Witness Protection: An Imperative for Criminal Justice

Introduction

‘Crime’ is a concept that is difficult to affix an identity to, yet very important to recognize for the harmonious functioning of the entire society. Sir William Blackstone defined crime as

A crime is violation of the public ‘rights and duties’ due to the whole community, considered as a community. ¹

The criminal theory of jurisprudence that defines crime as a wrong committed against society or the state at large is accepted into the modern criminal justice system of India, so much so that the trial of a criminal act is considered. In India, all crimes are committed against the state at large and the country by extension. Therefore, the prosecution of crimes in India is a state prerogative.

To look at it from a moral angle, any criminal act committed is a violation of the sanctity of the country and is a violation of every citizen of this country. The criminal justice system is a complex mechanism that is constituted of multiple units. One such indispensable aspect of the criminal justice system is the evidence of a witness. A witness is any person who possesses information or documents about any offence. ² The term ‘witness’, however, is alien to the Indian Evidence Act 1886. Being a witness and providing one’s testimony to a court of law is an obligation upon a citizen, for it is upon every citizen to look after the well-being and health of the society that they are part of. Society has an interest in the administration of justice and it may be true that let a 100 accused escape but let not an innocent be punished, but this cannot be stretched to mean an escape route should be provided to the accused to hijack administration of justice and secures his innocence, not as a result of a fair adversarial litigation but as a result of ‘might being right’. ³ Life and liberty must not be the cost at which any citizen be obligated to ensure the welfare of the society. All criminal justice systems have a duty to put in place procedures to provide measures for the protection of persons whose cooperation with the criminal justice system in an investigation or prosecution puts them, or persons closely associated with them, at risk of serious physical or emotional harm. ⁴ The role of witnesses and victims in any case is very important for achieving justice, but the challenge here is getting their cooperation by winning their trust in our Criminal Justice System. ⁵ A witness is the most important person who comes forward to depose in the societal interest, and he deserves all the protection of the state as well as of the court. A witness is an indispensable aid in the justice dispensation system in any civilized society. A witness happens to be the eyes and ears of the court. ⁶ Therefore, it is not to be argued that the lack of protection for witnesses in a criminal justice system is highly infectious to the health of the entire country. As has been reiterated by various authorities repeatedly, Jeremy Bentham said ‘Witnesses are the eyes and ears of the court’. It is upon the state to take care of its people, and even more so when the people are the aid of the state to discharge a sovereign function. It is a common sight in our country that people refrain from providing testimonies before the courts. Witness hostility is an impending crisis for the judiciary of our country.

Being a Witness in India: A Duty Without Constitutional Rights?

In the USA, the Fifth Amendment to the Bill of Rights grants immunity from self-incrimination to anyone who presents themselves as a witness before a court of law. Witnesses can assert the privilege against self-incrimination in civil proceedings as well as criminal ones, despite the seemingly limiting language of the Fifth Amendment. They can assert it in state or federal court, in a wide variety of proceedings (including trials, depositions, administrative law proceedings and investigatory proceedings like grand jury hearings). ⁷ Article 20(3) of the Constitution of India ⁸ is directly borrowed from the Fifth Amendment clause of the Constitution of The USA, however, with a clear distinction. The Constitution of India protects only the accused from any such statements. Furthermore, it is much more difficult to plead the fundamental right under Article 20(3) as it is constrained by the law of evidence.

