All about Witness Protection

WHO IS A WITNESS?

Jeremy Bentham said that witnesses are eyes and ears of the Courts.

The Witness Protection Scheme, 2018 defines a 'witness' as "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 made a statement, or who has given or agreed or is required to give evidence in relation to such proceedings.”

WHAT IS WITNESS PROTECTION?

The 14th Law Commission Report was the initial event when the issue of witness protection was addressed.

Credible witnesses are one among the most crucial elements in a trial. A witness can provide substance to the trial and aid in arriving to a fair conclusion. The inputs that a witness provides often have a direct bearing on whether the accused should be convicted or acquitted.

Hence, it is essential to protect the witness from any factors that can possibly alter their position in a particular case. External factors of influence may be in the form of corruption, intimidation or threats. This can result in the witness turning hostile.

Therefore, it is the duty of the State to protect such witness and ensure they can testify with full liberty in order for the criminal justice system to prevail.

Certain measures that can be undertaken to protect the witnesses are stated below:

1. The accused and witness should be investigated separately and should not have to interact with each other until the trial is concludedunless deemed necessary.

2. The witness should be provided an unlisted contact number.

3. The witness should be provided a temporary place of residence with security.

4. Adequate measures should be taken to ensure the identity of the witness is not revealed.

5. Providing financial aid for sustenance from the Witness Protection Fund if required.

Case laws

1. ZahiraHabibulla H. Sheikh and Another v. State of Gujarat, ((2004) 4 SCC 158)

In this case, while defining the term 'fair trial', the Supreme Court of India stated that “If the witnesses get threatened or are forced to give false evidence that also would not result in fair trial”.

2. State of Gujarat v. Anirudh Singh, ((1997) 6 SCC 514)

In this case, the Supreme Court of India held that “It is the salutary duty of every witness who has the knowledge of the commission of the crime, to assist the State in giving evidence.”

WITNESS PROTECTION SCHEME, 2018

The Witness Protection Scheme was approved by the Supreme Court of India on December 5, 2018in the case of Mahendra Chawla v. Union of India, (2018 SCC Online SC 2678), and the bench observed the scheme as a 'law' under Article 141 and 142 of the Constitution of India. The draft of the scheme was finalized by the National Legal Services Authority after taking into consideration the suggestions received from the police, judges and the civil society. The Court identified the rights of a witness to testify under the ambit of Article 21 of the Constitution of India by stating the following:

“The right to testify in courts in a free and fair manner without any pressure and threat whatsoever 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.”

A Witness Protection Fund is constituted under this scheme and the same is operated by the Ministry or Department of Home Affairs under the State or Union Territory. All expenses for implementing Witness Protection are provided under this fund.

However, competent legislation is yet to be made on the subject. There is a need for witness protection to be extended to all cases dealing with grave offences and the same should not be limited to just cases of sexual offences and terrorism.

Some rights that the witnesses have and should be informed about by the concerned authority are as stated below:

1. Right to be in a secure waiting place while at Court to attend the proceedings.

2. Right to have information about the status of the investigation and prosecution of the crime.

3. Right to be treated with compassion, dignity and have their privacy acknowledged.

4. Right to be protected from harm and intimidation.

5. Right to give evidence without having to reveal their identity.

6. Right to a stay in a safe place and have secured transportation mode.

LATEST AFFAIRS

TeestaSetalvad is a civil rights activist and journalist, andleads the Citizens for Justice and Peace (CJP) organisation. Recently, the organisation moved to the Supreme Court of India seeking an intervention in the Hathras case that is pending before it. In the plea, it was stated that the Hathras case should be transferred to the Central Bureau of Investigation. Moreover, appropriate measures should be taken by the Court to ensure witness protection and the personnel protecting the family including women should hail from similar strata, in order to avoid further alienation and intimidation.

The organisation added, “This would not threaten the existence of a fair trial where witness from marginalised backgrounds can fearlessly come forward and testify in courts. Lack of effective witness protection, right from the beginning of the investigation and trial, hampers the deliverance of justice and results in several cases where the witness turns hostile.”

The organisation further submitted that it has prior experience in working with victims who were either threatened or intimidated by the State earlier and therefore they are in a position to assist the court.