NEED FOR A WITNESS PROTECTION LAW IN INDIA: THE SOLUTION TO THE PROBLEM OF HOSTILE WITNESS
The role of a witness is very important in a trial. He is an indispensable part of the justice delivery system of any country. According to Bentham, witnesses are the eyes and ears of justice. Their each and every statement is very important as it has a magic force to change the course of the whole case
The criminal justice system has become inefficient and does not function in a fluent fashion. The most overwhelming reason of this weakness is the prosecution witnesses retract from statements made earlier before the police and turn hostile.
Witnesses are turning hostile with predictable regularity in cases involving heinous crimes or high profile personalities due to external pressures, thereby leading to the failures of the criminal justice system. The whole issue of hostile witness came under sharp public scrutiny after the judgement in the landmark Jessica Lal an eye-opener showing glaring defects in the judicial system. This paper discusses
1.2 and Best Bakery case3. These cases came as ♠
II Year, National Law Institute University, Bhopal, Madhya Pradesh.1
Nishant Gaurav Gupta, ‘Report on protection of India’ at http://www.ccsindia.org/.2
State vs. Siddhartha Vashisht @ Manu Sharma, 2008 INDLAW SC 8463
Zahira Habibullah Sheikh vs. State of Gujarat, 2004 INDLAW SC 408, 2004 Cri LJ2
how the law relating to the protection of witnesses is inadequate and also focuses on the need for a witness protection program.
: WHEN DOES A WITNESS BECOME HOSTILEThe role of a witness is paramount in the criminal justice system of any country. To understand the meaning of hostile witness, we have to understand the process by which a witness becomes ‘hostile’. The Code of Criminal Procedure, 1973, chap XII Procedure, 1973, s. 161(3) vests in police officers the power to record statement of witnesses. However, these statements are not admissible in court by virtue of s. 162(1). The aim of s. 162 is to protect accused persons from being prejudiced by statements made to police officers who may coerce the witnesses. Therefore, the witness has to restate in the court the statements that he made to the police. Here the statements recorded by the police constitute a reference to which the veracity of the witness may be tested have turned hostile
4 deals with the police powers to investigate. The Code of Criminal5. If the witness goes back on his/her earlier he/she may6.REASONS FOR WITNESS TURNING HOSTILE
There are various reasons why a witness may turn hostile.
The Code of Criminal Procedure, 1973, ss. 154 to 176.5
Sections 161 and 162 of the Criminal Procedure Code, 1973, (2004) 8 ACE (J) 47,
Mookerjee Deepa, Problem of Hostile Witnesses: An examination of the Scope of6
Satish Mrinal, The problem of hostile witnesses, In The Hindu, 02 September 2003http://www.hinduonnet.com/thehindu/op/2003/09/02/stories/200309020013.3
Witnesses are extremely vulnerable to intimidation in the form of threats by the accused. The People’s Union for Civil Liberties (PUCL) made a press release on 02 July 2003 pertaining to the Best Bakery case saying there were two ways to explain why witnesses turn hostile. The first is that the police had recorded the statements incorrectly. The second and more plausible was that the police had recorded the statements correctly but were retracted by the witnesses because of ‘intimidation and other methods of manipulation’
Another major reason of this growing menace is protracted trials. The working of judicial process is very slow. Several dates are fixed for cross examination of witnesses, who becomes frustrated over because of being summoned again and again only to find that the date is adjourned. This frustration takes its toll, and the witness decides to turn hostile to get rid of the harassment National Police Commission (1980) acknowledged the troubles undergone by witnesses attending proceedings in courts properly in our judicial system. The Mallimath Committee has expressed its opinion about such witnesses by saying, ‘the witness should be treated with great respects and should be considered as a guest of honour’ unsympathetic attitude of the police, bribery and corruption are other reasons which add to the malaise. For all these reasons and others a person abhors becoming a witness.
