Witness protection is of utmost importance as that of a victim as without witnesses the justice delivery system is likely to get hampered.
Witnesses play a key role in finding out the real culprit in any offence. The Indian Evidence Act extensively deals with witnesses and it’s types. A direct witness is perceived to be of the most valuable evidence in the court of law. However, witness abuse and harassment by parties of the case is a real issue. Political influence, threat, coercision and blackmail are the usual methods used to suppress the evidence or hamper with it. This leads to injustice and delay in the proceedings.
The Apex court approved the Witness Protection Scheme, 2018 after 18 states/ UTs approved for the same and by taking open suggestions from various judges, police Personal and others. The scheme has been declared as a part of National State Legal Services Authority. Justice A.K. Sikri and Justice S. Abdul Nazeer observed that witness protection is a guaranteed right under Article 21 and stayed that: “The right to testify in courts in a free and fair manner without any pressure and threat whatsoever is under serious attack today. If one is unable to testify in courts due to threats or other pressures, then it is a clear violation of Article 21 of the Constitution.”1
In the case of State of Gujarat v. Anirudh Singh,2 the Supreme Court observed that it is the duty of every witness state the facts when he/ she has sufficient knowledge about the commission of the crime to assist the State in giving evidence. Hence, being a witness a person has the obligation to assist in finding the real offender.
At the same time, witnesses must be protected too. This right of witness was recognized but the Supreme Court in the case of Zahira Habibulla H. Sheikh and Another v. State of Gujarat,3 wherein it was observed that if witnesses are threatened or forced not to give evidence then that would result in injustice.
The 14th Law Commission’s report and the 4th report of the National Police Commission also provides for certain substantive protections to the witnesses. The 154th Law Commission’s report explicitly states that: “[n]ecessary confidence has to be created in the minds of the witnesses that they would be protected from the wrath of the accused in any eventuality.”4
In a number of judgments, the Apex court has highlighted the need and importance of witness protection. For instance in the case of National Human Rights Commission v. State of Gujarat and Ors,5 the court highlighted the State’s role in witness protection.
The Hon’ble High Court of Delhi in the case of Neelam Katara v. Union of India,6 issued certain guidelines for the protection of witness until a proper legislation is enacted.
Subsequently the witness protection scheme of 2018 was adopted which issues certain directives such as escorting of witness to the court room by the police, using audio- video methods for giving evidence to maintain the confidentiality, providing temporary residence in a safety house, giving a new identity, relocation of witnesses if needed and so on.
The scheme classifies the witnesses into 3 types namely, Category A, B and C. It depends on the threat and level of danger the witness face. It also provides for the establishment of a state witness protection fund. The first step to avail the protection is to file an application in the prescribed form to the competent authority of concerned district through the member secretory. Within 5 days, the threat analysis report needs to be prepared by the additional commissioner of police or deputy commissioner until then a interim order can also be passed by the competent authority.
The protection may include monitoring of telephone/ mail, to ensure that both the accused and the witness does not meet, concealment of identity, holding in- camera trial, regular patrolling around the residence of witness etc.
Though the scheme is a welcome measure to protect the witnesses, it’s implementation and effectiveness is still a question for many. The threat analysis report is also prepared by a police official. Nowadays we see a lot of incidences where higher police authorities involved in a series of crimes or acts of corruption. However without their report it’s not possible to afford protection to the witness too. Therefore a proper analysis of these issues are necessary and witness protection must not be just for namesake but must be an actual reality.
- Shrey Verma, Witness Protection Scheme in India, IPLEADERS, (Nov 1, 2021, 5: 36 PM), https://blog.ipleaders.in/witness-protection-scheme-india/.
- (1997) 6 SCC 514.
- (2004) 4 SCC 158.
- Sanjeev Kumar and Abhishek Goyal, witness protection: safeguarding the eyes and ears of justice, MONDAQ, (Nov 1, 2021, 6: 11 pm), https://www.mondaq.com/india/trials-appeals-compensation/914274/witness-protection-safeguarding-the-eyes-and-ears-of-justice.
- MANU/SC/0713/2009, Writ Petition (Crl.) No. 109/2003 dated 01.05.2009 (Supreme Court).
- ILR (2003) 2 Del 377.
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