The Hon'ble Supreme Court on 05-12-2018 gave its seal of approval to a draft witness protection plan prepared by the Central Government. The plan, called the Witness Protection Scheme, will have to be implemented by all states, except Jammu and Kashmir, until Parliament turns the draft into law.The Supreme Court has directed all states and union territories to immediately implement the scheme intended to protect witnesses in criminal cases to prevent them from turning hostile, a fact blamed for the low conviction rates in criminal trials in the country. Witnesses of criminal trials who fear to depose or turn hostile under duress will now be entitled to 24X7 security cover, pick and drop facility from home to court in a Government vehicle. Apart from that the witnesses will have a specially designed court room for recording evidence during trial without confronting the accused. The Witness Protection Scheme formulated by the Central Government and approved by the Supreme Court isto be enforced throughout the Country. It will remain operational till the Parliament introduces a law. Terming witnesses as the "backbone" in the criminal justice system, a bench of Justices AK Sikri and S Abdul Nazeer proceeded for framing a scheme on a petition by four persons who were shot at or threatened for deposing against self-proclaimed godmanAsaramBapu and his son Narayan Sai in rape cases of a child and two sisters. Supreme Court has also made some changes to the draft plan, which has been prepared by the Centre in consultation with the states. The SC's judgment has come as a huge support to lakhs of witnesses who out of fear of life, loss of kin, property or reputation, refused to speak the truth, resulting in a high rate of acquittals.
Role of a witness and need for protection
A witness in a criminal trial plays a pivotal role in a determining the fate ofthe case. The word "witness" has been defined nowhere in the Criminal ProcedureCode. A witness may be defined as one who gives evidence in a case, an indifferentperson to each party, sworn to speak the truth, the whole truth and nothing but thetruth. According to Black's Law Dictionary,'Witness is one who sees, knows orvouches for something or one who gives testimony, under oath or affirmation inperson or by oral or written deposition, or by Affidavit".The role of a witness is very important in a trial. He is an indispensable aid in the justice dispensation system in any civilized society. According to Bentham, witnesses are the eyes and ears of justice. Their each and every statement is very important as it has a magic force to change the course of the whole case. The greatest weakness of our criminal justice system is that it has become dogged and does not function in a fluent fashion resulting in prompt determination of the guilt or innocence of those charged with crime. The most overwhelming and important reason for this weakness is the fact that prosecution witnesses retract from statements made earlier before the police and turn hostile in the Court. Witnesses are turning hostile with predictable regularity in cases involving heinous crimes or high profile personalities due to external pressures, thereby leading to the failures of the criminal justice system. The whole issue of hostile witness came under sharp public scrutiny after the judgement in the landmark Jessica Lal, Best Bakery case. These cases came as an eye-opener showing glaring defects in the judicial system.
The right to testify in courts in a free and fair manner without any pressure and threat is under serious attack today. If one is unable to testify in courts due to threats or other pressures, then it is a clear violation of Article 21 of the Constitution.
There are two broad aspects to the need of witness protection in India.
a) To ensure that the evidence of witnesses is protected from the danger of them turning hostile.
b) To relieve the physical and mental vulnerability of the witnesses.
It is imperative that we come up with a better justice system, one that provides adequate safeguards to the witness. There is no law for the protection of witness in India barring few sections of Indian Evidence Act, 1872. Section 151 and Section 152 protects the witnesses from being asked indecent, scandalous, offensive questions, and questions which intend to annoy or insult them. Special statues on terrorism like TADA and POTA (both acts were repealed) and NIA Act had provisions for protecting the identity and address of witnesses. Both the IPC and the Protection of Children against Sexual Offences Act (POCSO) have provisions to protect victims and witnesses in court such as conducting in-camera trials, without the presence of the media or public. In case of children, POCSO also provides for special courts that should ensure that the identity of the child is not disclosed during the course of the investigation or trial. In 2015, Delhi became the only state to adopt a Witness Protection Scheme. The Delhi State Legal Services Authority (DSLSA) passes protection orders in each case after evaluating the threat. The police commissioner, who heads the Delhi police force, is responsible for the overall implementation of the witness protection orders. Protection measures can include armed protection, regular patrolling around witnesses' house, installing closed-circuit television cameras, and relocation.However, India does not have a national witness or victim protection law, making witnesses and victims vulnerable outside the courtroom. This fact was acknowledged by Supreme Court in the case of NHRC v. State of Gujarat where it said that no law has yet been enacted, not even a scheme has been framed by the Union of India or by any State Government for giving protection to the witnesses. In fact the Law Commission recognised the need for the same and came up with a consultation paper on witness protection on 13, August, 2004.