In India, the fundamental right is extended to a person only when they are being prosecuted in a court of law. This Article protects a person who is accused of an offence and not those questioned as witnesses. ⁹ While the courts have interpreted this provision as liberally as possible, the law does not afford this protection to any person who is called upon by a court of law to testify. Perhaps this is one of the most notable omissions that causes a large number of witnesses to turn hostile in a court of law. There is no right against self-incrimination available to a person who is a witness in a criminal trial before a court of law in India. Section 132 of the Indian Evidence Act of 1872 explicitly takes away this right from any witness, and any person is barred from asserting a right to silence or a right against self-incrimination. Any person other than the accused themselves, when put on the witness stand and asked by the court of law to testify, cannot refuse to reveal any information under the right against self-incrimination which would otherwise be available to a witness in the USA. However, how the judgement in K. S. Puttaswamy ¹⁰ will have an effect on this aspect is yet unchartered territory by the courts in India. However, for the sake of understanding this in the light of the right to privacy, the evolution of the position of law that starts with Boyd v. United States ¹¹ is notable. The error that may be noticed in Boyd’s case is that the court fused the right to privacy under the Fourth Amendment clause and the rights under the Fifth Amendment clause, understanding them to be one whole provision in essence. Therefore, the idea of privacy was merged with the idea of self-incrimination, thereby creating a wall between the prosecution and the admissibility of evidence recovered from the accused themselves, and by extension, evidence recovered from witnesses. This was later remedied in the case of Schmerber v. California. ¹² Schmerber, announced a week after the Court’s decision in Miranda, gave rise to a sweeping assertion of the need to allow in reliable physical evidence via a definition of witness that drew a sharp distinction between words and physical evidence. ¹³ Under Indian law, the character of fundamental rights is much debated. The Gopalan Doctrine, formulated by the Supreme Court of India in A. K. Gopalan v. State of Madras, ¹⁴ attributes an independent existence to all fundamental rights. It propounded the idea that fundamental rights were ‘independent silos’ and unaffected by each other. Gopalan’s case also rejected the idea that the Indian constitution dignified the doctrine of ‘Due Process’. Gopalan rejected ‘Due Process’ in favour of ‘Procedure established by law’. Later, Rustom Cavasji Cooper v. Union of India ¹⁵ rejected this idea that fundamental rights are independent, watertight compartments. The apex court held that:

The enunciation of rights either express or by implication does not follow a uniform pattern. But one thread runs through them: they seek to protect the rights of the individual or groups of individuals against infringement of those rights within specific limits. Part III of the Constitution weaves a pattern of guarantees on the texture of basic human rights. The guarantees delimit the protection of those rights in their allotted fields: they do not attempt to enunciate distinct rights.

The constitutional regime of fundamental rights in India, thus, does not view fundamental rights in isolation from one another. The idea of the separation of the rights against self-incrimination and the right to privacy is provided for by the judgement in Puttaswamy. However, the right to privacy under the Indian Constitution can, however, be infringed in a situation of compelling state interest. Therefore, once a witness is put on the stand in a court of law, he has no choice but to answer the questions that are posed to him. This acts as a major reason why the people of India do not come forward to testify, and if they are compelled to testify, they often turn hostile, being easily influenced.

Need of a Witness Protection Program in India

Our country is made up of a very complex arrangement of various societies, each with their own antiques and cultures. These factors that make traditional Indian society so complicated have emanated into the modern legal system, which is not equipped to accommodate the burgeoning diversity of our country, and this overspill is the reason for the vast mismanagement and imperfections of the modern state. It is a legal system not native to us, but rather adopted from the colonizers of our country, and as such, it tends to display the same patterns even in its functioning in the present.

It is, however, shocking that the Indian Criminal Justice System has remained for over 70 years without a witness protection programme, even in the face of rampant corruption and violence that has impeded justice. The first instance of the suggestion for the creation and introduction of a mechanism to facilitate and protect witnesses in the country arises as early as 1958 ¹⁶ in the report of the law commission, which gives reference to inadequate arrangements for witnesses, including allowances to attend court in response to summons. However, the situation only worsened from there. Since then, many efforts have been made by the executive and the judiciary to realize a mechanism for the protection of witnesses, and yet the legislature lies in inaction, ignorant, oblivious and inefficient. In 1980, ¹⁷ 1996, ¹⁸ 2001, ¹⁹ 2003 ²⁰ and 2006, ²¹ attempts to establish a real mechanism for the protection of witnesses in the country have failed. Even if all the proposed amendments and solutions are executed and the witnesses are deterred from turning hostile merely by the inducement of pecuniary gains, it is hard to imagine how a witness would react if his life were at stake due to the threats by the accused. Under the pressure of threat to life, it would not be inappropriate to describe his position as being stuck between the devil and the deep sea, whereby he does not have a choice but to depose falsely before a court of law. ²²

Justice Wadhwa in a 2000 judgment ²³ expressed as follows:

