Witness Protection Scheme- ‘A Light at the End of the Tunnel’
‘Witnesses’ as Bentham said are the eyes and ears of justice. The predicament of witness in a criminal trial is oft found to be mired with various intrinsic and extrinsic factors, ranging from financial constraints of the witnesses, to confronting coercion and intimidation which cumulatively thwarts the progress reached in a Judicial proceeding. Quelling the witnesses in deposing before a court of law, is a significant reason for throwing spanner in the progress of a trial apart from other supplementary reasons could be attributed to the delay incurred in a proceeding before a Court of Law. It will not be out of place to mention the Judgment passed by the Hon’ble Supreme Court in Sakshi Vs. Union of India, wherein the Hon’ble Supreme Court had accentuated upon the necessity to place a screen or a similar arrangement where the victim or witness does not has to undergo the trauma of seeing the body or face of the accused. Further, in the said Judgment it has also been observed that, at such instances where a screen is placed, the questions to be put to the witness in cross-examination can be given in writing to the presiding officer of the Court, who may in turn read out the same questions to the victim/witness in a language which is not embarrassing. At the outset, in the Witness Protection Bill 2015, endeavour has been made to define as to who a witness is by defining that a witness is a person who is acquainted with the facts of a crime.
I. Introduction
The Judgment of the Hon’ble Supreme Court in State of U.P. Vs. Shambu Nath Singh,2 at the overture reads as follows:
“Witnesses tremble on getting summons from courts, in India, not because they fear examination or cross-examination in courts but because of the fear that they might not be examined at all for several days and on all such days they would be nailed to the precincts of the courts awaiting their chance of being examined. The witnesses, per force, keep aside their avocation and go to the courts and wait and wait for hours to be told at the end of the day to come again and wait and wait like that. This is the infelicitous scenario in many of the courts in India so far as witnesses are concerned. It is high time that trial Courts should regard witnesses as guests invited (through summons) for helping such courts with their testimony for reaching judicial findings.”
‘Witnesses’ as Bentham said are the eyes and ears of justice. The predicament of witness in a criminal trial is oft found to be mired with various intrinsic and extrinsic factors, ranging from financial constraints of the witnesses, to confronting coercion and intimidation which cumulatively thwarts the progress reached in a Judicial proceeding. Quelling the witnesses in deposing before a court of law, is a significant reason for throwing spanner in the progress of a trial apart from other supplementary reasons could be attributed to the delay incurred in a proceeding before a Court of Law. It bears mentioning here the Judgment rendered by the Hon’ble Supreme Court in Zahira Habibulla H.Sheikh and Anr. Vs State of Gujarat and Ors.3 In the said Judgment, the imminent necessity for protection of witnesses has been advanced as follows:
“Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and that the trial is not reduced to mockery. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive case involving those in power, who has 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 truth without any fear of being haunted by those against whom he has deposed. If ultimately truth is to be arrived at the, eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before Courts mere mock trials as are usually seen in movies.”
The 14th Law Comission Report, 1958, brought to light the issues which witnesses have to confront before testifying in a Court of law. At the overture, the report refers to the lack of sufficient court room arrangements for witnesses and the expenses involved in travelling. The Report also refers to the scale of travelling allowance and daily ‘batta’ (allowance) paid for witnesses for attending the court in response to summons from the court. It will not be out of place to mention the Judgment passed by the Hon’ble Supreme Court in Sakshi Vs. Union Of India,4 wherein the Hon’ble Supreme Court had accentuated upon the necessity to place a screen or a similar arrangement where the victim or witness does not has to undergo the trauma of seeing the body or face of the accused. Further, in the said Judgment it has also been observed that, at such instances where a screen is placed, the questions to be put to the witness in cross-examination can be given in writing to the presiding officer of the Court, who may in turn read out the same questions to the victim/witness in a language which is not embarrassing. A fortiori, the importance of holding in-camera proceedings in respect of rape cases has been highlighted by the Hon’ble Supreme in State of Punjab Vs, Gurmit Singh5. The Hon’ble Supreme Court came down heavily on harassment inflicted upon witnesses in the Judgment passed in Swaran Singh Vs State of Punjab 6, and in the said Judgment Hon’ble Mr.Justice Wadhwa has observed as follows:-
“Here are the witnesses who are harassed a lot. A witness in a criminal trial may come from a far-off place to find the case adjourned. He has to come to the court many times and at what cost to his own self and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and gives up...Not only is a witness threatened, he is abducted, he is maimed, he is done away with, or even bribed. There is no protection for him. A witness is then not treated with respect in the court. He is pushed out from the crowded courtroom by the peon. He waits for the whole day and then he finds that the matter is adjourned. He has no place to sit and no place even to have a glass of water.”
