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Towards a witness centric approach: analysis of witness protection scheme, 2018

• Published: 13 February 2021
• Volume 75 , pages 433–444, ( 2021 )

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• Shankey Verma   ORCID: orcid.org/0000-0003-2833-1840 1 &
• Akshaya Krishnakumar   ORCID: orcid.org/0000-0001-9867-7594 2  

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Legislation on witness protection was long overdue in India. In the wake of several incidents of attacks on witnesses, the Supreme Court of India directed the Centre to formulate a scheme to safeguard the interests of witnesses. On December 5, 2018, the Supreme Court approved the Witness Protection Scheme submitted to it by the Centre. It directed all the states and union territories to formulate legislation regarding the same. While few states adopted the scheme in its letter and spirit, many have not taken any step in this regard. The paper aims to critically examine the Witness Protection Scheme, 2018 by discussing the major provisions and looking at various challenges to its implementation. On examining the provisions of the scheme carefully, the authors found that the majority of the provisions in the scheme provided a framework for protection of witnesses from threats and intimidation. However, there are some areas that the scheme failed to address including online intimidation, issues of funding, maintain police force balance, mental well-being of witnesses, and interests of vulnerable witnesses. Several recommendations are provided that can be adopted to make the scheme more witness centric.

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Acknowledgements

Our sincere thanks to Ms. Poulomi Bhadra, Assistant Professor, Jindal Institute of Behavioural Sciences for proofreading the manuscript.

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Adjunct Faculty & Doctoral Research Scholar at Jindal Institute of Behavioural Sciences, O.P. Jindal Global University, Sonipat, Haryana, India

Shankey Verma

Senior Research Fellow at Jindal Institute of Behavioural Sciences, O.P. Jindal Global University, Sonipat, Haryana, India

Akshaya Krishnakumar

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Verma, S., Krishnakumar, A. Towards a witness centric approach: analysis of witness protection scheme, 2018. Crime Law Soc Change 75 , 433–444 (2021). https://doi.org/10.1007/s10611-021-09942-5

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Accepted : 04 February 2021

Published : 13 February 2021

Issue Date : July 2021

DOI : https://doi.org/10.1007/s10611-021-09942-5

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WITNESS PROTECTION IN INDIA: THE JUDICIAL ENDEAVOUR.

A criminal case is built upon edifice of evidence including witnesses whether it is direct evidence or circumstantial evidence. Many developed countries across the globe provides for the witness protection laws but woefully in India, there is no such legislation framed with regard to this issue. It is due to lack of such legislation that the witnesses are under precarious situation. In numerous cases the judiciary played the constructive role to provide different means and methods to the protection of witnesses which lead to the significant amount of encouragement to establish Witness Protection Programs in India.

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According to Bentham, witnesses are the eyes and ears of justice. Witnessing turning hostile in high-profile cases is a common phenomenon during trial procedures in India. Conducting a fair trial is a cardinal principle of criminal procedure to ensure justice for both the accused and the victim. India is a country where the accusatorial system is being followed, and the prosecution itself claims it will be an independent umpire. In such a situation, independent witnesses play an important role in imparting a fair trial to the victim. The witness should be treated as a guest, but our system continually neglects and insults them without thinking twice. However, giving testimony before a court of law is a fundamental right under article 21 of the Indian constitution. The threat, criminal intimidation, and other external pressure compel the victim and witness to turn hostile, thereby making a mockery of justice. An independent and impartial witness himself was forced to consider his life being ruined because he witnessed a crime. The need for a comprehensive witness protection program has been emphasised in many law commissions report. There are certain provisions in special and general statutes which is favourable to witnesses though cant be considered as protection in the strict sense. There is no law to address the issues of witnesses holistically. However Witness protection bill of 2015 failed to secure a minimum vote to become an Act, and .in 2020, a victim and witness protection and assistance bill was introduced in the council of states till now, no Act was passed. Supreme Court in MahenderChawla v Union of India approved the Witness protection scheme 2018 to protect the witness. But the scheme suffers from lacunae. The paper mainly focuses on the evolution of witness protection jurisprudence in India. The article also examines the reasons witnesses turn hostile and its impact on criminal trials in India. Furthermore, the article critically analyses the effectiveness of the witness protection scheme, 2018, to curb the incidents of witnesses turning hostile and how it affected conviction rates in India. Finally, the paper also highlights the need for comprehensive legislation to protect the witness.