The witnesses are harassed a lot. They come from distant places and see the case is adjourned. They have to attend the court many times on their own. It has become routine that case is adjourned till the witness is tired and will stop coming to the court. In this process lawyers also play an important role. Sometimes witness is threatened, maimed, or even bribed. There is no protection to the witnesses. By adjourning the case the court also becomes a party to such miscarriage of justice. The witness is not given respect by the court. They are pulled out of the court room by the peon. After waiting for the whole day he sees the matter being adjourned. There is no proper place for him to sit and drink a glass of water. When he appears, he is subjected to prolong stretched examinations and cross examinations. For these reasons persons avoid becoming a witness and because of this administration of justice are hampered. The witnesses are not paid money within time. The High courts must be vigilant in these matters and should avoid harassment in these matters by subordinate staff. The witnesses should be paid immediately irrespective of the fact whether he is examines or the matter is adjourned. The time has come now that all courts should be linked with each other through computer. The Bar Council of India has to play important role in this process to put the criminal justice system on track. Though the trial judge is aware that witness is telling lie still he is not ready to file complaint against such witness because he is required to sign the same.

The right to a fair trial is a principle enshrined under Article 21 of the Constitution as part of the right to life and liberty ²⁴ and to constitute a fair trial, the testimony of a witness is a necessary element to uncover the whole truth and impart justice in its true and intended form. The harassment of witnesses impedes the judiciary from performing its function. In India, in most cases involving the rich, influential people or corrupt politicians, the witnesses turn hostile, making the rule of law a mockery. Very often, the witnesses become untraceable. Sometimes they are just eliminated. The criminal justice system has been faced with this severe problem for a very long period now, without any viable and comprehensive solution forthcoming for the same. ²⁵ A witness in a criminal trial may come from a far-off place only to find the case adjourned. He has to come to the court many times, and at what cost to his own-self and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other, till a witness is won over or is tired. A witness is not only threatened, he is abducted, maimed, done away with or even bribed. There is no protection for him. In adjourning the matter without any valid cause, a court unwittingly becomes party to a miscarriage of justice. A witness is then not treated with respect in the court. He is pushed out of the crowded courtroom by the peon. He waits for the whole day, and then he finds that the matter has been adjourned. He has no place to sit, and no place even to have a glass of water. And when he does appear in court, he is subjected to unchecked and prolonged examination and cross-examination and finds himself in a hapless situation. For all these reasons and others, a person abhors becoming a witness. It is the administration of justice that suffers. Then appropriate diet money for a witness is a far cry. Here again, the process of harassment starts, and he decides not to get the diet money at all. ²⁶

Generally speaking, when the accused persons are of bad character, the witnesses are unwilling to come forward to depose against such bad persons, fearing harassment at the hands of those accused. ²⁷ Unfortunately, in cases involving influential people, the common experience is that witnesses do not come forward because of fear and pressure. ²⁸

Legislative Efforts

In many jurisdictions, witness protection programme is understood to mean a mechanism of laws and infrastructure for protecting witnesses from physical and mental violence that may be committed against them during and even after the trail in certain cases. It is given a very wide meaning in the sense of its purpose and object. The witness protection programme in the USA ²⁹ encompasses an eight-point objective and meaning of what would constitute witness protection. However, in India, witness protection has not found its place in legislation as it has in most jurisdictions. It is understood to be narrowly limited to ‘convenience’ and ‘comfort’ in attendance at the court by the witnesses as considered by early law commissions. In the first instance, the Law Commission of India considered witness protection very narrowly. ‘Inadequate arrangements for witnesses in the Courthouse, the scales of traveling allowance and daily batta (allowance) paid for witnesses for attending the Court in response to summons from the Court’. ³⁰

Similarly, other executive objects, including the 4th National Police Commission 1980, discuss the facilitation of witnesses and their allowances. The 178th Report of the Law Commission of India ³¹ discusses an amendment to the effect that would prevent witnesses from turning hostile during criminal trials and proceedings.

The 198th Report of the Law Commission in the year 2006 ³² is the first object that discusses a mechanism to afford protection to witnesses comprehensively and in a sincere manner. The report classified protection to be afforded to witnesses into two broad categories: (a) the evidence of the witness and (b) the physical and mental wellbeing of the witness. The report suggests an urgent need for legislation that provides protection for the second category in all criminal cases constituting grave crimes, not limited to crimes of terrorism.

An interesting conception observed in this report is the suggestion that the witnesses be afforded protection even at the stage of investigation.