The above inference is a paradigm illustration highlighting the plight of witnesses in a Judicial proceeding. To cite one such sensational case, the Hon’ble High Court of Delhi in the Nitish Katara case, passed guidelines for protection of witnesses by establishing a competent authority through the Delhi Legal Services Authority, in Neelam Katara Vs. Union of India and Anr.7 The significant aspects of the Judgment pertaining to witness protection programme is enumerated hereunder:-
In determining whether or not a witness should be provided police protection.
Competent Authority shall take into account the following factors:
(i) The nature of the risk to the security of the witness which may emanate from the accused or his associates.
(ii) The nature of the investigation or the criminal case.
(iii) The importance of the witness in the matter and the value of the information or evidence given or agreed to be given by the witness.
(iv) The cost of providing police protection to the witness.
Obligation of the police
(1) While recording statement of the witness under Section 161 Cr. P.C, it will be the duty of the Investigating Officer to make the witness aware of the “Witness Protection Guidelines” and also the fact that in case of any threat he can approach the Competent Authority. This the Investigating Officer will inform in writing duly witness.”
(2) It shall be the duty of the Commissioner of Police to provide security to a witness in respect of whom an order has been passed by the Competent Authority directing police protection.
II. Bird’s eye view of witness protection programmes across the globe
U.S.A
“Organised Crimes Oldest and most effective toll against criminal prosecution is killing the witness against them” - GERALD SHUR, WITSEC
The United States Federal Witness Security Programme (WITSEC) serves as one of the first witness programme which has set a benchmark for other countries to follow suit. The witness protection programme came into force through the Organized Crime Control Act, 1970. The US Department of Justice’s Office of Enforcement Operations, shoulders the responsibility for approving protective services for any witness or to the immediate family of any witness who consents to testify in a Court of law. The steering force behind the programme’s effective implementation was Mr.Gerald Shur, a former Attorney at law. About 18,865 witnesses are reported to have been relocated since the inception of WITSEC programme. The programme contemplates protection to a witness, who decides to enter the WITSEC programme by US Marshals who arrive to whisk away the witness into the Court hall and swing into the aid of the witness. WITSEC is also equally responsible for assigning new Social Security numbers, drivers license and if a witness has a child even the school records are ensured to be safe from being compromised by deploying ample security measures. WITSEC programme has been proven to be successful in cracking down organized crimes in the United States. One could reckon the working of WITSEC programme from Martin Scorsese’s ‘Goodfellas’ a cinematic depiction, inspired from real life mobsters. Around 8500 witnesses have been relocated by the US Marshals. The Organized Crime Control Act stipulates that, protection of witnesses in whatever manner known to law is deemed to be most useful under the special circumstances of each case.
CANADA
The Witness Protection Programme Act, 1996, envisages protection for witness especially in cases involving economic and financial offences where huge stakes are involved.
AUSTRALIA
In the continent of Australia, the Commonwealth Level Witness Protection Act 1994, is an enactment framed through the Joint Parliamentary committee which formulates a scheme for protecting witnesses. The said Act postulates the following measures for protection of witnesses:-
a) People who have given or agreed to give evidence on behalf of the Crown in a criminal or prescribed proceedings and persons who have otherwise given or agreed to give evidence in relation to a criminal offence.
b) People who have made a statement in relation to commission of an offence.
c) People who may require protection or assistance for any other reason and are perceived to be in danger by reason of that testimony or statement.
The Act even prescribes penalty and punishment for any breach of the provisions by divulging information about protected witnesses. The Act also enables the inclusion of foreign witnesses into the National Witness Protection Programme (shortly as NWPP). Further, the identity of a participant is protected during the court proceedings and the court can hold private proceedings so as to ensure that the safety of a witness under the Act is not compromised by any means. The NWPP provides an environment in which the participant witnesses are placed in a conducive environment to give evidence in a court of law. The Australian Federal Police are assigned with the responsibility of safeguarding the identity of a witness protected under the NWPP.
GERMANY
Commencing with a rudimentary scheme in the 1980s, in the year 1988, the Witness Protection Act and subsequently the Harmonised Witness Protection Act 2001, for inclusion of person whose lives are in danger was brought to force in Germany, for protecting willing witnesses to testify in cases involving serious crimes. The United Nations convention against Transnational Organized crimes of 2000, enunciates protective measures for safe guarding witnesses from being intimidated and retaliated. In the United Kingdom, Crowns Witness Protection Programme and the Director of Prosecution is entrusted with the Protection of Witnesses.
