scheme India. However, considering the absence of statutory regime, the Scheme was duly adopted and declared to be law by the Hon'ble Court, in terms of Article 141 of the Constitution, until a suitable law in this regard was framed. Pertinently, in Neelam Katara v. Union of India, ILR (2003) 2 Del 377, the Hon'ble High Court at Delhi had also, as early as the year 2003, issued certain directions/ guidelines for protection of witnesses, till suitable legislation was brought on the statute books.
The Witness Protection Scheme, 2018 envisages means ensuring protection of life/ safety of witnesses in events ranging from19; providing a police escort to witness up to Court room or using audio video means for recording testimony of such witness to steps ensuring anonymity, temporary residence in safe house, providing new identity, relocation of witnesses, etc., in extreme cases. The Scheme, inter alia, provides for classifying witnesses into three categories, i.e., Category A20, Category B21 and Category C22, as per threat perception and further provides for the establishment of State Witness Protection Fund23, operated by the Department/ Ministry of Home under State/ Union Territory Government, for meeting the expenses incurred during implementation of Witness Protection Order24, passed by Competent Authority25. As per the Scheme, the genesis of Witness Protection Order is the filing of an application in the prescribed form26 before the Competent Authority of the concerned District, through its Member Secretary. Clause 6 of the Scheme provides for the procedure for processing of such application(s), basis Threat Analysis Report ("TAR"), prepared by the Additional Commissioner of Police/ Deputy Commissioner of Police in charge of concerned Police Station and its disposal within a period of five working days from the receipt of said Report. The said Clause further confers power on the Competent Authority to pass interim protection order, till final decision on witness' application and monthly follow up and review of final order of protection so passed. Witness Protection Order, proportionate to the threat and for specific duration27 and subject to monitoring/ review28, which may be passed may include: monitoring of mails/ telephone calls; ensuring witness and accused do not come face to face during investigation/ trial; concealment of identity; holding in-camera trial; regular patrolling around witness' house, etc. The Scheme also makes provisions regarding protection of identity of witness (Clause 9); change of identity (Clause 10); relocation of witness (Clause 11); Confidentiality and preservation of Records (Clause 13); etc. Further, as per Clause 12 of the Scheme, it has been made incumbent on every state to give wide publicity to the scheme and on the Investigation Officer and Court to inform the witnesses about the existence of the Scheme and its salient feature.
Though, the Witness Protection Scheme, 2018 is an appreciated step in the direction of witness/ victim security, however, there are certain inherent lacunae existing therein. Firstly, the protection envisaged therein is limited for a specific duration of three months at a time. Secondly, the basis of orders which may be passed under the Scheme seem to hinge largely on the recommendations/ advice made in TAR(s) by the concerned officials of police, who are often prone to corruption, superior/ political pressures, etc. Further, though, the Scheme envisages for confidentiality and preservation of records, however, no penal provisions against such violation are provided for therein. The Scheme also does not make any provision for occupation/ work/ education, in the interim, of the witnesses. In contrast, the Witness Protection Bill, 201529 made, inter alia, specific provisions in relation to the penalties which may be imposed for the violation of the terms of the said Bill; orders for safety and security of the protectee30 from the inception of investigation till the stage after trial on terms, as warranted by the Court as per the threat perception of the individual; etc. In fact, under the said Bill there were specific provisions in relation to the protectee's right to practice an alternate occupation, without compromising the integrity of the case and continuity of education of juvenile protectee, lacking under the Scheme. Similar Bill for the protection of Identity of witness31 was introduced in the Parliament. However, unfortunately, both the said Bills could not transform into a statute.
