"A witness is a man whose life and faith are so completely one that when the challenge comes to step out and testify for his faith, he does so, disregarding all risks, accepting all consequences." – Whittaker Chambers.
According to the Black's Law Dictionary, a witness is one who sees, knows or vouches for something and gives testimony under oath or affirmation in person, by oral or written deposition or by affidavit. Section 3(ed) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 defines a witness as any person who is acquainted with the facts and circumstances, or is in possession of any information or has knowledge necessary for the purpose of investigation, inquiry or trial of any crime involving an offence and who is or may be required to give information or make a statement or produce any document during investigation, inquiry or trial of such case and includes a victim of such offence. In State of Gujarat v. Anirudh Singh, the Supreme Court 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. Also, the Malimath Committee on Reforms of Criminal Justice System, 2003 stated in its report that by giving evidence relating to the commission of an offence, the witness performs a sacred duty of assisting the court to discover the truth. In Zahira Habibulla H. Shiekh and Another v. State of Gujarat, the Supreme Court observed that if the witnesses get threatened or are forced to give false evidence that would not result in a fair trial. The first ever reference to Witness Protection in India found place in the 14th Report of the Law Commission of India, then in 154th report, 178th report and 198th Report of the Law Commission. It is important that the witnesses have trust and confidence in the criminal justice system so that they can come forward to help the prosecuting and law enforcement agencies. They have to be given protection from the harm that might be inflicted upon them so that they do not run away from the law enforcement agencies. In numerous cases, we have seen witnesses turning hostile because of threat, intimidation, inducement by various means, use of muscle and money power by the accused, use of stock witnesses, protracted trials, etc. Hence, a comprehensive scheme was required for addressing the issues of witness protection in the country.
In Mahender Chawla & Ors. v. Union of India & Ors., Writ Petition (Criminal) No. 156 of 2016, the Supreme Court of India approved the Witness Protection Scheme, 2018, formulated by the Central Government and finalised in consultation with National Legal Services Authority (NALSA). According to the Central Government, the aim and objective of the scheme is to ensure that the investigation, prosecution and trial of criminal offences is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal recrimination. It aims to promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance to criminal law enforcement agencies and overall administration of justice. The witnesses need to be given the confidence to come forward to assist law enforcement and judicial authorities with full assurance of safety and the Scheme is aimed to identify the series of measures that may be adopted to safeguard witnesses and their family members from intimidation and threats against their lives, reputation and property. The Scheme provides for three categories of witness as per threat perception: Category A: Where the threat extends to life of witness or his family members, during investigation/trial or thereafter. Category B: Where the threat extends to safety, reputation or property of the witness or his family members, during the investigation/trial or thereafter. Category C: Where the treat is moderate and extends to harassment or intimidation of the witness or his family member's, reputation or property, during the investigation/trial or thereafter. In Mahender Chawla & Ors. (supra), a Bench of Justices A.K. Sikri and S. Abdul Nazeer directed the Union of India as well as States and Union Territories to enforce the Witness Protection Scheme, 2018 in letter and spirit and held the Scheme to be the law under Article 141/142 of the Constitution till the enactment of suitable Parliamentary or State Legislations. The Bench also directed that in all the district courts in India, vulnerable witness deposition complexes shall be set up by the States and Union Territories.
Recently, the Supreme Court directed that the Witness Protection Scheme, 2018 should be strictly enforced by the Union and States and Union Territories and the Trial Court may consider granting protection under the Scheme to witnesses without their making any specific application in this regard. The Allahabad High Court, lately, has issued notice to the Uttar Pradesh Government seeking effective implementation of the Witness Protection Scheme, 2018 and asked the Government to furnish on record all the letters and documents, sent to the District Authorities for immediate and effective implementation of the Scheme. The Karnataka High Court has also directed the State government to issue an order constituting a competent authority as prescribed in the Witness Protection Scheme, 2018. The Madras High Court, not long ago, opined that the Witness Protection Scheme, 2018 has been evolved to give confidence to the witnesses to come forward to assist law enforcement and judicial authorities with full assurance of safety and aiming to identify series of measures that may be adopted to safeguard witnesses and their family members from intimidation and threats against their lives, reputation and property.
According to Section 7 of the Witness Protection Scheme 2018, 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: ensuring that witness and accused do not come face to face during investigation or trial; monitoring of mail and telephone calls; arrangement with the telephone company to change the witness's telephone number or assign him or her an unlisted telephone number; installation of security devices in the witness's home such as security doors, CCTV, alarms, fencing etc; concealment of identity of the witness by referring to him or her with the changed name or alphabet; emergency contact persons for the witness; close protection, regular patrolling around the witness's house; temporary change of residence to a relative's house or a nearby town; escort to and from the court and provision of Government vehicle or a State funded conveyance for the date of hearing; holding of in-camera trials; allowing a support person to remain present during recording of statement and deposition; 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 or she is not identifiable; ensuring expeditious recording of deposition during trial on day to day basis without adjournments; 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, etc.
It is high time to effectively implement the Witness Protection Scheme, 2018 and set up vulnerable witness deposition complexes in all the district courts of India. Many vulnerable witness deposition complexes have already been established in various States and Union Territories of India including Jammu & Kashmir and many more need to be set up sooner rather than later. The Witness Protection Scheme is a substantial scheme aimed to strengthen the criminal justice system of the country, ensuring access to justice and advancing the cause of justice. The vulnerable witness deposition complexes need to be set up in all the district courts of India at the earliest and they must have a witness room, an accused room, area for playing for the child witnesses, toilet, pantry, a waiting area, etc. The complexes must also have video-conferencing facilities for communication between the Judge, the witness and the accused. There must be facilities for pick and drop of the witnesses from their residence. This would help the witnesses to give their evidence freely in criminal proceedings. As per the scope of the Scheme, Witness Protection may be as simple as providing a police escort to the witness up to the Courtroom or using modern communication technology for recording of testimony. In complex cases, involving organised criminal group, extraordinary measures are required to ensure the witness's safety like anonymity, offering temporary residence in a safe house, giving a new identity, and relocation of the witness at an undisclosed place. However, Witness protection needs of a witness may have to be viewed on case-to-case basis depending upon their vulnerability and threat perception. When the witnesses are not able to give their best evidence, it paves the way for criminals to escape conviction, thereby affecting the public confidence in the criminal justice system. Therefore, it is germane to protect the witnesses by implementing the Witness Protection Scheme in letter and spirit and establishing vulnerable witness deposition complexes in all the district courts of India by remembering the words of Jeremy Bentham when he said that witnesses are the eyes and ears of justice.
Muneeb Rashid Malik is a student of law.