Witness Protection a Comparative Analysis the Road Ahead for Indian Jurisprudence

A STUDY PROJECT Witness Protection A Comparative Analysis The Road Ahead For Indian Jurisprudence

AUGUST 9, 2020

Criminal Law Review Editor A Research Organisation Ashwani Kumar Singh EDITOR

ASHWANI KUMAR SINGH Founder & MD, Criminal Law Review

AUTHORS

MEGHANA KUDLIGI 2017-22, O.P. Jindal Global University.

MILIND MALHAR SHARMA 2018-23, O.P. Jindal Global University.

URVASHI SINGH 2017-22, O.P. Jindal Global University.

RIYA BHARDWAJ 2018-23, National University of Study and Research in Law

ASHUTOSH AGARWAL 2019-24, National Law University, Delhi

DHVANI SHAH 2019-24, Gujarat National Law University 3

ABOUT CRIMINAL LAW REVIEW

Criminal Law Review (the ‘CrLR ’’), is a research organization founded by Ashwani Kumar Singh. Though the CrLR started as a criminal law blog in Jan 2018, later on (in the beginning of 2020) the team started working to establish the CrLR as a research organization. The CrLR is incubated by the GNLU Legal Incubation Centre (GLIC).

The CrLR takes up several research projects, runs a blog and conducts various events with an aim to promote legal writing and research and to assist legal fraternity in the field of criminal law. As a research organization, the CrLR provides an effective platform to credible and comprehensive research work that deals with the intricacies and nuances of criminal law.

Last year, we published our first e-book titled 'Eight Landmark Criminal Law Judgments of 2018' – available here . The CrLR publishes its flagship newsletter ‘Ratio Obiter’ on a fortnightly basis, accessible here.

To know more about us and our work, visit https://crlreview.in.

CONTENTS About Criminal Law Review ...... 3

1. Introduction ...... 7

1.1. Definition ...... 7

1.2. Role of Witness ...... 8

1.3. Types of Witness ...... 10

1.3.1. Eye Witness ...... 10

1.3.2. Child Witness...... 10

1.3.3. Hostile Witness ...... 11

1.3.4. Accomplice Witness ...... 12

1.4. Difference between a Whistleblower & A Witness ...... 13

2. Historical Background ...... 14

2.1. Origin of Witness Protection ...... 14

2.2. Contemporary Understanding of Witness Protection ...... 16

2.3. Hostile Witness ...... 17

2.4. Why do Witnesses turn hostile?...... 18

2.4.1. Fear of Threats, Intimidation and Manipulation ...... 18

2.4.2. Inordinate Delay in Disposal of Cases ...... 19

2.4.3. Use of Stock Witness by Investigating Authorities ...... 19

3. Why is Witness Protection required? ...... 20

3.1. Judicial Pronouncement ...... 20

3.1.1. Indian Courts ...... 20

3.1.2. Foreign Courts ...... 21

3.2. Law Commission Reports & Other Relevant Reports ...... 21

3.2.1. Law Commission Report 14th ...... 21

3.2.2. Law Commission Report 154th ...... 22

3.2.3. Law Commission Report 172nd ...... 23

3.2.4. Law Commission Report 198th ...... 24

3.2.5. National Police Commission Report 4th ...... 25

3.2.6. Malimath Committee on Reforms of Criminal Justice System ...... 25

4. India- Witness Protection ...... 26

4.1. Statutory Provisions ...... 26

4.2. Indian Courts ...... 27

4.2.1. Delhi HC guidelines ...... 28

4.2.2. Bombay HC guidelines ...... 28

4.3. Witness Protection Scheme 2018 ...... 29

4.3.1. Aim & Objective ...... 30

4.3.2. Categories of Witnesses based on the amount of threat ...... 30

4.3.3. Witness Protection Fund ...... 30

4.3.4. Procedure ...... 30

4.3.5. Protection measures ...... 31

5. A Global Perspective...... 31

5.1. United States of America ...... 31

5.2. United Kingdom ...... 32

5.3. Italy ...... 34

5.4. Canada ...... 35

5.4.1. Section 486 of Criminal Code ...... 35

5.4.2. Witness Protection Program Act (WPPA)...... 36

5.4.3. Provincial Programs - Ontario ...... 37

5.5. China ...... 38

5.6. Hong Kong ...... 39

5.6.1. Declaration of Basic Principles of Justice for Victims of Crime & Abuse of Power ……………………………………………………………………………………..39

5.6.2. Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime: ……………………………………………………………………………………..40

6. Conclusion ...... 41

1. INTRODUCTION

By Dhvani Shah1

1.1. Definition

According to Black's Law Dictionary, "Witness is one who sees, knows or vouches for something or one who gives testimony, under oath or affirmation in person or by oral or written deposition, or by affidavit.” According to Bentham, "Witnesses are the eyes and ears of justice". “According to him, the word witness is employed to mark two different individuals or the same individual in two different situations; the one that of perceiving witness, that is of one who has seen or heard or learned by his senses the fact concurring which he can give information when examined and the other that of a deposing witness, who states in a court of justice the information which he has acquired. The term witness then may be applied to the parties themselves who have an interest in the case as well as to all those whom it is commonly employed to designate....”2

The Witness Protection scheme of 2018 describes “witness” as , ““Witness” means any person, who possess information or document about any offence.”3 The Indian Evidence Act, 1872 (hereinafter IEA) does not define a witness per se but mentions about competency of a witness. According to Section 118 of Indian Evidence Act, 1872,4

All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions 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.

The IEA also provides for the procedure of examination of witnesses. Generally, a “witness” is a person who is present at a crime or witnessed a crime scene i.e. locus delicti and is crucial in the court of law to corroborate the occurrence of an incident/crime. The witness testifies under an oath in oral or written form.

1 Dhvani Shah, 2019-24, Gujarat National Law University. 2 JEREMY BENTHAM, A TREATISE ON JUDICIAL EVIDENCE (M. Dumont ed., Messrs Baldwin Cradock & Joy Paternoster-Row, 1825). 3 Witness Protection Scheme, 2018, § 2(k), 2018 (India). 4 Indian Evidence Act, 1872, § 118, No. 1 of 1872, Acts of Parliament, 1872 (India).

In Madhuranatha v. State of Karnataka5, the court observed that the term ‘witness’ means a person who is capable of providing information by way of deposing as regards relevant facts, via oral statements or statement in writing, made or given in court or otherwise. The High Court of Delhi, in Ms. Neelam Katara v. Union of India6 defined it as: “a person whose statement has been recorded by the Investigating Officer under section 161 of the Cr.P.C., 1973 pertaining to a crime punishable with death or life imprisonment.”

A witness is somebody who has direct knowledge and details about the occurrence of an offence. The testimony of a witness made under oath is instrumental in deciding a trial and thus for administration of justice in the society.

1.2. Role of Witness

The role of a witness in the criminal justice system is of paramount importance. The fate of the case in a criminal justice system largely depends upon the witness testimony, at times witness is the sole evidence of the occurrence of a crime. In such cases, his testimony is crucial for the conviction of the accused.

Witnesses can unfold new facets of a crime from a different perspective. The Supreme Court, in Swaran Singh v. State of Punjab,7 analyzed the significance of a witness in the criminal justice system, A criminal case is built on the edifice of evidence, evidence that is admissible in law. For that, witnesses are required whether it is direct evidence or circumstantial evidence. In State of Gujarat v. Anirudh Singh8, the Apex Court underlined the sine qua non cooperation required from the witnesses for determination of crime and observed that "It is the salutary duty of every witness who has the knowledge of the commission of the crime, to assist the State in giving evidence"

Committee on Reforms of Criminal Justice System9, while accentuating the prominence of a witness in a trial states: "By giving evidence relating to the commission of an offence, he performs a sacred duty of assisting the court to discover the truth. It is because of this reason that the witness either takes an oath in the name of God or solemnly affirms to speak the truth, the whole of the truth and

5 Madhuranatha v. State of Karnataka, AIR (2014) SC 394. 6 Neelam Katara v. Union of India, ILR (2003) II Del 377. 7 Swaran Singh v. State of Punjab, (2000) 5 SCC 68. 8 State of Gujarat v. Anirudh Singh, (1997) 6 SCC 514. 9 Committee on Reforms of Criminal Justice System, Headed by Justice Malimath, Vol. I, p. 151.

nothing but truth. He/ She performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. He submits himself to cross examination and cannot refuse to answer questions on the ground the answer will incriminate him"

The role of a witness in a criminal justice system is to furnish a truthful account of circumstances surrounding the case. The testimony of a witness plays an important role in conviction or release of an accused. The Supreme court in Bharwada Bhogibhai Hirjibhai v. State of Gujarat observed that: “A witness though wholly truthful is liable to be overawed by the court atmosphere and the piercing cross examination made by the council and out of nervousness may mix-up facts, get confused regarding sequence of events or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him. Perhaps, it is sort of a psychological defence mechanism activated on the spur of moment.”10

An honest witness testimony, devoid of manipulation, coercion or corruption, is an essential requisite to conduct a fair judicial trial. Under Article 21 of the Constitution of India, every individual is entitled to a fair trial. If the government fails to provide protection to the witness, the witnesses can turn hostile due to intimidation, inducement, force, coercion among various other reasons which eventually vitiates a person's right to a fair trial. A false witness testimony is an obstacle in the way of delivering justice to the society.