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The Indian Judicial system has been so hard to deal with the problem of witness protection but since there is an absence of such legislation witnesses is not getting that protection as and when needed. Present circumstances are such that it is not being able to provide protection to them. Presently, the vulnerability of the witnesses is very prominent. Provisions in the existing laws are inadequate to meet the need of time. Now-a-days reporting of unceremonious acquittals in sensational criminal cases is on the rise. Most of them are on account of defection of loyalty of witnesses. As there is every chance of manipulating the witnesses and putting them under coercion a strict law is required to be made for the protection of those witnesses. This article will analyse the steps taken by legislature and judiciary for the witness protection and there implementation in society as per law.

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In the criminal justice system, witnesses and their testimonies play a decisive role in reaching the conclusion of the case. Witnesses, being the most crucial participants in the procedure, are often threatened or induced by the parties involved in the case to change or retract their statements. Thus, cases do not reach a truthful and rational conclusion. The judicial machinery fails the victims in their quest for justice. The rights given to witnesses and victims are quite limited in comparison to the wide range of rights of the accused. Therefore, protecting the witnesses becomes indispensable for achieving the foremost objective of the criminal justice system. The authors propose a possible model for a witness protection programme in India, keeping in mind such programmes existing across the globe. https://heinonline.org/HOL/LandingPage?handle=hein.journals/nalsul12&div=9&id=&page=

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— The term " witness " refers to persons who give (testimonial) evidence, so they include experts and victims. Witness protection is a core mechanism in criminal justice proceedings that can help States to bring criminals to justice, especially in cases of organized crime and terrorism. Recently threats against witnesses and their families, torturing and abduction of victims to withdraw their cases from political party leaders, members of the security forces or other armed groups, as well as from influential individuals, have become shocking news as a result of being a witness. Hence these incidents have proven to be serious threats in championing fundamental rights of the citizens. Meanwhile one of the major obstacles that prevent cases especially human rights violations from being successfully prosecuted in courts in most countries in the Asian region due to the lack of an effective legal framework for the protection of witnesses has become an overwhelming tragedy. The reason behind is that not all countries have formal witness protection mechanism; instead, local police may implement informal protection as the need arises in specific cases. On this back drop this paper seeks to address this issue on human rights perspective and as well as on legal basis. Accordingly the UNTOC(Articles 24-25) and the UNCAC both contain provisions relating to the need to protect witnesses and other persons from potential retaliation or intimidation with respect to the giving of testimony. Also there are many other Conventions, such as those relating to human rights, that touch up the need to protect victims and witnesses such as European Convention on Human Rights (Article 6 of the Convention) Thus the primary objective of this paper is firstly to clarify why witness protection measures are important for the effective functioning of criminal justice systems of a country and how to lead it as a key tool in addressing serious and organized crime in an effective manner. Other objectives are to seek the main components of a legal frame to protect witness protection and provide some recommendations for the existing laws in order to enhance its productivity. The research methodology is based on the explorative research design. Researcher adopts the legal research methodology mainly a library based secondary data review. Therefore the research outcome will emphasize the fact that, since the absence of a witness protection mechanism has made victims and witnesses vulnerable to threats and intimidation and has also endangered the work of all those who speak out against abuses, effective and impartial witness protection mechanisms are an essential component of functioning rule of law systems in Asia and without which the protection of human rights is rendered impossible.

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The testimony of the witness is regarded as the primary evidence by the court when convicting someone under criminal law. Consequently, the accused makes the witness their major target in an effort to disrupt a fair trial, which makes the witness uninterested in supporting the allegation. However, Bangladesh does not currently have a law specifically addressing witness protection, while the need for such a law is growing, and the concerned parties and the court are urging the government to do so. This paper aims to show that the witness protection statute significantly influences the reduction of criminal case backlogs. To investigate the aforementioned argument, the writers have considered the witness protection law and the backlog in criminal cases. Besides, this research emphasizes the necessity for effective witness protection measures by drafting thorough criminal legislation in Bangladesh. The authors applied the quantitative approach using a systematic questionnaire to conduct a survey of 271 respondents, who were chosen by the researchers to comprehensively understand the necessity for witness protection laws and how they relate to the backlog of criminal cases to substantiate the paper's argument. Witness testimony is important evidence, yet the law of our country makes no separate anticipation of witness protection. Occasionally, witnesses are threatened, which makes them unwilling to testify honestly and obstructs the delivery of impartial justice. Besides, witnesses decide not to testify because they fear being marked out in the future. Consequently, every day that the case is unresolved adds to the backlog at the court. Only when separate laws were to be created for the witnesses would it benefit the witnesses and reduce backlogs.

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Solar Eclipse 2024 India: Total Solar Eclipse will be visible in the US, Canada, Mexico, and parts of North America, starting at 9.12 pm today and concluding at 2.22 am on April 9.

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