Abstract
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 Court, “denial of
“fair trial” is crucifixion of human rights.” Fair trial is also recognized as one of the
fundamental rights emanating from Article 21 of the Constitution of India (“Constitution”).
It has been further acknowledged 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 ingredients 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 hostile during trial. As per the Hon’ble
Supreme Court, basis an exhaustive review of several judgments, 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 Report and the National
Police Commission in its 4th Report, thoroughly examined and recommended substantive
measures to alleviate the difficulties of witnesses. In its 154th Report, the Law Commission
specifically observed, “necessary 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 Report 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 Judiciary has, time and again, emphasized on the need for witness protection. In
National Human Rights Commission v. State of Gujarat and Ors., the Hon’ble Apex Court
duly acknowledged the importance of witness protection and highlighted the role to be
played by the State 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. stressed on the State’s role 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, directions 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 05.12.2018 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 from; 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 A, Category B and Category C, as per threat perception and further provides for
the establishment of State Witness Protection Fund, operated by the Department/ Ministry
of Home under State/ Union Territory Government, for meeting the expenses incurred
during implementation of Witness Protection Order, passed by Competent Authority.
As per the Scheme, the genesis of Witness Protection Order is the filing of an application in
the prescribed form 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 duration and subject to monitoring/ review, 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, 2015 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 protectee 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 witness 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, “the edifice of administration of justice is based
upon witness coming forward and deposing without fear or favour, without intimidation or
allurement in Courts of Law.” 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.