The Honorable Supreme Court of India in the case of Mahendra Chawla v. Union of India[1] decided on 5th December 2018, approved the Draft Witness Protection Scheme which was prepared by the inputs from 18 States and Union Territories, various open sources inviting suggestions from police personnel, judges and civil society members which was ultimately finalized by the National Legal Services Authority (NALSA).

A bench comprising of Honorable Justice A.K. Sikri and Justice S. Abdul Nazeer held:
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.”

The need to protect witnesses has been emphasized by the Apex court in Zahira Habibulla H. Sheikh and Another v. State of Gujarat and Others[2]. The Supreme Court Bench comprising of Honorable Justice Raju Doraiswamy and Justice Arijit Pasayat observed that if the witness is threatened or is forced to give false evidence that shall not result in a fair trial. We need to understand that the role of the judiciary is limited in granting absolute protection to the witness in a matter.

The judiciary cannot act until it has full knowledge of the case and till the time the case comes before the Bench for hearing. In the matter of State of Gujarat v. Anirudh Singhh and another[3], a Bench comprising of Honorable Justice K. Ramaswamy and Justice D. Wadhwa observed:
It is the salutary duty of every witness who has the knowledge of the commission of crime, to assist the State in giving the evidence; unfortunately for various reasons, in particular deterioration in law and order situation and the principle of self-preservation, many a witness turn hostile and in some instances even direct witnesses are being liquidated before they are examined by the Court. In such circumstances, it is high time that the Law Commission looks into the matter.”

The need for a witness protection scheme has been emphasized time and again by various Law Commission Reports and the Malimath Committee. The 14th Law Commission Report[4] was the first to highlight the issue of witness protection. The 154th Report of the Law Commission[5] talked about the plight of witnesses.

The 172nd Report[6] and the 178th Report[7] laid emphasis on protection of witness from accused. The 172nd Report also, taking cue from the judgement in Sakshi v. Union of India[8] advocated for in camera trials to keep the witness away from the accused and to ensure her testimony is procured without any public fear. The 198th Report[9] emphasized that witness protection scheme need not be limited to cases of sexual offences or terrorism but must extend to all serious offences.

The Supreme Court in Manu Sharma v. State (NCT of Delhi)[10] highlighted the flaws in the criminal justice system such as failure to record statements by the police and retraction of statements by the witnesses due to intimidation, threat or bribes. The court, however, cannot turn a blind eye to all this. If a witness becomes hostile, the court will not act as a silent spectator and will make every effort to bring the truth home.

In judgements like NHRC v. State of Gujarat[11] and PUCL v. Union of India[12], the issue of identity protection of witnesses and the need for a witness protection program has been raised.

In Mahendra Chawla v. Union of India[13] a writ petition under Article 32 was filed that raised important issues dealing with the efficacy of the Indian criminal justice system. In an adversarial system, court is supposed to decide cases on basis of evidence produced before it. Witnesses, thus, play an important role in aiding the court to arrive at correct findings. In case of a dispute between the parties, witness becomes an important tool to reach to correct conclusions.

In this matter the issue pertained to the protection and security of witnesses during the proceedings. The witnesses had been frightened with serious consequences in case they deposed against Asaram, a self-styled godman who was charged with offense of committing multiple rapes. It was alleged that as many as ten witnesses had been attacked already and three had been killed. The main issue in the case pertained to the protection and security of witnesses during the trail and other proceedings.

The argument on behalf of the petitioners was that up to ten witnesses have been attacked and three have been killed. The petitioner number 1 herein i.e. Mahendra survived an assassination attempt in his life for daring to testify against the self-styled godman Asaram. Petitioner number 3 Karamvir Singh was the father of a child raped by Asaram.

The petitioners alleged that despite being threatened, the Uttar Pradesh police surprisingly withdrew half of the security. Petitioner number 4, Narendra Yadav, a journalist survived an assassination attempt as he dared to write articles against the self-styled godman. Appearing for the Respondent learned Attorney General Mr. Venugopal and learned Additional Attorney General Ms. Pinky Ananda argued that since the Apex court was primarily concerned with issue related to witness protection program, it would be appropriate for other States to also implement it as issue is of significant importance to India as a whole. The learned Attorney General was also requested to give suggestions in form of a draft scheme.

