AN EXEGESIS ON WITNESS PROTECTION LAWS
Author: Soundarya Rathor,
3rd year law student,
School of Law, Christ (Deemed to be University).
As one of the main objectives of the criminal law system is to punish the offender, investigation becomes imperative to prove the crime. Therefore, the foundation of any criminal case is the construction of evidence. Here, a witness, including the victim himself, plays an important role in the criminal trial and aids the court in the administration of justice.
As the witnesses play a pivotal role in the criminal justice system, the consequent perils to the life and property of witnesses and their near ones has become a cause of concern internationally as well as, many national governments. Witnesses faces many difficulties at various stages of investigation, which may be in the form of threat to physical safety, sexual harassment, loss of reputation etc. Witness intimidation is a fundamental threat to the rule of law. If criminals routinely succeed in deterring testimony, the criminal justice system withers, and laws can be broken with impunity.
There is a dire need for a witness protection programme in our country. The witnesses are neither suitably treated, nor do they have a suitable remedy. The Criminal Law (Amendment) Act inserted Section 195A in the Indian Penal Code for tackling the problem of witness hostility, states that,
“Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both; and if innocent person is convicted and sentenced in consequence of such false evidence, with death or imprisonment for more than seven years, the person who threatens shall be punished with the same punishment and sentence in the same manner and to the same extent such innocent person is punished and sentenced.”
This offence is cognizable as well as non-bailable and the procedure for the same has been codified in Section 195A of the Code of Criminal Procedure. Now, the witnesses have a recourse to file a complaint against intimidators, instead of becoming hostile. However, the problem of their safety still exists. The provision does not give the witnesses any kind of protection or takes away the threat posed to his or her life. Hence, the need for a protection scheme still lingers on.
It is an anomaly of our criminal justice system that the victims of crime have received less attention and concern than the criminals themselves. The criminal justice system has evolved as society’s response to the violation of the victim’s rights, yet a recurrent theme in legislation, law enforcement and prosecution has dealt with protecting the rights of the accused. Article 20(2) and 20(3) of the Indian constitution recognises the Right of an accused against double jeopardy and self- incrimination, respectively. Section 250 of the Code of Criminal Procedure provides for compensation to the accused on the grounds that the accusation was without reasonable cause. Similar sensitivity is absent when it comes to the interests of the witnesses. The criminal justice system has been ineffectual in affording adequate protection to witnesses, who are, after all, often key factors in effective criminal prosecutions.
The value of witnesses can’t be denied, keeping in view the dependency of the criminal proceedings on the testimonies and cooperation of witnesses in all the stages of the proceedings, especially in those cases where the prosecution has to establish the guilt with absolute certainty via oral cross-examination of witnesses in hearings open to the world at large. In such cases, the testimony of a witness, even if not as an eye witness, may prove to be crucial in determining the circumstances in which the crime might have been committed.
Various other countries have established witness protection programmes, which not only focus on the physical protection of the witnesses and their family, but also take care of their social and psychological well being. Such an all round programme is the need of the hour and the same will be the focus of this paper.
OTHER LAW IN EXISTENCE: WHISTLEBLOWER PROTECTION ACT
Whistleblowers are individuals who expose corruption and fraud in organizations by filing a lawsuit or a complaint with Government authorities that prompts a criminal investigation into the organizations alleged behavior, hence making them a key witness to the crime. Whistleblowers Protection Act, 2011 is an Act of the Parliament of India which provides a mechanism to investigate alleged corruption and misuse of power by public servants and also protect anyone who exposes alleged wrongdoing in government bodies, projects and offices. The wrongdoing might take the form of fraud, corruption or mismanagement.
The name of the Act itself makes it very clear that the purpose of this act is the protection of the persons who make public interest disclosure or have assisted in such matters from possible victimization or harassment and the Central Government has to ensure such protection. The Vigilance Commission has to protect the identity of the complainant and related documents.
The Whistleblowers Protection Act, 2011 has neither provisions to encourage whistleblowing (financial incentives), nor deals with corporate whistleblowers; it does not extend its jurisdiction to the private sector and it does not include the definition of victimisation. Further, competent authorities under the Act are very limited and right of appeal is not provided to the complainant in case he/she is not satisfied by any order of the competent authority. Appeal provisions have been provided only relating to imposition of penalty. Actions on anonymous complaints have also not been included in the ambit of the Act.