Hostile witness and Reasons for Witness Turning Hostile
To understand the meaning of hostile witness, we have to understand the process by which a witness becomes hostile. Chapter XII of the Code of Criminal Procedure deals with the police powers to investigate. Section 161(3) of the Cr. P C vests in police officers the power to record statement of witnesses.
However, these statements are not admissible in court by virtue of Section 162(1). The aim of S. 162 is to protect accused persons from being prejudiced by statements made to police officers who may coerce witnesses. So what happens is that during the trial witness has to restate what he said to the police. Here the statements recorded by the police constitute a reference to which the veracity of the witness is to be tested. If the witness goes back on his/her earlier statement he/she becomes hostile witness.
There are various reasons why a witness may turn hostile. Witnesses are extremely vulnerable to intimidation in the form of threats by the accused. The People's Union for Civil Liberties (PUCL) made a press release on July 2, 2003 pertaining to the Best Bakery case saying there were two ways to explain why witnesses turn hostile. The first is that the police had recorded the statements incorrectly. The second and more plausible was that the police had recorded the statements correctly but were retracted by the witnesses because of intimidation and other methods of manipulation.
Another major reason of this growing menace is protracted trials. The working of judicial process is very slow. Several dates are fixed for cross examination of witnesses, which frustratethe witness for being summoned again and again for the trail. This frustration takes its toll, and the witness decides to turn hostile to get rid of the harassment. The 4th Report of the National Police Commission (1980) acknowledged the troubles being undergone by witnesses attending proceedings in courts. The witnesses are not at all treated properly in our judicial system. The Mallimath Committee has expressed its opinion about such witnesses by saying that the witness should be treated with great respect and should be considered as a guest of honour. Lack of a witness protection programme, unsymphatetic attitude of the police, bribery and corruption are other reasons which add to the malaise.
Girls and women who report sexual crimes are even more at risk when they belong to socially or economically marginalised communities. If the perpetrators are influential, police too often pressure the complainants to 'settle” or 'compromise” in such cases. Such harassment and lack of protection, along with victim blaming and social stigma, means many victims fail to report rape to authorities at all.India has a conviction rate of 26 percent for rape, as compared to 47 percent for other cognisable crimes under the Indian Penal Code (IPC), according to 2016 government data. The main reason is witnesses, far too often, change their testimony in court because of threats.
As long as witnesses continue to go hostile and do not make truthful deposition in Court, justice will always suffer and people's faith in the credibility of judicial process and justice system will continue to erode and shatter. It is high time that the malaise of 'hostile witness' be tackled.
Witness Protection Scheme
The Witness Protection Scheme, 2018 (Draft) is a first attempt at the National level to holistically provide for the protection of the witnesses which will go a long way in eliminating secondary victimization. About 18 states/Union Territories, five State Legal Services Authorities, the National Legal Service Authority, three High Courts, civil society members, and police personnel have contributed to the fine print of the scheme.
The issue of witness protection scheme had cropped up earlier when the top court was hearing a public interest litigation (PIL) seeking protection for witnesses in rape cases involving self-styled preacher AsaramBapu.
In the Asharambabu case 'During night, I get no sleep as I am in constant fear of death by the accused's firing squad....I want to live at least till I complete my testimony,” stated Rahul Sachan, a former personal assistant to AsumalHarpalani (known as Asaram), in an affidavit filed with the Supreme Court in August 2015.
Sachan, a witness in the two rape trials of Asaram, and a third against Asaram's son Narayan Sai went missing three months later and his fate is unknown. Earlier that year, he was stabbed outside a court in Jodhpur city.
In a society governed by Rule of Law, it is imperative to ensure that investigation, prosecution and trial of criminal offences is not prejudiced because of threats or intimidation to witnesses. The need to protect witnesses has been emphasised by the Hon'ble Supreme Court of India in 'ZahiraHabibulla H. sheikh and Another v. State of Gujarat” 2004 (4) SCC 158 SC. While defining Fair Trial, the Hon'ble Supreme Court observed that 'If the witnesses get threatened or are forced to give false evidence that also would not result in fair trial”. In 1958, the 14th Report of Law Commission indicated about the need to protect witnesses. The 4th Report of the National Police Commission, 1980 also dealt with the said subject. In 154th Report (1996) The Law Commission dealt with the plight of the witnesses. The report spelt out the inconvenience and the lack of facilities and the threat from the accused to the witnesses. The 172 and 178th report also dealt with the said subject and recommended that witnesses should be protected from the wrath of the accused in any eventuality. The Hon'ble Supreme Court also repeatedly observed about the importance to give protection to witnesses. In complex cases, where cooperation by a witness is critical to successful prosecution of a powerful criminal group, extraordinary measures are required to ensure the witness's safety viz. anonymity, relocation of the witness under a new identity in a new, undisclosed place of residence. At present there is no law/scheme holistically at the National level for protection of witnesses. Keeping in view the said scenario, 'Witness Protection Scheme, 2018” has been drafted/devised by NALSA & BPR&D.
