PublicationsWitness Protection and the Indian Criminal Justice System

October 9, 20201
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Introduction

The need to critique the current system stems from certain inherently problematic issues, these being the duration of a criminal case lasting from about 10-15 years, several heinous crimes or sexual offenses going underreported, and the flattening of cases because of witness hostility or lack of witness to testify, acting as speed bumps when serving justice.[1] These problems are also signals denoting the failure in fulfilling the role of a welfare state and the current mechanism being ineffective. It is imperative to note the dependency of having a fair trial concerning witnesses, who if choose to or feel not incentivized enough, will not corporate or not provide crucial information to the investigating officers, having little to lose as opposed to a victim.  This can become a hindrance in serving justice and cause the above-mentioned problems.

While certain witnesses can be whistleblowers and testify falsely, several others could be threatened and would become vulnerable to risks, given the political/power pull of the accused. These sets of witnesses are then left to become the “eyes and ears of justice” at their own risk, increasing their hesitation to testify. Furthermore, the importance of a witness to a victim in such cases then becomes extremely crucial, urging for the enforcement of stringent measures to ensure their protection, the acknowledgement of their economic, mental, and social disparities, and lastly the need to ensure that they are neither intimidated by police officers recording statements or by the accused before trials taking place.

This paper primarily focuses on how geared the system is to protect witnesses while being sensitive to the idea of the system incorporating safety and compensatory measures applicable to both victims and witnesses. It shall do so, by first engaging in defining certain general limitations of the Act for both groups,  providing the sections applicable for the protection of these groups, the scope of protection provided under these sections for witnesses, the limitations, and lastly, the suggestions that can help liberate this process and help serve justice better.

The intersection between victim and witness protection

S.2(a) The Code of Criminal Procedure, 1973 CRPC  defines “victim” as a person who has suffered “any loss or injury” caused “because of the act or omission for which the accused person has been charged”,  with the expression “victim” being inclusive of his or her guardian or legal heir as well. While “witness” which is not defined under The Code of Criminal Procedure, 1973, is internationally understood as someone whose statements are taken to testify events for which an accused is tried in court. [2]

This idea is similar to S.161[3] (The Code of Criminal Procedure, 1973 ) which includes a person “supposed to be acquainted with the facts and circumstances of the case”. The common ground for both remains being exposed to the risk of having an influential accused person who can coerce or intimidate them, and the lack of clarity when conceptualizing their scope. Having not defined the scope of “injury” under “victim” leaves the act[4] ignorant of the multiple social, economic, mental, and emotional injuries that can arise[5] and require different measures to recover from. While for the witness, the scope seems unaware of their potential grievances besides the expenses incurred, these being intimidation by the accused, etc, leading to their lack of willingness to testify. These limitations than make the action[6] confined to providing monetary compensation, or ensuring a ‘fair trial’ takes place, while being ignorant of the practical threats or limitations that would hinder a victim/witness to seek relief or testify or question the validity of this fair trial[7].

For example, S.171[8] and  S.312[9] (The Code of Criminal Procedure, 1973) overlap for both groups, however, aside from protection from being wrongfully restrained by police officers and compensation for reasonable expenses, the issue of having mechanisms to ensure the safety of both vulnerable groups during and after the trial, maintenance of anonymity and a program to ensure their integration back to the society remains unacknowledged. [10]

Beyond the Acts, the introduction of guidelines for victim assistance, statutory victim compensation schemes[11], as well as the witness protection scheme 2018, are welcome changes, however, a trend of hostility seen in both victims and witnesses also exists because of instruments failing to implement these changes effectively. The next half of this paper shall deeply engage with identifying these limitations within the sections provided for witnesses, loopholes in proposed change, and proposing ideas to implement measures more effectively.

Sections introduced to aid both groups under CrPC along with critiques

This section shall provide a comparative analysis between status quo witness and victim protection existing in The Code of Criminal Procedure, 1973 ‘CrPC’, along with a commentary critiquing these provisions and mechanisms, to highlight the loopholes existing within the system.

  1. Witness:

Section 160: Police Officer’s Power to Require Attendance of Witnesses

Existing measures: No male under 15 or above 65, no female, and no mentally or physically disabled person shall step down to the police station, etc. Place of residence will be used. Reasonable expenses to be paid for travel for men between 15-65 shall be provided.

Loophole: However, sexual harassment against men between the 15-65 and indecent behavior in places of residence along with the social stigma of when being interrogated are still issued.

Section 161. Examination of witnesses by police.

