Witness cooperation with law enforcement and judicial agencies is essential to
the successful prosecution of crimes, making them the foundation of successful
criminal justice systems. In order to defend the rule of law, witnesses must be
protected from criminal suspects' s intimidation or physical threats. Bentham
said, "Witnesses are the eyes and ears of Justice."
The law requires witnesses
to give statements under oath because the testimony of an honest witness is the
foundation of justice and helps decide whether an accused person is convicted or
acquitted. The criminal justice system's ability to function effectively depends
primarily on witnesses' willingness to provide information and evidence without
being coerced or threatened. Witnesses in India are in an extremely difficult
Witnesses are no longer prepared to testify as a result of the lapses
in the country's criminal justice system. Witnesses are viewed as a class
deliberately overlooked. The accused party's rage, pressure, and intimidation
threatens the witness's life and existence, rendering him hopeless. As both
sides in a case are aware that a single witness can influence the outcome,
witnesses are frequently coerced or emotionally manipulated to remain silent or
change their stands.
The majority of witnesses step back from performing their
duty, which is to express an impartial and honest opinion and defend what is
right or must be right, for a variety of social, legal, economic, and
psychological reasons. There must be effective laws, and those that are already
in place must be effectively implemented to ensure that no witness withdraws
from testifying, a fair trial is not hampered and justice is rightly served.
A "witness" is a person who has made a statement, given or accepted evidence, or
is required to give evidence in such proceedings, and has information or
documents about any crime that the competent authority has determined to be
relevant to any criminal proceeding. "Witness means any person, who possesses
information or document about any offence," reads section 2(k) of the 2018
Witness Protection Scheme.
The term "witness" is defined in Section 118 of the
Indian Evidence Act of 1872 as "a person who is competent enough to understand
the questions asked by the court." Therefore, this section says that anyone can
be a witness unless they are unable to comprehend and respond to the question.
Relevance in India
In India, witness protection has developed into a major problem. The Supreme
Court decided in Swaransingh v. the State of Punjab
(1957) that evidence is
admissible in a criminal case. Witnesses are crucial for providing such
evidence. During Mahendra Chawla and Ors. V. Union of India And Ors.
Court ruled that a threat to life and a lack of adequate state protection may be
one of the primary reasons witnesses change their stance. Hostile witnesses are
According to the Fourth National Police Commission Report of
1980, most witnesses in India are becoming hostile as a result of the accused's
pressure and coercion, necessitating a regulation against witness manipulation.
As a result, witnesses in India are in poor condition. Witnesses have to deal
with a lot of stress. First witnessing the entire scene of the crime and then
remaining terrified of a potential threat to their lives.
In Zahira Habibulla H.
Sheikh and Others v. State of Gujarat and Others,
the Supreme Court emphasized
the importance of protecting witnesses. Honourable Justice Raju Doraiswamy and
Justice Arijit Pasayat of the Supreme Court made the observation that a witness
will not be given a fair trial if they are forced to give false evidence or are
threatened with doing so.
We need to realize that the judiciary does not have complete authority to
protect a witness in every situation.
The judiciary can't do anything until it knows everything about the case and
until the case is brought before the bench for hearing. In the case of State of
Gujarat v. Anirudh Singhh and another, the Honourable Justices K. Ramaswamy and
D. Wadhwa observed that, every witness who is aware of the crime's commission is
obligated to assist the State in providing evidence Unfortunately, many
witnesses become hostile for a variety of reasons, including the deterioration
of law and order and the self-preservation principle. In some cases, even direct
witnesses are being liquidated before they are examined by the Court. In such
circumstances, the Law Commission ought to investigate the issue immediately.
Witness Protection Scheme 2018
The Witness Protection Scheme was the first law that the Indian government
enacted in 2018. It had been long overdue for such an Act. In the 1997 case
State of Gujarat v. Anirudh Singh, the Supreme Court ruled that it is the
responsibility of every witness to assist the State by providing evidence. The
scheme has a straightforward objective to make sure the witnesses' interests in
India are protected. In addition, the Scheme grants the witness access to a
police escort to the courtroom.
The Act divides witnesses into three categories
in the worst-case scenario:
- Class A: When a witness or a member of his or her family receives
life-threatening threats during the proceedings.
- Class B: When the witness's safety, reputation, and property are at risk
during the investigation.
- Class C: When the threat consists solely of harassing the witness and
members of his or her family during the proceedings.
In addition, the Scheme establishes a Witness Protection Fund to cover the costs
associated with a witness protection order. The comprehensive list of safeguards
that must be approved by a competent authority is known as a Witness Protection
Order. During the course of the investigation, the witness and members of his or
her family are also fully protected by the Scheme.
Some of the protective
measures mentioned in this scheme are:
- The installation of security cameras at the witness's residence
- Regular house checks and patrols of the witness's house
- Keeping an eye on the witness's call logs, emails, and other communications
- The witness's relocation in light of the Threat analysis report
- The witness is given numbers to call in an emergency
Reports on Witness Protection from the Law Commission
Witness Protection refers to safeguarding witnesses from harm. However,
according to the Law Commission's 14th Report (1958), it only covers the
protection of witnesses from discomfort in court and travel-related issues. A
chapter on witness protection was included in the 154th Report of the Law
Commission. It recommended shielding witnesses from the ire of the accused, but
it did not specify any measures to protect them from physical harm.
In Sakshi v. Union of India
, the 172nd Report of the Law Commission
addressed the issue of whether an assaulted minor could not give a statement in
front of the accused. Insertion of CrPC Section 168 was suggested in the 178th
Law Commission Report. In its report, the Committee on Reforms of the Criminal
Justice System made 158 recommendations for recognizing the witness'
vulnerability and ensuring that victimized witnesses receive justice.