Witnesses are part and parcel of a criminal trial. The role of witnesses is invariable and inevitable in the criminal justice system in India. The Indian culture has assigned a place of prestige and stature to witnesses in ancient and medieval period and the witnesses were treated with great respect, and hence it was taken up by them to be a sacrosanct duty to depose hence there was no requirement of specific protection to afford to them. However, in modern-day India the dignity that was previously given to the witnesses has sunk due to the tedious, never-ending court process and it causes a lot of inconvenience in the form of travel expenses, hearing dates, threats etc. Witnesses should consider testifying in the court of law as a moral responsibility as they serve the society by assisting the court

10 Bharwada Bhogibhai Hirjibhai v. State of Gujarat, (1983) 3 SCR 280.

to reach a pertinent decision by disclosing true and unbiased facts according to his knowledge in the case.

1.3. Types of Witness

1.3.1. Eye Witness

An eye witness is someone who was present at the crime scene and had seen the happening of an offence. The deposition of an eye-witness holds high evidentiary value in law. The Apex court in Vikas Kumar Roorkewal v. State of Uttarakhand (supra) analyzed the role of an eye-witness in a criminal justice system to conduct a fair trial.

The IEA does not prescribe a minimum number of eye-witnesses required for conviction. Witnesses have to be weighed and not counted since quality matters more than quantity in human affairs.11 The court can convict an accused on the basis of a single eye-witness testament. However, when the eye- witness is not totally reliable, the court demands for corroborative material evidence. An eye-witness should be competent to testify in a court. A witness who was intoxicated or insane at the time of occurrence of an offence is not competent to testify as the chances of false identification are high.

The Credibility of a witness depends on various factors like the confidence and accuracy during identification and cross-examination, the clarity regarding the circumstances surrounding the case devoid of speculation. In the hierarchy of evidence, a cogent, reliable eye-witness is among the top.

1.3.2. Child Witness

According to the IEA, all persons can testify in the court of law unless the court decides otherwise. Hence, there is no particular age prescribed to determine the competency of a witness. The court may declare a witness to be incompetent owing to tender years, extreme old age, disease, whether of mind, or any other cause of the same kind.

In Mukesh Nut V. State12 the main concern about accepting the testimony of child witness was the competency and credibility of the witness. As a rule of prudence the evidence of a child witness cannot

11 Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793. 12 Mukesh Nut V. State, (2011) 74 ACC 73.

be rejected by the court without close scrutiny. The Apex Court in Nirmal Kumar v. State of U.P.13 remarked that, “testimony of a child should be examined cautiously and the court should find some corroboration regarding the same.” A child may be a competent witness to give evidence in court if it appears that she can understand the questions put to her and can give rational answers there too.14 Testimony of a child is also reliable, if he easily understands questions and gives rational replies to each such questions.15 The Supreme Court in State of Madhya Pradesh v. Ramesh & Anr, observed that, “the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. If there is evidence on record to show that the child has been tutored, then the court can reject his statement partly or fully.”16

The testimony of a child witness is crucial as children are pliable and can be easily manipulated into furnishing false evidence. The court can reject the testimony of a child witness if it feels that the witness has been tutored unless the court is satisfied by the answers provided and is corroborated with supporting evidence.

1.3.3. Hostile Witness

Black law’s dictionary defines hostile witness as “A witness who is biased against the examining party or who is unwilling to testify.”

Under the common law a hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him and an unfavorable witness is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves the opposite test.17

The Hon'ble Supreme Court tried to define the meaning of hostile witness in Sat Pal v. Delhi Administration as, “A "hostile witness" is described as one who is not desirous of telling the truth at the instance of the party calling him.”18 An accused can be convicted on the grounds of the deposition

13 Nirmal Kumar v. State of U.P., AIR (1992) SC 1131. 14 Jalwanti Lodhin v. State, AIR (1953) Pat 246. 15 Dhani v. State., (1999) Cri LJ 2712. 16 State(GNCT of Delhi) v. Samay Chand, 2018 SCC OnLine Del 9609. 17 Gura Singh v. The State of Rajasthan, AIR (2001) SC 330. 18 Sat Pal v. Delhi Administration, AIR. (1976) SC 294.

made by a Hostile witness provided that the court perceives the testimony of the witness credible.19 It includes the fact that he is willing to go back upon previous statements made by him.20

Mr. Soli Sorabjee, the former Attorney General, expressed his opinion on hostile witnesses and said “Nothing shakes public confidence in the criminal justice delivery system more than the collapse of the prosecution owing to witnesses turning hostile and retracting their previous statements.” Witnesses turn hostile due to varied reasons such as muscle power,threat/intimidation, inducement, coercion, money and by means of allurement. Hence, witnesses should be provided adequate protection by the police to refrain them from turning hostile.

1.3.4. Accomplice Witness

According to Black Law’s dictionary, “A party who agrees to a crime as the main criminal or as an accessory.” In RK Dalmia v. Delhi Administration21, the court tried to interpret accomplice as, “A person who participates in the commission of the actual crime charged against an accused.”

While determining the credency of an accomplice testimony under IEA, two sections are to be examined:-

Section 114(b) of IEA :“That an accomplice is unworthy of credit, unless he is corroborated in material particulars,”22

Section133 of the IEA: “An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.”23

An uncorroborated witness testimony is not illegal per se but the rule of prudence suggests that an accomplice testimony should be supported by material facts and evidence so that there is no false implication of the accused. An accomplice is deemed to be a competent witness if he is granted pardon by the court under Section 306 of Criminal Procedure Code.24

19 Mrinal Dass v. State of Tripura, (2011) 9 SCC 479. 20 Panchaman Gogai v. Emperor, AIR (1930) Cal. 276. 21 RK Dalmia v. Delhi Administration, AIR (1962) SC 1821. 22 Indian Evidence Act, supra note 4, § 114. 23 Indian Evidence Act, supra note 4, § 133. 24 Code of Criminal Procedure, 1973, § 306, No. 2 of 1974, Acts of Parliament, 1974 (India).

1.4. Difference between a Whistleblower & A Witness

Under the Whistleblower Protection Act, 2014 (hereinafter WPA) a whistleblower (complainant) means ” any person who makes a complaint relating to disclosure under this Act,”25 wherein “disclosure”26 means a complaint relating to,—

(i) an attempt to commit or commission of an offence under the Prevention of Corruption Act, 1988(49 of 1988);

(ii) wilful misuse of power or wilful misuse of discretion by virtue of which demonstrable loss is caused to the Government or demonstrable wrongful gain accrues to the public servant or to any third party;

(iii) attempt to commit or commission of a criminal offence by a public servant, made in writing or by electronic mail or electronic mail message, against the public servant and includes public interest disclosure.[30]

Whereas, a witness under the Witness Protection scheme, 2018 is defined as “any person, who possesses information or documents about any offence.27

A whistleblower is someone who discloses a fraud or malpractice in a company on his own to the Competent authority which then launches an inquiry into the matter. If the Competent Authority finds the allegations by the whistleblower to be true, he then directs the concerned authorities under the relevant laws of that time to initiate proceedings against the company. Hence, the role of a whistleblower is in play before the initiation of a civil or a criminal proceeding. The WPA is silent on the role of a whistleblower in a trial and does not clarify if a whistleblower has to testify in the court of law or not. On the other hand, a witness is either summoned in the court to give evidence or is a party to the suit himself. A witness provides evidence in an ongoing case and may or may not initiate the trial. The identity of both a whistleblower and a witness are to be kept confidential.

A whistleblower who makes a public interest disclosure against a public or government company is only protected under the WPA. Whereas all witnesses, in a criminal or a civil suit, who require

25 Whistle Blowers Protection Act, 2014, § 3(c), No. 17 of 2014, Acts of Parliament, 2014 (India). 26 Whistle Blowers Protection Act, supra note 25, § 3(d). 27 Witness protection Scheme,2018, supra note 3, § 2(k).

protection are given protection under the Witness protection Scheme, 2018. The whistleblower is in the picture before the court proceedings whereas a witness comes into play during the court proceedings.

