INTRODUCTION
Witness Protection programs are an important factor for the modern legal system, which aim to provide safety and cooperation for person that provide testimony in criminal cases. In India, the criminal justice system largely depends on the witness’s testimony. Witnesses play an important role in safeguarding fair trials and delivering fair justice. What is important and the cause of the issue is that the witness must depose without force, fear or pressure and out of his or her own free will and consent. However, in many cases, witnesses turn hostile due to threat, lack of protection or intimidation. In India, the witness protection program faces serious obstacles that undermine its efficacy in ensuring the safety and cooperation of witnesses in criminal cases. When an accused belongs to a powerful social, political, and economic background, the threat towards witnesses intensifies. Such dangers are not limited to the witnesses but eventually extend to the witness’s family members and close relatives, including harm or death if the testimony goes against the accused. As a result, many witnesses withdrew from giving the testimony in favour of the victim. To address this issue, the Witness Protection Scheme, 2018, was introduced to protect the witnesses and strengthen the fair justice system in India. It aims to facilitate a just, rule-based society, securing law and order and the dispensation of a trial effectively and sustainably.
WITNESS PROTECTION SCHEME
The Witness Protection Scheme 2018 was introduced to address the problem of witness intimidation and hostility in India’s Criminal System. In the investigation of such crimes, witnesses must have trust in the criminal justice system. They need to be tranquil that they will receive protection and safety from intimidation and the danger[1] that criminals might seek to wreak upon them to intimidate them before the court of law. Also, witnesses often face threats, force, danger and coercion, leading them to turn hostile and weaken the prosecution. The Supreme Court in the landmark case of Mahender Chawla V Union of India, 2018, enforced the witness protection scheme and made it legally binding across all States and Union Territories until a statutory provision is enacted. This scheme makes sure that witnesses can testify freely and without any fear, consequently strengthening the right to a fair trial under Article 21 of the Indian Constitution. The Supreme Court in the case of Moh. Hussain Julfikar V The State (Govt. of NCT of Delhi)[2] held that managing a fair trial for those who are accused of criminal offences stands as the foundation of democracy. Regulating a fair trial is beneficial both to the accused and to society. If the judgment results in an unfair trial is contrary to the Indian justice system.
THEORY VS REALITY OF WITNESS PROTECTION SCHEME
The Scheme[3] promises to provide a secure environment where the witnesses can give testimony without any intimidation. It ensures safety, confidentiality and provides necessary security arrangements. Under this scheme, witnesses are categorised as per the level of threat perception:
Category A: Where the threat to the life of the witness or their family relative can occur during the investigation or trial.
Category B: Threat to the safety, reputation or property of the witness or their family relative, it can be during investigation or trial.
Category C: Moderate threat which extends to harassment of the witness or their family relative, during investigation or trial.
Based on category, various protection measures are provided, which include a change of identity, in-camera trials, installation of security devices, a police station and concealing the identity of the witness during trial or investigation. This scheme establishes the cell at the district level, which monitors threats and decides to take appropriate measures.
Reality: Despite the progressive scheme, the enforcement of the scheme remains weak. Some states lack proper protection, safety and cooperation to provide effectively to the witnesses. Witness harassment continues to be a major problem in India. In the famous case Zahira Habibullah Shekh V State of Gujarat[4], also known as the Best Bakery case, was a landmark legal battle case where witnesses turned hostile due to a threat, leading to the acquittal of all 21 accused due to lack of evidence, which highlights the failure of the protection mechanism.
Additionally:
- Police protection is not enough or adequate for witnesses.
- Delay in trials can also threaten the lives of the witnesses.
- Lack of awareness aggravates the risk to the witnesses ‘ lives.
CHALLENGES AND SUGGESTIONS
The Indian Government introduced a Witness Protection Scheme to protect and keep the witness’s trust in the legal system. But there are several other issues that the scheme did not deal with. Although the Witness Protection Scheme gives witnesses a wider framework of protection, it is up to the central government and the state government to enforce the program. One of the key issues is the absence of legal provisions, as the scheme currently governs as an executive guideline approved in Mahender Chawla V Union of India[5] rather than exhaustive legislation, which leads to inconsistency in several states. This is also due to a lack of awareness among witnesses about the rights under the scheme, which results in the enforcement of their rights and protection. Delays in the judicial process aggravate the problem, as complex litigation increases the vulnerability and threat to witnesses. Besides, coordination between different authorities, which include police, judiciary and other authorities, remains weak, thereby minimising the efficiency of the protection framework. These challenges highlight the gap between the theoretical mechanism and the actual implementation of law. To fill the gap, there is a need to enact comprehensive legislation on witness protection[6], rather than solely relying on the scheme. Secondly, adequate allocation of financial resources between the central and state government to effectively implement protective measures. Additionally, the use of modern technology, such as voice distortion and video conferencing, can help protect the identity of the witnesses during the proceedings. There is also a need for speedy trials, particularly in sensitive criminal cases, to reduce prolonged exposure to threats. These reforms, if implemented, can strengthen the Indian criminal justice system by securing the rights and safety of the witness.
CONCLUSION
The Witness Protection Scheme, 2018 play a crucial role in protecting the lives and testimonies of witnesses in Indian criminal proceedings, guaranteeing the fairness and integrity of the legal system. While the scheme, as approved in Mahender Chawla V Union of India, provides a governed framework for safeguarding witnesses, its efficacy is mostly undermined by poor implementation, lack of resources, ineffectiveness between the central and state governments, and absence of an assigned legal framework. However, its achievement depends upon the implementation of the scheme. The gap between the theory and reality of the implementation of the scheme must be addressed to ensure that witnesses feel safe and protect their rights without fear or bias.
Author: Ridhima Maheshwari (Bharati Vidyapeeth (deemed to be University) New Law College, Pune)
References:
[1] Aparna Chandra, ‘Witness Protection in India: A Critical Analysis’ (2019) 54(2) Journal of the Indian Law Institute 233
[2] Mohd Hussain @ Julfikar Ali v State (Govt of NCT of Delhi) (2012) 9 SCC 408
[3] Witness Protection Scheme, 2018 approved in Mahender Chawla v Union of India, 2018 SCC OnLine SC 2679
[4] Zahira Habibullah Sheikh (5) v State of Gujarat (2006) 3 SCC 374
[5] Mahender Chawla v Union of India (2019) 14 SCC 615
[6] Sidharth Luthra and Karanjawala, ‘Witness Protection and Fair Trial in India’ (2018) 10 NUJS Law Review 145