III. An overview of the law commission reports
As early in 1958, the Law Commission in its 14th Report, had alluded to the Witness Protection Programme with reference to making arrangements for defraying the travel expenses of witnesses. The 154th report of the Law Commission 1996, has explicitly highlighted that the plight of the witnesses appearing for prosecution is pitiable as there is threat to their life. The 178th Report of the Law Commission in 2001, has referred to the vacuum in addressing the protection to be provided to witnesses inter alia the right of accused for a fair trial. Under the aegis of Hon’ble Dr. Justice V.S.Malimath in the year 2003, the Committee on the reforms of criminal justice system containing about 158 recommendations with insights on Witness Protection Programme was propounded. The Central and the State Governments were recommended to frame a legislation in line with the findings of the Committee. In addition to this, the National Police Commission Report 1980, had dealt with the inadequacy of daily allowance payable to the witnesses. In Delhi Domestic Working Womens Forum Vs. Union of India8, the Hon’ble Supreme Court had impressed upon the necessity of maintaining the anonymity of victims of rape. The necessity for protecting the witnesses has been stressed upon in the Judgment of the Hon’ble Madras High Court in Murugasamy Vs. State, 9 wherein an observation has been made that, witnesses are threated or injured prior to their testification in Court and crucial witnesses who are not amenable may even be murdered and the imminent need for a comprehensive law for protection of witnesses and implementation of the Justice Malimath Committe Report has been emphasized.
IV. Tables being turned by witnesses turning hostile
A witness embarks on a perilous journey and owing to the susceptibility, a witness is bogged down by certain factors from appearing and testifying before a court of law. It will be relevant to recollect the Judgment, in National human Rights Commission Vs. State of Gujarat10, while responding to a plea that witnesses were pressurized to turn hostile, the Hon’ble Supreme Court was critical about the criminal justice system, and has observed in the said Judgment that, conviction rate in our country has gone down to 39.6%, and that, trials in most of the sensational cases do not start till the witnesses are won over. Nothing more than this is needed to emphasize that, protection of witnesses is imperative to make progress in a criminal proceeding and to reduce the backlogging in pendency of cases. Thus, without any doubt, witnesses are cog wheels of a trial and the safety of witness is of paramount importance, so that they can depose before a Court without any fear and fervor.
In Neelam Katara Vs Union of India11, the Hon’ble Delhi High Court (Division Bench) had delved into the nuances of witness protection while it was seized with the sensational case of Nitish Katara’s murder. The Hon’ble Delhi High Court in the said Judgment dealt in detail about the witness protection programmes in prevalence cutting across the globe and the remedies and protection available to a witness at the expense of state. As a result of the discussion, the Hon’ble Delhi High Court postulated and adumbrated certain protectional measures which could be provided for a witness and the salient among them are constitution of a competent authority on receipt of request from a witness, and thereby, the competent authority shall determine whether the witness requires police protection and the competent authority shall take into account the following factors :-
(i) the nature of the risk to the security of the witness which may emanate from the accused
(ii) the nature of investigation of criminal cases
(iii) the importance of the witness in the matter and value of the information or evidence given or agreed to be given by the witness.
(iv) the cost of providing police protection to the witness.
In addition to this, a slew of directions were issued to the Delhi Police Department in connection with implementation of protectional measures to witnesses, who make a request with the police for providing them with protection.
V. Witness protection bill 2015
With the burgeoning necessity to formulate legislation in order to ensure the safety of witnesses, a Bill was tabled in the Parliament in 2015. This provided a sigh of relief to the resonating and soaring demand for addressing the issues faced by witnesses especially in respect of criminal proceedings. The salient features of the schemes are adumbrated hereunder.
At the outset, in the Witness Protection Bill 2015, endeavour has been made to define as to who a witness is by defining that a witness is a person who is acquainted with the facts of a crime. The 2015 Bill contemplates the procedure for application for witness protection, which commences by submission of an application through the Investigation Officer. The protection will be extended to the protectee, namely the protected witness, during the investigation, pre-trial and post-trial stages depending upon the perceived level of threat. The change of identity, the change of residence options are made available for a protected witness and the anonymity of the witness has to be maintained by the Judge throughout the proceedings as provided under Section 5 of the said Bill. Further, the Bill envisages a National Witness Protection Council, State Witness Protection Council to be established for implementation of the Act. To that extent, divulging of confidential information about the protectee is made punishable under Section 18 of the Bill.