7.8. The 4th Report of the9. The witnesses are not at all treated10. Lack of a witness protection program,7
Thakur P.R., Why do Prosecution Witnesses Fall Flat So Often, available at9
See supra note 1; see also Swaransingh vs. State of Punjab, (2000) 5 SCC 68.10
vol I, p. 151.
Committee on Refroms in Criminal Justice System, Headed by Justice Mallimath,4
NEED OF THE HOUR
: A WITNESS PROTECTION LAWIt is imperative that we come up with a better justice system, one that provides adequate safeguards to the witness. There is no law for the protection of witness in India barring few provisions of Indian Evidence Act, 1872. Ss. 151 and 152 protects the witnesses from being asked indecent, scandalous, offensive questions, and questions which intend to annoy or insult them is no provision for the protection of witnesses in India. This fact was acknowledged by Supreme Court in the case of law has yet been enacted, not even a scheme has been framed by the Union of India or by the state government for giving protection to the witnesses’
that India introduced a witness protection program In fact the Law Commission recognised the need for the same and came up with a consultation paper on witness protection on 13 August 2004 It first must be understood that a witness protection program has two aspects:
(1) To ensure that the evidence of witnesses is protected from the danger of them turning hostile; and
11. Apart from these provisions, thereNHRC vs. State of Gujarat12 where it said that ‘no13. It is high time14.11
See supra note 1.12
Suresh, New Law needed to Protect Witnesses (2005) vol 4, issue I at p. 4.,. Also seeZahira Habibullah Sheikh vs. State of Gujarat
2050. The Supreme Court said ‘that there comes the need for protecting the witness.
Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and that the trial is not reduced to a mockery. Legislative measures to ensure prohibition against tampering with witness, victim or informant, have become the imminent and inevitable need of the day’.
, 2004 INDLAW SC 408, 2004 Cri LJ14
Law Commission (2004), ‘Consultation Paper on Witness Protection’, p. 3, athttp://lawcommissionofindia.nic.in/Summary%20of%20the%20Consultation%20paper%20on%20Witness%20protection%20AND%20Questionnaire.pdf#search=%
(2) To relieve the physical and mental vulnerability of the witnesses. Therefore, any law for witness protection must take into account both the points. The first aspect has received attention in the form of proposed amendment to the Code of Criminal Procedure, 1973, s. 164. In its 178th Report (2001), the Law Commission recommended the insertion of s. 164A to provide for recording of the statement of material witnesses in the presence of magistrates on oath where the offences were punishable with imprisonment of 10 years and more this recommendation, the Criminal Law (Amendment) Bill, 2003 was introduced in the Rajya Sabha and is still pending.
However, the second aspect has hardly received any attention in India. The Law Commission looked for the second aspect in the consultation paper on witness protection and has suggested measures like witness anonymity and physical protection to the witnesses. It also drew attention to special statues on terrorism like TADA and POTA which have provisions for protecting the identity and address of witnesses; and suggested a general law dealing with witness anonymity be implemented
Both the Law commission and the courts are advocating for a witness protection program. India should soon implement a witness protection program if it does not want its criminal justice system to fall.
15. On the basis of16.WITNESS PROTECTION PROGRAMME IN OTHER COUNTRIES
India is not the first country to have seen the necessity for a witness protection program. Many countries such the United States of America, Canada, Thailand, Australia, South Africa among others have enacted witness protection legislation, while many others have informal physical security systems such as the United Kingdom. Therefore, it would be of importance to consider the legislations enacted some countries and study them in the Indian context.
United States of America
The USA has a well developed witness protection programme. The United States Federal Witness Security Program better known as the Witness Security (WITSEC) Program was enacted under the Witness Protection Act, 1970. The protection of the witnesses is mostly the duty of the US Marshals Service, although some states have their own state specific witness protection enactments for crimes not covered by the federal program. The US Federal Government both relocates and gives new identities to witnesses who risk their lives by giving testimony as well as providing financial and employment aid. The Federal Government also gives grants to the states to enable them to provide the same program specific guidelines in the program, the Witness Security Reform Act, 1984 was enacted which made the system more comprehensive the 25 years after the enactment, over 6,600 witnesses, along with over 8,000 family members, have been provided services as participants in the program.
