This article was written by Akanksha Omar, a student of Galgotias University.
In India Criminal Justice System is being followed and its main objective is to “Serve Justice”. Justice can only be served when proper evidences and correct testimony of witnesses is taken. A witness is considered as the most important constituent, as the decision of the judiciary is dependent on the statement of witnesses. Therefore protection of witnesses plays a crucial role in serving justice. Due to the lack of proper protection of witnesses, they and their families are being threatened and their life is put in danger therefore they turn hostile. India has no comprehensive protection program for protection of witnesses due to which in many cases the key witnesses of leading criminal cases are being found murdered. A need was being found by Delhi High Court therefore Women Discrimination Act 2015 is made by the Delhi Government in which a special witness protection fund and witness protection cell is being constituted to help in protecting them and their families. With this Delhi has become the first state / union territory to have an specific legislation for protection of witnesses but this is not sufficient as it does not provide an absolute protection to witnesses so that witnesses can be free from any threat and approach court freely, it will also not prevent the witnesses from turning hostile.
Instances where Witness Protection was provided in our country
Witness protection is being provided to the witnesses in the major cases but it is not adequate and proper. Due to the lack of implementation and negligence in our departments our protection is of no use. There are some instances in which protection was being provided to the witnesses but all these protections leave us with a question.
A key witness who was also a victim in this case lost his three children in the Naroda- Patia massacre in the year 2002 was attacked by a group of 30 people and murdered as he deposed several names who were involved in this massacre. Although he was provided with one police guard as he was threatened by some people and that guard was on leave when he was attacked and murdered. Witness protection was provided to him but is it was sufficient to protect a key witness in such a big case? Can it be justified that to protect the witness from 30 people one guard was enough and what are the probabilities that when attack will be there, guard will save the witness life not his life?
An ex- journalist KetanThirodkar was given temporary protection by the Bombay High court when he was getting threats for deposing of the information of some series of illegal acts which was done by police with the underworld. He filed a petition seeking protection and a police enquiry for the contacts of police with underworld. He failed in getting a permanent protection as he would have gotten as the Public prosecutor has apprehended the facts that he has accepted the fact of his involvement with underworld. Was temporary protection enough for a person who has complaint against such big criminals? Whether Public Prosecutor was reliable when the offence related to police itself comes? Was the reason for denial of Permanent Protection by the court was adequate?
In this case Shivnarayan Pandey a taxi driver has given some clues on the case of Twin Blast Case therefore was a very important witness in this case. His identity was being to the media by the inspector on the day of the blast, therefore he was to be protected with extra protection by Mumbai Police. Mumbai police have contravened Section 30 of the Prevention of Terrorism Act (POTA), by failing to protect the identity of the prosecution witness. Therefore he had been kept at an undisclosed place with police guards but his family had not been given protection, whereas, it could have been possible that under the guise of a political activist, some terrorist could have approached Pandey or his family members. They could have bribed Pandey or his family members or for that matter done anything to make sure that Pandey turns hostile. Was it not the negligence and lack of witness protection? Whether providing protection to the witness alone and leave the family in danger does not falls in miscarriage of justice?
These are the major instances in which witness protection is being provided and there are many more but in all the cases the protection provided by our courts and departments were not sufficient and which lead to the killing of the witnesses which further leads us to miscarriage of Justice.
India is a developing country and therefore it’s developing in all its sectors. law also needs to change from time to time witness intimidation has a profound and serious impact on the ability of government to enforce its laws and on society’s confidence in the ability of government to protect its citizens. To make our witness protection schemes we can take help of other countries and compare their witness protection schemes with ours. We should consider some legislations enacted by other countries.
United States of America –
USA is one of the developed countries so it has the most developed witness protection programs. The protection of witnesses is being taken by the US Marshals Service, but some states have their own specific witness protection enactments for crimes which are not covered by the federal program.The U.S. 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. However, due to a lack of specific guidelines in the program, the Witness Security Reform Act of 1984 was enacted which made the system more comprehensive. It has been claimed that in the 25 years after the Reform Act, over 6,600 witnesses, along with over 8,000 family members, have been provided services as participants in the Program.
