The word witness is neither defined in Bharatiya Nagarik Suraksha Sanhita,2023 nor in the Bharatiya Suraksha Adhiniyam (evidence act), but in the section 124 BSA, talks about competency of witness. "All persons shall be competent to testify unless the court considers that they are prevented from understanding the question put to them, or from giving rational answer to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind[1] ".

Witness protection is a vital aspect of the criminal justice system, particularly in instances when witnesses are a key to reaching the perpetrators with justice. It has been India's weakness since long, not having a powerful witness protection programme, where usually witnesses are intimated, threatened, and attacked. The lack of proper protection for these people invalidates the entire judicial process and results in an atmosphere of fear and distrust towards the legal system. Widely recognized for many years now, witness protection has gained considerable importance in high-profile cases including organized crime, terrorism, corruption, and political violence.

Measures have been undertaken by some states and courts in this regard. India does not yet have an overarching, central witness protection legislation. It is imperative to adopt a system with a formal arrangement to protect witnesses' safety and security for securing the very precepts of justice and accountability. The goal of this project is to understand the issues that face witness protection in India and analyse the present legal framework, the implementation deficit, and threats to witnesses. By considering the existing schemes and their efficacies, the research attempts to make suggestions towards enhancing witness protection mechanisms in India. The aim is to encourage a judicial climate in which people can give evidence without fear of retaliation, ultimately leading to a more open and trustworthy legal system.

The State Governments are entrusted to prepare and notify a Witness Protection Scheme. A 'Witness Protection Scheme, 2018 has been drafted and endorsed by the Hon'ble Supreme Court in its judgment in Mahendra Chawla v UOI[2]. They are aimed at guarding the society against criminal misconduct, deterring lawbreakers and penalising those who violate or attempt to violate laws, and protecting witnesses from harm and ensuring their safety.[3]

Legal Provisions for witness protection in India

The scheme of Witness Protection, 2018 is to make sure that the investigation, prosecution and trial of the offences is not affected due to intimidation or fear of giving evidence without protection from violent or other criminal retaliation. In the case State of Gujarat v. Anirudh [4]Singh (1997), 14th Law Commission Report and Malimath Committee Report has suggested for witness protection scheme[5].

In the extremism of the recent year, terrorism and organised crimes have increased and are getting stronger and more varied. In the prosecution and investigation of these crimes, it is necessary that witnesses, have faith in the criminal justice system. They should be assured of receiving protection and safeguarding from intimidation and injury that criminal syndicates may intend to cause to them in a bid to dissuade them from co-operating with the law enforcement officers and testifying before the court of law.

It is high time, therefore, that an arrangement is implemented for dealing with the problems of witness protection throughout the nation in a uniform way. The scheme divides witnesses into three categories depending on the threat faced by them:

• Category A: Threats to the life or to family members.
• Category B: Threats to safety, reputation, or property.
• Category C: Reasonable threats through harassment or intimidation.

The scheme offers several measures of protection such as change of identity, relocation, security devices installation, and utilization of specially equipped courtrooms. A Witness Protection Fund supports such steps, subsidized by state budgets, court judgments, voluntary donations, and corporate social responsibility.

The scheme was supported by the Supreme Court of India in December 2018 and became binding on all states. It is implemented under the supervision of a Witness Protection Cell in every state, with applications being dealt with by a Competent Authority such as the District Legal Services Authority. Although its objectives are lofty, the scheme has the issues of successful implementation and making its provisions watertight and clear-cut. The scheme covers the entire India, excluding Jammu and Kashmir.

Role of Judiciary and law enforcement in witness protection

The judiciary is key to witness protection in India as it stresses protecting witnesses to maintain fair trials. The Supreme Court has always drawn attention to witness protection through such landmark cases like Zahira Habibullah Sheikh v. State of Gujarat [6]and Mahender Chawla & Ors. v. Union of India & Ors. [7]These decisions emphasize that witness protection is necessary for the integrity of the judicial process so that witnesses cannot be intimidated or become hostile and cause miscarriage of justice.

The judiciary has also sanctioned the Witness Protection Scheme, 2018, making it mandatory throughout India until certain legislation is brought into effect. Judiciaries have utilized creative ways such as video conferences and incamera hearings to secure witnesses, thus allowing them to give testimony safely. Police play a pivotal role in executing measures for protecting witnesses.