While the Whistleblowers Protection Act has been passed, it has not yet been brought into effect by the government. Recently , the Department of Personnel, Public Grievances & Pe
nsions gave a statement stating further amendments are a delay in operationalising the Act.
nsions gave a statement stating further amendments are a delay in operationalising the Act.
IMPACT OF JUDICIAL PRONOUNCEMENTS ON WITNESS PROTECTION
There have been multiple instances where the courts in India have highlighted the need for a witness protection programme, the most popular being the Best Bakery Case, where the Court stated that, “The Witness Protection Programmes are imperative as well as imminent in the context of alarming rate of somersaults by witnesses with ulterior motives and purely for personal gain or fear for security.”
Likewise, the Court held that, “Time has become ripe to act on account of numerous experiences faced by the court on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface…The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law.”
In the case of National Human Rights Commission v. State of Gujarat, it was stated by the Supreme Court that, “Fair trial means a trial in which bias or prejudice for or against the accused, witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial.”It was further held that, “Since the protection of a witness is a paramount importance it is imperative that if and when any witness seeks protection so that he or she can depose freely in court, the same has to be provided.”The Court, though gave the witness the right to ask for protection, did not lay down any procedure or framework for the same.
Recently, the Supreme Court, in Mahender Chawla v. Union of India have given the 2018 Draft Witness Protection Scheme made with the consultations with the National Legal Services Authority (NALSA), after stating that, “Here is a paramount need to have witness protection regime, in a statutory form, which all the stakeholders and all the players in the criminal justice system concede. At the same time no such legislation has been brought about. These are the considerations which had influenced this Court to have a holistic regime of witness protection which should be considered as law Under Article 141 of the Constitution till a suitable law is framed.”The Court have ordered all the States and Union Territories to enforce the Witness Protection Scheme, 2018 in letter and spirit.
THE WITNESS PROTECTION SCHEME, 2018
The Witness Protection Scheme, 2018 has been formulated by the National Legal Services Authority and the Bureau of Police Research and Development. It starts with justifying the need for the existence of such witness protection scheme by explaining the present societal circumstances and stating that “In recent year’s extremism, terrorism and organized crimes have grown and are becoming stronger and more diverse. In the investigation becoming and prosecution of such crimes, it is essential that witnesses, have trust in the criminal justice system. Witnesses need to have the confidence to come forward to assist law enforcement and prosecuting agencies. They need to be assured that they will receive support and protection from intimidation and the harm that criminal groups might seek to inflict upon them in order to discourage them from cooperating with the law enforcement agencies and deposing before the court of law.”
The application for seeking protection order under this scheme can be filed in the prescribed form before the Competent Authority who is the Secretary of District Legal Services Authority (DLSA). There shall be a Witness Protection Fund from which the expenses incurred during the implementation of Witness Protection Order passed by the Competent Authority and other related expenditure, shall be met. It shall comprise of the following Budgetary allocation made in the Annual Budget by the State Government, Receipt of amount of fines imposed (under section 357 of the Code of Criminal Procedure) ordered to be deposited by the courts/tribunals in the Witness Protection Fund, Donations/contributions from International/National/Philanthropist/ Charitable Institutions/Organizations and individuals permitted by Central/State Governments and funds contributed under Corporate Social Responsibility. This fund shall be operated by the Department/Ministry of Home under State/UT Government.
The Scheme details the procedure after receiving the application by the witness too. It involves the formulation of a ‘Threat Analysis Report’ by the Commissioner of Police in each district within 5 days. In the report, the Commissioner of Police in Commissionerates/ SSP in District Police investigating the case shall categorize the threat perception and shall also submit the suggestive measures for providing adequate protection to the witness or his family. While processing the application for witness protection, the Competent Authority shall also interact preferably in person and if not possible through electronic means with the witness or any other person deemed fit so as to ascertain the witness protection needs of the witness. An application shall be disposed of within five working days of receipt of Threat Analysis Report from the Police authorities.
