Witness Protection in India

In the words of Jeremy Bentham "witnesses are eyes and ears of justice."

In an adversarial system, which is prevalent in India, the court is supposed to decide the cases on the basis of evidence produced before it. This evidence can be in the form of documents. It can be oral evidence as well, i.e., the deposition of witnesses. The witnesses, thus, play a vital role in facilitating the court to arrive at correct findings on disputed questions of facts and to find out where the truth lies. Notwithstanding the same, There are many threats faced by the witnesses at various stages of an investigation and then during the trial of a case.

Justice Malimath Committee Report on Reforms of Criminal Justice System, 2003 has remarked as under -

"Another major problem is about safety of witnesses and their family members who face danger at different stages. They are often threatened and the seriousness of the threat depends upon the type of the case and the background of the accused and his family. Many times crucial witnesses are threatened or injured prior to their testifying in the court. If the witness is still not amenable he may even be murdered. In such situations the witness will not come forward to give evidence unless he is assured of protection or is guaranteed anonymity of some form of physical disguise. Time has come for a comprehensive law being enacted for protection of the witness and members of his family.”

198th report of Law commission of India on witness identity protection and witness protection programmes stated -

“The reason is not far to seek. In the case of victims of terrorism and sexual offences against women and juveniles, we are dealing with a section of society consisting of very vulnerable people, be they victims or witnesses. The victims and witnesses are under fear of or danger to their lives or lives of their relations or to their property. It is obvious that in the case of serious offences under the Indian Penal Code, 1860 and other special enactments, some of which we have referred to above, there are bound to be absolutely similar situations for victims and witnesses. While in the case of certain offences under special statutes such fear or danger to victims and witnesses may be more common and pronounced, in the case of victims and witnesses involved or concerned with some serious offences, fear may be no less important. Obviously, if the trial in the case of special offences is to be fair both to the accused as well as to the victims/witnesses, then there is no reason as to why it should not be equally fair in the case of other general offences of serious nature falling under the Indian Penal Code, 1860. It is the fear or danger or rather the likelihood thereof that is common to both cases. That is why several general statutes in other countries provide for victim and witness protection.”

In the case of Sawaran Singh vs State of Punjab hon'ble Supreme Court has directed -

"The High Courts should avoid harassment of witnesses by subordinate staff. The witnesses should be paid immediately irrespective of the fact whether he examines or the matter is adjourned."

In the case of Sakshi vs Union of India hon'ble Supreme Court has stated and directed -

"Often the questions put in cross-examination are purposely designed to embarrass or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused. It will, therefore, be better if the questions to be put by the accused in cross-examination are given in writing to the presiding officer of the court, who may put the same to the victim or witnesses in a language which is not embarrassing. There can hardly be any objection to the other suggestion given by the petitioner that whenever a child or victim of rape is required to give testimony, sufficient breaks should be given as and when required. The provisions of sub-section (2) of Section 327 CrPC should also apply in inquiry or trial of offences under Sections 354 and 377 IPC.”

In the case of The State of Maharashtra vs Bandu @ Daulat hon'ble Supreme Court has directed -

"There should be special centres for examination of vulnerable witnesses in criminal cases in the interest of conducive environment in Court so as to encourage a vulnerable victim to make a statement. Such centres ought to be set up with all necessary safeguards. Our attention has been drawn to guidelines issued by the Delhi High Court for recording evidence of vulnerable witnesses in criminal matters and also the fact that four special centres have been set up at Delhi for the purpose. The directions of Delhi High Court and setting up of special centres for vulnerable witnesses as noted above are consistent with the decision of this Court and supplement the same. We are of the view that all High Courts can adopt such guidelines if the same have not yet been adopted with such modifications as may be deemed necessary. Setting up of one center for vulnerable witnesses may be perhaps required almost in every district in the country. All the High Courts may take appropriate steps in this direction in due course in phases. At least two such centres in the jurisdiction of each High Court may be set up within three months from today. Thereafter, more such centres may be set up as per decision of the High Courts.”

In the case of Mahender Chawla vs Union of India hon'ble Supreme Court has directed -

(i) This Court has given its imprimatur to the Witness Protection Scheme, 2018 prepared by Union Government which is approved hereby. It comes into effect forthwith.

(ii) The Union of India as well as States and Union Territories shall enforce the Witness Protection Scheme, 2018 in letter and spirit.

(iii) It shall be the ‘law’ under Article 141/142 of the Constitution, till the enactment of suitable Parliamentary and/or State Legislations on the subject. 

(iv) In line with the aforesaid provisions contained in the Scheme, in all the district courts in India, vulnerable witness deposition complexes shall be set up by the States and Union Territories. This should be achieved within a period of one year, i.e., by the end of the year 2019. The Central Government should also support this endeavour of the States/Union Territories by helping them financially and otherwise.

The witness Protection scheme, 2018

Under this scheme on the basis of threat analysis report, inter alia, orders for protection of identity, change of identity and relocation of witnesses can be issued by

The competent authority established under the scheme. 

This Scheme categorizes witnesses into three parts :

i) where threat extends to life

ii) where threat extends to safety, reputation or property

iii) where threat is moderate and extends to harassment or intimidation.

This scheme provides below - mentioned witness protection measures -

The witness protection measures ordered shall be proportionate to the threat and shall be for a specific duration not exceeding three months at a time. They may include:

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 her an 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 video 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 a new vocation/profession, if desired;

o) Any other form of protection measures considered necessary.

Interestingly, this scheme does not provide any penal consequence for non-compliance or violation of the scheme as was provided in Witness Protection Bill, 2015.

Witness Protection Bill, 2015

In 2015, a private member bill by Member of  Parliament Om Birla was introduced before Parliament but unfortunately didn't convert into a legislation.

Unlike Witness Protection Scheme, 2018, this bill didn't stipulate any specific time period for the protection or any categorization of witnesses.

Section 17 stipulated penal consequences for contravention of the provisions of the bill.

This bill, inter alia, provided,

i) if such a mechanism is not possible, the appropriate Government shall provide an allowance equal to and commensurate to the standard of living of the individual before his participation in the case:

ii) In case the protectee is a juvenile, it shall be the duty of the appropriate Government to ensure the continuity of his education until the completion of all levels of the present education programme:

iii) if protectee wishes to enroll in further education, the appropriate Government shall ensure the availability of the same through distance mode of education and in doing so the security of the individual shall not be compromised in any manner whatsoever.

In the case of Mahendra Chawla vs Union of India hon'ble Supreme Court has stated that 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. The right to life guaranteed to the people of this country also includes in its fold the right to live in a society, which is free from crime and fear and right of witnesses to testify in courts without fear or pressure.