Introduction:
Witnesses are the foundation of the formation of justice and equity. Hence, witnesses portray a major role and thus their safety should be the primary motive too. Without a witness, no case can be developed which would lead to no judgement for the same at all. They act as a pilot to the judicial framework. Therefore for the bona fide functioning of it, it is obligatory for them to step up and give their testimony freely, without having any fear of getting hurt in the process or so.
The definition of the ‘’witness’’ was first defined in the case Ms.Neelam Katara v.Union of India[1]which is “Witness means a person whose statement has been recorded by the Investigating Officer under section 161 of the Cr.P.C., 1973pertaining to a crime punishable with death or life imprisonment”.
Jeremy Bentham once said, ‘’Witness are the eyes and ears of justice ‘’. A truthful and sincere witness can be of great help of the police during the investigation of a case and as well as to the court during a case trial.
The quote relating to the witness by Justice Gita Mittal and Justice J.R. Mirdha of the High Court of Delhi in the case of Mrs. Neelam Katara v. Union of India & Others can be quoted under this topic –
‘The edifice of administration of justice is based upon witnesses coming forward and deposing without fear or favour, without intimidation or allurements in Court of law. If witnesses are deposing under fear or intimidation or for favour or allurement, the foundation of the administration of justice not only gets weakened, but it may even get obliterated.
A bench of Supreme Court headed by SA Bobde and L Nageshwar Rao had dealt with a case named Prem Chand vs State of NCT of Delhi, SLP (Cr) No. 647/2017. In this case an eye witness was shot dead inside the Court complex in Delhi. Hence the Supreme Court had held that
“This Case represent a serious degeneration in the atmosphere in which justice is administered in Courts, particularly subordinate Courts. In the instant case, the deceased, who is a witness, was shot while being escorted by police to the lockup. Apparently he had refused to turn hostile. We have no doubt that such incidents pose a grave threat to the security of Courts and interfere with the administration of Justice. It seriously affects the willingness of witness to state the truth. We, therefore, consider it appropriate to issue notice to the Union of India for inviting suggestions on making the Courts secure through CISF or any other agency and for expeditiously framing Guidelines to make the Witness protection.”
WPS or Witness Protection Scheme of 2018 provides protection and gives safety measures to the eye witness as per the magnitude of threat.
The scheme was brought together by the States and Union territories, National Legal Service Authorities, civil society, High courts and police personnel.
A Bench of Justices A.K Sikri and Abdul Nazeer keeping in mind that the topmost reason behind witnesses turning hostile was that the States were not giving them enough protection, had passed the Witness Protection Scheme 2018 drafted by the Union government.
The Director of NALSA, Surinder S Rathi had assembled in front of the given Bench in order to assess the Court of the drafting of the WPS, 2018.
This scheme would come under the articles Articles141 and 142 of the Constitution as held by the SC.
Some of the measures under this scheme would be to provide a police escort to the witness to the courtroom or in complex cases would be even given a brand new identity or a relocation at a much safer place.
The aim and objective as laid down by the definition above is to make sure that the process of investigation and trial is not sabotaged because of the witnesses being frightened or intimidated to provide with facts relating to the case and hence be given full protection for the same.
Background
Back in 1997 in the case of State of Gujrat vs Anirudh Singh, the Supreme Court had held that the main duty of every ‘’witness’’ who has any data relating to the commission of the crime was to assist the Court.
Witness Protection in India was first mentioned in the 14th Law Commission Report in the year 1958. After this reference 154th, 178th and 198th Law Commission Report also had recommended to construct a Witness Protection Scheme.
“Malimath Committee” report had also supported and had passed strong positive comments about passing a Welfare Protection Scheme mechanism. It had added that the Courts would have a say if the eye witness would be harassed in cross-examination.
Recently this issue had also come up in the case of Asaram Bapu. It was noticed that the witnesses are backing off and were hesitant in giving their statements because of the threat. Total of 10 witnesses were attacked and three of them were killed.
Three categories exist under the Witness Protection Scheme, 2018 and they are:
- CATEGORY A: The cases which come under this category are the ones in which the danger is extended to the life of the family of the witness’s family members at the time of investigation also before or after it.
- CATEGORY B: The cases which come under this category are the ones in which the danger is extended to the safety, name or possession of the witness’s family members at the time of investigation also before or after it.
- CATEGORY C: The cases which come under this category are the ones in which the level of danger is moderate and is extended to the badgering of the witness’s family members at the time of investigation also before or after it.
Witness Protection Fund
The fund called the “Witness Protection Fund” was also created in order to bear all the expenses and extraordinary costs in relation to the programme. It was to be set up by all the States and Union Territories.
It is the duty of the States to make an annual budgetary location for the fund.
It was laid down that the fund would also accept donations from “national and international philanthropic organizations“.
Witness Protection Fund is to be run by the Ministry of Home under the supervision of the Central and State Governments.
Threat Analysis Report (TAR)
The Witness Protection Scheme has a provision for constructing a Threat Analysis Report also known as TAR of the witness. This is made by the Commissioner or SSP when the witness applies for protection under this programme.
TAR classifies and distinguishes on the level of danger perception and thus submits its propositions.
According to the report, the measures are taken relating to the safety of the witness, for example, determining whether he should be given a separate location to stay or maybe even a new identity.
The change of identity is only taken up in case of adverse cases of safety. If the witness raises a special appeal for changing his identity a resolution can be made for the same by the Competent authority.
Providing with a new name, profession or even nascence and documents relating to all of it comes under identity change and are provided by the Government authorities.
Conclusion
The drafting of the Witness Protection Scheme was a very important and vital step in the role of the judiciary system.
The scheme comes with a list of measures for providing safety to a witness. Honestly, this scheme comes with an assurance to the witness from physical damage hence resulting in adding confidence for him to step up. The importance and need of witness security in India even drove the Law Commission to take up topics such as “Witness Anonymity” and “Witness Protection“.
As said before, the protection and safety of the witness is the first and foremost step to a better and efficient judicial system. If someone is not able to testify and come up before the courts because of the threat and danger it would clearly be a violation of their right under Article 21 of the Constitution.
The right to life guaranteed to the people of this country also includes in its fold the right to live in a society, which is free from crime and fear and right of witnesses to testify in courts without fear or pressure. [2]
According to Whittaker Chambers “A witness is a man whose life and faith are so completely one that when the challenges come to step out and testify for his faith, he does so, disregarding all the risks, accepting all consequences.” The role that witnesses play in India has changed from time to time resulting in capturing of its actual and real-life significance.
Talking of what today’s investigation scenario is like with the increase of the alarming rate of crimes and drugs is quite difficult and is hence essential that witnesses are provided with enough safety. Truth be told, it is the non-appearance of such witnesses that has lend a helping hand in strengthening offenders.
The WPS is just the bold step at a National level to safeguard the witnesses which is just the start and has a long way to go to abolish or do away with the exploitation of the victims. It is a start towards the positive direction in making sure that the justice is delivered in a ‘’just’’ as it means, in a fair manner.
References:
[1] MRS. NEELAM KATARA V. UNION OF INDIA ILR (2003) II DEL 377
[2] Shashank Pandey, Mahendra Chawla and Ors. Vs. Union of India and Ors: Ensuring Rule of Law by protecting witnesses, 5 INTERNATIONAL JOURNAL OF LEGAL DEVELOPMENTS AND ALLIED ISSUES( 115 ,2019)
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