Ratio in Mahendra Chawla v. Union of India:

1. If one cannot testify in court due to threats or intimidations, it is a clear violation of Article 21. Right to life includes within its ambit right to live in a society free from crimes and fears.
2. The considerations that have influenced this Court to have a holistic witness protection regime should be considered as a law under Article 141 and Article 142 of the Constitution until an adequate law in that regard is framed.

Directions issued:

1. The Union of India, as well as the States and the Union Territories, shall enforce the Witness Protection Scheme, 2018.
2. The Court directed that it shall be the ‘law' under Article 141/142 of the Constitution until a suitable legislation is enacted on the subject.
3. Vulnerable witness deposition complexes shall be set up by the States and the Union Territories in all district courts in India.

The Witness Protection Scheme, 2018 (Draft) is the first attempt at national level to provide comprehensive witness protection, that shall contribute to eliminating any kind of threat or intimidation or loss of property and person of the witness.

Need for a witness protection law
Witness plays a very crucial role in outcome of a verdict in a court of law. In the case of Krishna Mochi v. State of Bihar[14], Supreme Court observed that the society suffers by both wrong convictions and wrong acquittals. One of the main reasons for a witness turning hostile is that they may not have courage to depose against an accused due to threat to life, limb, kin or property.

According to the People's Union for Civil Liberties (PUCL) that made a press release on July 2, 2003 pertaining to the Best Bakery case[15] gave two reasons for a witness turning hostile. The first is that the police recorded the statements incorrectly and the second is that witnesses retracted from their previous statements due to intimidation or other methods of manipulation by accused or defense counsel.

The slow justice delivery mechanism in Indian courts is one more reason for this widespread phenomenon. Reportedly being summoned to reach court and ultimately know that the case is adjourned frustrates the witnesses.

There is no distinct definition as to who constitutes a witness even under international law, though the need for setting up victim and witness protection units in the trail of mass crimes has been recognized in various international tribunals.

The International Criminal Court (ICC) has established a separate unit that provides support to witnesses and responds immediately if witnesses receive any threats or intimidation. As per the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power[16] adopted by the United nations General Assembly in November 1985, victims of crimes are defined as persons who, individually or collectively, have suffered any harm, including any physical or mental injury, emotional suffering, economic loss or any substantial impairment of their fundamental rights. The International Covenant on Civil and Political Rights which has been ratified by India recognizes the right to fair trial as a human right.[17]

The United States of America is famous for its United States Federal Witness Security Program, also known as the Witness Security (WITSEC) Program. Prior to this it was the Ku Klux Klan Act of 1871 that protected those people that testified against members of the Ku Klux Klan. However, it was the Organized Crime Control Act, 1970 followed by the Comprehensive Crime Control Act, 1984 that authorized the Witness Security Program in the United States as we know today. The main purpose is to keep the witness safe so they can testify at trials and help in conviction of members of organized crime, gangs or terrorist networks.

In Australia, the witness protection program under the Witness Protection Act, 1991 is an extremely comprehensive system. The definition under Section 4(2)(d) is wide in its ambit as it states a person who, for any other reason, may require protection or other assistance under this Act”.

The government in the United Kingdom enacted the Criminal Justice and Public Order Act, 1994 which provides for punishment of intimidating witnesses. Section 51 of the Act protects a person going to give evidence at trial and also protects someone helping with or could help with the investigation of a crime. Moreover, Sections 16 to 33 of the Youth Justice and Criminal Evidence Act, 1999 requires the court to consider special measures of various kinds for the protection of the vulnerable and intimidated witnesses.

If we talk of India, the word ‘witness' has not been defined anywhere in the Code of Criminal Procedure[18]. Any court may, at any stage of any inquiry, trail or any other proceeding summon any person as a witness, or recall and re-examine any person already examined; if his evidence appears to be essential for the just decision of the case.[19] Evidence as defined in Section 3 of the Evidence Act, 1872[20] covers both evidence of witnesses and documentary evidence.

Sections 151 and 152 protects the witness from being asked indecent, offensive questions, such which intend to annoy or insult them. Also, when an accused is released on bail, one of the conditions imposed by the court is that he will not tamper the evidence or approach the witness. There are provisions for witness protection under special laws as well such as the West Bengal Act, 1932 and the Juvenile Justice Act, 2015.

The Law Commission of India in its 14th Report[21] referred to witness protection in a limited sense with main focus on adequate arrangements for him within the court premises. No provision was made for the physical protection of the witness.

