[Akash Anurag is a fourth-year law student at National Law University, Jodhpur. Prashant Bhushan is a third-year law student at National Law University, Jodhpur.]

Introduction

“If witnesses are deposing under fear or intimidation or for favour or allurement, the foundation of administration of justice not only gets weakened, but it may even get obliterated.”[1]

The above observation of the Delhi High Court very aptly highlights the importance that a witness or his /her testimony serve to a trial. The evidence gathered from witnesses and the truthfulness of the same forms the pillar on which the whole mechanism of criminal justice rests. The importance of an honest witness in order to ensure the fairness of a trial was also emphasised upon by the Supreme Court of India in its judgements in State of Gujarat v. Anirudh Singh^[2] as well as Zahira Habbibulla H. Sheikh and Another v. State of Gujarat.^[3]  On a scrutiny of the criminal justice system with respect to India, it becomes very clear that the practice of witnesses turning hostile is one the major roadblocks responsible for the not-so-swift administration of criminal justice in our nation.

Why Witnesses Turn Hostile? – A Major Roadblock to the Administration of Criminal Justice

However, an ironical situation that is very evident in our judicial system is the mismatch of rights between the accused and the victim or the witnesses. This leads to the creation of a situation where the witnesses are rendered helpless due to the paucity of rights available with them (when compared to an accused), which contributes to them turning hostile.

One of the very common reasons why witnesses in India turn hostile is due to intimidation, and a threat to life and destruction of property. Till date, there are no concrete provisions in the law to protect the witnesses from external threats, inducements or intimidation and also no clear-cut legislation to punish or deal with a hostile witness.[4] People are often not ready to be a witness because that they do not have the courage to depose against an accused due to threats to their lives, more so when the offenders are habitual criminals or high ups in the Government or close to power which may be political, economical or other powers including muscle power.[5] Other reasons involve monetary enticements offered by a party with bountiful economic resources to defer them from their testimony [6]as often alleged in the Jessica Laal murder case.[7] The fact that the rate of acquittal is far greater than that of conviction in India serves as yet another deterrence for a person who wishes to be a witness.^[8] Another factor responsible for this widespread phenomenon is the snail-paced working of the judicial process; witnesses tend to be frustrated because of the long judicial proceedings that haunt our courtrooms.

Tracing the Void in the Indian Legal Framework with Respect to Witness Protection

As we have talked about the various forms of intimidations that lead a witness to turn hostile, it is important to note here that the witness become more susceptible to such threats and enticements due to the fact that there is no such duty or obligation on the state to provide any security for the state if need arises in our legal scheme. Thus, there arises the need for a law for the protection of witnesses in India.

No law in India at the moment define who a witness is. There exist some ancillary provisions about witnesses; for instance, the § 312 of the Code of Criminal Procedure^[9] pertain to the payment of some monetary consideration to a witness subject to the satisfaction of the court. Likewise, there are few specific provisions of law with respect to witness protection in India. One such provision is the § 17 of the N.I.A. Act, 2008^[10] which provides physical protection to a witness if he makes an application during the course of the trial stating that he/she is feeling physically threatened. Similarly, § 195A of the Code of Criminal Procedure[11] also provides for a witness to file a complaint in the case of him/her being threatened. However, there is an improper implementation of these measures; further, Witness Protection continues to be a grey area of the Indian Criminal Justice System with there being no specific provision of law with respect to any monetary assistance to witnesses in India. The 198th report of the Law Commission of India[12] elaborately addressed the issue covering various aspects such as Witness Identity Protection, Witness Protection Programs on the lines of existing laws in, inter alia, New Zealand and Portugal.

Delhi, in 2015, became the first state in India to notify a bill with respect to the protection of witnesses i.e. The Delhi Witness Protection Bill.^[13] In a similar vein, the Government of India also came up with a Witness Protection Bill which proposed setting up of National Witness Protection Council and State Witness Protection Councils as well providing witness protection to a witness at all steps under a comprehensive witness protection program. However, in the typical Indian way of governance, none of the bills has till date begun their journey as a law in India.

Lessons to be Learnt From Foreign Jurisdictions with Respect to Witness Protection

India has a lot to learn from the other nations of the world when it comes to the implementation and formation of an effective witness protection scheme in the country. The Australian Witness Protection Act[14] focus extensively on the protection of the identity of the witnesses to the extent that it contains provisions for change of the identity of the witnesses by changing their registered birth dates etc. so as to maintain the anonymity of the witness. In the U.K., intimidation of a witness is an offence punishable under law.[15] Moreover, in order to further ensure that the anonymity of a witness remains intact there exist numerous provisions of law in the U.K. in the sense that the witness is screened in a manner that only judges/jury can see him,[16] voice modulation of the witness[17] and so on and so forth. On the other side of the globe, the United States does not have a legislature but has a comprehensive Witness Security Program called the WITSEC. Analysis of the economic muscle of the probable intimidators with respect to a witness and thereby providing the witness with monetary assistance as well as assistance in the form of housing facilities, medical care, job training is a very special feature of the Witness Protection Scheme. The Witness Security Program in the United States is a testimony to the fact that the administration of justice improves with an efficient Witness Protection Scheme in the sense that convictions in the United States have gone up to 89% since the inception of WITSEC in 1970.[18]

