Overview: Witness Protection Program

Abstract

Bentham believed that witnesses served as the court's eyes and ears. In India, it is not uncommon to witness witnesses in high-profile cases become hostile during trial proceedings. One of the fundamental tenets of criminal procedure is holding a fair trial in order to provide justice for both the victim and the offender. India is a nation where the prosecution asserts that it will act as an impartial umpire and the accusatorial system is being used. Independent witnesses are crucial in ensuring that the victim has a fair trial in such a circumstance.

The witness ought to be considered a visitor, yet our system continuously disregards and belittles them without giving it any thought. However, article 21 of the Indian constitution states that testifying in court is a basic right. A thorough witness protection scheme is essential, as various law commission reports have noted. Special and general statutes contain provisions that are favourable to witnesses, even though they don't strictly qualify as protection.

There is no law that takes a comprehensive approach to handling witness difficulties. Nevertheless, the 2015 Witness Protection measure was unable to receive the necessary number of votes to become law, and although a victim and witness protection and aid measure was presented to the Council of States in 2020, it has not yet been approved into law. In Mahender Chawla v. Union of India, the Supreme Court upheld the 2018 Witness Protection Scheme as a means of safeguarding witnesses.

Nevertheless, there are gaps in the plan. The primary topic of the paper is the development of Indian witness protection jurisprudence. The reasons why witnesses become hostile are also examined, as well as how this affects criminal prosecutions in India. The efficiency of the 2018 Witness Protection Scheme to reduce the number of hostile witness occurrences and its impact on India's conviction rates are also critically examined in this article. Lastly, the study emphasizes the necessity of comprehensive laws to safeguard witnesses.

KEYWORDS: Witness Protection Scheme 2018, Witness Protection, India, Hostile Witness, Criminal Trial

INTRODUCTION

Witnesses are the foundation of successful criminal justice systems, as their cooperation with law enforcement and judicial agencies are essential to the successful prosecution of crimes. Witnesses must be safeguarded against criminal suspects' intimidation or physical threats in order to defend the rule of law.[1] The adversarial system was established in India, where the accused was given unwavering support. The prosecution frequently states unequivocally that it will act in the same capacity as an umpire. In that situation, the testimony of a third party witness is essential to guaranteeing the victim has a fair trial. Witnesses are vulnerable to both internal and external pressures. Reforms in the criminal justice system are only feasible if the victim and witnesses are protected. According to Bentham, "Witnesses are the eyes and ears of Justice".[2] India was the country that invented the adversarial system, where the accused received steadfast support. Often, the prosecution makes it clear that it will function in the same manner as an umpire. In that case, ensuring the victim receives a fair trial requires the evidence of a third party witness. Witnesses are susceptible to pressure from the outside as well as the inside. Only when the victim and witnesses are safeguarded can criminal justice system reforms be implemented. Since an honest witness's evidence is the cornerstone of justice, the law requires witnesses to make declarations under oath. A witness's testimony may lead to the accused person's guilt or acquittal. Even if there is an expert view, the reliability of the visual witness cannot be questioned.

The Concept of 'Witness'

A "witness" is a person who has provided testimony, given or accepted testimony, or is compelled to provide testimony about such proceedings, and who has knowledge or records on any crime that the appropriate authorities have determined to be relevant to any criminal investigation.

The Indian Evidence Act does not specifically define a witness; nonetheless, section 3 defines evidence as consisting solely of oral and written testimony. "All statements which the court permits or required to be made before it by a witness, about the matter of fact under inquiry, is called oral evidence."

The 2018 Witness Protection Scheme states in section 2(k) that a "witness" is "any person, who possesses information or document about any offence."

COMPETENCY OF WITNESS

A witness is someone who provides evidence to the court or is compelled to do so by the court. Witnesses provide evidence to other judicial and quasi-judicial bodies and forums. When handling the witness as a means of providing evidence, three crucial factors need to be taken into account: The evidence needs to be presented to the court to establish the facts. A distinction exists between both the comparability and competency of a witness. The witness is considered capable if they are unable to be stopped from testifying in court. Legal competency to testify in court is referred to as competency. It's argued that if the judge is required by law to reject his testimony,

According to section 118 of the Indian Evidence Act, any person who can understand the question posed to them can give rational answers based upon those questions. a. Competency and qualification of witnesses; b. Liability of ensuring presence and testimony of witnesses in the court; and c. The grounds for disqualification of the testimony.[3]

A legally competent witness must provide evidence. Section 118 of the Indian Evidence Act of 1872 concerns the competency of witnesses. The competency of a person to testify as a witness is a condition precedent.[4]

CONCEPT OF HOSTILE WITNESS

There are a number of other reasons why witnesses are increasingly becoming hostile. Perhaps you're afraid to testify against the. Political pressure, familial pressure, accused/delinquent, or other sociological concerns. Another possibility is that witnesses are tainted by financial gain.
There has not been much attention paid to shielding witness testimony from the threat of them becoming "hostile." Hostile witness has not been defined in Indian law. A "hostile witness" is someone who refuses to disclose the truth at the instance of the party who has summoned him [5]. The 4th National Police Commission Report, noted that "prosecution witnesses are turning hostile because of pressure of accused and there is need of regulation to check manipulation of witnesses" [6].

