The Supreme Court of India has endorsed the nation’s first Witness Protection Scheme, crafted by the central government. The court recommends that the Centre, states, and Union Territories make every effort to implement this scheme faithfully. Devised in 2018, stakeholders from various sectors contributed their insights to the creation of the scheme, including National Legal Services Authorities, civil society, High Courts, police personnel, and states/Union Territories. The primary objective of the scheme is to safeguard the procedure of investigation, prosecution, and trial of criminal offenses against potential manipulation due to witnesses being threatened or coerced not to testify.
Background
In the case of State of Gujrat v. Anirudh Singh (1997), the Supreme Court emphasized that every knowledgeable witness of a crime has an obligation to assist the state by testifying. The concept of witness protection was first introduced in the 14th Law Commission Report in 1958. Subsequent reports, namely the 154th, 178th, and 198th, recommended the establishment of a witness protection scheme. The Malimath Committee Report also advocated for an effective witness protection mechanism, underscoring the importance of courts ready to intervene when witnesses are harassed during cross-examination.
Why Witnesses Turn Hostile
The courts have observed a number of reasons why witnesses may become hostile during the trial. These include threats or intimidation, inducement through various means, extortionate use of muscle and money power by the accused, reliance on “stock witnesses” who fabricate evidence in favor of the prosecution, lengthy trials, and hardships faced by witnesses during investigation and trial phases. A distinct lack of legislation to deal with hostile witnesses adds to the problem.
The Supreme Court’s Judgement
The highest court of India ruled that the right of witnesses to testify freely is part of Article 21 (Right to Life). The court declared the scheme as law under Article 141/142 of the Constitution until suitable laws are enacted by the Parliament and/or State Legislatures. It also urged all states and Union Territories to construct vulnerable witness deposition complexes by the end of 2019. These facilities are designed to prevent direct confrontation between the accused and the witnesses.
Overview of the Witness Protection Scheme, 2018
The programme identifies three types of witnesses:
- Category A: Cases where threats endanger the life of the witness or their family during the investigation, trial, or thereafter.
- Category B: Cases where threats risk the safety, reputation, or property of the witness or their family during the investigation or trial.
- Category C: Cases where moderate threats result in harassment or intimidation of the witness or their family, reputation, or property during the investigation, trial, or post-trial.
Witness Protection Fund
The cost of the scheme will be met through a Witness Protection Fund, established by States and Union Territories. This fund will be provisioned annually via budgetary allocations, and will also accept contributions from national and international philanthropic organizations, as well as corporate social responsibility initiatives. The Fund will be managed by the Home Department or Ministry of Home, under the State or UT Government.
Threat Analysis Report (TAR)
The programme calls for the preparation of a ‘Threat Analysis Report’ for each witness who applies for protection. This report, prepared by the Commissioner/SSP, classifies the level of threat faced by the witness and provides recommendations for their protection. Protective measures can include ensuring that the witness and accused do not come into contact, protecting the witness’s identity, relocating the witness, maintaining confidentiality, preserving records, and recovering expenses.
Change of Identity
In certain cases, based on the threat perception a decision can be taken to give the witness a new identity. The new identity, which includes new name, profession, and parentage details, will be supported by documentation acceptable by Government Agencies.
Way Forward
The Witness Protection Scheme is a critical step towards ensuring that witnesses can trust the criminal justice system of the nation. As Jeremy Bentham aptly put it, “Witnesses are the eyes and ears of justice.” This scheme offers a way forward towards protecting those vital eyes and ears from intimidation and coercion.