They are tasked with evaluating threats to witnesses and taking measures accordingly, such as police escort, relocation, and deployment of security devices to witnesses' homes. The Witness Protection Scheme, 2018 defines these measures, classifying witnesses according to the extent of threat they may receive and the extent of protection to be afforded. Police collaborates closely with the judicial branch to assure the protection of witnesses from investigation all the way to trial and afterward.

Close cooperation is fundamental for preserving trust by the citizens in the criminal justice system, and to the integrity of investigation and prosecution and keeping it untainted by acts of intimidation by witnesses. Further, police authorities are charged with implementing the guidelines established by the courts for safeguarding witnesses, hence making them a key part in witness protection programs being implemented effectively.

The legislature attempted to effect changes substantively through the introduction of the witness protection scheme, 2018. Yet, it does not have a statutory framework, strict penal implication is what is holding the nation back as far as witness protection is concerned. The court in the case of Neelam katara v. union of India[8], has well understood the necessity of witness protection in the following words- "the edifice of administration of justice is based upon witness coming forward and deposing without fear or favour, without intimidation in courts of Law"[9]

Challenges in implementing witness protection in India

Witness protection in India is implemented against a number of challenges that result in inefficacy, including Financial constraints, which are a major challenge to the successful implementation of witness protection schemes in India. The insufficient funding is a major problem, as most states have been unable to budget enough finances to run these programs. This leads to poor infrastructure and facilities, making it difficult to offer comprehensive protection to witnesses.

For example, the Witness Protection Scheme 2018 is dependent on state government budgetary provisions, court-imposed fines, and contributions from philanthropists or charitable organizations to support its activities13.

But these sources usually prove inadequate to cater to the real requirements, resulting in poor security arrangements, substandard relocation facilities, and poor support for witnesses who need identity changes or other protection. Coordination and implementation problems severely undermine the efficacy of witness protection in India. The major problem is poor coordination between judicial and police authorities.

This absence of coordination impacts the protection of witnesses who are under actual threats since it results in delays and inefficiencies in the implementation of necessary security measures. For example, the Witness Protection Scheme 2018 depends greatly on cooperation from the police, with senior police officers serving as intermediaries at various stages.

Nevertheless, the current police force is already stretched thin by high vacancy levels, which may hinder officers from undertaking their normal work or offering sufficient protection under the witness protection scheme.[10] Furthermore, police involvement in witness protection can undermine security in high-profile cases where powerful players might pressure law enforcement to expose witness identities.

Another major problem is the lack of uniformity across states in following witness protection schemes. Various states have different rates of implementation, resulting in heterogeneity in witness protection throughout the nation. Some states such as Maharashtra, Rajasthan, and Odisha have executed the Witness Protection Scheme, while others have adopted it partially or not at all. This uniformity results in witnesses in some areas being offered greater protection compared to those in others, creating unequal access to justice.

The Supreme Court of India directed all states and union territories to adopt the Witness Protection Scheme by the end of 2019, but not all have complied, highlighting the challenges in achieving uniform implementation nationwide.[11]This inconsistency not only undermines the effectiveness of witness protection but also erodes trust in the justice system among witnesses and the general public.

The current legal framework for witness protection in India is weak, based mainly on sporadic provisions like Section 195A of the Indian Penal Code and the Whistle Blowers Protection Act. These acts do not offer complete protection to witnesses since they are either narrow in scope or not specifically intended for witness protection.

Section 195A of the IPC is designed to prevent intimidation of witnesses but does not have a systematic protection scheme. The Whistle Blowers Protection Act, too, though intended for the protection of whistle blowers, does not cover the wider requirements of witnesses in criminal proceedings.

The need for a dedicated witness protection law is underscored by the Supreme Court's introduction of the Witness Protection Scheme, 2018, in the case of Mahendra Chawla vs. Union of India. However, this scheme, while a significant step forward, still lacks the force of a statutory law and relies heavily on state and federal implementation, which can be inconsistent and inadequate.