WITNESS IN NEED OF PROTECTION

The capacity of a witness to testify before the court of law or cooperate with investigations without fear of intimidation is playing crucial role in upholding the rule of law[7]. The system, unfortunately, treats the witnesses inhumanely. When witnesses arrive at the court and have to wait for extended periods of time, there are no facilities available to them, and in most of the cases their cross-examination is in a unreasonable manner and occasionally harsh[8]. The witnesses are not treated with due courtesy and consideration; nor are they protected. Witnesses turning hostile is a common feature [9].Delay in the 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[10].

WITNESS PROTECTION

Parliament has given special attention to some anti-terrorism acts; however, a comprehensive legislative plan that addresses the second issue of witness physical safety is desperately needed. Further, both aspects of anonymity and witness protection will have to be ensured in all criminal cases involving grave crimes, not limited to terrorist crimes[11]

In general, there are two categories of laws in India that deal with witness protection:

Those that deal with witness protection specifically, and those that just contain provisions pertaining to it.

1. Section 195A of the Code of Criminal Procedure (Amendment) Act, 2008, stipulates that a seven-year term is imposed on anyone who attempts to coerce or influence a witness to provide false testimony. This adjustment is the right direction to take. A witness is protected from incorrect cross-examination, which is frequently required, when sections 149 to 152 of the Indian Evidence Act, 1872 are read in conjunction with section 148.The Terrorist and Disruptive Activities (Prevention) Act, 1987, Section 16, requires that the address and identity of witnesses be kept private. The Act also makes mention of in-camera trials. The topic has been covered by S.17 of the National Investigation Agency Act of 2008, S.22 of the Unlawful Activities (Prevention) Amendment Act of 2004, S.30 of the Prevention of Terrorism Act of 2002, and the Criminal Law (Amendment) Act of 2005.Similar safeguards for witnesses are found in the Juvenile Justice (Acre and Protection of Children) Act, 2015, the Whistle Blowers Protection Act, 2011, and the Protection of Children from Sexual Castes and Tribes (Prevention of Atrocities) Act, 1989.

Witness protection under 198th Report of the Law Commission

The 198th Report of the Law Commission of India, "Witness Identity Protection and Witness Protection Programmes, 2006," discusses witness protection. This paper is divided into two sections: one on witness identity protection and the other on witness protection initiatives. An appendix to the measure contained a Witness Identity Protection measure. Although it hasn't released a draft bill on the topic, the Commission has made recommendations about "Witness Protection Programs." The Commission suggested that the federal and state governments split the expenses of "Witness Protection Programs" evenly. When necessary, further techniques for witness protection are offered in addition to altering the witness's identity.

CONCLUSION

Witnesses must be free to testify in court or take part in investigations without fear of intimidation or threats in order to uphold the rule of law. Legislation or other measures to safeguard witnesses whose testimony in court or cooperation with law enforcement could endanger their lives or the lives of their families are increasingly being created by nations. India's witness protection law is known as the Witness Protection Scheme of 2018. The 2018 Witness Protection Scheme does not include the suggestions from the 198th Law Commission Report or the Mali Math Committee in order to preserve the dignity of the witness. Without sufficient backing, the criminal court system cannot mandate that the witness be unbiased and independent. The 2018 Witness Protection Scheme did not provide adequate assistance to witnesses. Nonetheless, the percentage of convictions in courts was 50% in 2018 and 50.4 percent in 2019. In conclusion, 2020 had the highest percentage of court convictions—59.2 percent—in the previous five years. Thus, it stands to reason that the Witness Protection Program was a factor in the higher conviction rate.

The Witness Protection Scheme has significantly aided India's criminal justice reforms despite its numerous shortcomings. Still, it doesn't seem like the tactic has fully resolved the problem.

Witness Protection Program is a one-man show administered by the judiciary in India because of the country's weak administrative and legislative branches as well as its absence of a robust program. An adversarial system requires the prosecution to prove the defendant's guilt. Witnesses in this instance play a essential role by illuminating the facts and supporting the judge's ability to perceive the truth. It is necessary to protect justice that witnesses are permitted to provide unbiased, independent testimony. Thus, the system has to protect witnesses to preserve the law's eyes and ears.

REFERENCES

[1] ] United Nations Office on Drugs and Crime, 'Protecting witness,' (2008)UNADOC< https://www.unodc.org/unodc/en/frontpage/protecting-witnesses.html > accessed 27 January 2022.

[2] MahenderChawla&Ors.v Union of India & Ors,2018 SCC SC 2678.

[3] GirishAbhayankar and AsawariAbhayankar, Witness Protection In Criminal Trials In India (1st ed, Thomson Reuters 2018)13.

[4] Dr. Abhishek Atrey, Law Of Witness (1st ed, Lawmann's 2020)174.

[5]J. F. Stephen, Digest Of The Law Of Evidence ( 4th edn. Arkose Press 2010)220.

[6] . Fourth Report of the National Police Commission, 1980(India).

[7] United Nations Office on Drugs and Crime, 'Good practices for the protection of witnesses in criminal proceedings involving organised crime' ()UNADOC< https://www.unodc.org/documents/middleeastandnorthafrica/organisedcrime/Good_Practices_for_the_Protection_of_Witnesses_in_Criminal_Proceedings_Involving_Organized_Crime.pdf> accessed 27 January 2022.

[8]Committee on Reforms of Criminal Justice System (March 2003)INDIA.

[9] ibid.

[10] Law Commission Of India's 198th Report On Witness Identity Protection And Witness Protection Programmes (August 2006) INDIA.

[11] Law Commission of India, "Consultation Paper on Witness Protection Witness protection "7 (August 2004)

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