08, Nov 2019 | Sanchita Kadam
One expects that after having waited for years for a law to be passed, the troubles caused by its absence will simply go away. That is, however, does not happen as the devil lies in the implementation. The lack of both awareness and application of the Witness Protection Scheme, 2018 is surely one of the reasons where the country over, witnesses –especially from the most marginalised sections –are still subject to threat to their lives and destruction of their property.
An English philosopher Jeremy Bentham is oft quoted on the subject, “Witnesses are the eyes and ears of justice.” In yet another shocking incident of its kind, two Dalit witnesses were brutally assaulted by the accused in a criminal case. The incident was caught on camera and it took place in Mainpuri, Uttar Pradesh. They had taken refuge in a nearby village apprehending such an attack. After suffering severe injuries and even filing a complaint, no arrests have yet been made.
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Although the 2018 Witness Protection Scheme has been around for close to a year now, on the ground, India’s criminal justice system continues to reel without its implementation.
CJP and Witness Protection, the long battle
The Citizens for Justice and Peace (CJP) has been actively pushing for a witness protection programme/scheme since its direct involvement with legal aid for the Victim Survivors of the Gujarat 2002 pogrom. In Witness Protection A Pre-requisite to a Healthy Criminal Justice System, secretary CJP, Teesta Setalvad, argues that
“That the Indian Criminal Justice System suffers from multiple sores, affecting the deliverance of justice has been acknowledged by all. While large numbers of pending cases and delays are the simplest manifestations of this malaise, broken down, case by case, trial by trial there are four areas that need citizen’s attention and campaigns for reform. CJP has centered its initiatives in correcting these maladies. Without a sustained and robust campaign the system, with vested interests will not allow correction.
Time bound trials, Independent Investigation, Witness Protection and Independent Prosecution are these four areas.
After 67 years of a constitutionally driven Criminal Justice System, indicators about the state of the rule of law, a vital ingredient in a democracy, are frightening:
- Criminal Trials take an average of 10-15 years to reach completion
- Convictions are as low as 4 per cent, in mass crimes, and about 33 per cent in individual crimes
- In over 70 per cent of our cases witnesses turn hostile
In 95 per cent of the cases where the criminal cases fall flat because of the malady of the witnesses turning hostile, the State does not play a positive role, remains passive, and does not appeal the acquittal. The state in fact does little or nothing to reassure the witness and provide adequate security cover. Therefore a disturbing trend that has come to light is that the state has become the major defaulter in the failure of the rule of law.
Justice M Jagannadha Rao had expressed his views on the subject in an article published on Sabrangindia in 2005,
“The victim of a crime is an important player in the administration of justice both as a complainant/informant and as a witness for the prosecution/state….Without the victim’s active support, the investigation of a crime may not come to a logical end….But despite being an important component of the criminal justice system, much attention has not been paid to the rights of victims.”
He identified two important aspects in terms of witness protection; first was to ensure that the witness does not turn hostile which can be done by protecting the identity of the witness and the second is to protect the physical and mental vulnerability of the witness by providing physical protection to the witness, so he or she does not feel threatened.
A very critical case in which witness protection was identified to be a critical aspect of the administration of public justice was the one of the Gujarat 2002 related criminal trials, the Naroda Patiya massacre case. In 2011, the Special Trial Court directed the Special Investigation team (SIT) to provide more protection to 6 witnesses in the case after receiving an application from them to that regard and also because one important witness in the case, Nadeem Saiyed was killed in broad daylight by unidentified persons.
In fact, in pioneering orders from the Supreme Court in the matter (NHRC v/s State of Gujarat (2010), 15 SCC 22) and those of 2004, human rights defenders, Teesta Setalvad, over 600 witness survivors were accorded witness protection by the CISF that continues to this day.
Witnesses turn hostile in a high number of criminal cases. The experiences of the Best Bakery Case (Zahira Habibullah Shaikh v/s State of Gujarat, 2004), the Sakshi case, (Sakshi v/s Union of India, 2004) and the Domestic Working Women’s Case (Delhi Domestic Working Women’s Forum v/s Union of India, 1995) have all pointed to the need for urgent witness protection. The experiences in all these cases show that only when non state players, citizens, back witnesses that the struggle for justice become meaningful and in some degree successful. It is only in such situations that witnesses have found the courage to speak out. CJP’s complete stance and its analysis of witness protection, before the witness protection scheme of 2018 came into being, can be read here.
The Supreme Court’s on Witness Protection
The need for witness protection has been highlighted in many judgments of the Supreme Court, specially cases like Sakshi v. Union of India where the court took extra ordinary measures to ensure protection of the witness:
“The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witness do not have to undergo the trauma of seeing the body or face of the accused.”
The problem of witness turning turning hostile was highlighted by the Supreme Court in Zahira Habibullah Sheikh v. State of Gujarat:
“If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors, like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by the court on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface.… Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of the State represented by their prosecuting agencies do not suffer.… There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that the ultimate truth presented before the court and justice triumphs and that the trial is not reduced to a mockery”
The Court also highlighted the role of the state in protecting witnesses in criminal cases where parties involved are powerful in terms of money and political patronage:
“As a protector of its citizens it has to ensure that during a trial in court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like caste, creed, religion, political belief or ideology.”