Existing measures:  Exemption from self-incriminating questions applies to any person. Compelled testimony is inclusive of intimidation when asked by a police officer amounting to tiring interrogating prolixity, or tensed personal and social equation. Witness are entitled to keep their mouth shut as per Art.20 (3)[12]Audio-electronic means of recording. Lastly, statements of women taken by women officers[13]

Loophole: The emphasis being securing the evidence and not ensuring the witnesses’ identity is not disclosed to avoid threats from the accused or misbehaviour by police authorities.

Section 171: Complainants and witnesses not to be required to accompany police officers and not to be subject to restraint.

Existing measures: Failure to execute bonds or refusal to attend court hearings would mean custody under the magistrate.

Loopholes: The possibility of manipulation and lack of transparency during the entire process.

195A. Procedure for witnesses in case of threatening, etc.

Existing measures: While granting bail under S.438/437[14], grounds for being be granted bail, include accused ensuring to not tampering with the evidence or threaten the witness.[15]

Loopholes: Pre and post-trial intimidation to the accused, or intimidation of the witness’s family are threats that continue to exist for the witness.

Section 271: Power to issue a commission for examination of a witness in prison.

Existing measure: Maintain equal treatment when recording statements made by witnesses in jail as opposed to any other witness.

Loopholes: The possibility of manipulation and lack of transparency during the entire process.

Section 273: Evidence to be taken in presence of the accused.

Existing mechanism:  Women under the age of 18 would be examined such that they are not to be confronted by the accused. Framing charges would require the examination of the witness.[16]

Loophole: Lack of implementing the verdict as per the State of Maharashtra vs. Dr. Prafful B. Desai[17] which allowed for using video conferencing as a method of examining in court and without having the accused around, to avoid unpleasant confrontation.

Section 280: Remarks respecting the demeanour of the witness.

Existing measures: Recording remarks made during the examination

Loophole: Ignorant of that fact that remarks are being made to both victim and witness, this can have a harmful and traumatic impact. Also on account of the same being made during the examination as well.

Section 284: When attendance of witness may be dispensed with and the commission issued.

Existing measures: Exemption from attendance when it would amount to delay, increase expense, or cause inconvenience

Loophole: However the scope of “inconvenience” has not been defined leaving the possibility of this interpretation being hostile to the needs of the witness.

Section 309: Power to postpone or adjourn proceedings.

Existing measures: Ensuring flexibility when allowing witnesses to record statements in cases when either party is unavailable.

Section 312: Expenses of complainants and witnesses.

Existing measures: undertakes reasonable expenses of any complainant or witness attending for any inquiry, trial, or other proceedings before such Court under the Code.

Loophole: The scope of reasonable expenses has not been defined and is subject to judicial discretion.

2.  Victim

Few sections that are mutually inclusive for witnesses and victims include S.171 and   S.312 as mentioned above, from The Code of Criminal Procedure, 1973. Additional provisions include:

Section 357: Order to pay compensation.

The existing mechanism is inclusive and extensive to include a structural process, to financial aid, and to some extend rehabilitate these victims. These include Section 357 A: Victim compensation scheme. 357B. Compensation to be in addition to a fine under section 326A or section 376D of the Indian Penal Code. Section 357 C: Treatment of Victims.

Section 358: Compensation to persons groundlessly arrested

Existing measures: The Magistrate may award compensation, not exceeding one thousand rupees to make up for their loss of time and expenses

Loophole: however, even though a false arrest takes place, this person is at the risk of loss of livelihood, social stigma, and emotional trauma which cannot be encapsulated in 1000 rupees.

Section 359: Order to pay costs in non-cognizable cases.

Existing measure: Includes costs of pressing charges as prosecution, failure of which would allow the penalization.

Deliberation on the scope for Witness protection
  1. Sections along with the Witness Protection Scheme (WPS) 2018

As per, ‘William Slaney v State of Maharashtra’ 1956[18] the accused gets a fair opportunity to cross-examine the witness. This would risk exposing the identity of witnesses to the accused and can lead to intimidation. It can however be derived from the abovementioned sections that our criminal justice system supremely prioritizes a fair trial this also being a fundamental human right [19]. In doing so it excludes to account the possibility of misbehaviour on the account of the investigating officers, of authorities being under influence and manipulating or intimidating witnesses, along with the disturbance in the witnesses means of earning a livelihood, leaving loopholes behind.

