27-September-2024-Editorial

WITNESS PROTECTION SCHEME, 2018

Witnesses are integral to the criminal justice system as they help ensure a fair trial by providing crucial evidence. However, in India, witnesses often face intimidation, threats, and even harm, leading to their reluctance in testifying.

To address these concerns, the Witness Protection Scheme, 2018 was introduced. Despite being an important step, the Supreme Court recently highlighted the inefficacy of its implementation, stressing the need for a dedicated witness protection law.

This scheme was developed by the Ministry of Home Affairs (MHA) and approved by the Supreme Court, becoming India’s first comprehensive framework aimed at safeguarding witnesses.

Features of the Witness Protection Scheme, 2018

• Purpose: The scheme aims to protect witnesses from threats or intimidation to ensure they can testify without fear.
• Approval: It was endorsed by the Supreme Court in Mahender Chawla & Ors. v. Union of India & Ors. (2018), directing its implementation across all States and Union Territories.
• Protection Measures: Witnesses can receive various protections, such as changing their identity, relocating them, installing security measures, or using specially designed courtrooms during trials.

Definition of a Witness

• Meaning: A witness is anyone who provides evidence or testifies before a judicial authority.
• Crucial Role: Witnesses help the justice system function by presenting critical evidence, often pivotal in criminal trials.
• Legal Status: The Criminal Procedure Code (CrPC) does not explicitly define “witness,” but courts can summon individuals as witnesses if their evidence is deemed essential for the case.
• Supreme Court’s Interpretation: In Ritesh Sinha vs. State of UP, the court stated that being a witness means providing oral testimony in court.

Categories of Witnesses

The scheme classifies witnesses into three categories based on the Threat Analysis Report (TAR):

• Category ‘A’: The witness or their family faces a life-threatening situation.
• Category ‘B’: The threat extends to the safety, reputation, or property of the witness or their family.
• Category ‘C’: The threat is moderate and may involve harassment or intimidation affecting the witness or their family’s reputation or property.

Aims and Objectives of the Scheme

• Ensuring Justice: The primary objective is to ensure that witnesses are not threatened or coerced, which could undermine investigations or trials.
• Promoting Law Enforcement: By protecting witnesses, the scheme helps ensure that the judicial process is not hindered by external pressures or threats.

Competent Authority for Witness Protection

• District-Level Authority: A Standing Committee, led by the District and Sessions Judge, is formed in each district. The committee includes the District Police Head and District Prosecutor.
• Responsibilities: The committee oversees the implementation of protection measures for witnesses within its jurisdiction.

State Witness Protection Fund

• Purpose: A dedicated fund is set up to cover expenses incurred in implementing witness protection orders.
• Funding Sources: The fund receives contributions from budgetary allocations, court fines, donations, and Corporate Social Responsibility (CSR) initiatives.

Types of Protection Measures

Witness protection measures are customized based on the perceived threat and are regularly reviewed. Some examples include:

• Preventing face-to-face contact between the witness and the accused during trials.
• Altering the witness’s contact details or installing security systems at their home for added protection.
• Concealing the witness’s identity, providing security escorts, conducting in-camera trials, and using specially designed courtrooms.
• Additional measures can be recommended by the witness or deemed necessary by the Competent Authority.

Recovery of Expenses

• False Complaints: If a witness is found to have lodged a false complaint, the State government may recover the protection expenses from them.

Supreme Court’s Endorsement

• In the Mahender Chawla case (2018), the Supreme Court ruled that the Witness Protection Scheme should be considered “law” under Articles 141 and 142 of the Indian Constitution until formal legislation is passed.
• Article 141: Ensures that the law declared by the Supreme Court is binding on all courts within India.
• Article 142: Grants the Supreme Court the power to pass necessary orders to ensure justice.

Challenges with the Witness Protection Scheme

• Limited Scope: The scheme restricts protection to witnesses in cases punishable by death, life imprisonment, and certain crimes against women. This leaves out witnesses in other serious cases.
• Subjective Categorisation: The classification of witnesses into Categories A, B, and C is based on subjective evaluations by law enforcement officers, which may not accurately reflect the actual threat level.
• Inadequate Threat Assessment: Often, there is a gap between police officers’ assessment of threats and the real fears experienced by witnesses.
• Confidentiality Issues: The scheme lacks effective mechanisms to ensure the confidentiality of witness information, increasing the risks of leaks in a porous legal system.
• International Comparisons: The scheme focuses primarily on physical threats but overlooks psychological and emotional risks, unlike international standards, such as those by the United Nations Office on Drugs and Crime (UNODC).

The Need for a Dedicated Witness Protection Law

• Witnesses as the “Eyes and Ears of Justice”: Legal philosopher Jeremy Bentham famously referred to witnesses as the “eyes and ears of justice.” Without legal protection, witnesses may be unwilling to testify, compromising the justice system.
• Supreme Court Observations: In State of Gujarat vs. Anirudh Singh (1997), the Supreme Court emphasized that it is the duty of every citizen with knowledge of a crime to assist the justice system.
• Law Commission Recommendations: Multiple Law Commission Reports (154th, 178th, and 198th) have recommended the establishment of formal witness protection programs to safeguard witnesses and maintain the integrity of the judicial process.

Conclusion

The Witness Protection Scheme, 2018, although a critical step, remains underutilized and faces challenges in its implementation. A comprehensive witness protection law is needed to address these gaps, ensuring that witnesses are adequately safeguarded and that justice can be delivered without fear or bias.