There are several other such judgments of the Supreme Court where the State’s role in protecting its witnesses has been emphasised. It is this growing body of jurisprudence that led, ultimately to the Witness Protection Scheme 2018 coming into being. This was a case where the witnesses in the Asaram rape case had petitioned the court seeking protection. This Scheme was drafted with the inputs from 18 States/UTs and the Central Ministry of Home Affairs. Although criminal intimidation of witnesses was made a criminal offence under section 195 A of the Indian Penal Code in 2006, no formal structure had, until then, been established for protection of witnesses per se.
Adverse impact of lack of Witness Protection
The lack of witness protection over the years has led to many a case where the culprits have gotten away and one such controversial case was the infamous Sohrabuddin case in which over 90 witnesses had turned hostile because the accused in the case were people with strong political backgrounds and that included the current Union Home Minister, Amit Shah.
Another case which is sub judice presently, is the Pehlu Khan lynching case and in one incident in September 2019, a vehicle carrying the lawyer, Pehlu Khan’s sons and other witnesses was attacked by men in an unmarked vehicle while on their way to the Court to depose in the case. A letter was then written to DGP and IGP of Rajasthan by the People’s Union for Civil Liberties with the support of CJP requesting provision of witness protection to the witnesses in the case as there was evident apprehension of imminent threat but the same did not elicit action.
The Judgment that laid out India’s Witness Protection Scheme
The 14th Law Commission Report (1996-97) was first such report to focus on the issue of witness protection. The most instrumental piece of law in witness protection remains the case of Mahender Chawla & Ors. Vs. Union of India & Ors. [Writ Petition (Criminal) No. 156 of 2016]. The Witness Protection Scheme laid out in the said judgement, as per Article 141/142 of the Constitution of India, is binding on all Courts within the territory of India and enforceable in all States and Union Territories; this was endorsed by the government in the Rajya Sabha in July 2019.
Some key observations made by the Supreme Court in this landmark judgment are noted below:
“Whenever, in a dispute, the two sides come out with conflicting version, the witnesses become important tool to arrive at right conclusions, thereby advancing justice in a matter.”
“In the words of Whittaker Chambers, a witness is “a man whose life and faith are so completely one that when the challenge comes to step out and testify for his faith, he does so, disregarding all risks, accepting all consequences.”
“Because of the lack of Witness Protection Programme in India and the treatment that is meted out to them, there is a tendency of reluctance in coming forward and making statement during the investigation and/or testify in courts.”
“The present legal system takes witnesses completely for granted. They are summoned to court regardless of their financial and personal conditions. Many times they are made to appear long after the incident of the alleged crime, which significantly hampers their ability to recall necessary details at the time of actual crime. They are not even suitably remunerated for the loss of time and the expenditure towards conveyance etc.”
“It hardly needs to be emphasised that one of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State”
The Court, while quoting from a judgment in Swaran Singh v. State of Punjab emphasized upon and reiterated several hardships that witnesses have to undergo in criminal cases like how the witness is not given any respect by the court, there is no proper place assigned for them to wait until the hearing begins, during the trial the witness is subjected to prolong stretched examinations and cross examinations
The court rightly observed that criminal justice is closely associated with human rights.
“Whereas, on the one hand, it is to be ensured that no innocent person is convicted and thereby deprived of his liberty, it is of equal importance to ensure, on the other hand, that victims of crime get justice by punishing the offender. In this whole process, protection of witnesses assumes significance to enable them to depose fearlessly and truthfully. That would also ensure fair trial as well, which is another concomitant of the rule of law.”
The Court also interpreted Article 21 of the Constitution as follows:
“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. 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. “
The provisions of the scheme, in brief
In order to receive protection, an application in prescribed form is required to be made to the competent Authority (Standing Committee in each District chaired by District and Sessions Judge) which then calls for a Threat Analysis report from the ACP/DSP of the concerned police division. The report categorizes threat protection (as per the three categories, ‘A’, ‘B’, and ‘C’) and suggest protection measure. The application is to be disposed of within 5 days of receipt of said report and the order thus passed is to be implemented by the Witness Protection Cell which is also set up under this scheme.
The scheme specifies that the protection should be proportionate to the threat and should be granted for 3 months at a time. The measures may include, inter alia, temporary change of residence, phone number, and escort to and from court, in camera trials, concealment of identity of witness and so on.
The complete judgment can be read here.
The Witness Protection Scheme has been around for about 11 months now but it is not clear whether litigants and lawyers are at all aware of its provisions and even if they are whether it is taken seriously enough to be used by lawyers in their respective cases. In the case that was highlighted in the beginning, of the two Dalit witnesses being assaulted by the accused in a case where they were charged under the SC/ST Act [The Scheduled Castes and The Scheduled Tribes (Prevention Of Atrocities) Act], had they been provided with protection under the scheme, they would have been probably saved from the attack.
 (2006) 3 SCC 374 [SCC pp. 396-98, paras 40-41]
 (2005) 5 SCC 68 at 678