The 154th Report of the Law Commission[22] contains a chapter on protection and facilities to witnesses. One of the recommendations was, Witness should be protected from the wrath of the accused in any eventuality”, but the Commission did not suggest any measure for physical protection of the witness.

In the 172nd Law Commission report, on a request made by the Supreme Court of India in Sakshi v. Union of India[23] and after taking into consideration the issues raised by the petitioner NGO, it was held that a minor girl who has been sexually assaulted, should not be required to give his or her evidence in presence of the accused.

The Committee on Reforms of Criminal Justice System under the Chairmanship of Justice (Dr.) V.S. Malimath, submitted a report comprising of 158 recommendations. It suggested that a law must be enacted for giving protection to witnesses and their family and that the prosecution and the court could direct that the identity and address of the witness be kept secret. A chapter of the report titled A Hybrid System of Criminal Justice” sought to incorporate certain features of the inquisitorial” system of trial into the adversarial system namely empowering judges further with the duty of leading evidence with the object of seeking the truth and focusing on justice to victims”.

The Criminal Law (Amendment) Act, 2005 made many important changes such as introducing Section 195A[24] to the Indian Penal Code[25], whereby threatening or inducing any person to give false evidence is made a punishable offence. Other amendments include Section 195 CrPC and Section 154 of Evidence Act.

In Naresh Shridhar Mirjakar and others v. State of Maharashtra and another[26] protection of publication of evidence of the witness was allowed by the High Court and later re-affirmed by the Supreme Court as otherwise the business interests of the witness would have been hampered.

In Delhi Domestic Working Women's Forum v. Union of India[27], the Apex court emphasized maintenance of anonymity of a rape victim who would be the key witness in trials involving offence of rape. The Delhi High Court in Neelam Katara v. Union of India[28] laid down guidelines for witness protection but they were silent with regard the issue of maintaining confidentiality of identity of the witness.

The Indian judicial system has proven to be a failure in protecting witnesses from harm by the accused or anybody else and thus the need for a law is imminent to uphold the true spirit of justice.

Suggestions

1. We need an effective witness protection law and not just a scheme or guidelines.
2. The judiciary needs to be active in this regard specially in high profile matters wherein the risk of intimidation or threat is high.
3. Police must be made more efficient and independent from any political or social influence. Police reforms in India are another vast topic that needs serious relook.
4. They must be given freedom to take basic measures to protect witnesses such as surveillance, escorting witnesses to work and court, etc, keeping in mind that the privacy of the witness must not get hampered.

Conclusion
Power corrupts and absolute power corrupts absolutely. This is the plain reason why separation of power is the essence of any democracy and more so in a country like India which is the world's largest democracy. When we talk of witness protection in India the judiciary has a bigger role to play than the legislature as the government is the biggest litigant before the courts in the country. Hence, though there is a need for a witness protection law, it is also the duty of the judiciary to protect witnesses, especially in high profile matters from any sort of threat or harm or intimidation.

End-Notes:
[1] W.P. (Cr.) No. 156 of 2016.
[2] (2004) 4 SCC 158.
[3] AIR 1997 SC 2780.
[4] Reform of Judicial Administration, Law Commission of India, 14th Report, 1958.
[5] The Code of Criminal Procedure, 1973, Law Commission of India, 154th Report, 1996.
[6] Review of Rape Laws, Law Commission of India, 172nd Report, 2000.
[7] Recommendations for amending various enactments, both Civil and Criminal, Law Commission of India, 178th Report, 2001.
[8] 2004 Supp (2) SCR 723.
[9] Witness Identity Protection and Witness Protection Programme, Law Commission of India, 198th Report, 2006.
[10] (2010) 6 SCC 1.
[11] (2009) 6 SCC 767.
[12] (2007) 1 SCC 719.
[13] Supra Note 2.
[14] AIR 2003 SC 886.
[15] Supra Note 3.
[16] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UN GA Resolution No. 40/34 of 29 November, 1985.
[17] The International Covenant on Civil and Political Rights, 1966, Article 14.
[18] The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 (India).
[19] The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 (India), s.311.
[20] The Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).
[21] Supra Note 5.
[22] Supra Note 6.
[23] Supra Note 9.
[24] 195A- [Threatening any person to give false evidence].—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.
[25] The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).
[26] 1966 (3) SCR 744.
[27] 1995 (1) SCC 14.
[28] ILR (2003) II Del 377.
The author is a practicing advocate at the Central Administrative Tribunal, Delhi High Court and Supreme Court.
Email: [email protected]