An Effective Witness Protection Scheme in India: A Pivotal Necessity
‘Nothing spoils a good story like the arrival of an eye witness.’ -Mark Twain
The most vital factor for the identification/confirmation of any crime or Criminal is the Witness. However, almost nobody wants to be a witness in a courtroom if it’s dangerous or unsafe. And it’s also reasonable that without any effective Witness Protection Schemes who would want to become a witness? Witnesses have been observed to become hostile during a trial on several occasions. The main reason for the hostility is that the witness is threatened and pressured for the testification by the side of the defendant. Various Countries, all over the globe has adopted a separate Witness Protection Programme, which has been proved to be quite beneficial for their Criminal Justice System. However, in India, can we surely say that the Witness Protection Laws are effective? Or are they half-backed and unevolved? This Article reflects the desperate requirement of an effective Witness Protection Program in India.
Definition of Witness
According to The Witness Protection Scheme 2018, ‘Witness’ is “ 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 given or agreed or is required to give evidence concerning such proceedings ”.
Definition of Witness Protection
According to Wikipedia Witness Protection “is a security provided to a threatened person providing testimonial evidence to the justice system, including defendants and other clients, before during, and after a trial, some witnesses are provided with a new identity and may live out the rest of their lives under government protection”.
Present Scenario of Witness Protection in India
At present India don’t have any specific scheme or even a specific law for Witness Protection. However, in the case of Mahendra Chawla v. Union of India[i], the Supreme Court has approved the draft of the Witness Protection Scheme, prepared by the inputs from eighteen states and Union Territories, including different open sources, inviting opinions from civil society members, police personnel and judges, finalized by the National Legal Service Authority. But it has limitations. The major obstacle with the scheme is the time frame of protection. It has a limited scope of protection for three months at a time, which means that the possibility of threat cannot be eliminated once protection is terminated. Secondly, even though its objective consists of protecting the identity of witnesses by maintaining confidentiality, however, it does not penalize any violation of that provision.[ii]
In India, the act of ‘Witness turned hostile’ is not novel; however, it’s worse than the old times. In the old-time, major cases like murder, rape or kidnapping was investigated by the SHO himself, but nowadays, even the major investigations are taken in charge by the inexperienced sub-inspectors. Bombay High Court in the case of Saraswati Langde v. the State of Maharashtra[iii] on January specifically stated that, that “the Witnesses turning hostile are Cancerous for Indian Judiciary”. The most common reason for thus, is the threat given to them. Such as, almost 50 witnesses linked to vyapam case and 3 witnesses in Asaram case have been found dead. At Chandigarh, in April, 2019, the witness allegedly threatened outside the courtroom. According to the senior lawyer and MP KTS Tulsi, the rate of conviction in murder cases is 10 % and the rate of conviction in rape cases is almost 12 %. He further added, “These low numbers exist because witnesses are too afraid to come to the court, and that’s because of the absence of the programme that protects witness”[iv].
Importance of Witness Protection Programme
The Principle of the Criminal Justice System is based on the principle of ‘Ensure the good and punish the Wicked’. To fulfil this principle, it is crucial to identify who is ‘Good’ and who is ‘Wicked’. According to Bentham, ‘Witnesses are the ears and eyes of the law’. They are a crucial part of a criminal investigation. Unlike the pieces of evidence, witnesses can express themselves in the Court and identify. There are various judgements where the need for the Witness Protection Program has raised, such as NHRC v. State of Gujarat[v] and Krishna Mochi v. the State of Bihar[vi]. In the case of Zahira Habubullah Sheikh & Anr. v. State of Gujarat[vii], the Supreme Court has observed that if the witnesses get threatened or forced to give false evidence that will not result in a fair trial.
In the case of Swarna Singh v. State of Punjab[viii] , the court noted that “a criminal case is based on evidence, evidence that is permitted by law. This requires witnesses, either direct evidence or circumstantial evidence.” However, although a witness in India plays an important role in a case, he must go through many psychological and physical obstacles.
The Witness Protection Scheme can also contribute in accelerating the process of court because not having enough witnesses for the hearing is also a reason for the slow justice delivery mechanism. The mechanism of evidence through systematic collection and submission to a court of law, both civil and criminal, enables the competent authorities to effectively prove a fact when the role of the witness comes into play.
Success of International Witness Protection Programmes
Initiated in the 1960s, the WITSEC was the first witness protection programme operated by the US Marshals Service. The WITSEC also give a whole different identity to the witness for lifetime. It is acting as the model for many jurisdictions such as Australia and Canada which have similar Federal Programmes.
In New Zealand there is an agreement between Department of Corrections and the police to ensure that protected witnesses receive appropriate protection from the department.[x]
Our Indian Constitution gives us the right to a fair trial which is almost impossible without any potential witness. However, India has drastically failed to provide witnesses in the courtroom. The reason behind the lack of witnesses in the trials is that the Witness Protection laws in India are highly ineffective. It rises an imperative question that what must be done. Even though the Supreme Court has been suggesting an effective Witness Protection Program for decades, still, the protection of witnesses has seen no progress. The international Witness Protection Schemes such as the USA, UK, and New Zealand has proved to be highly successful. India can borrow ideas regarding their scheme from them. The responsibility for witness protection lies not only with the judiciary and the police, however, also with society as a whole.
[i] 2019 (14) SCC 615
[ii] Bhawna Gera and Kashish Makkar, The Telegraph, 22 February, 2019
[iii] Criminal Appeal No. 40 0f 2015
[iv] Akshat Kaushal, Business Standard, Will India be able to protect its witnesses, 1 August 2015.
[v] Crl.M.P. No.10719/2003
[vi] AIR 2003 SC 886
[vii] (2006) 3 SCC 374
[viii] 2000 (5) SCC 68 of 678.
[ix] Owen Boycott, The Guardian, 24 January, 2014
[x] Correction Department NZ- Witness Protection.
MJRP University, Jaipur