What is Witness Protection Scheme?

By Aashima Kakkar

Introduction

Whenever a person hears the phrase – Witness Protection Scheme, the first thought is always that this can never be done in India, must be a foreign thing, something in US or the UK but never India. What people do not realise is that this scheme is present in India as well, its just that it is not as extensively as in countries abroad.

Recently Witness protection Scheme was heard when the Hathras victim and her family were asked to put in the Witness Protection Scheme by the Supreme Court, to which the Uttar Pradesh Government had no answer.^[1]

But why is Witness Protection Scheme necessary? Because a witness is the most important part of the puzzle a criminal trial is. A witness’ testimony is the reason an accused can be put behind bars and the reason a witness’ testimony creates a reasonable doubt in the mind of the judge, which results in either making bail or disposal of the case.

Jeremy Bentham, a great English philosopher, and jurist, once said “witnesses are the eyes and ears of justice.”

The Supreme Court also in the case of Mahendra Chawla and Ors. v. Union of India and Ors.^[2] stated that witnesses are individuals who have been summoned by authorities involved in criminal proceedings to testify on matters critical to the outcome of the case based on information obtained through his senses, such as what he heard or saw.

The High Court of Delhi in the case of Ms. Neelam Katara v. Union of India^[3] defined witness in the following words: “Witness means a person whose statement has been recorded by the Investigating Officer under section 161 of the CrP.C, 1973 pertaining to a crime punishable with death or life imprisonment”

This is the reason why most of the witnesses are vulnerable to either intimidation or in extreme cases are silenced forever. This was the reason why the Supreme Court in 2018 ordered all states to implement a scheme for witness protection.

What was the reason for the court’s haste? Several witnesses were killed in the Vyapam scam. Three people were killed in the Asaram case, and several others were assaulted and threatened with dire consequences. It is no surprise that witnesses become hostile, and the perpetrators walk free.

Witness Protection all around the world

I. The United Kingdom

The risk to a witness in some very serious cases is so great that they may need to relocate to another part of the UK and even change their identity. Witness Protection is a set of safeguards for people who are involved in the criminal justice system and are at risk of serious personal harm as a result of their involvement.

Witness protection, as defined by the Serious Organized Crime and Police Act 2005, is generally reserved for people who have provided crucial evidence and are facing a serious threat. This definition does not preclude police forces and law enforcement agencies from providing witness and other individuals with protection.

Individual witnesses who are required to participate in Witness Protection face serious consequences, so it should be used sparingly. If a witness has been granted Witness Protection, the OIC will inform you.^[4]

II. The United States of America

The United States Marshals Service ensures the security, health, and safety of government witnesses and their immediate family members whose lives are threatened as a result of their testimony against drug traffickers, terrorists, members of organised crime, and other major criminals.

The Organized Crime Control Act, 1970 established the Witness Security Program, which was later amended by the Comprehensive Crime Control Act of 1984. Since its inception in 1971, the Witness Security Program has successfully protected over 19,000 participants, including innocent victim-witnesses, cooperating defendants, and their dependent family members, from intimidation and retaliation.

The program’s successful operation is widely regarded as a unique and valuable tool in the government’s fight against major criminal conspirators and organised crime. With authentic documentation, witnesses and their families are usually given new identities.

The witnesses are provided with housing, basic living expenses, and medical care. It is possible that job training and assistance will be provided.

All witnesses who are in a high-risk environment, such as pretrial conferences, trial testimonials, or other Court appearances, are protected by the US Marshals 24 hours a day, 7 days a week. While under the active protection of the US Marshals Service, no Witness Security Program participant has been harmed or killed while following programme guidelines.

The US Marshals fully cooperate with local law enforcement and court authorities in both criminal and civil cases involving protected witnesses in order to bring witnesses to justice or have them fulfil their legal obligations.^[5]

Witness Protection Scheme, 2018

One peculiar feature of most high-profile cases, such as the Jessica Laal Murder Case^[6] and the B.M.W. Hit and Run Case^[7], is that key witnesses have become hostile not only as a result of threats, coercion, lures, monetary considerations, but also as a result of fear of abduction and death.

One of the most common reasons for witnesses to become hostile is that they are not provided with adequate protection by the government.

Several committees and commissions in India have debated and discussed witness protection since 1958. The UPA government planned to enact legislation in 2007. The Centre and the states were unable to reach an agreement on the bill until 2017, resulting in a stalemate.^[8]

The Court-approved scheme from the Ministry of Home Affairs proposes keeping the witness’ identity hidden, holding in-camera hearings in specially designed Courts where the witness does not have to face the accused, and ensuring witness protection and relocation in extreme cases of threats to his life.