The first attempt at creating and instituting a witness protection mechanism by the parliament was made in the year 2015 with the introduction of The Witness Protection Bill 2015. This Act envisioned a judicial mechanism for granting protection similar to the bail mechanism in a criminal trial. Section 3 of the Act envisions a mechanism wherein any witness at any stage of a judicial proceeding shall have the capacity and right to apply for protection to the court within the jurisdiction of the proceeding or to the police station to avail protection. The provision also enables the applicant to access legal aid to avail such protection. Protection could be availed not only by the witness but by any ‘associated person’. ³⁴

Perhaps the most valuable feature of this Act is the envisioned constitution of a National Witness Protection Council headed by a retired Chief Justice of India ³⁵ which would be responsible for the formulation of policies for the execution of this act and would also be vested with financial powers for the allocation of funds for the operation of the Act. The state witness protection council envisioned under the bill would be under the authority of the National Witness Protection Council, which would be chaired by a person appointed by the chairperson of the National Council in consultation with the Chief Justice of India. The bill proposes punitive penalties for any person divulging information about any protectee under the law.

While this bill would have been a tremendous step forward in the direction of providing the criminal justice system of the country with substantial support and help, it could not pass through the legislatures of the country and find its place as a law of the country. Criminal law and criminal procedure are subjects under the concurrent list. The states could not reach a consensus on a bill on witness identity protection and witness protection programme, the Centre said in the Rajya Sabha. ³⁶

In the same year, however, the state government of Delhi introduced the Delhi Witness Protection Scheme 2015. ³⁷ The state government became the first and only authority to institute any form of mechanism to address the issue of protection and safety of witnesses in the criminal justice system. According to a government statement, the Delhi Home Department constituted a sub-committee comprising of officers from the Law Department (Home department), Directorate of Prosecution and Delhi Police.

Subsequently, Delhi State Legal Services Authority (DSLSA) was included in the process of formulating the scheme. ³⁸ The scheme is, however, appreciable in light of the vacuum left by the legislatures of the country, which is rife with inadequacy and reflective of bureaucratic incompetence. The mechanism laid out in the scheme for availing witness protection and the powers to grant such protection are vested purely with the executive, making the endeavour void of a judicial mind and lowering the accountability and efficacy of the programme. Similarly, in 2018, the centre doled out of a Witness Protection Scheme, ³⁹ which is completely similar to the scheme enacted by the Delhi government in 2015. However, the central scheme of 2018 was never brought into commencement, much like the Witness Protection Bill of 2015 with minimal scrapping. This scheme currently remains the law of the land for the aid of witnesses in the criminal justice system.

Witness Protection: A Judicial Duty or an Administrative Prerogative?

The right to a fair trial is an established human right. If witnesses got threatened or are forced to give false evidence that would not result in a fair trial. ⁴⁰ The examination of witnesses for a fair trial is an overlooked edict of criminal justice that is overlooked in the Indian criminal justice system. It is inarguable that the right to a fair trial shall constitute the right to obtain the attendance of the witness. Every person charged with a criminal offence has the minimum right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. ⁴¹ The failure to hear material witnesses is certainly a denial of fair trial. ⁴² How far is this right stretched and under what conditions exactly would the absence of the witnesses from the judicial forum make a trial unfair? There may be multiple scenarios for the unavailability of a witness in a judicial trial, such as death, permanent absence from the country or unwillingness to be discovered. While putting aside the investigative aspects that may come into the picture and the factors such as death or permanent relocation that cannot be controlled, what remains is the miscarriage of the duty of the state to provide a suitable mechanism and infrastructure for witnesses to come forward and discharge their citizenly duty to uphold justice. While witness protection would be difficult to inquire into as a matter of right in the absence of a legislation which expressly declares so, it is nonetheless the unquestionable duty of the state to ensure the safety and welfare of the people to such extent so as to enable them to at the least testify their evidence without fear of life and property in a court of law.