2. HISTORICAL BACKGROUND

By Dhvani Shah28 & Milind Malhar Sharma29

2.1. Origin of Witness Protection

The idea of witness protection and the importance of witnesses in criminal trials has been as old as criminal trials. Before the advent of the current regime which has been a product of colonial laws like the IPC and CrPC, there are evidences which point towards the existence of distinct criminal trials taking place based on ancient codes. The understanding of witnesses came from spiritual explanations with one scripture claiming that according to Lord Vishnu, a false witness could be identified by their changing colour, deviation from the questions or by altered looks. Evidence also points towards the fact that witnesses were accorded respect and there were rules regarding the questioning of witnesses so as to provide a safe environment in which they could give testimonies without any sense of fear or caution. These included, among other things, penalties on judges for abusing or threatening witnesses, prohibition on repeated questioning and defamation. Under Mohammedan law, evidence was classified under oral or documentary. Leading questions were generally prohibited except for when a witness was confused or scared and only the judge was allowed to ask such questions. .

Within modern criminal jurisprudence, it is a well understood fact that threatening witnesses in order to intimidate them or scare them so as to affect their testimonies is a clear violation of the principles of rule of law. Jeremy Bentham famously said that “Witnesses are the eyes and ears of justice. If the witness himself is incapacitated from acting as eyes and ears of justice , the trial gets putrefied and paralyzed and it no longer can constitute a fair trial. There are several provisions within the criminal procedure code which facilitate witnesses and allow them to give evidence in criminal trials. Section 162 of the CrPC protects the right against self-incrimination. Sub-section 1 states that “No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if

28 Dhvani Shah, 2019-24, Gujarat National Law University. 29 Milind Malhar Sharma, 2018-23, O.P. Jindal Global University.

reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter.” Section 160(2) stipulates that any person acquainted with the facts of a given case or as provided and required to attend proceedings as stipulated under sub-section 1 shall have their reasonable expenses of attendance covered by the state. These are just some of the provisions which facilitate witnesses to give testimonies without any fear of issues cropping up.

Additionally, section 195A of the Indian Penal Code protects witnesses from threats and makes threatening any person to give false evidence a punishable offence. It was inserted in the IPC in 2006.

However, it is a well-established fact that witnesses have continued to face intimidation during criminal trials. The Indian Supreme court has recognised in a number of cases. In Zahira Habibullah Shekh v. State of Gujarat30, the Supreme court described the role of witnesses in the context of a fair trial and noted that If witnesses get threatened or are forced to give false evidence, it would result in the failure of fair trial.

The Law Commission of India has also looked at the issue of witness protection, first examining the issue first in 1958 in the 14th Law Commission report and subsequently in the 154th and 178th law commission reports. The 14th law commission report was the first report which talked about witness protection. The 172nd law commission report also played emphasis on the the need to protect witnesses in courts from being questioned in a manner that makes them feel scared, especially when the witness was the prosecutrix in cases of rape and questions tended to be raised regarding their immoral character.

In State of Punjab v. Gurmit Singh, the Supreme court observed that in camera trials would allow for better protection of witnesses and bring in better evidence as “Trial in camera would not only be in keeping the self-respect of the victim of (the) crime and in tune with legislative intent but is also likely to improve the quality of evidence of a prosecutrix because she would not be so hesitant or bashful to depose frankly as she may be in the open court, under the gaze of (the) public. The improved quality of her evidence would assist the court in arriving at the truth and sifting truth from falsehood.”. The 172nd law commission report relied on this and the Supreme court’s decision in Sakshi v. Union of

30 Zahira Habibullah Sheikh v. State of Gujarat, 2004 (4) SCC 158.

India, which further advocated for in-camera trials so as to protect witnesses from the accused as 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 witnesses do not have to undergo the trauma of seeing the body or the face of the accused. Often the questions put in cross- examination are purposely designed to embarrass or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused.

However, it was the 198th Law Commission Report, titled “Witness Identity Protection and Witness Protection Programmes” which laid out a comprehensive scheme and framework for witness identity protection. It paved the way for the current witness protection scheme 2018. The report laid out a framework for witness protection schemes outside trial and recommended the creation of a Witness protection programme which can allow witnesses to be protected outside the court in case of a threat to their life. It has become the bedrock on which the current scheme is based.

2.2. Contemporary Understanding of Witness Protection

Witness protection in the contemporary era means protection of life/safety and anonymity. The condition of witnesses in India is pitiable. A witness faces constant summons from court for years, pressure and intimidation from the accused, bears travelling expenses etc to assist the administration of justice in the society and yet is not given the deserved respect and credit in the society. The Indian legal system did not have any laws for witness protection before the Witness protection scheme, 2018.

The Supreme Court remarked that “legislative measures to emphasise prohibition against tampering with witness, victim or informant, have become the imminent and inevitable need of the day.’’31 In Swaran Singh v. State of Punjab (supra), the court explained the hardships faced by a witness and commented that adjournments are used as a tool to threaten, abduct, maim or bribe a witness and hence there is miscarriage of justice. In high profile cases viz. Jessica Laal Murder Case etc witnesses turned hostile not only due to muscle power, bribes but also fear of life. If sufficient witness protection

31 Supra note 30.

was offered, the instances of witness turning hostile would be very few. In some cases, even the sight of the accused may trigger trauma. To save the witness from mental trauma the court observed that an arrangement of a screen should be made.[34] The Witnesses play an integral role in the dispensation of justice and protection of witnesses through legislative measures can go a long way in conducting a fair trial.32

The Law Commission in its 154th Report noted that, "necessary 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." In 2018, a commission on reforms of Criminal Justice System chaired by Justice Malimath made recommendations to the Central government and Witness Protection Scheme, 2018" ("Scheme") was finalized. The Supreme Court with its powers under Article 141 of the constitution then declared the scheme to be a law regarding witness protection. The Witness Protection Scheme, 2018 ensures safety by means of anonymity and relocation, police escort till Courtroom, audio-video testimony recording. The Scheme classifies witnesses into 3 categories according to the threats received. It also provides for a State Witness Protection Fund to meet the expenditures under this scheme.

2.3. Hostile Witness

It is a settled position of law that witnesses are sine qua non in determining the outcome of a case. The term ‘hostile witness’ does not find any explicit mention in Indian laws but over a period of time has evolved to connote an individual who when called to depose in favour of a particular party, openly contravenes the legal position of the party who called for the witness. In other words, if a witness prior to the trial has given a specific statement to the police, but when trial commences in court digresses from that statement or furnishes a statement that is divergent from prior statement, such a witness is said to have turned ‘hostile’. The prerogative lies with the court to declare the witness as hostile. In the absence of a regulatory framework for witness protection in India, hostile witnesses are a common find. Motivated by fear, many turn hostile in the presence of powerful, well-connected and influential defendants. In contemporary times, hostile witnesses pose a massive threat to successful disposal of criminal cases.

In wake of the massive number of incomplete or dismissed cases due to the witness turning hostile, the Madras High Court recently in March, 2020 has held that the witnesses in a case are the eyes and

32 Vikas Kumar Roorkewal v. State of Uttarakhand, (2011) 2 SCC 178.

ears of the justice system and any manipulation of those witnesses, including theat, coercion, intimidation, lure, would definitely adversely affect the prosecution case and therefore a witness turning hostile cannot be the sole ground of acquittal. However, even prior to the aforesaid judgment efforts were made by the Law Commission to introduce measures that would attenuate the high number of hostile witnesses. In the 178th Law Commission Report, a recommendation was made to insert S.164A into the Code of Criminal Procedure, 1970 that would permit recording of the statement of a witness by a magistrate in the cases involving offences punishable with imprisonment of more than 10 years. The 178th Report also contains certain provisions to prevent the witnesses from turning hostile such as taking the signature of witness on statement given by them to the police and providing the copies of the same to the Magistrate and Senior Police officer. Witnesses turning hostile has been a way of life in Courts, severely tarnishing the reputation of the investigative authorities and the Court as as an enforcer of justice.

2.4. Why do Witnesses turn hostile?

It is difficult to cherry pick a single factor solely responsible for a witness turning hostile. However, the most common factor is the lack of protection before, during and after trial which instills a sense of fear in the witness and causes them to retract their statements. As explained in subsequent sections of the paper, in multiple high-profile cases witnesses keep retracting their statements, ultimately leading to an inconclusive result. To illustrate, in Varun Gandhi’s hate speech case, he was acquitted after 88 witnesses turned hostile in one fell swoop, an ignominious record that makes a mockery of the criminal justice system. The People’s Union for Civil Liberties in a press release dated 2002, examined the reason behind people turning hostile in the Best Bakery case. According to PUCL, the primary reasons for witnesses turning hostile were twofold; the police had recorded the statement incorrectly and in the instance the statement was recorded accurately it was withdrawn at lager stages under the fear of intimidation and manipulation by other powerful parties involved in the case.