The witness protection program constituted under the Witness Protection Act 1991 is an extremely comprehensive system and nearly everything has been 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 Act. Although, it is to be noted that under the Act, specific authorities and a nominated member of the local authority can 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 Act by widening the security circle, but the same provision is protected by a rigorous punishment of ten years for unauthorized breach of security and revealing identity. It is also protected by exclusion from the Freedom of Information Act.
New Zealand –
Section 13A of the (New Zealand) Evidence Act, 1908 (introduced 1986), protection is available to undercover officers in cases involving drug offences and offences tried on indictment attracting a maximum penalty of at least 7 years imprisonment. A certificate has to be given by the Commissioner of Police to the court that the police officer requiring protection has not been convicted of any offence. In 1997, Section 13G was introduced making protection applicable to all witnesses if their lives were likely to be endangered. In R v. L , this provision came to be tested on the anvil of Section 25(f) of the New Zealand Bill of Rights which provides for the right to cross-examination to an accused. The court upheld the provision on the ground that the right of cross examination was not absolute. Under Section 13C (4) the Judge, might make an anonymity order where he is satisfied that the safety of a witness is likely to be endangered if his identity was disclosed. Sub-section (5) of Section 13C provides for the factors to be accounted for by the court and sub-section (6), the conditions to be fulfilled. The power of the court to exclude the public or to direct screening of the witnesses or to give evidence by close circuit television is provided under Section 13G.
South Africa –
The approach is on a case by case basis in order to balance the conflict of interests with a view to ensuring proper administration of justice. Section 153 of the (South Africa) Criminal Procedure Code permits criminal proceedings to be held in camera to protect privacy to the witness. Section 154 gives discretion to the court to refuse publication of the name of the accused. The South African courts have permitted the witness to give evidence behind closed doors or to give witness anonymity. The courts prefer to prohibit the press from reporting on identity rather than exclude them from the court room.
With the study of other countries witness protection program, it can be concluded that our country needs to strengthen ours, as we have a very weak witness protection programs. The other countries have a very comprehensive full proof witness protection schemes. They have the concept of changing their identities, they have sufficient infrastructure and budget for the protection of their witnesses and their families. Their trial procedures also help in the protection of their witnesses as in camera trials are allowed. Even the police officials who are required for the witness’s protection have to be free from any criminal record. These countries have enhanced methods of protection, our government should also adapt these techniques.
Suggestions / Recommendations
Protection to all witnesses –
The witness protection is only focused in high profile cases , the cases which are covered by media as it becomes the responsibility of the government to protect them as they will be answerable but what about the cases which are not high profile , the cases which belong to rural areas, protection of witnesses is required in that areas also but no importance is given to those areas and the number of rural areas is far more big than the number of high profile cases so when the witnesses of those areas and those cases will be protected then only the confidence in our witnesses will increase , they will move forward in giving statements , a large number of witnesses will be prevented from turning hostile.
Immediate relief –
There are many times when witnesses are attacked suddenly and they have no option or no way to tackle it then they should have the option of calling anyone and protection should be provided to him as early as possible or if this immediate protection is not able to be provided then he should be provided with a gun or some weapon for his personal defense and immunity should also be given to him. Private witnesses should be extended for witnesses just like after the case of Nirbhaya, Nirbheek Guns were specially designed for women’s for their protection.
Family protection –
A person is more worried about his family than himself and when he will know that his family is safe, no harm will be cause to them, proper care of his family will be taken care of, then he will come forward as a witness to give his testimony without any fear, it’s also a possibility that a feeling of good security may increase confidence in our witnesses.
UdayMaharkur , “NarodaPatiya case: MayabenKodnani’s fate hangs in balance”, http://indiatoday.intoday.in/story/naroda-patiya-case-mayaben-kodnani-judgement-narendra-modi-gujarat-riots/1/273065.html , March 26,2016 , 08:17PM
Roxy Gagdekar , “CBI Arrests KetanTirodkar in Sadik Jamal Mehtar encounter case”,http://www.dnaindia.com/ahmedabad/report-cbi-arrests-ketan-tirodkar-in-sadik-jamal-mehtar-encounter-case-1711387 , March 26, 08:25PM