However, due to a lack of18. It has been claimed that in Ibid. 18 Operations, Criminal Division, U.S. Department of Justice) before the House of Representatives, Subcommittee on Crime, Committee on the Judiciary, 07 November 1996, Washington, DC. Statement of Stephen J. K’ Tach (Associate Director, Office of Enforcement Australia
The witness protection program constituted under the Witness Protection Act, 1991 contemplated while enacting the legislation. The definition of witness itself is wide in its ambit and is not seen merely in the strict sense of a witness with regard to a statement before a criminal court under oath. S. 4 (2) (d) (of the Amending Act of 1996) include the flexible phrase of ‘a person who, for any other reason, may require protection or other assistance under this Act’.Another very interesting feature of the Act is the very express inclusion of changed identities (s. 3A (a)) and the specific guidelines for changing identities with regard to the Register of births, deaths and marriages (under the Registration of Births Deaths and Marriages Act, 1959, s. 24 of which does not apply) under s. 4 of the said enactment. Although, it is to be noted that under the enactment, specific authorities and a nominated member of the local authority may maintain a record of the original identity of the witness is to be given the details of the original identity of the person(s). At the outset, this may appear to defeat the purpose of the enactment by widening the security circle, but the same provision is protected by a rigorous punishment of ten years for unauthorised breach of security and revealing identity. It is also protected by exclusion from the Freedom of Information Act, 1982. Thus, in the researcher’s opinion, the Australian statute is model legislation, although he does not have any statistics with regard to its practical usage.
19 is an extremely comprehensive system and nearly everything has been19
Protection (Amendment) Act, 1996.
Amended by the Witness Protection (Amendment) Act, 1994 and WitnessThe need for setting up separate victim and witness protection units in the trial of mass crimes has been acknowledged in the setting up of international tribunals to deal with them. The International Criminal Tribunal for Rwanda has formulated rules for protection of victims and witnesses. The Rules of Procedure and Evidence, r. 75 provides for the protection of witnesses Criminal Tribunal for Yugoslavia also provides measures for the protection of witnesses. Art. 22 states that the tribunal will take measure for the protection of witnesses like protection of witness identity Tadic in the Statute for the creation of an International Criminal Court (ICC). the Rome Statute, art. 68 states, ‘the court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses….’ The United Nations has also advocated for the protection of witnesses. The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power was adopted by the United Nations General Assembly in resolution 40/34 of 29
20. The International21. The tribunal in the case of Prosecutor vs.22 allowed the testimony of three anonymous witnesses. Similar provisions exist23.20 and Witnesses’ provides: ‘A Judge or Chamber may either party … order appropriate measures for the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the accused’. International Criminal Tribunal for Rwanda: Rules of Procedure and Evidence, Rule 75, U.N. Doc. ITR/3/Rev.1 (1995) [hereinafter ICTR Rules]
Rules of Procedure and Evidence, r. 75 – Measures for the Protection of Victimspropio motu or at the request of 21 ICTR’ (2005) 38 N.Y.U.J. Int’l. & Pol. 281. Joanna Pozen, ‘Justice Obscured: The Non-Disclosure of Witnesses’ Indendities in 22 Requesting Protective Measures for Victims and Witnesses, pp 27, 44, 84 (10 August 1995) [hereinafter Tadic Prosecutor’s Motion Requesting Protective Measures], available at http:// Prosecutor vs. Tadic, Case No. IT-94-1, Decision on the Prosecutor’s Motionhttp://www.un.org/icty/tadic/trialc2/decision e/100895pm.htm.Court’ (2002) 25 Fordham Int’l L.J. 767.