Under the scheme, any witness, his family member, or friend seeking protection will be heard by a competent district authority chaired by the district and sessions judge, with the head of the police as a member and the head of the prosecution as the member secretary.

Thus, the Witness Protection Scheme, 2018 was drafted by the National Legal Services Authority (NALSA) and implemented by the Supreme Court in the case of Mahendra Chawla v. Union of India^[9] to improve the condition of witnesses, improve their situation, and give effect to the recommendations of various Law Commission Reports and observations of the Supreme Court of India.

Need of the Scheme

Thus, this scheme is needed to help stop witnesses from turning hostile, especially in cases involving heinous crimes. Witnesses turn hostile because of threat to life or property, and they feel there is no statutory legal obligation on the State to extend any protection to them.^[10]

In State of Gujarat v. Anirudh Singh^[11], the Hon’ble Supreme Court of India also held that It is the salutary duty of every witness who has the knowledge of the commission of the crime, to assist the State in giving evidence.

The Malimath Committee on Criminal Justice Reforms, 2003, stated in its report that “By giving evidence relating to the commission of an offence, he performs a sacred duty of assisting the court to discover the truth”

While defining Fair Trial in Zahira Habibulla H. Shiekh and Others v. State of Gujarat^[12], The Supreme Court of India made the following observation: “If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial”.

The 14^th Report of the Law Commission of India, published in 1958, was the first time Witness Protection was mentioned in India. The Law Commission of India’s 154^th and 178^th reports contain additional information on the subject.

The subject is covered in the 198^th Report of the Law Commission of India titled “Witness Identity Protection and Witness Protection Programmes, 2006.”

“No country can afford to expose its morally correct citizens to the peril of being harassed by anti-social elements like rapists and murderers,” the Supreme Court stated in the Zahira case. The 4^th National Police Commission Report, published in 1980, stated that “prosecution witnesses are becoming hostile as a result of the accused’s pressure, and there is a need for regulation to prevent witness manipulation.”

The Indian judiciary in various cases^[13] has repeatedly emphasised the importance of witness protection. The Hon’ble Apex Court in National Human Rights Commission v. State of Gujarat and Ors.^[14] recognised the importance of witness protection and emphasised the role of the State14 in this regard.

The Hon’ble Court was pleased to permit the Special Investigation Team so constituted in the said case to, inter alia, decide, “which witnesses require protection and the kind of witness protection that is to be made available to such witness.” after reviewing the laws, policies, and precedents regarding witness protection in several parts of the world and the lack of any such mechanisms in India.

In Rajubhai Dhamirbhai Baria and Ors. v. The State of Gujarat and Ors.^[15], the Hon’ble High Court of Bombay emphasised the State’s role in developing a machinery to protect witnesses in sensitive cases by stating “As a protector of its citizens it has to ensure that during a trial in the court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed.”

Directions in the case of Manhendra Chawla (Supra) were specifically issued to the States in a proceeding before the Hon’ble Apex Court, indicating the steps taken/to be taken for witness protection. Simultaneously, the (then) learned Attorney General of India was asked to submit his recommendations in the form of a submitted scheme.

Following that, the Hon’ble Court, in a judgement dated December 5, 2018^[16], noted the critical importance of having a witness protection mechanism/scheme in India. However, in the absence of a statutory regime, the Hon’ble Court duly adopted and declared the Scheme to be law, in accordance with Article 141 of the Constitution, until a suitable law was enacted, thus the scheme.

The United Nations General Assembly adopted the ‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power’ in November 1985, which regarded victims of crime as important witnesses and set forth four objectives, the applicability of which must be ensured by member nations towards victims of crime:

• Fairness and access to justice
• Restitution
• Compensation
• Assistance^[17]

In 2006, the legislature enacted Section 195A of the Indian Penal Code, which makes criminal intimidation of witnesses a crime punishable by seven years in prison. Witness protection is also provided for in statutes such as:

• The Juvenile Justice (Care and Protection of Children) Act, 2015
• Whistle Blowers Protection Act, 2011
• Protection of Children from Sexual Offences Act (POCSO Act) 2012
• National Investigation Agency Act, 2008
• Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989.

However, no formal structured programme for addressing the issue of witness protection in a holistic manner has been introduced to date.

Extremism, terrorism, and organised crime have all grown stronger and more diverse in recent years. It is, therefore, critical that witnesses have faith in the criminal justice system during the investigation and prosecution of such crimes.

