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Between August 2003 and April 2004, neither Gujarat nor Maharashtra had
framed any witness protection scheme. The Supreme Court itself did not spell out any guidelines for witness protection in either of these
two cases. The erstwhile trial in Gujarat was an 'over-hasty stage-managed, tailored and partisan trial.' The worst culprit was the State
of Gujarat itself and all its agencies. The censure and the reprimand, were all directed against the State and its modern day Neros.
"When fences start to swallow the crops, no scope will be left for survival of law and order or truth and justice. Public order as well
as public interest become martyrs and monuments." It is unfortunate that the State of Gujarat itself was entrusted with the
responsibility of protection to the witnesses, as the case stood transferred to Maharashtra. The witnesses now are in the same
predicament as before, in the re-trial that is going on in Mumbai.
It is said that, in India, in most of the cases involving rich influential persons or corrupt politicians, crucial witnesses turn
hostile, making the rule of law, a mockery. Very often witnesses become untraceable. Sometimes they are just eliminated.
Recommendations by Commissions
The Law Commission in its 14th Report (1958) referred to 'witness-protection', but that was in a limited sense. That related to proper
arrangements being provided in the Courthouse, the scales of travelling allowance, their daily allowance etc. The National Police
Commission Report (1980) again dealt with the inadequacy of daily allowance for the witnesses, but nothing more. The 154th Report of the
Law Commission 1996 contains a chapter on Protection and facilities to Witnesses. The recommendations mostly related to allowances
and facilities to be made available for the witnesses. However, one of the recommendations was: "Witnesses should be protected from the wrath
of the accused in any eventuality", but, again, the Commission did not suggest any measures for the physical protection of witnesses. The
178th Report of Law Commission, again, referred to the fact of witness turning hostile, and the recommendations were only to prevent
witnesses from turning hostile. The Report suggested an amendment to insert S.164 A to the Code of Criminal Procedure, as under:
164 A (1) Any police officer making an investigation into any offence punishable with imprisonment for a period of ten years or more
(with or without fine) including an offence which is punishable with death, shall in the course of such investigation, forward all
persons whose evidence is essential for the just decision of the case, to the nearest Magistrate for recording their statement.
(2) The Magistrate shall record the statements of such persons forwarded to him under sub-section (1) on oath and shall keep such
statements with him awaiting further police report under Section 173.
(3) Copies of such statements shall be furnished to the investigating officer.
(4) If the Magistrate recording the statement is not empowered to take cognizance of such offence, he shall send the statements so
recorded to the magistrate empowered to take cognizance of the case.
(5) The statement of any person duly recorded as a witness under sub-section (1) may, if such witness is produced and examined, in the
discretion of the court and subject to the provisions of the Indian Evidence Act, 1872, be treated as evidence.
No Government has accepted this. The latest is Malimath Committee Report which contains a casual statement that a law should be enacted
for giving protection to witnesses and their family members, without specifying any provision or scheme whatsoever.
It is ironic that draconian laws like Terrorist and Disruptive Activities (Prevention) Act, 1987, and Prevention of Terrorism Act, 2002,
provided for protection of witnesses. The prosecution as also the Court could direct that the identity and the address of the witness be
kept secret. The Court could even avoid the mention of the names and addresses in its order or judgement. It is generally perceived that
these provisions were incorporated not with any concern for the witnesses, but to prevent the accused from preparing an effective defence
and to deny fair trial.
In India, in most of the cases involving rich influential persons or corrupt politicians, crucial witnesses turn hostile, making the rule
of law, a mockery.
International Laws
Under the English law, threatening a witness from giving evidence, is contempt of Court. So also any act of threat or revenge against a
witness after he has given evidence in Court, is also considered as contempt. Recently the U.K. Government has a law known as Criminal
Justice and Public Order Act, 1994 which provides for punishment for intimidation of witnesses. S.51 of the Act not only protects a
person who is actually going to give evidence at a trial, but also protects a person who is helping with or could help with the
investigation of a crime. Under a similar law in Hongkong, Crimes Ord (Cap 200) HK, if the threat or intimidation is directed even as
against a friend or relative of the witness, that becomes a punishable offence.