2.4.1. Fear of Threats, Intimidation and Manipulation

The most common reason for witnesses turning hostile is the use of power by the rival parties. It is not limited to muscle power and extends to emotional abuse and threats that coerce the victim into turning hostile. To illustrate, in the Asamram case, where the religious leader was accused of rape, witness who were appearing for the prosecution were killed. Not just witnesses, but those who

provided other forms of legal assistance were also subject to horrifying treatment, with followers of Asaram throwing acid on them. If the threat of life looms large for witnesses, it is unsurprising to see the large number of witnesses who turn hostile. Apart from resorting to physical and emotional violence, witnesses are often bought by high-profile personalities. This is a quotidian occurrence especially when witnesses belonging to the more vulnerable sections of society. The witnesses fall prey to money that is offered and in this manner, the offender escapes from criminal liability. In Krishna Mochi v. State of Bihar33, the Supreme Court observed that “Society suffers from wrong convictions and it equally suffers by wrong acquittal.” In this case the Supreme Court pointed out that one of the reason may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high ups in the Government or close to power which may be political, economic or other power including muscle power.

2.4.2. Inordinate Delay in Disposal of Cases

Indian courts are inflicted with the malady of excessive adjournments that leads to delay in disposal of cases. A witness is only fulfilling his duty by appearing in court or furnishing statements to aid the prosecution. If inconvenienced by the process, the witness is not motivated to fulfill said duty. When summoned repeatedly by the court, the frustration of the witness is elicited. To avoid such situations, the witnesses turn hostile or simple refuse to come forward. While Sec 309 of the CrPC serves as a check against unnecessary adjournments, the lack of a penal sanction waters down the weight of the provision. In Swaran Singh v State of Punjab (supra) the court observed that in adjourning the matter without any valid cause a Court unwittingly becomes party to miscarriage of justice and causes a person to abhor becoming a witness.

2.4.3. Use of Stock Witness by Investigating Authorities

Police, the premier investigative agency, is alleged to keep with them and maintain some person to be used as witnesses whenever necessary. Such persons are called stock witnesses. If in the trial proceedings, the judge discovers a witness to be a stock witness, the deposition of the witness is liable to be set aside. However, if supplemented by other reliable evidence it does hold value. Stock witnesses are bought by the police at very low prices and therefore are easy targets for the rival parties. When

33 Mochi v. State of Bihar, AIR 1961 Mad 92.

bought, stock witnesses switch sides thereby mitigating their reliability as witnesses and hampering the case of the prosecution, ultimately leading to acquittal of the accused.

3. WHY IS WITNESS PROTECTION REQUIRED?

By Meghana Kudligi34 & Urvashi Singh35

Witness protection is an integral part of the Criminal Justice system, for the reasons as obvious as prevention of intimidation of the witness or his/her family for giving their testimony in court. Since the Indian courts have observed often that Right of witnesses to testify freely in courts is part of Article 21 (Right to Life), it becomes imperative to provide for the court to ensure protection of the witness to ensure that justice is neither delayed or denied because of lack of witness protection programmes. Another important aspect of witness protection is the belief in the state justice system, that the state will effectively protect the interest of witnesses.

3.1. Judicial Pronouncement

3.1.1. Indian Courts

Witness Protection Programmes in India are unfortunately less popular as they must be in the criminal justice system. In the case of State of Gujrat v. Anirudh Singh, the court observed that it was a statutory duty of the witness who has the knowledge of the commission of crime to assist state in making their case and providing evidence in form of their testimony. This was a landmark case that was the first step in formation of Witness Protection Scheme, 2018.

In National Human Rights Commission vs State Of Gujarat & Ors, the court before giving orders for witness protection, derived inspiration from various statutes of Witness Protections across the globe. They referred to The Witness Protection Act, 1988 of South Africa that provides for the establishment of a separate office and the director of that office is responsible for the protection of witness. Any witness who has a reason to believe that his/her life or property is in danger may approach the witness protection office in South Africa. They also referred to The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power was adopted by the United Nations General Assembly in

34 Meghana Kudligi, 2017-22, O.P. Jindal Global University. 35 Urvashi Singh, 2017-22, O.P. Jindal Global University.

resolution 40/34 of 29th November, 1985. The court in this case observed that “Since the protection of a witness is a paramount importance it is imperative that if and when any witness seeks protection so that he or she can depose freely in court, the same has to be provided. It is therefore directed that if a person who is examined as a witness needs protection to ensure his or her safety to depose freely in a court”

3.1.2. Foreign Courts

The US Federal Witness Security Program (WITSEC) was the first witness protection program, and has served as a model for other countries. For over 30 years, the US Marshals Service has been operating the WITSEC program. Its core feature is the secret and permanent relocation, often coupled with an identity change, offered to witnesses and their immediate families.36 According to the practices of United Nation office of Drugs and Crime, Witness Protection Programmes are reserved for certain important cases in which the threat against the witness is so high that protection and support cannot be ensures by any other means[6]

3.2. Law Commission Reports & Other Relevant Reports

The Law Commission has always been proactive in recognising the need for a holistic witness protection scheme in India. Dating back to the 14th Law Commission Report, conceived in 1958 to the Malimath Committee on Reforms of Criminal Justice System created by the then National Democratic Alliance government of 2000, the need to protect the eyes and ears of justice has been a central theme.

3.2.1. Law Commission Report 14th

The 14th Law Commission Report was centred around Reforms in Judicial Administration. In a newly formed democracy a strong, independent judiciary that would serve as a watchdog of the Constitution and protect the rights of citizens was imperative. However, the Report did perfunctorily examine measures that can be taken to assuage the problems faced by witness which if not catered to are most likely to result in the obstruction of justice. Often, even eye-witnesses in cases that involve high profile individuals with stature, power, and money refuse to furnish a statement and in the instance, they do,

36 EARLEY, P. AND SHUR, WITSEC: INSIDE THE FEDERAL WITNESS PROTECTION PROGRAM (Bantam Books, 2003).

they turn hostile once the trail commences. There are a plethora of cases to corroborate the aforesaid statement. The report lucidly underscores the permissible modus operandi for examination of witnesses. The examination of the witness need not be on oath or in the presence of the accused. Additionally, the prerogative lies with the witness to not reveal any incriminating answers, or answer the questions posed by the investigating officer truthfully. Extending the protection, a step further the officer is barred from initiating proceedings against the witness for giving false answers in reply to the questions posed by the officer.

The wide ambit of protection offered to a witness against self-incrimination compounded with barring initiation of proceedings illustrate the commitment of the Report in protecting witnesses. The scope of protection offered is far ranging in wake of large number of cases failing to pass the muster of trial procedures due to non-cooperation of witnesses. In the report, the chasm of co-operation between investigating, adjudicating authorities and the witnesses was identified as existing due to the ‘’scant regard’’ the police authorities pay to the witnesses who offer to give evidence. Witnesses are met with discourtesy and suspicion thereby further dis-incentivizing them to step forward and instead encouraging them to turn hostile in succeeding stages of the investigation. The provision of elementary conveniences to witnesses appearing in court or furnishing evidence is abysmal. For under-privileged witnesses residing in villages and distant areas, the costs of transportation are not covered. The economic implications of appearing before court several times due to numerous adjournments further discourage witnesses from aiding the investigation. When combined, the aforesaid factors pose as encumbrances in the investigation process.

Therefore, in this report the concept of ‘witness protection’ was approached from a novel angle. Here the question of giving due respect to the witness’s convenience, comfort and compensation for his sparing valuable time is involved. If the witness is not taken care of, he or she is likely to develop an attitude of indifference to the question of bringing the offender to justice.

3.2.2. Law Commission Report 154th

The 154th Law Commission Report published in 1996 focused on the Code of Criminal Procedure, 1974. Chapter X of the report exclusively dealt with ‘Protection and Facilities Witnesses’. Both the presence and absence of witnesses was identified as a contributing factor for the inordinate delay in the disposal of cases. The absence of witnesses tarnishes the investigation process and the presence

jeopardizes the process as witnesses (due to the harassment they face) often turn hostile, or do not show. In this manner, the investigating authorities are stuck between a rock and a hard place. The only probable solution is to enforce appropriate laws granting protection and securing the confidence of the witnesses against threats to their lives and liberty. Resonating with what was observed in the 14th Law Commission Report, it outlines the miserable plight of witnesses who appear in Court. They are neither compensated for the expenditure incurred caused by repetitive and inconclusive adjournments, nor are they treated amicably in the courts with the defence counsels harrowing them via cross- examination or with the prosecution ruling them out as hostile witnesses. The wrath of the accused and the constant fear that their life is under threat contributes majorly to witnesses recusing themselves, turning hostile or not turning up at all.