Besides this, the working module of the above Bill has been conspicuously set out in The Witness (Protection of Identity) Bill 2015. Commencing with holding an in-camera ex-parte proceeding for deciding on an application to grant protection to an individual by the Magistrate, the other parameters such as the gravity of offence, the significance of the evidence to be let in by the threatened witness will have to be taken into account for considering the application, has been encompassed under the ambit of the Bill. Further, the Bill prohibits the mentioning of the identity of a witness in any order or proceedings of the Court. The Bill contemplates that the protection order of a witness outweighs the general right of the Accused to know the identity of a witness. Even in the absence of such an application being filed or on account of dismissal of such an application, the Bill provides that the examination of witnesses shall be conducted by using a two way camera so that the witness does not have to see the accused. The Bill further proposes for constitution of a District Witness Protection Authority similar to the District Legal Services Authority, inorder to address the needs and make necessary arrangements for witnesses at stake and to provide such witnesses with a new identity, to relocate, to accommodate and to provide financial assistance if there be a need for it. The vital aspect of the witness protection of Identity Bill is that, the schedules to the Bill sets out egregiously the manner in which the witness shall be examined. Accordingly, the protected witness, the prosecutor, the Judge and staff members will be in a room and the Accused, defence counsel and staff of the Court will be placed in another room, in such a way that the audio and video will be accessible in both the rooms but the image of the protected witness shall not be made visible to the Accused and vice-versa, so that the Accused will not feel threatened.
VI. Witness protection scheme 2018 – a ray of hope
In the year 2018, encapsulating the legal parlances of the earlier enactments a scheme was conceived, called the ‘Witness Protection Scheme 2018’ in which the concept of ‘Threat Analysis Report’ was introduced. The Threat Analysis report is a detailed submission made by the Head of the District Police, investigating the case, with regard to the level of threat perceived upon the witness or on anyone of the family members of the witness. ‘Witness Protection Funds’, ‘Witness Protection Cell’ for each state, categories of classifiying the witnesses as A, B and C according to the threat level have all been incorporated in the 2018 Scheme for protecting witnesses. A limitation of 5 days has been set on deciding the application for providing protection by a competent authority constituted under the Act. The Competent Authority on receipt of an application shall file a monthly report as follow up and it shall be in force for a period of 3 months at a time. The scheme espouses its working module from the 2015 Bill such as the in-camera proceedings with two way video links, escorting of witnesses, concealing the identity of witness with an alphabet or a changed name and relocation of the protected witness. The Act also provides that, after completion of 1 year from from the disposal of the case in the Court, the hard copies of the proceedings shall be weeded out by the competent authority after preserving scanned soft copies so that under no circumstance the identity of witness and safety of witness does not gets compromised.
Witnesses provide anchorage to a trial by rendering conducive and cogent testimony which would cumulatively contribute to drive home the objective of a proceeding and resultantly assist the Court to meet the ends of Justice.
At this juncture, with the availability of technology at one’s disposal, witnesses are being intimidated over telephonic calls, SMS, e-mails etc. Nefarious methods are being adopted to bog down a witness from testifying before the court of law and if the witness itself is a victim, especially in offences involving women or children the threat level is colossal and the perpetration of intimidation of witnesses in such cases scuttles the judicial proceeding. The safety of witnesses becomes jeopardized due to intimidation and coercion and as a result of the intimidation the trauma leaves an indelible mark in the witness. A witness could not be expected to exhibit courage under fire after all a witness is testifying at his or her own volition and risk. The vulnerability of a witness, embarking on a precarious journey is a matter of greater concern in criminal proceedings, especially in sensational matters involving huge stakes added with public and media outcry. As a shot in the arm, the 2020 Criminal Rules of Practice, Tamil Nadu has addressed this issue of the witnesses and the recording of evidence through Video Conferencing is envisaged in Rule 51. With the proposed legislation coming into force from the pipeline, it can be expected that the statute will enure to the benefit of witnesses and more number of witnesses will turn out to testify without any fear and aid in dispensing with justice. Thus parting with the pithy and succinct observation made in Zahira Sheikh’s case (supra) which is a need of the hour in the contemporary criminal proceedings of our country where intimidation of witnesses especially in respect of the offences involving women and children have become rife and rampant
“There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the court and justice triumphs and that the trial is no reduced to mockery”
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Footnotes
1. Author is a Judicial Officer (Civil Judge-Junior Division), Portonovo, Cuddalore District, Tamil Nadu, India.