In the United States, the Organised Crime Control Act, 1970 and later the Comprehensive Crime Control Act, 1984 authorised the Witness
Security Program. The Witness Security Reform Act, 1984 provides for relocation and other protection of a witness or a potential witness
in an official proceeding concerning an organised criminal activity or other serious offence. Protection may also be provided to the
immediate family of, or a person closely associated with, such witness or potential witness if the family or person may also be
endangered on account of the participation of the witness in the judicial proceeding.
The Attorney General takes the final decision whether a person is qualified for protection from bodily injury and otherwise to assure the
health, safety and welfare of that person. In a large number of cases, witnesses have been protected, relocated and sometimes even given
new identities. The Program assists in providing housing, medical care, job training and assistance in obtaining employment and
subsistence funding until the witness becomes self-sufficient. The Attorney General shall not provide protection to any person if the
risk of danger to the public, including the potential harm to innocent victims, overweighs the need for that person's testimony. A
similar program is in Canada under Witness Protection Act, 1996. The purpose of the Act is "to promote law enforcement by facilitating
the protection of persons who are involved directly or indirectly in providing assistance in law enforcement matters" [Section 3].
Protection given to a witness may include relocation, accommodation and change of identity as well as counselling and financial support
to ensure the security of the protectee or to facilitate his becoming self-sufficient. Admission to the Program is determined by the
Commissioner of Police on a recommendation by a law enforcement agency or an international criminal court or tribunal [Sections 5 and 6].
The extent of protection depends on the nature of the risk to the security of the witness, the value of the evidence and the importance
in the matter.
The Australian Witness Protection Act, 1994 establishes the National Witness Protection Program in which (amongst others) the
Commissioner of the Australian Federal Police arranges or provides protection and other assistance for witnesses [Section 4]. The witness
must disclose a wealth of information about himself before he is included in the Program. This includes his outstanding legal
obligations, details of his criminal history, details of his financial liabilities and assets etc. [Section 7]. The Commissioner has the
sole responsibility of deciding whether to include a witness in the Program.
The Witness Protection Act, 1998 of South Africa provides for the establishment of an office called the Office for Witness Protection
within the Department of Justice. The Director of this office is responsible for the protection of witnesses and related persons and
exercises control over Witness Protection Officers and Security Officers [Section 4]. Any witness who has reason to believe that his
safety is threatened by any person or group or class of persons may report such belief to the Investigating Officer in a proceeding or
any person in-charge of a police station or the Public Prosecutor etc. [Section 7] and apply for being placed under protection. The
application is then considered by a Witness Protection Officer who prepares a report, which is then submitted to The Director [Section
9]. The Director, having due regard to the report and the recommendation of the Witness Protection Officer, takes into account the
following factors, inter alia, [Section 10] for deciding whether a person should be placed under protection or not:
In European countries such as Italy, Germany and Netherlands, the Witness Protection Programme covers organised crimes, terrorism, and
other violent crimes where the accused already know the witness/victim.
It is ironic that draconian laws like Terrorist and Disruptive Activities (Prevention) Act, 1987, and Prevention of Terrorism Act, 2002,
provided for protection of witnesses.
International Criminal Court
The need for setting up separate victim and witness protection units in the trial of mass crimes has been acknowledged in the setting up
of international tribunals to deal with them. The International Criminal Tribunal for Rwanda has formulated rules for protection of
victims and witnesses. Similar provisions exist in the Statute for the creation of an International Criminal Court (ICC).
In most of the cases, witnesses are the victims of the crime. And the most vulnerable amongst them are women and children. Under the
existing system they are mere pawns in a criminal trial and there is very little concern for protecting their real interests. The
protection is necessary so that there is no miscarriage of justice; but protection is also necessary to restore in them, a sense of human
dignity which stands shattered in a situation like Gujarat carnage.