The biggest peril of the lack of a comprehensive witness protection scheme in place is the economic exploitation of the witnesses. A poor witness is caught between the ‘’devil and the deep sea’’. If the witness defaults on attendance when summoned by the court a penalty is imposed. Alternately, if the witness does make an appearance, he is inconvenienced economically and mentally. Keeping in mind such implications the Report recommends payment of realistic allowances to the witness in lieu of their attendance in court, with a simple, time-efficacious procedure to secure the same. To create a safe, agreeable environment witnesses should be granted adequate facilities in the court premises for their stay. The examination of the witnesses must be completed on the day they are summoned and superfluous, excessive adjournments to harass the witness must be avoided. All these provisions were recommended with the objective of creating confidence in the minds of the witness that they will be protected. Though there are provisions for punishing a witness who does not turn to give testimony, but there are no provisions for compensating their day’s loss.

3.2.3. Law Commission Report 172nd

The 172nd Law Commission Report, prompted by the case Sakshi v. Union of India37 reviewed the existing rape laws in the country. In 2000, the Law Commission submitted its report and has since been the subject of much praise for its effort to reform rape laws in the country. The petitioner in the above case, Sakshi is a non-profit organisation that works towards the upliftment of the marginalised, and in this case it specifically prayed for a change in the definition of ‘’sexual intercourse’’ as defined

37 Sakshi v. Union of India, (1999) 6 SCC 591.

in S.375 of the Indian Penal Code,1860. The Commission was asked to probe the tenability of the prayers made by the petitioner, that is, Sakshi.

While making ground-breaking recommendations on rape laws and the procedure to be followed in a rape case, the Commission recommended a ‘’screen technique’’ in cases of child-sexual abuse. As per the existing laws of the CrPC, as laid down in S. 273 evidence given against the accused must be made in the presence of the alleged offender, or the pleader unless personal attendance has been dispensed with. This provision was inserted bearing in mind the principles of natural justice, which do not permit a case to heard without taking into consideration both sides. The petitioners were averse to this provision, especially in cases of sexual abuse involving minors as it could be highly triggering and distressing, to be in the presence of the offender and relieve the trauma. The Commission was sensitive to the pleas raised by the Petitioner but did not want to do away with the provision entirely. The Commission came up with a ‘screen’ technique by which a screen would be placed between the offender and the victim so as to ensure that the accused is able to hear the evidence being presented against him and the victim does not have to see the accused. Accordingly, the Law Commission in para 6.1 of its 172nd Report recommended for insertion of a proviso to S. 273 of the Cr.P.C. 1973 : “Provided that where the evidence of a person below sixteen years who is alleged to have been subjected to sexual assault or any other sexual offence, is to be recorded, the Court may, take appropriate measures to ensure that such person is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused”.

3.2.4. Law Commission Report 198th

The 198th Law Commission Report published in 2006 is the most comprehensive attempt by the Law Commission to put in place fair protection of witnesses. The Law Commission, carried out an exhaustive study on Witness Identity Protection and Witness Protection Programmes, inter alia, observing that there was an absence of Witness Protection Programmes in India, dealing with the protection of victims and witnesses, outside Court proceedings. This report of Law Commission is followed by a Consultation Paper to which a questionnaire was attached seeking responses from various quarters which included State Governments, Directors General of Police/Inspectors General of Police, High Court Judges, international and local organizations, Judges of the subordinate judiciary,

jurists, advocates and public prosecutors, of criminal justice administration.38 It also covers extensively the witness protection programs in foreign jurisdictions. Arguably the most important part of the 198th LCR was the draft bill on Witness Identity Protection it proposed. It the first breakthrough step taken by the authorities to create a coherent system, however, despite valiant efforts and the recommendation of the Law Commission, no further action has been taken.

The Witness (Identity) Protection Bill, 2006 was created to protect the identity of witnesses connected to cases that involve grave and serious offences, prescribe a procedure for protection of identity and other ancillary matters that arise from said protection. It is divided into three parts: Part I deals with protection of identity of the victim during investigation, Part II deals with after investigation protection and Part III entails protection during the trial period.

3.2.5. National Police Commission Report 4th

The report published in the year 1980 made a brief reference to how relations between the investigating agencies and witness can be made more cordial to aid in efficient and seamless investigations. An important measure recommended was to conduct the examination of the witness at the scene of alleged offence, or at the residence of the witness, or any other place convenient to the witness.

3.2.6. Malimath Committee on Reforms of Criminal Justice System

Headed by Justice V.S Malimath and published in the year 2003, the Committee throughout the report highlights the lackadaisical approach of investigative and adjudicatory authorities towards witnesses and the urgent need for protection to be granted to them. The Committee rightly recognises that witnesses turning hostile is a common feature. Delay in disposal of cases affords greater opportunity for the accused to win over the witnesses to his side by threats, or inducements. There is no law to protect the witnesses. The treatment given to the witnesses is very shabby. Even the basic amenities like shelter, seating, drinking water, toilets etc. are not provided. Witnesses who are treated in this manner become an easy prey to the machinations of the accused and his family, and this is major problem that has contributed to the failure of the criminal justice system.

38 Supra note 7.

The Committee attributes fault to the adjudicating authorities as well in causing friction with the witnesses. In the quest to main neutrality, the judges when examining the witnesses (vested with the power to examine and summon them under S.311 of the CrPC), do not ask any questions with the objective of recovering the truth. The witnesses summoned at the instance of the court when bought in, are often harassed and subject to cross-examination by the rival parties. Harassment compounded with improper treatment meted out by the court demotivates witnesses from appearing and proves to serve a contrary purpose; motivating them to turn hostile.

The Committee recognising this peril, inter alia, made the following recommendation to enhance the credibility of the investigating agency: “Ensure that during investigation the accused and witnesses are not subjected to any torture, threats or inducements and that only the voluntary statements made by them are recorded faithfully and accurately.” The Committee addressed a plethora of other problems faced by witnesses such as inadequate allowance granted to them, large number of adjournments and other such factors that inconvenience the witness. However at this juncture, it is pertinent to note that even after several recommendation made by the Committee and prior Law Commission Reports, the situation for witnesses in India continues to in dire need of reform and remains abysmal. The recommendations made have been reduced to advisory measures.

4. INDIA- WITNESS PROTECTION

By Riya Bhardwaj39

4.1. Statutory Provisions

Under S.16 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, the identity and address of the witnesses must be protected. The Act also talks about in-camera trials. The same has been discussed under S.17 of the National Investigation Agency Act, 2008, S.22 of the Unlawful Activities (Prevention) Amendment Act, 2004, the Criminal Law (Amendment) Act, 2005 and S.30 of the Prevention of Terrorism Act, 2002. Under Sec195A of Code of Criminal Procedure (Amendment) Act, 2008 if anyone tries to induce or influence a witness to give false evidence, he/she shall be punished for 7 years of imprisonment. This amendment is an initial step in the right direction. When S.149 to 152 together is read with section

39 Riya Bhardwaj, 2018-23, National University of Study and Research in Law.

148 of the Indian Evidence Act, 1872 a witness is protected against improper cross-examination, a protection which is often very much required. It has however been designed to ensure a fair trial to the accused as he is presumed to be innocent until he is proven guilty. But this alone is not sufficient. Also, at present there is no law/scheme holistically at the National level for protection of witnesses. It is a proven fact that in India, many witnesses have turned hostile. We have quite a few examples like Jessica Laal Murder Case and B.M.W. Hit and Run Case where the witnesses have turned hostile and given deposition in favour of the accused. There might be several reasons behind it, like, coercion, life threat, monetary benefits, etc. But the main reason behind it is lack of provisions governing witness protection in India.

Because of lack of such provisions, no one voluntarily wants to be a witness rather based on situations people are forced to give statements in the Court of law. Also, there is no provision for the protection of the family members of such witnesses. Also the witnesses are not treated with respect.40 Many times, a witness travels from far off places only to find out that the case is adjourned. And this continues to happen over & over again. Hence, there is a high probability that these people can be intimidated or allured easily.

4.2. Indian Courts

In various cases, different courts have stated that the administration of justice is based upon the deposition of witnesses. For justice to be served properly the witness must appear before the court without any fear, favour or intimidation.41 Otherwise, his/her deposition would weaken the very foundation of justice.

A person who has the knowledge of the commission of the crime has a salutary duty to assist the State in achieving justice.42 And in return the State must do everything to ensure that the person’s deposition is not being influenced by fear, favour or intimidation. If the witnesses get threatened or forced to give false deposition, it would be an unfair trial. The cooperation of witnesses is required to maintain the administration of justice.43 However, it should not be one sided. The State government should also maintain the safety of the witnesses by

40 Supra note 7. 41 Supra note 6. 42 Supra note 8. 43 Supra note 30.

maintaining their anonymity. In high profile cases where witnesses have risk to their life, witnesses must be relocated under a new identity in a new, undisclosed place of residence.

