When a crime happens, many are witnesses to it. They are the first ones to know what has exactly happened, which is why they are essential in legal proceedings and their examination is crucial for the police and the courts. However, witnesses do not like to come forward themselves. According to the Status of Policing India Report of 2019, witnesses rarely expose themselves to the service of the police. This problem was acknowledged in 2018 by the Hon’ble Supreme Court of India in the case of Ashwin Kumar Upadhyay v. Union of India. In the said case, the court asked the central government to formulate a scheme to secure the lives of witnesses, especially in serious offenses. This action by the government would encourage them to come forward to help the police and the courts deliver justice.
Thereafter, in 2018 itself, the Ministry of Home Affairs formulated a witness protection scheme with various provisions mentioning the details of protection and the procedure to avail it. The scheme protects witnesses to serious offenses as provided under section 2(i). The term “offense” means those offenses which are punishable with death or jail for 7 years or more and for offenses of Section 354 (A-D) and also Section 509 of the IPC. However, many states have yet to properly implement it.
How does the act ensure witnesses are protected?
The scheme is to be applied voluntarily by the concerned witness. It allows the witness to file for a witness protection scheme himself/herself in order to obtain either witness identity protection or a new identity or witness relocation reading sections 5, 9, 10 & 11 of the scheme. It also ensures that witnesses do not need to be physically present at the court proceedings because they can join via the online link provided to them, which protects them from the eyes of the accused or friends of the accused, i.e., from potential external threats. However, before the protection is provided, a threat analysis report has to be performed by the respective authorities to analyze the level and kind of possible threats to the witness and his family members. If it is reported that there is a high threat to the life of the witness or close relative, then the necessary precautionary measures are taken, for instance, putting CCTV outside their house, monitoring their phone calls, messages, and internet reading sections 6 and 7 of the scheme, which ensures they are not intimidated at any cost, etc.
Who is accountable for the violation of the provisions?
The 2018 scheme has zero accountability as it nowhere mentions the accountability of the respective authorities in case they are the ones who violate these provisions. Accountability would ensure trust and faith in the authorities. Moreover, why would witnesses risk their lives when there is no guarantee to them that if the concerned officer misuses this power arbitrarily, he/she will be punished subsequently? Further, as shocking as it appears, the present scheme provides protection only for 3 months, unlike in other countries wherein it is provided before the trial and even extends to after the conclusion of the trial. It is ironic because a trial can conclude in 3 months or it may even take years to finally conclude. Example: the cases Jessica Lal Murder Trial, Arushi Talwar’s Case, etc.
Recent views of the courts
The scheme’s lack of awareness and poor implementation
Often, in law, we study the concept of ‘dominance on the will of another,’ such as in coercion cases in contract class. Similar to this concept is the fact that when there are two classes of people, one who is of lower caste and another who isn’t, then the latter can dominate the will of the former. This was highlighted by the Hon’ble Supreme Court in the case of Hari v. State of Uttar Pradesh, wherein the witness turned hostile in the honor killing cause, and the court held that if the witness has been turned hostile due to fear of belonging to lower strata of society, then it is a clear violation of her fundamental right under Article 19(1)(a) of the Constitution of India, 1950. The court asked the state to properly implement the scheme.
The witnesses need to apply to avail of the benefits, but what about those who do not even have an idea that such a scheme exists at all? Should it not be the duty of the state to ensure witnesses are aware of this program? Lack of awareness is one of the prime reasons witnesses fall prey to threats and harassment from the accused. There should be a comprehensive act drafted which would ensure public awareness and impose obligations on states and accountability on the violators.
The obligation shall be entrusted to the police & public prosecutors to ensure that witnesses are made aware of such kinds of help, which would give witnesses a choice to either avail the benefit or forgo it as per their opinion.