The Witness Protection Order passed by the Competent Authority shall be implemented by the Witness Protection Cell of the State. Overall responsibility of implementation of all witness protection orders passed by the Competent Authority shall lie on the Head of the Police in the State. The Witness Protection Cell shall file a monthly follow-up report before the Competent Authority. All the hearings on Witness Protection Application shall be held in-camera by the Competent Authority while maintaining full confidentiality. In case the witness or the police authorities are aggrieved by the decisions of the Competent Authority, a review application may be filed within 30 days of the passing of the orders by the Competent Authority. In case the witness/police authorities are aggrieved by the review orders of the Competent Authority, an appeal may be filed before the Chairperson of DLSA against the orders passed by Secretary of DLSA. A further appeal in certain cases can be made to the Member Secretary of the State Legal Services Authority.
The witness protection measures ordered shall be proportional to the threat and for a specific duration, including change in the identity of the witness, temporary change of residence, holding of in-camera trials, any other form of protection measures considered necessary, and specifically, those requested by the witness amongst many other measures.
ANALYSIS OF THE SCHEME
The scheme consists of both, commendable as well as flawed features. The addition of the compulsion to make a Threat Analysis Report will prove to be a beneficial step. The report will give the Competent Authority the required basis to take the appropriate action. Also, the Scheme covers all possible measures that can be used for witness protection along with leaving scope for introducing new measures as well as respecting the witness’s request in the matter.
The biggest fallacy that the author identifies is the appointment of Secretary of DLSA as the Competent Authority. The Legal Services Authority was made with the objective “to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity.”The responsibility to deal with Witness Protection will be burdensome and outside the purview of its authorising Act. Also, the District Legal Services does not have either the experience or the expertise to deal with the delicate issue of witness protection.
Another concern which arises out of this Scheme, is about the dependency on the government for funds. The Competent Authority will not be in control of the fund and will be dependant on the Home Ministry for the same. This can lead to undue influence by the government and may not completely ensure impartiality. The responsibility to formulate the Threat Analysis Report and to follow the orders passed by the Competent Authority, is on the Police authority of that state. This poses a similar problem of burden and a scope for corruption. The existing arrangements for witness protection involves police in the same way this new scheme does. There have been many allegations of malafide on police personnel, like in the cases of Vyapam scam and the recent Unnao rape case, where the witnesses were killed or gravely injured. Apart from engaging in malpractices, this obligation will be burdensome on the police as they already have an overwhelming number of duties and lack of personnel to perform all the functions.
These issues existed before the introduction of this scheme and will still be there as the prsent scheme does not give any solutions to cure them. The main challenges remain as it is; maladministration and improper implementation. These problems gives rise to the possibility to ponder on the existence of a completely separate unit for Witness protection.
SEPARATE WITNESS PROTECTION CELLS
A witness protection program can be executed in any of the following ways:
- By conferring the duties and powers of protection of witnesses exclusively on police.
- By cooperation between intergovernmental organisations like police and the ministry of justice.
- By multidisciplinary institutions working together like law enforcement agencies, prosecutors, judiciary and governmental authorities.
The existing witness protection practices in our country fall in the first category, whereas the new scheme falls in the second category. The author proposes the formulation of a scheme that incorporates the gist of the third category. The proposed idea is the creation of a separate, independent unit, called a Witness Protection Cell which will have all the requirements and resources for protecting a witness under one single window. It will be distinct from police or any single ministry but will work in tandem with all. It will have its own funding mechanism, staff, organisation etc.
The United Nations Office on Drugs and Crimes (UNODC) has developed a ‘Report on Good Practices for the Protection of Witnesses in Criminal Proceedings Involving Organised Crime,’ to assist nations in enacting their own Witness Protection Programme. The report discusses available measures and other practical solutions and procedures that can be incorporated in the legislation considering the socio- political and economic conditions of the State. Its main objective is to give a criteria for introducing a witness protection programme and to make a smooth progress towards a common intern
ational approach on the issue of witness protection.
ational approach on the issue of witness protection.