4.2.1. Delhi HC guidelines

The Delhi High Court in Ms. Neelam Katara v. Union of India & Ors44 has issued several guidelines for the protection of witnesses and directed the commissioner of police to give due publicity to the same for the benefit of the public.

The Bench comprising Justice Usha Mehra and Pradeep Nandrajog directed the Member Secretary, Delhi Legal Services Authority to be the Competent Authority who could be approached for the protection of witnesses.

The Court asked the competent authorities to consider the following points while deciding whether to grant protection to a particular witness or not –

a) the nature of the threat to the witness b) the nature of investigation c) the value of his/her testimony. d) the cost of providing police protection to the witness.

Hence, only the witnesses who were to depose in cases pertaining to a crime punishable with death or life imprisonment would be given protection as per these guidelines.

The Court observed that, “It would be obligatory on the part of the Investigating Officer to inform the witnesses that they are entitled to this kind of protection by virtue of these guidelines. Once the competent authority decides to extend the protection to a particular witness, it would be the duty of the commissioner of police to provide protection to him/her”.

4.2.2. Bombay HC guidelines

When Zahira v. State of Gujarat45 was transferred from Gujarat HC to Bombay HC, the Bombay HC directed that “the State of Gujarat shall also ensure that the witnesses are produced before the

44 Supra note 6. 45 Supra note 30.

concerned court, whenever they are required to attend them, so that they can depose freely without any apprehension of threat or coercion from any person. In case any witness asks for protection, the State of Maharashtra shall also provide such protection as deemed necessary, in addition to the protection to be provided for by the State of Gujarat”. But neither Maharashtra nor Gujarat government framed any witness protection scheme.

The Bombay HC while hearing a PIL in 2014 gave three months to Maharashtra government to frame a fresh policy on providing protection to witnesses in the light of the observations made by the Law Commission of India. Till then, as directed by the division bench headed by Justice Abhay Oka, the witnesses must be provided protection by the state government if the witness applies to the investigating officer in writing or orally, even when the investigation is underway.

Suggestions of the Bombay HC to the State government while formulating the policy:

a) the term witness should include not only those who are going to depose in the court but anybody who possesses information and documents related to a crime b) the new policy regarding witness protection should also include provisions for the protection of family members of witnesses. c) Witnesses must be protected right from the stage of investigation to ensure that witnesses feel secure and come to the court to record evidence. d) Witnesses must be protected even after the trial or appeal proceedings are over; the state should also consider creating an exclusive fund for these protection measures.

4.3. Witness Protection Scheme 2018

Keeping in view the right to testify in courts in a free and fair manner is within the ambit of Article 21 of the Constitution, the Hon’ble SC in Mahendra Chawla & Ors. v. Union of India & Ors 46 asked the Centre, states and Union Territories to enforce the Witness Protection Scheme, 2018. It shall be the ‘law’ under Article 141/142 of the Constitution, till the enactment of suitable Parliamentary and/or State Legislations on the subject.

46 Mahendra Chawla & Ors. v. Union of India Writ Petition (Crl.) No. 156 of 2016.

4.3.1. Aim & Objective

To ensure that the investigation, prosecution, and trial of criminal offenses is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal accusations.

4.3.2. Categories of Witnesses based on the amount of threat

The Witness Protection Scheme of 2018 identified three categories of witnesses as per threat perception.

Category ‘A’ : Where the threat extends to life of witness or his family members, during investigation/trial or thereafter.

Category ‘B’ : Where the threat extends to safety, reputation or property of the witness or his family members, during the investigation/trial or thereafter.

Category ‘C’ : Where the threat is moderate and extends to harassment or intimidation of the witness or his family member's, reputation or property, during the investigation/trial or thereafter.

4.3.3. Witness Protection Fund

The SC ordered that there should be a fund called the Witness Protection Fund. All the expenses incurred during the implementation of the order to provide protection to a witness passed by the Competent Authority would be paid through this Fund. A part of the State budget must be allocated to this Fund. The said Fund will be handled by the Department/Ministry of Home under State/UT Government.. However, individuals and charitable institutions who are allowed by the Central/State Government are free to give donations to this Fund.

4.3.4. Procedure

When a witness applies for protection to the Member Secretary of the Competent Authority, under the Witness Protection Scheme, 2018, the ACP/DSP in charge of the concerned Police Sub-Division prepares a ‘Threat Analysis Report’ categorizing such witness based on the amount of threat and will accordingly submit suggestions. Based on these suggestions, the Competent Authority will pass the Witness Protection Order within five working days of receipt of Threat Analysis Report from the

Police authorities and such orders will be implemented by the Witness Protection Cell of the State/UT.

4.3.5. Protection measures

Under Witness Protection Scheme, 2018 extraordinary measures are taken to ensure the witness’s safety viz., ensuring that accused doesn’t come face to face with the witness during investigation or trial, monitoring the contact details of the witness, Installing CCTVs in the witness’s home, fencing his/her home, Concealing the identity of the witness by referring to him/her with a different name, relocating him/her to a new location, escorting him/her to and from the court, assigning emergency contact person to the witnesses, holding of in-camera trials, installing specially designed vulnerable witness court with special arrangements, modifying the voice of witness in the statement recorded and by awarding time to time financial aids to the witness from Witness Protection Fund.

5. A GLOBAL PERSPECTIVE

By Ashutosh Agarwal47 & Milind Malhar Sharma48

5.1. United States of America

The United States of America runs the largest and oldest running Witness protection scheme in the world. Its development dates back to as early as 1962 to the Vallachi hearings where one Joe Vallachi’s testimony helped expose the inner workings of the Mafia but was subsequently made a target and put under government protection. The US government realized the need for witness protection because of the rise of organized crime i.e. the mafia.

The Witness Protection Program (WPP) was codified as a part of Title V of Organised Crime Control Act 1970. It is a comprehensive scheme which has increasingly added more and more witnesses, allowing them to provide valuable information which has helped in tackling organized crime. Over the years a comprehensive system has been developed which allows witnesses to be protected and relocated to safe locations and have jobs which allow them to settle after giving testimonies. The key guiding criterion for the WPP is that the Attorney General has to be satisfied that the witness’ (or their

47 Ashutosh Agarwal, 2019-24, National Law University, Delhi. 48 Milind Malhar Sharma, 2018-23, O.P. Jindal Global University.

family’s) is in imminent danger as a result of giving testimony. When issues were pointed out regarding WPP participating witnesses ‘returning to their criminal ways’ after benefiting from the program, The Witness Security Reform Act of 1984 was passed.It allowed the government, especially the Attorney General to take decisions easily on a case by case basis in order to address these issues. This was done to reduce the likelihood of harm to innocent third parties as the federal government carried out operations to take down organized crime.

But the program has suffered from a lot of issues and deficiencies over the years. Almost all the witnesses which have entered the program have had serious criminal records. Moreover, there have been concerns raised regarding violation of constitutional rights like the right to privacy, personal autonomy, freedom of association, travel and liberty. The only saving grace for this is the fact that most participants have serious criminal records. The amount of discretion that the federal government has in such matters makes it difficult to hold them accountable. For instance, it has been pointed out that though the program has encouraged employment as a measure to tackle witness crime, witnesses have actually faced problems in finding jobs with many of them remaining unemployed for years after they have given their testimony. This has raised questions regarding accountability, given the fact that the program has a substantial cost- In 1996 alone, the cost of bringing in one witness (and supporting family) into the program cost about $150,000. With witness numbers growing over the years, the benefits of the program are put under more and more scrutiny.

5.2. United Kingdom

The United Kingdom has historically had witness protection programs but unlike the USA, the witness protection programs have been highly localised with a greater involvement of local Chief Police Officers. The program is generally run through a system of ‘gate-keepers’. When a witness feels intimidated, they usually inform the investigating detective in-charge, known as the Senior Investigating Officer (SIO) of handling the case, who makes an initial assessment as to whether the level of threat faced by the witness is sufficient enough for requiring intervention by the program, following (s)he makes a request. This request goes to the core operational staff consisting of a Detective Inspector, two Detective Sergeants and a Detective Constable. These officers give their own assessment of the threat to a witness. To be considered for inclusion on the Programme the key criteria are that the witness must be giving evidence in involving serious crime, the life of the witness may be in danger, and that the evidence the witness is providing is believed to be critical to any

proceedings undertaken by the crown. If any of these criteria are not met, then the responsibility is handed back to divisional officers who make regular arrangements like providing bodyguards and house alarms. If however, the officers feel that there is a serious threat to the life of the witness, then the Detective Chief Superintendent and the Assistant Chief Constable (ACC) take a final decision after which the witness is relocated to a new location and is made to sign a memorandum stating their full cooperation with investigation and if required, give evidence in the court.