Provided that if the witness is not anonymously hidden, the accused can plan careful measures to threaten witnesses and seek vengeance after being granted bail as well, making the abovementioned provisions practically redundant. Therefore transferring a case under S.406[20] (The Code of Criminal Procedure, 1973), to avoid influence on the witness or harm to the victim, cannot be the only remedy to decrease hostility[21]

The [22] Witness Protection Scheme 2018 attempts to bridge the gap mentioned, as it ensures that police escorts are provided, audio recorded testimonies are made to secure the anonymity of the witness, safe houses are provided, identity swaps take place. Lastly, a threat analysis report is also formulated to enforce the abovementioned protection based on threat perception and the establishment of the State Witness Protection Fund[23] which shall be allocated and operated by the State government.

The procedure to enrol for this scheme simply requires filling a form[24] before authorities and the ability to avail of such services will be confirmed based on the threat analysis report[25] prepared by the Additional Commissioner of the Police Station within 5 working days. Competent Authorities further pass interim protection orders until the report provides a detailed analysis while also ensuring a monthly review takes place. This scheme puts fair trial at an equal pedestal with the safety and security of the witness, especially when taking measures such as preservation of records or maintaining witness’s anonymity.

2.  Prominent drawbacks and loopholes

Despite the positive initiative, the loopholes that remain are extremely problematic. Firstly, the protection is limited to a duration of three months, lack of speedy court processes along with the possibility of setting supporters to intimidate the witness before further hearings, can therefore still take place, additionally, the accused could find means to seek vengeance after the trial as well.

Secondly, the Threat Analysis Report (TRA) is to be formulated by the police authorities who may discredit the severity of threat under political pressure or influence,  making the lack of an independent anonymous body taking charge of this analysis and other protocols, leaving this system at the risk of becoming corrupt. Although there exists a strict procedure to ensure the anonymity of the witness, neither under CrPC or the scheme, is there a penal provision that could be invoked upon the violation of the protocol.

Lastly, there is no measure to help restore the witnesses’ place in the society, given if they lose their means of earning a livelihood. Furthermore, there is a lack of acknowledgement of a loss of livelihood/job when being kept in a safe house, this then makes the provision ignorant of the witness’s burden to support his/her family along with the lack of monetary compensation for this loss. This scheme is also ignorant of being sensitized to a juvenile witness’s difficulties, such as his/her education or their isolation from parents, etc. drawbacks identified under the sections in the table, continue to remain despite the scheme and have to be addressed.

3.  Recommendations and international standpoint

The primary recommendation would be to covert the following bills into statutes:

The Witness Protection Bill 2015 invited for radical inclusion of penalties to be placed if there exists a default in maintaining the security and safety of the witness through the stage of the investigation to trial and beyond, while not simply being limited to examination. Furthermore, under S. 5(6)[26] it also envisaged a procedure wherein the witness could practice an alternate occupation or find means of earning a livelihood while being under protection or in the case of the juvenile witness ensure that they continue to receive their education through a different means.

Additionally, S.3 (5)[27] requires the constitution of a witness protection cell to enforce protection protocols, while S.4(1)[28] accounts for self-defence, granting the right to “maintaining the right to life”. While through S.9[29], asks for the incorporation of a National Council that shall centralize this protection, allocate funds and update policies and provisions to better this system.

The Witness (Protection of Identity) Bill, 2015 had specific protocols and provisions emphasizing the concealment of the witness with penalties for violation against the same. The incorporation of protection measures has adequately accounted for the loophole previously identified within The Code of Criminal Procedure 1973.  This can be recognized through a three-stage mechanism, that suggests for protection during the investigation (Part I), after the investigation (Part II), and during the trial (chapter III).[30]

S.4 along-with S.5[31] introduces this scope for any serious offense,  requiring for the investigating officer to map the risk analysis for a witness, thereby anonymizing their identity[32], this is inclusive of holding a preliminary ex parteinquiry in-camera. While S. 8[33] deliberates over the procedure to seek a protection order. However, the ultimate adjustment was made under S. 12[34] which accounts for distorting the voice, along-with the blanket ban[35] on print, media, and the public to either interact or publish their identity despite the witness procuring the protection order, in the event of the trial being deemed as a serious offence. These proactive measures can shape up to become positive initiatives to encourage witness testimony and account for reducing the trauma associated with this process.

