Any good criminal trial would involve jurors. However, at times when a victim decides to testify against the accused in court, their lives, or the lives of their relatives are at risk. A witness can be a person present at the scene of a crime, an observer who knows about a crime, or even an accomplice. The identity of such witnesses must be secured otherwise they can become violent or be physically harmed.
Witness security is particularly important in the war against crime. In reality, when serious and organised crimes are concerned, criminals and their associates frequently try to stop the witness from disclosing some kind of information. The State must take adequate steps to shield witnesses in order to ensure the protection of their lives and discourage them from being violent.
The need for witness protection
Witness plays an important part in the justice system, as the witness helps the judge to decide the fate of the convicted. They are considered ‘the eyes and ears of law.’ In certain court trials, particularly in high-profile cases, State witnesses will also step away from their evidence as a result of the death threats they have received and may turn violent, obstructing a fair trial. Justice may only be achieved with the receipt of statements from witnesses and the review of evidence. The defendant must be able to testify and tell the court the facts without apprehension, and so the safety of the witness is necessary to maintain the rule of law.
This question was also addressed by the Supreme Court of India in the case of Krishna Mochi v. Bihar State. In that case, the Court acknowledged that “one of the reasons may be that they do not have the confidence to depose an accused on the grounds of threats to their lives, particularly when the defendant is a habitual criminal or high-ranking in government or close to power, which may be political, economic or other forces, like muscle power.”
Protection of witnesses may be provided in a several ways, such as offering police protection, prohibiting the press from attending the court, encouraging witnesses to use an alias, locking court documents, allowing witnesses to wear face masks, granting new identities, providing residence in a safe house, etc. Any case allows one to understand when witnesses become violent. In the Vyapam scandal, several witnesses were suddenly found dead, and in the Asaram Bapu instance, three witnesses were killed and nine other witnesses were attacked and threatened. Likewise, during the murder trial of Jessica Laal, jurors resorted to death threats and intimidation.
Based on the 198th report of the Law Commission, which described the problems faced by witnesses in India, the Witness Protection Bill 2015 was introduced to the Parliament. Unfortunately, the Member States were unable to find an agreement. It included provisions for the security of a witness cell, prosecution of violent witnesses, protection of identity, etc.
According to Section 2(j) of the Scheme, a witness is a person who keeps documents or data on any offence that the competent authority considers to be important to any criminal proceedings and who has made a statement, or who has made or agreed to, or is obliged to give testimony in connection with such proceedings.
The scheme separates witnesses into three groups based on the understanding of the threat:
- Where the danger refers to the life of the witness or his family members, before or after the investigation / trial.
- Where the danger applies to the life, integrity, or property of the witness or the members of his or her families, before or during the investigation/trial.
- Where the threat is mild and refers to assault or coercion of the witness or family member, identity or property, during the investigation / trial or afterward.
The aim of the scheme is to provide witnesses with such security mechanisms, such as reminding witnesses of the scheme, protection of identification, in-camera hearings, transfer of witnesses, preservation of documents, reimbursement of costs incurred by witnesses, etc. The Member States have been required to set up a fund to cover certain costs of the scheme. The Fund includes monies from the regular budget of the State Government, the Union Territories, gifts from benevolent intuitions, corporate investments under the CSR, etc.
The witness, his family, his lawyer, and the police officers involved in the investigation can make an appeal to the court for the safety of a witness. When immunity is given to a witness under the Scheme, it is the responsibility of the State to ensure protection and to supply the witness with the necessary documentation. Witness protection may be obtained at any stage; during the investigation, during the trial, or even after the trial u/s 4(2) of the Scheme.
u/s 8 and u/s 12 of the scheme the government provides for the creation of a National and State Witness Security Council to ensure the enforcement of the provisions of the Scheme. The Supreme Court approved the Witness Protection Scheme, 2018, in the landmark case of Mahendra Chawla v. Union of India. It also stipulated that this scheme should be treated as a statute in compliance with Articles 141 and 142 of the Constitution of India, until such time as the Parliament has passed the same legislation. The Court directed both States and Union Territories to arrange deposition complexes for witnesses and to install adequate devices to keep the accused away from the victim.
Like every other scheme, this scheme has some disadvantages. Here, in short, we address some of the drawbacks:
- The security provided by the scheme shall be limited to three months. This temporary protection may not be sufficient; protection should then be granted before the hazard ceases to exist.
- The Indian Government does not have the financial means to evacuate the witnesses and provide them with all they need to start a new life.
- Protection mechanisms under the scheme tend to be costly and the Member States do not have adequate money to enforce the scheme successfully.
- As of 2018, the population-to-police ratio in India is 198.65, which is profoundly poor. The police have no special training or personnel to protect all the witnesses.
- People with power and money can, at times, force or pressurize the officials to release witness evidence.
In the case of such drawbacks, witnesses do not have faith in the System.
The Government of India has not drawn up laws on the protection of witnesses. However, one part of the security of witnesses is protected by the Indian Penal Code, u/s 195A, which aims to prosecute those who harass the witnesses. It would benefit if the court offers such services to make it simpler and safer for jurors to testify, such as in-camera hearings, voice distortion devices, speedy prosecution and witness protection. The police should be mandated to provide protection and help in escorting and relocating witnesses. A witness plays an important part in jury cases and must also be covered. There is a compelling need for strict rules to protect the witness in every possible way. India should take notes and steal ideas from countries like Canada, the United States, the United Kingdom and Israel that have successfully implemented witness security regulations.
Kosha Doshi, The growing need for witness protection in India, Ex Gratia Law Journal, (November 26, 2020), https://exgratialawjournal.in/blawg/law-of-evidence/the-growing-need-for-witness-protection-in-india-by-kosha-doshi/.