The current Witness Protection Program gained statutory recognition in 2005, under the Serious Organised Crime and Police Act 2005. Chapter 4 of the act lays out several sections regarding the protection of witnesses. Section 82(5) gives the definition of a protection provider. It states -

“A protection provider is— (a) a chief officer of a police force in England and Wales; (b) a chief constable of a police force in Scotland; (c) the Chief Constable of the Police Service of Northern Ireland; (d) the Director General of SOCA; (e) any of the Commissioners for Her Majesty’s Revenue and Customs; (f) the Director of the Scottish Drug Enforcement Agency; (g) a person designated by a person mentioned in any of the preceding paragraphs to exercise his functions under this section”

Section 86 makes it an offence for a protected witness to disclose information about their protection arrangements. As per section 87,an exception can only be made in situations where the disclosure was made in the interest of national security or when it is not likely to harm other people, among other things.

The Witness Protection Program has however faced similar issues to the United States. There have been a number of concerns regarding the relocation of witnesses with criminal records and the threat they pose to the larger community should they return to a life of crime. There are also psychological challenges faced by the witnesses especially when bringing children along as it is fairly difficult to suddenly adjust to a new environment. This has prompted some to question the long term viability of witness relocation as a means to address witness intimidation in the United Kingdom.

5.3. Italy

The witness protection program in Italy evolved under circumstances similar to the USA i.e. for combating organized crime ( mafia and mobs) although it became institutionalized quite recently. Protection of witnesses was primarily carried out on an ad-hoc basis until 1991 when a law (82/1991), which established a formal programme for organized crime criminals who wished to turn State’s evidence and was updated in 2001 (law 45/2001) to include witnesses to crime. The organizational structure of the witness protection program can be understood from the figure below-

The Ministry of the Interior is politically responsible for the protection of witnesses and oversees the appointment of the ‘Central Commission’, which has the political and administrative role of deciding who enters and who exits the programme. The Central Commission is the most important body which oversees the running of the entire program. It also has the sole decision making power regarding state witnesses and their well- being. The commission consists of two judges, five civil servants, and is chaired by and under-secretary of the Minister of the Interior. The protection services look after the day-to-day issues of the witnesses enrolled in the state program.

There are several features in the Italian state witness protection program which set it apart from similar schemes in other countries. Witnesses who enter the state program are not immune from being prosecuted and if found guilty, serve one-quarter of the sentence in prison or 10 years in the case of a life sentence. In the United States, the witnesses are given full immunity from prosecution. The process in Italy is also less detailed as a lot of power regarding decision making rests with the

investigating judge, creating a lot of administrative issues. The procedure is less clear cut and precise with the central commission making a lot of decisions without any checks and balances. The program also results in far reaching changes in the lives of witnesses being relocated to far-off places, being provided jobs and education and even subsidized loans. Another problem, 2018 which has been pointed out as a major drawback is the fact that witnesses entering the program have to disclose all possible evidence within the span of 180 days. In the USA, the period is indefinite. The 180 day period constraint means that any valuable information which the witness recalls after a period of 180 days is considered useless. It also creates a sense of mistrust between the authorities and witnesses. Despite these shortcomings, the program has continued to prove as a valuable assistant in the control of organized crime and some .

One of the newest developments in witness protection law came in the year 2018 with the passing of a new law for the protection of judicial witnesses. The law provides protection for upto six years on the proving of threat to life and expands the definition of judicial witness to include those who are not prosecuted under the anti-mafia code. This has been hailed as a step forward as current protection measures were difficult to obtain for witnesses as they applied to only specific cases or crimes.

5.4. Canada

The Canadian witness protection measures are divided between the federal and provincial levels, which operate together in the country. It enacted its first federal witness protection legislation, the Witness Protection Program Act, in 1996. On similar lines, provinces like Ontario and others operate their very own witness protection measures. The primary working sphere of these enactments is to protect and safeguard the interests of a witness outside the judicial hearing environment. For protection within the courts, Canada has laid down witness protection measures under its Criminal Code, 1985.

5.4.1. Section 486 of Criminal Code

In order to protect a witness within the court premises, the Criminal Code of Canada contains Section 486. The provision, Section 486 (1) empowers a presiding judge or justice upon an application submitted by the prosecutor or the witness or self-initiated by the judge, to order the exclusion of one or more members of the public for a part, or the whole duration of the hearing. It can also order a

witness to testify behind a screen or a device that would hide the witness's identity from the members of the public present in the courtroom.

The grounds for such an application before the presiding judge is laid down under Section 486 (2). A considerable amount of emphasis has been laid down on societal interests, which would encourage it to report crimes and come forward as witnesses for a more efficient criminal justice system. It also safeguards the interests of minor witnesses under the age of 18 and provides support from threats and retaliation from the accused. Section 486 (h) gives complete authority to the judge to approve an application for whatsoever reason deemed fit so, thereby the statute’s main aim is to give full support to the witness even in extraordinary situations.

5.4.2. Witness Protection Program Act (WPPA)

The WPPA is the federal witness program of Canada that was implemented in June 1996, undergoing multiple amendments, with the latest being in 2014. The program's main aim is to ensure national security and improve law enforcement by ensuring the safety and protection of witnesses who are vulnerable to various kinds of harm when cooperating with law enforcement in criminal matters.

According to Section 4 of the act, the program is to be administered by the Commissioner of the Royal Canadian Mounted Police, and under Section 5, sole power to decide whether a witness should be admitted to the program lies with the Commissioner. However, the Commissioner can delegate this responsibility to some other member of the RCMP. Usually, the program is the last resort in severe criminal matters like organised crime and terrorism, where there lies a high level of threat to the witnesses. WPPA takes care of such concerns by employing long term protection measures like relocation of the witness, including moving and housing, financial support, assisting in obtaining a new identity, and even psychological support under the program.

The WPPA has clearly defined the meaning of the term “witness” under Section 2 and calls the witnesses under the protection of the program as “protectees", something uncommon in other jurisdictions. Under Section 6 (1), the terms of admissibility are laid down, including a recommendation by a law enforcement agency or an international court or tribunal when an agreement has been reached. Under Section 8, the terms of protection are laid down for both the RCMP and the protectee. The Commissioner is responsible for taking every reasonable step that is necessary to protect according to the agreement with the protectee. On the part of the protectee, it is expected that he/she shall provide the necessary information required in the investigation, to be able to meet every

financial and legal requirement that is not in agreement, refrain from committing offences, and to accept and give effect to reasonable requests from the Commissioner of RCMP concerning the protection being provided under WPPA.

There are two peculiar features of the WPPA operating in Canada. Firstly, it is the duty of the state to provide a new identity to a protectee under Section 10.3 (1) of the Act. By obtaining a new identity, a witness and his family members can start a new life at a new location and thereby, eliminating a threat of any harm in the future. Secondly, the accountability of RCMP about the program is taken care of by Section 16 of the Act, where the Commissioner must submit an annual report by June 30th of each year on the operation of the program, ensuring enhanced transparency in the implementation of the program.

However, certain concerns have been raised regarding the amount of powers vested with the Commissioner of the RCMP. As a result of Air India Flight 182, which exploded mid-air near the coast of Ireland as a result of a planned act of terrorism originating in Canada, a Commission of Inquiry submitted its final report in 2010. One of the core findings of the Commission was that two key witnesses were threatened during the prosecution. At the same time, another source of the Canadian Security Intelligence Service (CSIS) refused to cooperate due to his safety fears.49 It was alleged in the safety report that the Commissioner of RCMP had excessive power, thereby effectively controlling entry and exit of witnesses from the WPPA. Such measures can lead to infectivity, along with introducing malpractices in the program.

5.4.3. Provincial Programs - Ontario

As discussed earlier, several witness protection programs are operating at the provincial level in Canada. According to the Crown Prosecution Manual, the Ministry of the Attorney General operates Ontario’s Witness Protection Program in cooperation with Ontario’s Provincial Police and other police services. The program only provides “time-limited” to witness and their family members in their protection and even in some cases, maintenance and relocation. It is a no-reward program, which means that the witnesses will not be rewarded for their testimony.

Compared with WPPA, a federal program, the provincial programs generally operate on a low level and hence their time-bound nature. One advantage of following a system of provincial programs in

49 K. R., A Missed Opportunity to Reform Witness Protection, 59 Crim. L.Q. 441 (2013).

tandem with a federal one is the division of power and responsibilities based on the need of the witness and, more importantly, the level and seriousness of the criminal matter under investigation.