Undoubtedly, India has come a long way in relation to ensuring the safety and security of witnesses, considered as an integral part of criminal justice system. However, a lack of statutory mechanism with strict penal implications may result in leaving the entire mechanism so adopted through judicial process, in lurch. As the Indian Courts have often recognized, "[t]he edifice of administration of justice is based upon witness coming forward and deposing without fear or favour, without intimidation or allurement in Courts of Law32." Therefore, an existence of and effective and strict Witness Protection Scheme cannot be stated be enough. Time has come for the State to step into its role of parens patriae and to provide a comprehensive legislation in this direction. It is only then that the stream of justice would be able to flow freely and independently.
* As per Jeremy Bentham, "Witnesses are the eyes and ears of justice"
2 Rattiram v. State of M.P., (2012) 4 SCC 516
3 Nahar Singh Yadav v. Union of India, (2011) 1 SCC 307
4 Hon'ble Supreme Court in Selvi J. Jayalalithaa and Ors. v. State of Karnataka and Ors., (2014) 2 SCC 401 has held, "Right to get a fair trial is not only a basic fundamental right but a human right also."
5 National Human Rights Commission v. State of Gujarat, MANU/SC/0713/2009, Writ Petition (Crl.) No. 109/2003 dated 01.05.2009 (Supreme Court)
6 "Under the common law a hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him..." (Gura Singh v. The State of Rajasthan, AIR 2001 SC 330)
7 Refer to Ramesh and Ors. v. State of Haryana, (2017) 1 SCC 529
8 Krishna Mochi v. State of Bihar, (2002) 6 SCC 81; Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374; Sakshi v. Union of India, (2004) 5 SCC 518; State v. Sanjeev Nanda, (2012) 8 SCC 450
9 M.C. Setalvad, Law Commission, submitted on 26.09.1958.
10 154th Report of the Law Commission of India on the "Code of Criminal Procedure, 1973", submitted on 22.08.1996.
11 Submitted on 31.08.2006
12 People's Union for Civil Liberties v. Union of India, (2004) 9 SCC 580 (situations demanding protection of witness identity); Sakshi v. Union of India, (2004) 5 SCC 518 (Witness who may also be a victim/ child witness/ etc.)
13 MANU/SC/0713/2009, Writ Petition (Crl.) No. 109/2003 dated 01.05.2009 (Supreme Court)
14 "As a protector of its citizens it has to ensure that during a trial in the court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed."
15 2012 (114) BomLR 3549; MANU/MH/1415/2012
16 "Time has therefore come for the State Governments to have a witness protection programme so that witnesses get protection and are not left to the mercy of either side i.e. the accused or complainant."
17 Mahender Chawla v. Union of India, 2017 SCC OnLine SC 1764
18 Mahender Chawla v. Union of India, (2019) 14 SCC 615
19 "However, Witness protection needs of a witness may have to be viewed on case to case basis depending upon their vulnerability and threat perception" (Scope of the Scheme)
20 Where threat extends to life of witness or his family members, during investigation/ trial or thereafter.
21 Where threat extends to safety, reputation or property of witness or his family members, during investigation/ trial or thereafter.
22 Where threat is moderate and extends to harassment or intimidation of witness or his family member's, reputation of property, during investigation/ trial or thereafter
23 Clause 4 of the Witness Protection Scheme, 2018.
24 Clause 2(n) of Witness Protection Scheme, 2018.
25 Clause 2(c) of Witness Protection Scheme, 2018.
26 "The application for seeking protection order under this scheme can be filed in the prescribed form......" (Clause 5 of Witness Protection Scheme, 2018)
27 "...shall be for a specific duration not exceeding three months at a time....." Clause 7 of Witness Protection Scheme, 2018.
28 Clause 8 of Witness Protection Scheme, 2018 (on basis of follow-up reports or on quarterly basis based on monthly follow-up reports submitted by Witness Protection Cell).
29 Prepared and introduced in Parliament in 2015
30 Clause 2 (g) "protectee" means any individual who has been or might be threatened, coerced, attacked, injured or influenced in any manner whatsoever as may be determined by the court in which the proceedings involving him as a witness are going on;"
31 The Witness (Protection of Identity) Bill, 2015
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