Section 195 of the I.P.C. was added by the Criminal Law (Amendment) Act of 2005
(No. 2 of 2006). A draft of a separate law for Witness Protection was provided
in the 198th Report of the Law Commission in 2003 by the Malimath Committee. The
Rajya Sabha members of the Malimath Committee inquired about the state of the
laws and amendments. Protection of witnesses at all stages of the case, witness
anonymity, and protection of the witnesses' lives and property, as well as that
of his relatives, were among the committee's recommendations.
Challenges towards Witness Assurance Regulations in India
27.5% of Indians are blasted by neediness and India doesn't appear to have the
adequate resources to overcome the same. The first step would be for all states
to agree on and acknowledge the law as a duty. It would also cost a lot to hire
bodyguards, provide security, relocate another area, build new police stations
and courts, hire staff for the judiciary, and so on which doesn't seem to be
possible under the current circumstances. The issue of corruption in the
administration and judiciary, which would obstruct the law's swift passage, is
like the cherry on top.
A person in India would avoid taking such drastic measures if they were to
testify at the expense of their family, job, and social obligations to the
community. Expert witnesses in forensic fields do not currently receive any form
of protection. Furthermore, considering that criminal cases are adjourned for an
average of ten to fifteen years, it appears unrealistic to provide witness
protection for all witnesses over such a prolonged period. Even though drafting
a law to protect witnesses can be time-consuming, it is a crucial aspect of
Lessons to be Learnt from Foreign Jurisdictions with Respect to Witness
When it comes to establishing and implementing an efficient witness protection
program in India, India has a lot to learn from other nations. The Australian
Witness Protection Act places a strong emphasis on protecting witnesses'
identities to the point where it allows witnesses to alter their registered
birth dates, among other things so that the witness can remain anonymous.
In addition, numerous legal provisions in the United Kingdom ensure that a
witness's anonymity is maintained by screening him so that only judges or jurors
can see him, voice modulation of the witness, and so on and so forth. In
addition, intimidation of a witness is a criminal offense in the United Kingdom.
While the United States of America does not have a legislature, it does have a
comprehensive Witness Security Program known as WITSEC. A very unique aspect of
the Witness Protection Scheme is the analysis of the potential intimidators'
financial strength in relation to a witness and, as a result, providing the
witness with financial assistance in addition to housing, medical care, and job
The fact that convictions in the United States have increased by 89 percent
since the inception of WITSEC in 1970 supports the fact that an effective
Witness Protection Scheme improves the administration of justice.
One of the essential elements for any society to accelerate its development is
the establishment of peace and security in the society, which is in turn
associated with the proper administration of criminal justice in the society.
The Witness Security Program in the United States is a testimony to the fact
that the administration of justice improves with an effective Witness Protection
Therefore, in order to achieve these goals, it is past due for the Indian
government to develop either a Witness Protection Legislation or a Comprehensive
Scheme to fill the void in witness protection in India. The authors propose that
the Witness Protection Bill of 2015 be implemented as soon as possible.
We believe that any potential Witness Protection Legislation in the future ought
to include provisions requiring the United States to provide witnesses with
assistance from the government in order to prevent witnesses from being
subjected to any kind of monetary pressure. The right to a speedy trial and a
prompt and final conclusion of the case following a conviction and sentence must
also be guaranteed. In addition, the government should at least make any kind of
intimidation of a witness a criminal offense under the relevant laws of the land
until it comes up with such legislation.
In addition, the legislature ought to take inspiration from worldwide Witness
Protection Laws and Schemes in order to ensure that an effective law with
sufficient checks and balances is enacted in order to realize the dream of truly
impartial criminal trials in India.
Conclusions and recommendations
The way the law is put into practice could be governed with some restrictions in
order to make it practical and workable. By developing well-thought-out
legislative and structural arrangements to deal with witness hostility,
protection, and assistance, the States should be assigned significant financial
A protection cover cannot be given to every witness because of practical
constraints; Consequently, protection ought to be given priority in cases.
Police, prosecutors, and judicial officials must begin treating witnesses with
minimal sensitivity and assistance at all stages to save money.
The witness protection law can be effectively implemented if the government, the
police, and the judiciary all function in harmony. The judiciary should handle
the legal aspects of the act, and the police should be entrusted with the act's
execution, demonstrating the political will of the government.
It is necessary to rebuild trust in order to increase witness statements. The
witness ought to have complete confidence that their testimony is supported by
an impartial system. It is necessary to take measures to conceal the witness's
identity, occupation, and address.
Promoting pseudonym, voice, and face distortion, as well as video and
teleconferencing, must be encouraged. The right to a speedy trial must be
guaranteed. In exceptional circumstances of poverty, witnesses must receive
assistance with transportation and lodging. Section 344 of the Criminal Code
states that witnesses should be punished for perjury.
Whenever the courts make malicious and wilful changes to statements, the witness
must have access to the application and investigation status. Relocation, false
identity, and follow-up issues should be addressed by a separate cell. It's
possible that police officers of a certain rank will have the
freedom to protect witnesses in a variety of ways, including escorting witnesses
to court or work, providing emergency relocation assistance, and so on. Witness
Protection is a progressive initiative in India, where government practices
frequently resist modernization and innovation, so its success may take some
However, we must begin somewhere and eventually work toward generating and
responding to witness questions. Serving the purpose can be made easier if
criminal justice policies are created with unbureaucratic and effective
implementation. Last but not least, witnesses must be treated fairly, with
dignity, and without being intimidated or harassed.