Additionally, this limitation under the Indian criminal justice system can also be addressed when comparing to international criminal systems:

  • New Zealand’s Evidence Act 1908[36] ensures that under S.10-114 witnesses ’ anonymity is maintained at every stage from pre-trial to post trail while S.118 confirms the maintenance of anonymity under the police protection program. Such statutory measures ensure the implementation of the same, for they become pre-requisites of a fair trial, unlike India.
  • S.11 under UK’s Contempt of Court Act 1981[37] has made the revelation of the witnesses/victims identity an offense under contempt of court, prohibiting publication of either names or matters related to the proceedings. This concealment is also extended to the defense lawyer as well.[38]
  • European Court of Human Rights has recognized the need to protect the identity of the witness and ensure a witness protection scheme is implemented.[39]
  • The Northern Ireland Act 1998, ensures that investigations have camera sit-ins and a special counsel is appointed to represent these individuals. [40] Section 153 of the South African Code also ensures in-camera trials.
  • There exist predominant witness protection programs that ensure both identity and physical protection in the United States of America, Portugal, International Criminal Tribunal for Yugoslavia, France, Germany, and Italy as well[41] With the USA protecting the immediate family as well if the witnesses participation becomes a threat to the family’s safety as well.
Waves of reforms required beyond the statute

The below-mentioned ideas are not limited to solely provide witness protection but extend to victims as well.

  • Beyond statutory modification is the need to have a reform under the police regime such that independent anonymous bodies can take over the investigations which require extensive witness/victim protection, especially for cases that involve the accused being a political figure or having a high profile/influence. These autonomous investigating agencies should be set up on the lines of the Election Commission as per Justice V.P Khare, with the primary agenda being to carry fair trial along with ensuring better transparency in the system.
  • Secondly, the need for more active judicial participation to monitor every stage and trial such that evidence is properly collected and every stage’s proceedings ensure that principles of fair trial take place.[42]
  • Thirdly, the need for statutory modification and states active participation in recognizing the economic and mental vulnerability of a person who decides to be a witness, therefore creating a budget fund or compensation scheme similar but to limited to that of a victim, under S.357[43] CrPC, this would provide witnesses with a sense of security to further not be hostile to the system.
Conclusion

There is a long way ahead of us before our criminal justice system becomes more responsive to both victims and witnesses. The idea of vulnerability inherently stems from the inability to provide a group with security and protection, leaving them exposed to uninvited danger. Our current provisions are a reminder of this very vulnerability. The way forward would simply not be a reform to ensure that the anonymity of the witness and victim are maintained, but instead to have a sensitized system that ensures the rehabilitation of such vulnerable groups back into the society after the process as well.

To do so, it is important to do both, envisage schemes that understand the social stigma, practical threats, and economic disparities that arise from choosing to become a witness or a victim as well as have stringent mechanisms that enforce such envisagement. The abovementioned waves of reforms within existing systems can then become a measure to reduce both witness and victim hostility and lead to speedy trials that are based on principles of a fair trial.

REFERENCES-

[1]Witness Protection, https://cjp.org.in/witness-protection/ (last visited Jun 10, 2020)

[2]Vijay Kumar Singh, Emerging Need for Witness Protection Laws in India Analyzing the Success and Failures, SSRN Electronic Journal (2009)

[3]The Code of Criminal Procedure, 1973 S.161: Examination of witnesses by police..

[4] The Code of Criminal Procedure, 1973

[5]Directive 2012/29/EU of the European Union

[6]The Code of Criminal Procedure, 1973

[7] Zahira Habibulla H Sheikh And Anr vs State Of Gujarat 446-449 of 2004

[8] The Code of Criminal Procedure, 1973. S.171. Complainant and witnesses not to be required to accompany police officer and not to be subjected to restraint

[9]The Code of Criminal Procedure, 1973. S.312- Expenses of complaints and witnesses.

[10] Statistics quoting the hinderances faced by victims when trying to integrate back in society. MEASURES FOR CRIME VICTIMS IN THE INDIAN CRIMINAL JUSTICE …, https://www.unafei.or.jp/publications/pdf/RS_No81/No81_11VE_Chockalingam.pdf (last visited Jun 10, 2020)

[11] DUTIES OF FRONT LINE PROFESSIONALS TOWARDS SECURING JUSTICE FOR VICTIMS: A MANUAL. http://nludelhi.ac.in/download/publication/2017/Duty%20of%20Frontline%20Professionals%20Towards%20securing%20justice%20for%20victims.pdf

[12] Nandini Satpathy v P.L. Dani [(1978) 2 SCC 424]

[13] Especially for S.354 Indian Penal Code 1860 related statements. S.354 : Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with impris­onment of either description for a term which may extend to two years, or with fine, or with both.

[14] The Code Of Criminal Procedure, 1973. S. 437:When bail may be taken in case of non- bailable offence. S.438:Direction for grant of bail to person apprehending arrest.