According to the report, Using protection measures affects the rights of the defendant and potentially influences the right to a fair and unbiased hearing. It also leads to serious disruption of the life of the witness and any persons accompanying the witness in the programme. It may even have implications for third parties. Because of these serious implications, protection programmes should be well grounded in either legislation or policy. Legislation should be sufficiently flexible to allow the application of measures to meet the needs of any particular case, its significance within the community and the interests of the parties. The new scheme of 2018 in its essence in flexible and appropriate and therefore, should not be changed apart from the technical and implementation aspects.
One of the decisions to be made is whether the programme should be located within or outside the police force. For some countries, the police force is the programme’s natural environment, as out-of-court protection of witnesses is seen primarily as a police function. For others, separating protection from the investigation is of higher value in order to ensure objectivity and minimize the risk that admission to the programme unwittingly may become an incentive for witnesses to give false testimony that they believe the police or prosecution wants or needs.To solve the issue of corruption and undue influence, the Witness protection programme should be outside the purview of the Police in India.
From a structural point of view, witness protection programmes may exist at the national or regional level or both. Where national and regional programmes coexist within the same country, the responsibilities of the respective protection agencies need to be clearly delineated but, ideally, their decision-making process should be centralized at the national level to ensure consistency of admittance criteria and applied measures. To ensure uniformity across the nation, the law on witness protection should be centralised.
Staffing is a crucial element for the success of any protection programme. Witness protection officers need to possess a particular set of qualities and skills. They are required to be vigilant protectors, interrogators and undercover agents, as well as innovative thinkers, social workers, negotiators and even counsellors.
The cost associated with setting up and operating witness protection programmes can be a reason why countries hesitate to establish them. Basic costing includes one-time expenses to set up the programme (equipment for the unit, premises), Relocation costs, Staff salaries and overtime, Travel, Allowances for witnesses, Psychological assessments and counselling. The provision for funding for any authority dealing with witness protection can be on the lines of the National Human Rights Commission (NHRC), in India. The NHRC has ample financial resources to ensure self- sufficiency. Every year, the NHRC formulates budget proposals and this proposal forms part of the overall budget proposal presented by the Finance ministry to the Parliament. The proposed grants are submitted to the NHRC and then it may spend such sums as it thinks fit.This type of funding will give the Witness Protection Unit the power to utilise the funds as and when they require and safeguard the aim of creating the unit in the first place.
It is necessary to ensure the participation of witnesses in the legal process without any fear of intimidation or harassment. The law on witness protection is necessary for an effective criminal justice system as such a law will help to curb the malady of witnesses turning hostile due to external interferences in the criminal proceedings. It is high time that the lawmakers turn their attention towards protecting the witnesses and making the justice system more efficient. A different approach can be pursued if more studies are conducted in this regard as the existing system has been proven to be lacking. A separate unit or cell for witness protection can be tried in a specific area for a particular amount of time to analyse the success rates. The judiciary has always shown enthusiasm in this regard and has observed time and again that the legislature should enact a proper law for the same. Crime is on the rise, criminals are getting smarter whereas our law enforcement remains the same. The political will should be turned towards making it stronger, as modern problems require modern solutions.
 Brendan O’Flaherty; Rajiv Sethi, Witness Intimidation, 39 J. LEGAL STUD. 399, 432 (2010).
 Section 195A of Indian Penal Code, 1860
 William A. Kolibash, The Prosecutorial Perspective: The Victim and Witness Protection Act of 1982, 87 W. VA. L. REV. 71, 86 (1984).
 Girish Abhyankar; Asawari Abhyankar, Witness Protection in Criminal Trials in India, 7, (1st ed, Thomson Reuters, India, 2018)
 Zahira Habibulla H Sheikh And Anr. v. State Of Gujarat And Ors., (2004) 4 SCC 158
 Zahira Habibulla Sheikh v. State of Gujarat, (2006) 3 SCC 374
 National Human Rights Commission v. State of Gujarat, (2009) 6 SCC 342
 Mahender Chawla and ors. v. Union of India, 2019 (3) SCJ 370
 Witness Protection Scheme, 2018, National Legal Services Authority
Statement of Objects and Reasons, Legal Services Authorities Act, 1987
 Supra, 4
Report on Good Practices for the Protection of Witnesses in Criminal Proceedings Involving Organised Crime
Section 32(2), Protection of Human Rights Act, 1993