Witnesses are intimidated where the accused are members of Parliament
In the case of Ashwini Upadhyay v. Union of India (2021), the Hon’ble Supreme Court asked for the implementation of the scheme properly everywhere in the country so that pending criminal cases against politicians can be dealt with as soon as possible. Members of Parliament also have criminal cases against them pending in the courts. Witnesses would surely not risk their lives for these powerful people of the state who have influence over the authorities, especially the police. If the police and public prosecutor are the only people who look after the witnesses according to the scheme, then how can witnesses feel secure in cases where a member of parliament is accused? Should there not be an independent organization looking after the witness’s care to ensure independence from the possibility of political pressures or influences?
What can India learn from the mistakes of other countries in the Witness Protection Scheme?
The US has been very strict with regards to the witness protection program and has made it successful for over 19,000 people, which has been run by the Marshals Service since 1971 and is provided for offenses such as terrorism, organized crime, drug trafficking, etc. The program has been criticized because it has been used to protect individuals who already had some criminal records and were doing crimes under this protection. In 1984, an amendment was brought which prohibits protecting such individuals after analysis if it would hamper the larger public interest.
The UN recognizes the problem of cooperation between the criminal justice system and witnesses. Therefore, the UN proposes to ensure that the victims and witnesses are assisted before, after, and during the trial by helping them to cope with the psychological and practical difficulties of testifying. As per Sections 24 & 25 of the Organized Crimes Convention, the States are obligated to provide appropriate measures to assist the victims and witnesses of the crime in having the procedures established and implemented. Further, the UNODC says that there shall be specially trained officials who must be in such a program wherein there is the procedure of relocation and identification. Also, there shall be the training of the judges, prosecutors, police, and prison officials, and many awareness programs be there so this scheme is known to the public at large. This would encourage shy and fearful witnesses to dare to step forward without hesitation.
In Canada, there are specially trained officials for this program called the RCMP who follow the procedures of the Witness Protection Program Act. The focus of the program is to ensure safety, help in meeting the needs of witnesses such as counseling, additional treatment, etc, making them self-sufficient if not already, & other short-term and long-term benefits like relocation, change of identity, and financial support where needed. The program makes sure that it is independent and separate from the investigations so that police have little influence over the witnesses and victims.
Right to fair trial hampered: Right of witnesses protected at the cost of right of accused?
Though the scheme is made keeping in view the need to protect the witnesses from the possibility of external threats and harassment at the hands of the accused, the scheme seems to have neglected the right of the accused in criminal proceedings, i.e., the right to cross-examine. This is so because the scheme makes the identity of the witness secret, which is done to encourage the witnesses to come forward. However, this directly affects the right of the accused to cross-examine. In criminal law, the accused gets to make his defense by cross-examining witnesses to discredit the witnesses and also questioning the pieces of evidence placed by the prosecution. If the witnesses are kept away from this procedure, then how can the accused be able to prove his credibility? Would this not make the story one-sided, i.e., as per the version of the prosecution? This problem can be highlighted and well understood through the case of Mohd. Hussian Jufikar Ali v. The State (Govt. of NCT of Delhi), wherein only one witness was allowed to be cross-examined when there were at least 56 in total.
Upon the Hon’ble Supreme Court’s directions in 2018, the government finally made a Witness Protection Scheme 2018. However, it has not been properly implemented by the states, and as a result, witnesses have developed the old habit of becoming hostile when confronted with threats. Fear is the enemy of justice as it appears the witnesses would hide when they have a lack of faith in the scheme itself due to its many questionable approaches and zero accountability of the police if they misuse or violate the scheme themselves. Hence, one of the leading reasons could be poor implementation, but the other is the reason of having non-trained officials and zero accountability for violations of the scheme by the respective members of the authorities. Accountability strengthens witnesses’ faith that there is a proper check and balance in place and that they will not be betrayed by the concerned official in the middle. Witnesses need to be looked after because they are the eyes and ears of the law, as has been famously said by Jeremy Bentham himself.
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