[15] Gurbaksh Singh Sibbia v State of Punjab [1978 SC CriLJ 20] alongwith State v Jaspal Singh [(1984) 3 SCC 555] Gurcharan Singh v State [AIR 1978 SCC 179]  is inclusive of apprehension tampering with the witnesses as well.

[16] Kishun Singh v. State of Bihar [(1993) 2 SCC 16]

[17] Arising out of SLP (Crl.) No. 6815 of 2001

[18] [AIR 1956 SC 116]

[19]Rattiram v. State of M.P., (2012) 4 SCC 516

[20] The Code of Criminal Procedure, 1973 S. 406: Power of Supreme Court to transfer cases and appeals.

[21] Nahar Singh Yadav v Union of India [(2011) 1 SCC 307]

[22] Clause 9-13 of the Witness Protection Scheme, 2018.

[23] Clause 4 of the Witness Protection Scheme, 2018.

[24] Clause 5 of Witness Protection Scheme, 2018

[25] Clause 6 of Witness Protection Scheme, 2018

[26]THE WITNESS PROTECTION BILL, 2015. S.5(6) In case the protectee is a juvenile, it shall be the duty of the appropriate Government to ensure the continuity of his education until the completion of all levels of the present education programme: Provided that if protectee wishes to enroll in further education, the appropriate Government shall ensure the availability of the same through distance mode of education and in doing so the security of the individual shall not be compromised in any manner whatsoever.

[27]THE WITNESS PROTECTION BILL, 2015 S.3. (1) The witness may apply for witness protection at the court in which the proceedings are being heard at any stage of the proceeding or within the jurisdiction of the police station 30 that he falls under.

[28]THE WITNESS PROTECTION BILL, 2015. S.4. Instances and stages of protection.

[29] THE WITNESS PROTECTION BILL, 2015. S. 9 Functions of the National Council.

[30] THE WITNESSES (PROTECTION OF IDENTITY) BILL, 2015

[31]THE WITNESSES (PROTECTION OF IDENTITY) BILL, 2015 S.5 Provisions for safeguarding witness identity.

[32]The Witness (Protection of Identity) Bill, 2015 S.4 Instances and stages of protection.

[33]The Witness (Protection of Identity) Bill, 2015 S 8 Constitution of National Witness Protection Council.

[34]The Witness (Protection of Identity) Bill, 2015. S. 12 Constitution of State Witness Protection Council.

[35] The Witness (Protection of Identity) Bill, 2015 S.13 Functions of the State Council.

[36]Evidence Act 2006, http://www.legislation.govt.nz/act/public/2006/0069/latest/DLM393463.html (last visited Jun 10, 2020)

[37]Contempt of Court Act 1981 Legislation.gov.uk, http://www.legislation.gov.uk/ukpga/1981/49/section/11 (last visited Jun 10, 2020)

[38]Witness Protection, https://cjp.org.in/witness-protection/ (last visited Jun 10, 2020)

[39]Information Note on the Court’s case-lawhttps://www.echr.coe.int/Documents/CLIN_2012_12_158_ENG.pdf

[40]Northern Ireland Act 1998, http://www.legislation.gov.uk/ukpga/1998/47/contents (last visited Jun 10, 2020)

[41]Vijay Kumar Singh, Emerging Need for Witness Protection Laws in India Analyzing the Success and Failures, SSRN Electronic Journal (2009)

[42] Swaran Singh v. State of Punjab MANU/SC/0320/2000: (2000)5 SCC 668, para 37 [D.P. Wadhwa and Ruma Pal, JJ.]

[43] The Code of Criminal Procedure, 1973. S.357. Order to pay compensation.

CITE THIS WORK

Legal Maxim (October 26, 2020) Witness Protection and the Indian Criminal Justice System. Retrieved from https://www.legalmaxim.in/witness-protection-and-the-indian-criminal-justice-system/.
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Witness Protection and the Indian Criminal Justice System.” Legal Maxim – Accessed October 26, 2020. https://www.legalmaxim.in/witness-protection-and-the-indian-criminal-justice-system/
Witness Protection and the Indian Criminal Justice System.” Legal Maxim [Online]. Available: https://www.legalmaxim.in/witness-protection-and-the-indian-criminal-justice-system/. [Accessed: October 26, 2020]
AUTHOR DETAILS
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Name: Devanshi Gupta

Affiliation: Jindal Global Law School, Sonipat

Designation/ Academic Year: 3rd Year Law Candidate

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Nitin Dongarwar
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Hearty Congratulations Devanshi

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