Framework of the proposed Scheme
The scheme consists of six Parts, and all the parts are interrelated. Part I consists of the definitions of the various terms used in the Scheme such as 'Witness Protection Application, Witness Protection Fund, Witness Protection Order, Witness Protection Cell, Competent Authority”.
The entire proceedings regarding filing of application etc. take place before the Competent Authority who is empowered under the Scheme to pass orders for protection of the witness. The Competent Authority under the scheme is the Secretary, District Legal Services Authority (DLSA) who alone can pass witness protection order and may issue orders for protection of identity/change of identity/relocation of a witness, categorization of threat, duration and types of protection as detailed in clause 7. The Chairperson of District Legal Services Authority shall exercise the powers vested with him / her as envisaged under Part IV & V of the Scheme. The second part at the scheme spells out the categories of witnesses as per the threat perceptions. It also spells about the creation of State Witness Protection Fund. This part contains the procedural aspects such as filing and processing of application for protection. Types of protection measures are also mentioned in the said part. Parts III and V consist of the special witness protection measures which may be required in much graver scenarios. The last part deals with miscellaneous aspects related to the operational aspects of the schemeand also about the right to review and appeal.
The edifice of the scheme stands on the categorization of the witnesses as per the threat perception. Three categories keeping in view of the degree of threat has been conceptualized i.e. Category no. A pertains to the scenario where the threat is graver and extends to life of a witness or his family members; category B comprises that degree where threat is to the safety, reputation, property of witness or family members, and lastly, the category C comprises of the degree where threats are more moderate as compared to the threats conceptualized in the categories A and B. Category C extends to harassment or intimidation of the witness or his family members reputation.
State Witness Protection Fund has been proposed under the Scheme. The sources of the State Witness Protection Fund are: Budgetary allocation made in the Annual Budget by the State Government; Receipt of amount of fines imposed (under Section 357 of the Cr.P.C) ordered to be deposited by the courts/tribunals in the Witness Protection Fund; Donations/contributions from International/National/Philanthropist/ Charitable Institutions/Organizations and individuals permitted by Central/State Governments and Funds contributed under Corporate Social Responsibility.
Filing of application: The application for seeking protection order under this scheme can be filed in the prescribed form before the Competent Authority as per area jurisdiction along with supporting documents. As and when an application is received by the Competent Authority, in the prescribed form, it shall forthwith pass an order for calling the Threat Analysis Report from the Commissioner of Police in Commissionerates/ SSP in District Police investigating the case. Depending upon the urgency in the matter owing to imminent threat, the Competent Authority can pass orders for interim protection of the witness or his family members during the pendency of the application. The Threat Analysis Report shall be prepared expeditiously by the Commissioner of Police in Commissionerates/ SSP in District Police investigating the case while maintaining full confidentiality and it shall reach the Competent Authority within five working days of receipt of the order. In the report, the Commissioner of Police in Commissionerates/ SSP in District Police investigating the case shall categorize the threat perception and shall also submit the suggestive measures for providing adequate protection to the witness or his family as contained in clause 7 of the scheme or any other measure found appropriate. While processing the application for witness protection, the Competent Authority shall also interact preferably in person and if not possible through electronic means with the witness and/or his family members/employers or any other person deemed fit so as to ascertain the witness protection needs of the witness. All the hearings on Witness Protection Application shall be held incamera by the Competent Authority while maintaining full confidentiality. An application shall be disposed of within five working days of receipt of Threat Analysis Report from the Police authorities. The Witness Protection Order passed by the Competent Authority shall be implemented by the Witness Protection Cell of the State/UT/CPO. Overall responsibility of implementation of all witness protection orders passed by the Competent Authority shall lie on the Head of the Police in the State/Union Territory. However the Witness Protection Order passed by the Competent Authority for change of identity or/and relocation shall be implemented by the Department of Home of the concerned State/Union Territory. Upon passing of a Witness Protection Order, the Witness Protection Cell shall file a monthly follow-up report before the Competent Authority. In case the Competent Authority finds that there is a need to revise the Witness Protection Order or an application is moved in this regard, a fresh Threat Analysis Report may be called from the Commissioner of Police in Commissionerates/ SSP in District Police.
Types of Protection Measures:
The types of Protection measures envisaged under the Scheme are to be applied in proportion to the threat. The same are not expected to go for infinite time, but are expected to be for a specific duration on need basis which is to be reviewed regularly.