Major Logistical Challenges to Witness Protection in India

All said and done, major challenges exist when it comes to the proper implementation of any comprehensive witness protection scheme in India with a paucity of manpower being a major challenge. The Police Force in India at the moment suffers from an acute paucity of manpower as is resplendent from the fact that in India for every 720 people there is only one police personnel while in the United States the same number stands at 1 for every 400 people.[19] This often makes witness protection in India, in the absence of proper infrastructure and manpower, a costly and logistically difficult affair; it is estimated to cost around Rs. 4-5 lakh to guard a man for a year.[20]

Conclusion and Suggestions

One of the quintessential elements for any society to race up the path of development is the establishment of peace and security in the society which is in turn associated with the proper administration of criminal justice in the society. Thus, towards these ends, it is high time that the Government of India comes up with either a Witness Protection Legislation or a Comprehensive Scheme so as to fill this void that exists in the sphere of witness protection in India. It is the suggestion of the authors that the Witness Protection Bill, 2015 should see the light of the day as soon as possible. Provisions on the line of the United States to provide assistance to witnesses from the side of the government so as to keep a check on any sort of monetary duress on the witnesses is something that the legislature in our opinion should aim at weaving within the fabric of any probable Witness Protection Legislation in the future. Right to a speedy trial and prompt and final conclusion of the case after the conviction and sentence must also be ensured.^[21] Moreover, till the time the government does not come up with such a legislation, it should at least criminalise any sort of intimidation made against a witness by making the intimidation of witnesses a punishable penal offence under the relevant laws of the land.  Moreover, the legislature should also take a cue from Witness Protection Schemes and Laws all across the globe so as to ensure that an efficient legislation with sufficient checks and balances sees the light of the day so as to realise the dream of truly fair criminal trials in India.

[1] Neelam Katara v. Union of India, I.L.R. (2003) II Del. 377 (The Delhi High Court).

[2] State of Gujarat v. Anirudh Singh, (1997) 6 S.C.C. 514 (The Supreme Court of India).

[3] Zahira Habbibulla H. Sheikh and Another v. State of Gujarat and Another, (2004) 4 S.C.C. 158 (The Supreme Court of India).

[4] Ramesh and Others v. State of Haryana, (2017) 1 S.C.C. 529 (The Supreme Court of India).

[5] Krishna Mochi v. State of Bihar, A.I.R. 2003 S.C. 886 (The Supreme Court of India).

[6] Supra Note No. 4.

[7] Nirnimesh Kumar, Jessica Lal Case: Perjury charge slapped on actor, ballistic expert, The Hindu, May 22, 2013,https://www.thehindu.com/news/cities/Delhi/Jessica-Lal-case-perjury-charge-slapped-on-actor-ballistic-expert/article12145518.ece.

[8] Swaran Singh v. State of Punjab, A.I.R. 2000 S.C. 2017 (The Supreme Court of India).

[9] The Code of Criminal Procedure, 1973, § 312 (The Union of India).

[10] The National Investigation Agency Act, 2008, § 17 (The Union of India).

[11] The Code of Criminal Procedure, 1973, § 195A (The Union of India).

[12]198th Report on Witness Identity Protection and Witness Protection, The Law Commission of India (2006),  https://indiankanoon.org/doc/142993966/.

[13] Pragya Kaushik, Delhi Government Notifies Witness Protection Programme, The Indian Express, July 31 2015, https://indianexpress.com/article/cities/delhi/delhi-government-notifies-witness-protection-programme/.

[14] The Witness Protection Act, 1991 (Australia).

[15] The Criminal Justice and Public Order Act, 1994, § 51 (The United Kingdom).

[16] Coroners and Justice Act, 2009, § 86 (2) (d) (The United Kingdom).

[17] Coroners and Justice Act, 2009, § 86 (2) (e)  (The United Kingdom).

[18] Gareth Newham,  Keeping the Wolves at Bay: Issues and Concerns in Establishing a Witness Protection Programme in South Africa, The Centre for the Study of Violation and Reconciliation, 1995, http://www.csvr.org.za/index.php/publications/1720-keeping-the-wolves-at-bay-issues-and-concerns-in-establishing-a-witness-protection-programme-in-south-africa.html.

[19] India has lowest police population ratios in the world, http://www.thehansindia.com/posts/index/National/2016-07-29/India-has-lowest-police-population-ratios-in-the-world/245425.

[20] Akshat Kaushal, Will India be Able to Protect It’s Witnesses, The Business Standard, August 1 2015, https://www.business-standard.com/article/current-affairs/will-india-be-able-to-protect-its-witnesses-115080101007_1.html.

[21] H. Suresh, New Laws Needed For Witness Protection, Combat Law Journal, 2005 , Vol. 4 Issue I, http://www.indiatogether.org/combatlaw/vol4/issue1/witness.htm.