The function of the judiciary is to protect people’s rights, adjudicate disputes between two individuals and adjudicate whether a person is guilty of an offence or not. It act as the important pillar for maintenance of Criminal Justice System in India. However, the Right of the victim for a fair trial in Criminal Justice System necessarily implies the obligation of the witness to give evidence on the case.
Role of Witness
The role of a witness is fundamental in the criminal justice system of any country.
They are an indispensable aid in the justice dispensation system in any civilized society.
Their each and every statement is very important as it has a magic force to change the course of the whole case. By giving evidence relating to the commission of an offence they bring the criminal justice machinery into action.
Witnesses, who are considered as the eyes and ears of justice, are turning hostile with unpredictable irregularity. Witnesses turn hostile often, when high profile personalities are involved in the commission of crimes, thereby leading to the failure of the criminal justice system. Presently, the vulnerability of the witnesses is very prominent. Provisions in the existing laws are inadequate to meet the need of time.
Witness Protection Scheme 2018
The Supreme Court have approved India’s first Witness Protection Scheme, noting that one of the main reasons for witnesses to turn hostile is that they are not provided appropriate protection by the State.
The important features of the Witness Protection Scheme, 2018 include identifying categories of threat perceptions, preparation of a ‘Threat Analysis Report’ by the head of the police, protective measures like ensuring that the witness and accused do not come face to face during probe, protection of identity, change of identity, relocation of witness, witnesses to be apprised of the scheme, confidentiality and preservation of records, recovery of expenses etc.
The programme identifies “three categories of witnesses as per threat perception”:
- Category A: Those cases where threat extends to life of witness or family members during investigation, trial or even thereafter.
- Category B: Those cases where the threat extends to safety, reputation or property of the witness or family members during the investigation or trial.
- Category C: Cases where the threat is moderate and extends to harassment or intimidation of the witness or his family members, reputation or property during the investigation, trial or thereafter.
The bench also asked all states and Union Territories to set up vulnerable witness deposition complexes, as required by the Scheme, by the end of 2019. These rooms will be equipped with facilities to prevent the accused and witness coming face to face. The expenses for the programme will be met from a Witness Protection Fund to be established by states and Union Territories.
Critical Analysis of the Scheme
The above stated scheme lies on the following main parameters:
a) The core of the scheme remains the security to witnesses. An almost crude estimate suggests that not more than 20 per cent of all witnesses require this kind of a protection measure. In cases involving terrorist acts, organised crime and powerful people with connections and resources, there may be a dimension of security. However, a vast majority of cases in the lower courts wherein witnesses refuse to be present or become hostile involve certain other factors which need to be appreciated.
b) The scheme emphasize on concealing the identity of witnesses and undertaking a detailed threat analysis report, to be prepared by the police.
Both things look quite uncertain in the present context.
Given the way the police and prosecution work in this country, the idea of hiding the identity of a witness as a measure of protection does not seem to be practical.
Overworked and understaffed, the police are also unlikely to make any meaningful threat analysis for a witness.
Therefore, ensuring and “executing a “Witness Protection Order” under the scheme by the police appears to be unlikely. The lower courts, where all the witnesses have to appear, do not have the infrastructure to satisfy the mandate of the present WPS. Nor can they do much to avoid contact between the witness and the accused.
The in-camera trial arrangements in all such cases also have the same issue. The most problematic and unrealistic factors in this scheme are the arrangements to change identity and relocate witnesses. This borrowed idea — devoid of empirical understanding — does not fit Indian conditions.
Further, the major source of harassment for the witnesses stemmed from the:
- Frequent adjournment of cases
- Monetary loss and other kinds of deprivation due to their repeated appearances in the courts.
A majority of witnesses before the courts are wage-earners, agriculturists, the not so well-educated, or belonging to Scheduled Castes. The witnesses also share some relationship with both the victim and the accused. Thus, giving statements in favour or against a particular party casts tremendous pressure on the witness, generally of a social or caste-related nature.
Conclusion and Way forward
Witness protection is a dire need of the hour and India needs to come up with a suitable and comprehensive legislation to protect the witnesses so as to strengthen the administration of criminal justice.
The steps need to be taken are:
- The manner in which cases are being prosecuted, investigative and prosecuting machinery, has to be improved.
- There should be separation of the investigating authorities from the law and order duties.
- Support by an effective and efficient investigation is need of the hour.
- Adequate provisions should be made for constitution of special investigation teams for speedy investigation.
- Special legislation is required to protect the rights of witnesses so that they depose freely and without intimidation.
- In criminal cases, witnesses be permitted to record their evidence in-camera, or by video-links or other audiovisual techniques. They should be protected from all types of harassment and treated with dignity.
- To save the witnesses from the trouble of appearing before the courts time and again, speeding up of the trial is also required to prevent the witnesses from turning around their statements. However, when witnesses change their versions, make false statements with impunity in the courts, they should be dealt with seriously for committing the offence of perjury, since it leads to conviction of an innocent and acquittal of a criminal. Failure of system to address perjury has engendered a callous disregard for the sanctity of court proceedings.
- Such law needs to be made more stringent and put into practice more frequently. Witnesses play a key role in the proper direction of a criminal case.
The Witness Protection Scheme, 2018 (Draft) is a first attempt at the National level to holistically provide for the protection of the witnesses which will go a long way in eliminating secondary victimization.
This scheme attempts at ensuring that witnesses receive appropriate and adequate protection.
This will go a long way in strengthening the Criminal Justice System in the Country and will consequently enhance National Security Scenario.
- Section 195 A of the Indian Penal Code deals with witness protection.
- Countries such as USA, United Kingdom, China, Italy, Canada, Hong Kong and Ireland have witness protection scheme.
- In 2003, Justice V Malimath Committee on criminal justice system had recommended enacting a separate witness protection law and in 2006, the Law Commission of India, in its 198th report, provided for a draft witness protection law.