The measures provided for the protection of the witnesses include the following:-
(a) Ensuring that witness and accused do not come face to face during investigation or trial.
(b) Monitoring of mail and telephone calls.
(c) Arrangement with the telephone company to change the witness's telephone number or assign him or heran unlisted telephone number.
(d) Installation of security devices in the witness's home such as security doors, CCTV, alarms, fencing etc.,.
(e) Concealment of identity of the witness by referring to him/her with the changed name or alphabet.
(f) Emergency contact persons for the witness.
(g) Close protection, regular patrolling around the witness's house.
(h) Temporary change of residence to a relative's house or a nearby town.
(i) Escort to and from the court and provision of Government vehicle or a State funded conveyance for the date of hearing.
(j) Holding of in-camera trials.
(k) Allowing a support person to remain present during recording of statement and deposition.
(l) Usage of specially designed vulnerable witness court rooms which have special arrangements like live links, one way mirrors and screens apart from separate passages for witnesses and accused, with option to modify the image of face of the witness and to modify the audio feed of the witness' voice, so that he/she is not identifiable.
(m) Ensuring expeditious recording of deposition during trial on day to day basis without adjournments.
(n) Awarding time to time periodical financial aids/grants to the witness from Witness Protection Fund for the purpose of re-location, sustenance or starting new vocation/profession, if desired.
Apart from the above measures, any other form of protection measures considered necessary, and specifically, those requested by the witness can be ordered by Competent Authority. Some other measures, which can be resorted to in graver scenarios are ‘Protection of Identity', ‘Change of Identity' and ‘Relocation of Witness For protection of identity, an application for seeking identity protection can be filed in the prescribed form before the Competent Authority. The Competent Authority, keeping in view the ‘Threat Analysis Report and after examining the witness, his family members or any other person can pass an order for concealment of identity of witness. Similarly, in some cases keeping in view the threat perception report a new identity may be conferred. In appropriate cases relocation of witnesses can also be ordered to a safer place within the State/Union territory.
Review and Appeal
This scheme provides review and appeal in case witness or the police authority is aggrieved by the decision of the Competent Authority, review can be filed before the Competent Authority within 30 days, and an appeal can be filed before the Chairperson of DLSA in case aggrieved by the review order passed by Secretary, DLSA. The appeal against the orders passed by Competent Authority under Parts IV& V of the Scheme can be filed before Member Secretary, State Legal Services Authority.
Recovery of expenses: In case the witness has lodged a false complaint, the State Legal Service Authority can initiate proceedings for recovery of the expenditure incurred to recoup the Witness Protection Fund.
Problems in Application of Witness Protection Program in India
The first and most important problem is with regard to anonymity of witnesses and the balancing of interests of the prosecution in protecting the witness and the rights of the accused. The Section 327 of the Code of Criminal Procedure in India specifies the importance of an open trial. Thus, the rights of the accused in knowing who is testifying against him are very important, especially if he has to defend himself against such testimony. Section 299 of the same statute gives one of the few exceptions to this rule and says that only if the accused is not available or has absconded and cannot be found by reasonable means, then the court can order the prosecution witnesses to testify without the presence of the accused.
India is not the first country to have seen the necessity for a witness protection programme. Many countries such the United States of America, Canada, Thailand, Australia, South Africa among others have enacted witness protection legislation, while many others have informal physical security systems such as prevailing in the United Kingdom. The witnesses being eyes and ears of justice, play an important role in bringing perpetrators of crime to justice. However, the witnesses get traumatized and harassed in our Criminal Justice System and it is an open secret, which needs no second thought.
This scheme attempts at ensuring that witnesses receive appropriate and adequate protection. This will go a long way in strengthening the Criminal Justice System in the Country and will consequently enhance National Security Scenario. Any successful witness protection scheme will have to evaluate the threat and determine the protection needs in each case carefully, allow for flexibility, and include regular follow-up. At the same time, in sensitive cases, especially of sexual violence, the courts should record the statements and examine the victims and vulnerable witnesses promptly, lessening the risk to them from the accused.
No nation can afford to expose its righteous and morally elated citizens to the peril of being haunted or harassed by anti social elements, for the simple reason that they testified the truth in a court of law. Adequate steps must be taken for the protection of witnesses who appear before the court so as to render a helping hand in the dispensation of justice. Former Attorney General Soli J. Sorabjeerightly said nothing shakes public confidence in the criminal justice delivery system more than the collapse of the prosecution owing to witnesses turning hostile and retracting their previous statements. So, Indian Parliament should take a note of the current scenario and immediately pass law for the protection of witnesses in conformity with the draft witness protection scheme approved by the Supreme Court of India.