Therefore, the question that is begged revolves around obtaining the attendance of witnesses and their security and protection. It is a complex question whether the protection of witnesses falls under the judicial realm or as a prerogative of the administration. It is without doubt that the judiciary shall require the aid of the executive organ of the government in putting in place such a mechanism for the protection of witnesses. In the USA, the witness protection programme is an entity administered purely by the executive organ of the government. WITSEC, as it is known in the Justice Department, is administered by the US Marshal Service, an arm of the Justice Department. ⁴³ Originally, the US witness protection programme relied heavily on hiding the identities of the witnesses, creating alter egos and assigning new identities to the witnesses. With time, it has evolved into more sophisticated methods of providing security and protection. However, more so than not, most jurisdictions have vested power in the executive organ of the government to hold the obligation of protection of witnesses. The policy decisions have to be essentially those of the legislatures. The task of the courts is to interpret the laws and adjudicate on their validity; they neither approve nor disapprove of legislative policy. The office of the courts is to ascertain and declare whether the impugned legislation is in consonance with or in violation of the provisions of the Constitution. Once the courts have done that, their duty ends. The courts do not act as superlegislatures to suppress what they deem to be unwise legislation, for if they were to do so, the courts will divert criticism from the legislative door where it belongs and will thus dilute the responsibility of the elected representatives of the people. ⁴⁴ However, the power of judicial review shall not be taken away from the court as it is the fundamental right of every citizen in this country. The mechanism of judicial intervention in the endeavour of witness protection must not be neglected. This shall establish a two-level setup of accountability. Various courts in the country have made their attempts to fill this void and to protect the witnesses over time. The 2003 case of Neelam Katara ⁴⁵ lays down the guidelines for witness protection to fill the void of legislation on the subject. The court said:

Given the financial constraints which we have in this country, it may not be possible to have a Witness Protection Program on the extended scale at which it is being implemented in the United States of America, Canada, Australia or for that matter in the United Kingdom. But, a beginning has to be made.

In consonance with that view, it is imperative that the court shall be a part of the witness protection mechanism to both lower costs and mitigate corruption and boost accountability. At the same time, it cannot be referred to as a judicial function. The doctrine of separation of powers must be upheld and the judiciary cannot be put in charge of an administrative function or an administrative machinery. Each criminal case presents its own peculiar factual matrix, and therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. ⁴⁶ It is not wise to handover the endeavour of protecting the stakeholders of the criminal justice system to authorities that may be easily swayed or might be politically motivated, which is not an uncommon phenomenon in India. For example, two politically competing government inquiries came to contradictory conclusions on the cause of the fire that killed the Hindu activists. In 2005, an Indian railways investigation found that the train’s burning was due to an ‘accidental fire’. In 2008, a commission of inquiry appointed by the Gujarat government concluded that the train burning was a ‘planned conspiracy’. In 2011, a trial court in Gujarat convicted 31 people and acquitted 63 others, including the prime conspirator, but maintained that the incident was a ‘pre-planned conspiracy’. ⁴⁷ Therefore, the element of application of the judicial mind to consider the issue of witness protection much like bail application must not be discarded from a scheme of witness protection. It is a shame that the judicial intervention method envisioned by the Witness Protection Bill 2015 has been dusted off and rejected by the legislature of the country.

Conclusion

The criminal justice system of our country is a behemoth mechanism, crippled by numerous shortcomings. The disrespect for human life and dignity that the criminal justice system displays is often shameful, troublesome and has largely acted to the discredit of the law in India, that is to say, the distrust of the Indian legal system that the ordinary Indian system is well acquainted with. The legislature of the country remains in its petty political squabbles, while the courts struggle to impart justice or even conduct free trials in the absence of adequate safeguards for the stakeholders of the criminal justice. This causes criminal justice to simply act as a catalyst and, more often than not, stimulate crime by the accused or those interested in the welfare of the accused.

While the criminal justice system rots away, the plight of witnesses in India worsens by the day. The Indian Judiciary is prevented from judicial intervention for the sake of witness protection being widely recognized as an administrative function. Time and again, the apex court has reminded the government to enact upon the welfare of witnesses in the country. The Witness Protection Scheme 2018, sanctioned by the Supreme Court, is an inefficient fluke. In the absence of a law to protect witnesses and the omission of the state’s duty to take care of the stakeholders of the criminal justice system, incidences like the death of the family of the accused in the Unnao Rape Case on 28 July 2019 continue without any fear of conviction and justice. There is an urgent need for laws to safeguard those who assist the state in the operation of the law. It is a gross injustice that the state casts upon the people a duty without any utilitarian rights, and the lives and wellbeing of the citizens are put at risk without any liability accruing to the states. The ordinary citizen of India is discouraged from having faith in the law due to the omissions and incompetency of the state. The law casts a duty upon the citizens to reveal the truth before the courts but fails to realize that such an undertaking might be dangerous for the citizens of the state. The largely infected criminal justice system of India poses an extremely reliable threat to criminals, not victims.