The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power was adopted by the United Nations General Assembly
in resolution 40/34 of 29 November 1985. According to the first paragraph of this declaration, victims of crime are described as
persons
who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or
substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative in Member
States, including those laws proscribing criminal abuse of power. It is they who need protection.
Urgent Need for a Law
As it is, as we have seen in Best Bakery case, the person who is most likely to suffer is Zahira, herself. She had seen the crime; she
had seen the criminals, but when time came for her to be bold enough to depose before the Court, she found that she was in an atmosphere
which was wholly hostile to her - the prosecutor, the defence lawyer, the accused, the supporters of the accused - perhaps the judge whom
she was not sure of. The trial became a mockery. Later on, when she was resurrected by the efforts of well-meaning N.G.Os, and the
Supreme Court transferred the case to Mumbai, apparently there was a feeling that justice will be done to the victims. Unfortunately, she
is again caught in the same quandary. So, again she becomes a hostile witness, liable for perjury and also liable for contempt of court.
Is there any legally just and fair solution for this conundrum of these events?
Protection is also necessary to restore a sense of human dignity which stands shattered in a situation like Gujarat carnage.
H Suresh
H Suresh is a retired judge of the Mumbai High Court.
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Vol #4, Issue #1, Combat Law
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New law needed for witness protection
There is an urgent need to bring forth a bill of right to preserve and protect victims' and witnesses' rights,
and due process. This is necessary to ensure that such persons participate in the legal process without fear, so that
justice can be assured, says
H Suresh.
Combat Law, Vol. 4, Issue 1 -
On 8th August 2003, in the case of National Human Rights Commission v. State of Gujarat, the Supreme Court regretted that "no law has yet
been enacted, not even a scheme has been framed by the Union of India or by the State Government for giving protection to the witnesses."
Later on in the case of Zahira v. State of Gujarat, while transferring what is known as the Best Bakery Case, to Mumbai by its Order
dated 12th April, 2004, directed: "The State of Gujarat shall also ensure that the witnesses are produced before the concerned court,
whenever they are required to attend them, so that they can depose freely without any apprehension of threat or coercion from any person.
In case any witness asks for protection, the State of Maharashtra shall also provide such protection as deemed necessary, in addition to
the protection to be provided for by the State of Gujarat."
Under S.151 and 152 of Indian Evidence Act, 1872, victims and witnesses are protected from being asked indecent, scandalous, offensive
questions, and questions intended to annoy or insult them. Otherwise, there is no other provision for protection of witnesses, as against
threats, intimidation or any inducement whereby they are prevented from telling the truth. Very often, when an accused is released on
bail, one of the terms and conditions imposed by the Court on the accused, is that he shall not tamper the evidence, or approach the
witnesses. This, again, is not as a provision for protection of the witnesses, but only to ensure the trial is not rendered infructuous.
Judges also hold in-camera trials to ensure deposition by witnesses without any fear or embarrassment. Recently the Supreme Court has
permitted recording of evidence by video-conferencing. All these are inadequate without a specific legal provision guaranteeing
protective measures to victims before the trial and also after the trial.
A comprehensive witness protection programme is in the Philippines. The law, the Witness Protection Security and Benefit Act, aims to
protect witnesses and grant them certain rights and benefits to ensure their appearance in investigative bodies/court. Protection is
given to witnesses in cases involving grave offences. Sometimes protection could be given to a person who has participated in the
commission of a crime but desires to be a witness for the State (such as approvers).
Before a person is provided protection under this Act, he/she shall first execute a Memorandum of Agreement with the Secretary of
Department of Justice, which shall set forth the witness' duties and responsibilities such as, but not limited to, the following:
Once a person/witness has been accepted under the witness protection program, he/she shall have the following rights and benefits:
Therefore, there is an urgent need to bring forth a bill of right to preserve and protect victims'/witnesses' rights, justice and due
process. Such a bill should include the following:
To be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal
justice process.
Combat Law, Volume 4, Issue 1
April-May 2005
(published May 2005 in India Together)
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Volume 4, Issue #1, Combat Law
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