5.5. China

The National People’s Congress of China recently amended the Criminal Procedure Law, which included amendments to the legislation's witness protection provisions. Article 61 makes the courts, the people’s procuratorates, and public security organs responsible for the witness's safety and close relatives. Article 62 further elaborates on the role of the authorities as mentioned earlier in more severe cases “involving terrorist activities, organized crimes committed by groups like criminal syndicates, drug-related crimes” and others of similar nature. The measures include confidentiality of the identity, avoiding actual appearance, including the witness's real voice, the prohibition of certain persons from meeting the protected witnesses, and providing personal and residential security and other measures as deemed fit.

Under the Criminal Law of the People's Republic of China, specific provisions are laid down which specify punishments for a person who hinders any action of a witness. According to Article 307, a person is sentenced to a maximum of seven years if he/she tries to obstruct a witness by testifying or instigating another person to make a false testimony to law enforcement authorities. Article 308 carries the same punishment for an act of retaliation against a witness.

A unique feature of China’s witness protection lies within Article 109 of the Criminal Procedure Law, which extends the protection to reporters, complainants and informants and their close relatives, enabling them to hide their true identities while assisting the criminal justice system. Such measures ensure free and fair media and carrying out their duties with no fear or threat of any sort.

China’s witness protection measures have been described as “too general”. Looking at the various provisions mentioned, one can see grave shortcomings contained within them. There is no centralised authority for implementing and taking care of the witness protection measures. Everything has been left to the law enforcement authorities, which can render the program useless due to the lack of accountability in implementing these measures. Another aspect of the above provisions is that witnesses and their close relatives are eligible to be protected only after testifying in front of the law

enforcement authority.50 An unexplained measure has been taken by the country to exclude the close family of the witness from Article 307 and 308 of the Criminal Law, rendering them vulnerable to acts that the above provisions aim to prevent.

5.6. Hong Kong

The Hong Kong Special Administrative Region (HKSAR) is a special autonomous region of the People’s Republic of China. It has its own witness protection programs in the form of the Witness Protection Ordinance formulated in 2000, Criminal Procedure Ordinance and a dedicated law enforcement agency for witness protection, Witness Protection Unit (WPU).

The WPU acts as an independent unit for witness protection, which was formed in 1995. It consists of specially trained staff to give effective protection to witnesses of crime in Hong Kong. A special feature of Hong Kong’s witness protection measure is embedded in Part IIIB of the Criminal Procedure Ordinance, which lays down extensive provisions for conducting court proceedings over live television link even if the person is overseas.

5.6.1. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power

The United Nations General Assembly unanimously adopted resolution 40/34 on November 29, 1985, laying down the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. It contains provisions for victims of crimes to help them in access to the fair justice delivery process along with assistance by the State, including mental, medical, and social assistance.

The declaration does not explicitly specify any provisions for a witness of a crime, though under Article 2 includes “persons who have suffered harm in intervening to assist victims in distress or victimization.” A witness can fall under this category, as it is a high probability that the victim received aid and assistance during or after the commission of the crime.

As seen with the above provisions of some jurisdictions, the declaration protects privacy, retaliation, intimidation, and measures for minimising inconveniences to both the witnesses and their families, as stated under Article 6(d). The declaration also takes into account property damage that can occur over time, and it names the offender liable under Article 8 for return of property or payment towards any

50 Ming Liao, How to Improve China's Witness Protection System: An Evaluation on Protection of Witness in the Amendment to the Criminal Procedure Law of China, 7 Frontiers L. China 402 (2012).

loss suffered by the victim, which can also include a witness of the crime, as discussed above. Moreover, assistance related to the medical, social, and mental health of the witness is provided under Article 14, hence ensuring the witness's complete well-being.

5.6.2. Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime:

The United Nations Economic and Social Council (ECOSOC) through Resolution 2005/20 adopted the Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (hereinafter referred to as “guidelines”). The sole purpose served by the guidelines is to protect and treat those children fairly who are either harmed by crime or have seen others getting harmed. These guidelines serve as a piece of formal advice to deal with situations where a child is a victim or a witness of a crime. The guidelines have kept the primary motive of the Convention on the Rights of the Child under Article 3, which is to act in the best interests of the child and keep it a primary consideration.

According to Section 9(a), anyone under the age of 18 would fall under the child witness category. Throughout the document, particular emphasis has been made to the nature of treatment meted out to child witnesses. Section 10 states that the treatment should be in a “caring and sensitive manner throughout the justice process”. The guidelines pay special attention to the child's environment, including age, gender, any disability, and even the level of maturity that is subjective and will vary by every individual. The guidelines completely restrict any discrimination based on any trait of either the child or his/her parent/legal guardian. This could prove helpful in cases like domestic abuse, where the sole witness is the child.

Under Section 18, the guidelines had upheld the principle of equality before the law and eradicated age factor eligibility to qualify as a capable witness before a court of law. Moreover, the guidelines under Section 19 ensure that parents or legal guardians of the child are always kept in the loop throughout the due process of law, which will keep them comfortable with regard to their child’s condition. Adequate identity protection measures have been extensively laid down under Part X and XII, which will ensure the protection of the child witness from any threat, intimidation, or retaliation by the accused.

Children, due to their tender age, are sensitive to their surroundings and can affect their role as witnesses in a criminal justice process. Therefore, the guidelines have put thought in the above issue and have encouraged usage of child-sensitive environments, taking the sensitive nature of age into account, including unnecessary visits to courts and other legal procedures. It can vary from friendly

interview rooms to court environments, as mentioned in Section 30(d). The guidelines under Section 40 have stressed the training of “professionals” in dealing with child witnesses and the unique methods and work attitudes towards the sensitive nature of the witness. An example of such a measure is laid down in Section 42(i), calling for interview techniques that “minimize any trauma to the child”, clearly referring to the sensitive nature of the witness, which requires prior training. Under Section 9(b), professionals refer to persons who come in contact with the child witness, including advocates, prosecutors, medical staff, diplomatic staff, judges.

The above guidelines are not absolute legislative provisions and hence, not enforceable by its existence. There is still a need for adequate child witness legislation in several countries. The guidelines, though not enforceable, provide an excellent base for establishing protective measures for the young, tender, and sensitive beings of our society.

6. CONCLUSION

By Meghana Kudligi51 & Dhvani Shah52 “The Witnesses play an integral role in the dispensation of justice and protection of witnesses through legislative measures can go a long way in conducting a fair trial.” To ensure a fair trial the court should direct the government to make comprehensive legislation on witness protection and ensure its implementation across the country. The court should create a safe environment for the witness to testify without fear of facing the wrath of the person against whom he has testified. To protect a witness the court may provide for in- camera proceedings, audio-video testimony recording, witness identity protection according to the requirements of the case. It should ensure all measures to minimize the trauma or fear of witnesses, so that a truthful deposition is obtained to constitute a free and fair trial. Moreover, the court with its powers under Article 141 of the constitution may interpret the witness protection laws according to the contemporary situation.

The grundnorm of the criminal justice system is to achieve justice while protecting the liberty of all stakeholders involved. To reach its logical conclusion each investigation requires the cooperation of not just the victim, adjudicatory forum but also the witnesses. As discussed in the previous components of the paper, the need for witness protection is urgent, dire and mandatory. Arguably, the most important point of contact for a witness would be the investigative agency. The Law

51 Meghana Kudligi, 2017-22, O.P. Jindal Global University. 52 Dhvani Shah, 2019-24, Gujarat National Law University.

Commission Reports have discussed extensively the role of the police in creating an amicable environment for witnesses. The sum and substance of the Reports is that the police have since the inception of the criminal justice system failed to view the witnesses in their capacity as individuals who can aid the investigation and instead have reduced the position of a witness to an adversary in achieving justice. In doing so the tensions between the two have alleviated and the lack of a comprehensive witness protection scheme has prompted more and more witnesses to turn hostile, or to shy away entirely from the process. The police need to be vigilant and cautious in dealing with witnesses at every stage of the investigation. Right from when the FIR is filed, it is the duty of the police to inquire and find out whether there is a requirement of witness protection. Additionally, if at the very start of the process the witness is assured of his safety, he is more likely to work in sync with the police.

Non-state actors such as non-governmental organization can also contribute to protecting witnesses. Primarily they can serve as information channels by creating awareness. Most people are not cognizant of the rights they have as witnesses due to such rights being encased in legal nuances and technicalities. These organizations can play a crucial role in bridging this gap and informing individuals of their rights. Esteemed NGO’s are also vested with immense lobbying power and can pressurize incumbent state actors to enforce witness protection schemes and met out proper treatment to witnesses. Being a more informal forum, witnesses might be more comfortable deposing and sharing information with the NGO.

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