A dedicated law would provide a clear, enforceable framework for witness protection, ensuring that witnesses are safeguarded from threats, intimidation, and violence, thereby strengthening the integrity of the justice system. Such a law would also facilitate the establishment of specialized agencies and resources necessary for effective witness protection, aligning India's legal framework with international best practices.

Political intervention in the justice system is a major threat to witness protection in India. Political intervention can take many forms, mostly deeming the effectiveness of witness protection programs ineffective as it affects law enforcement response or intimidates witnesses directly. Politically powerful individuals or groups may exert pressure on law enforcement agencies to either provide inadequate protection to witnesses or to ignore threats against them, especially in cases where the accused have political connections. This can lead to a lack of trust among witnesses, discouraging them from coming forward or testifying truthfully.

Additionally, political interference can undermine the neutrality of the judicial process. Where witnesses are essential to the prosecution of high-profile defendants, political pressure can be exerted to influence witness testimony or to get witnesses to turn hostile. This not only puts witnesses at risk but also taints the integrity of the justice system. The Witness Protection Scheme, 2018, as much as it is a landmark, continues to remain susceptible to the kind of interference for being non-statutory.

Lacking a strong legal regime that protects witness protection from politics, the effectiveness of the scheme is compromised, and the witnesses remain at risk that dissuades them from coming forward to testify in trials, in the end, compromising justice delivery. Thus, political interference must be addressed to ensure that witness protection is effective and justice is delivered without fear or favour.

In the age of digital monitoring, Indian witnesses are at high risk if their locations or identities are exposed through digital means. This is especially worrisome because digital monitoring can be invasive and hard to detect, making it possible for would-be perpetrators to monitor witnesses remotely. The deployment of sophisticated technologies such as AI-based surveillance tools, social media tracking, and mobile location tracking has the potential to undermine witness security by disclosing their locations or personal information, hence exposing them to violence, intimidation, or coercion [12] .

Second, AI-based cybersecurity technologies can be used to secure witness information, such as end-to-end encryption for secure communication and sophisticated algorithms for identifying unauthorized access attempts. Finally, legal frameworks must be revised to counter the threats of digital surveillance so that there are effective penalties for individuals who abuse technology to undermine witness safety. By doing so, India can more effectively protect witnesses in the digital era and ensure that they feel safe enough to engage with the justice system without fear of retaliation

Impact of witness protection on the judicial process

Protection of witnesses significantly influences the Indian judicial process, making it fairer, more efficient, and more effective. Witness protection is critical in keeping the witness from becoming hostile, which is a major problem in the Indian judicial system. Hostile witnesses are those who change their pre-trial versions during trials and give differing testimonies, usually due to fear, coercion, or inducement by the accused or his associates.

This trend compromises the integrity of trials and can result in miscarriages of justice. Witness protection schemes seek to deal with this by protecting witnesses from intimidation and threats so that they can give honest testimony.

The effect of witness protection on preventing hostile witnesses is complex. It first of all assures witnesses that their security matters, making them volunteer to engage in trials without fear. Second, it sends a firm message to prospective intimidators that efforts to affect witnesses will be unacceptable.

Not only does this uphold the integrity of individual trials, but also it builds confidence in the public towards the justice system[13]. Research has established that high witness hostility rates in India usually translate to weak cases by the prosecution and acquittals that are unjust, demonstrating the importance of having strong witness protection programs in order to avert such possibilities.

The right to a fair trial is ensured in the Indian Constitution under Article 21, whereby no one will be deprived of life or personal liberty except according to procedures laid down in law. Witness protection is important in ensuring this right by protecting witnesses against intimidation and coercion, thus ensuring that trials are fair.

Through witness protection, the justice system can avoid having witnesses become hostile, which is usually due to intimidation or pressure from the accused or their networks. This not only preserves the validity of trials but also makes sure that justice is administered based on true and precise evidence.

The Supreme Court has read Article 21 broadly to encompass principles like the presumption of innocence, the right to a proper defence, and a speedy trial. Witness protection is consistent with these principles because it creates an atmosphere where witnesses are comfortable enough to give honest testimony without fear of retaliation[14]. This is necessary for a fair trial, as it allow the court to assess the guilt or innocence of the accused based on reliable evidence.