Valerie Oosterveld, et al., ‘The Cooperation of States with the International CriminalNovember 1985
highly effective in providing protection to the witnesses. The definition of victims also includes witnesses to the crime. This declaration provides for many measures to protect the victims which also extend to the witnesses of a trial
Although this specifies victims of the crimes, it is nonethelessPROBLEMS IN APPLICATION OF WITNESS PROTECTION
PROGRAM IN INDIA
There are many hindrances to the practical efficacy of the witness protection programme in India.
The first and most important problem is with regard to anonymity of witnesses and the balancing of interests of the prosecution in protecting the witness and the rights of the accused. The Code of Criminal Procedure, 1973, s. 327 specifies the importance of an open trial. Thus, the rights of the accused in knowing who is testifying against him are very important, especially if he has to defend himself against such testimony. S. 299 gives one of the few exceptions to this rule and says that only if the accused is not available or has absconded and may not be found by reasonable means, then the court may order the prosecution witnesses to testify without the presence of the accused. There are many practical problems when talking about such an extensive programme.
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,Cost of Implementation
The most obvious is that of the costs of implementation and infrastructure. When talking about providing bodyguards, security, relocation to another area etc, the costs that are involved are bound to be enormous. The fact may remain the no cost is too great when it comes to providing justice, but practical realities must be kept in mind.Although, countries like Thailand and Puerto Rico have successfully implemented witness protection, despite their not being developed countries the same may not be said of India, as India is comparatively much more vast and unwieldy. However, the problem may be countered by carefully choosing the cases, which merit protection, and not every other case. Thus by reviewing cases which may be high profile, communally charged, involving drugs or organised crime syndicates or cases involving grave offences where the authority observes a possible threat, protection may be provided.
The most important problem is that of corruption in the administration and judiciary. Though the argument seems rhetorical and trite, no witness protection programme may function with a corrupt administration. If one is provided with false identities and relocated and the approved authority is bribed and sells the information, the whole system is undermined. Thus, corruption and political pressure remains the main problem when addressing the hostile witness situation. Even if all the above provisions were enacted, the system would be futile if witnesses were not informed about their rights. They must have the right to be informed about the judicial process, their role, forms of protection available to them
and possible reparations. Not only must they have a right, but it must be the duty of the magistrate and the public prosecutor to inform the witnesses about such rights.
It is high time that the malaise of ‘hostile witness’ be tackled. No nation may afford to expose its righteous and morally elated citizens to the peril of being haunted or harassed by anti social elements, for the simple reason that they testified the truth in a court of law appear before the court so as to render a helping hand in the dispensation of justice. As long as witnesses continue to go hostile and do not make truthful deposition in Court, justice will always suffer and people’s faith in the credibility of judicial process and justice system will continue to erode and shatter.J. Sorabjee said ‘Nothing shakes public confidence in the criminal justice delivery system more then the collapse of the prosecution owing to witnesses turning hostile and retracting their previous statements.’ are repeated, it would shatter the strength and credibility of our criminal justice system. The government must take a stand on this matter and implement a system that is not a new or novel concept to criminal justice systems around the world. Enough witnesses have turned hostile, enough people have been murdered and yet no solution from the government’s side appears to be in the offing.
25. Adequate steps must be taken for the protection of witnesses who26 Former Attorney General Soli27 If the cases like Best Bakery or Jessica LalSorabjee.
The Indian Express, 26 Octoder 2003, The Columnists, Witness Protection by SoliTherefore, it is suggested that the Indian Parliament should implement a witness protection programme. A witness protection cell should be constituted to provide protection to the witnesses during all stages of trial. It would be an independent body that will lie outside political control. The cell may also arrange for the provision of false identities, relocation and follow up. The members of the witness protection cell should be made liable criminally if they do not discharge their responsibility properly.