Furthermore, witness protection supports the broader goal of ensuring public confidence in the judiciary by showing that the system is dedicated to justice and fairness. Through the protection of witnesses, India's justice system can ensure the constitutional promise of a fair trial, with justice being delivered impartially and efficiently.

It also enhanced the conviction rates. The effect of protected witnesses on conviction rates is great because it has a direct bearing on the outcome of trials. In the cases, where witnesses are at risk of threats or intimidation, protection can be the difference between a successful prosecution and an acquittal[15]. For example, in high-profile organized crime cases, protected witnesses may deliver invaluable testimony that may otherwise be repressed out of fear. This not only increases the likelihood of obtaining convictions but also gives a resounding message that the justice system can effectively deal with intricate cases.

The assurance that witnesses are protected is a great deterrent to would-be offenders. When people know that the actions they have taken will be made answerable through the evidence of protected witnesses, they are less inclined to commit criminal acts. This is especially true in situations where offenders would otherwise feel that they can intimidate or silence witnesses in order to avoid being prosecuted.

By showing that witnesses are protected and their statements will be heard, the justice system sends a strong message that crime will not be tolerated. This can cause criminal activity to decrease, as would-be criminals know that they cannot avoid responsibility by intimidating witnesses. In addition, the perception of an effective witness protection system increases public confidence in the justice system, which strengthens the belief that justice will be served fairly and efficiently.

Conclusion
Witness protection is a critical aspect of India's judiciary, acting as a pillar towards guaranteeing unbiased trials and dispensing justice. The launch of the Witness Protection Scheme in 2018 was a landmark step, as it officially acknowledged that witnesses needed protection from intimidation and violence. This scheme classifies witnesses into three levels of threats and offers measures like identity protection, relocation, and security escorts to protect them.

In spite of these advances, the practical application of witness protection is still a challenge. The Supreme Court has raised alarms regarding the inefficient implementation of the scheme nationwide, calling for a comprehensive and strong witness protection law. Filling these gaps in implementation is critical to increasing the efficiency and fairness of trials in India.

Securing witnesses in order to enable them to testify without fear will make India's judicial process more robust, deter witness manipulation, and promote the concept of a fair trial in the Constitution. At the end of the day, strong witness protection is necessary for protecting the integrity of the judiciary and delivering justice efficiently.

End Notes:

1. Bharatiya Suraksha Adhiniyam, 2023, section 124
2. Mahendra Chawla v. Union of India, 2018 SC 829
3. Ministry of Home Affairs, https://bprd.nic.in/uploads/pdf/202402200805128576713WitnessProtectionScheme.pdf
4. State of Gujarat v. Anirudh Singh, AIR 1997 SC 2780
5. Witness Protection Scheme 2018, pg. no. 3
6. Zahira Habibullah Sheikh v. State of Gujarat, AIR 2006 SUPREME COURT 1367
7. Mahender Chawla & Ors. v. Union of India & Ors., 2018 SC 829
8. Neelam Katara v. Union of India, ILR (2003) II Del 377
9. Parul Agarwal, explained case, https://blog.ipleaders.in/witness-protection-safeguarding-eyes-ears-judiciary
10. Jaspreet Kaur, Witness Protection in India, https://ijalr.in/volume-1/issue-4/witness-protection-in-india-byjaspreet-kaur/
11. Swathi Satish, Witness Protection in India, https://www.clearias.com/witness-protection-scheme/ (October 3, 2024)
12. Shekhar Singh, 'Protection of witnesses will ensure fair trials', https://www.newindianexpress.com/cities/delhi/2024/Oct/04/protection-of-witnesses-will-ensure-fair-trials (04 Oct 2024)
13. Swathi Satish, Witness Protection Scheme: Why India Needs It?, https://www.clearias.com/witness-protection- scheme/ (October 3, 2024)
14. Prof. Abhishek Sudhir, Right to Fair Trial under the Constitution of India (Part 2), https://ebooks.inflibnet.ac.in/hrdp03/chapter/right-to-fair-trial-under-the-constitution-of-india-part-2
15. Legal Journal, Witness Protection in India, https://www.legaljourney.in/post/witness-protection-in-india-anecessity (July 13, 2024)