Witnesses must be confident in their ability to come forward and assist law enforcement and prosecuting agencies. This is the reason why they must be assured that they will be supported and protected from intimidation and harm that criminal groups may attempt to inflict on them in order to deter them from cooperating with law enforcement agencies and testifying in Court.

Salient features of the Scheme

I. Categories of witness as per the threat

According to threat perception, the scheme divides witnesses into three categories:

• Category A: Cases in which the life of a witness or family member is jeopardised during the investigation, trial, or even afterward.
• Category B: Cases in which the witness’s or family members’ safety, reputation, or property is jeopardised during the investigation or trial.
• Category C: Cases where the threat is moderate and includes harassment or intimidation of the witness or his family, reputation, or property during the investigation, trial, or afterward are classified.

Illustration:

‘A’ is a witness in a corruption case against a very influential politician. When ‘A’ was going to the market, he was stopped in his way and threatened by goons that his daughter will be kidnapped if he testifies against the politician. This a Category A threat and witness protection shall be provided immediately.

II. State Witness Protection Fund

The Scheme establishes a State Witness Protection Fund to cover the scheme’s costs. The Department/Ministry of Home under the State/ UT Government will manage this fund, which will include the following:

• Budgetary allocation made by the State Government in the Annual Budget.
• Receipt of the amount of costs imposed/ordered to be deposited in the Witness Protection Fund by the courts/tribunals.
• Funds contributed under Corporate Social Responsibility.
• Donations/ contributions from Philanthropists/ Charitable Institutions/ Organizations and individuals permitted by the government.^[18]

III. Threat Analysis Report

When a witness applies for protection under the Witness Protection Scheme, 2018, the Commissioner/ SSP is required to prepare a “Threat Analysis Report”^[19] of the witness.

• The Threat Analysis Report will categorise threats based on their perceived severity and make recommendations.
• The State/ Union territories Witness Protection Cell will put the Competent Authority’s Witness Protection Order into effect.
• It includes safeguards such as ensuring that the witness and the accused do not come face to face during the investigation, protecting one’s identity, changing one’s identity, relocating witnesses, informing witnesses of the scheme, confidentiality, and the preservation of records, as well as the recovery of expenses.

IV. Protection of Identity of Witness

The witness’s identity is protected under this scheme. If the witness wishes to protect his identity, he may file an application with a Competent Authority in the prescribed form as per the Scheme. The competent authority there is on the lookout for the Threat Analysis Report in order to determine the level of threat posed by the witness or his family members, as well as whether they meet the requirements for an identity protection order.

However, the identity of the witness should not be revealed to anyone during the examination of the application, and after the examination, the competent authority should dismiss the application based on the evidence on file.

Once the Competent Authority has issued an order of identity concealment, it is the responsibility of the Department/Ministry of Home of State/ Union Territories/ Witness Protection Cell^[20] to ensure that the witness’s or his family members’ identities are fully protected.^[21]

V. Change of identity of witness

In appropriate cases, the witness may request a change of identity, which will be granted by the Commissioner of Police or the Senior Superintendent of Police (SSP) in District Police based on threat perception parameters.

The witness can be given a new identity, including a new name, profession, and parentage, in exchange for submitting supporting documents that the government agencies accept.

However, such a change in identity has no bearing on the witness’s educational, professional, or property rights.^[22]

VI. Relocation of Witness

The witness has the option to be relocated to a different location within the limits of the State/Union Territory or the territory of the Union of India, in the same manner as described above, by following the procedural formalities and eligibility.^[23]

VII. Witness must be appraised of the Scheme

The State shall appraise the witness about the scheme and widely publicise the scheme. The duty of appraising the witness about the Scheme shall be with the Investigation Officer (IO) and the Court.^[24]

VIII. Types of Protection Measure under the Scheme

The magnitude of protective measures taken by the competent authority shall always be proportional to the threat faced by the witness for the given period of time, according to the provisions of the Witness Protection Scheme, 2018.

They may consist of, but are not limited to, the following:

• To ensure that the accused and the witness are not put up together during a trial or investigation.
• Contacting the telephone company to allot the witness an unlisted telephone number.
• Giving adequate security to the witness in form of body protection, regular patrol and by use of security devices such as CCTV, fencing, security doors in his home.
• Change in identity of the witness and suppressing the original identity.
• Changing the residence of the witness to somewhere else.
• Providing a conveyance in a Government vehicle to and from the court on the date of hearing.
• To ensure the presence of an additional person at the time of recording statements of the witness.
• Holding of in-camera trials.
• Using specially designed Courtrooms equipped with one way mirrors, separate passage for the accused and the witness along with options to modify the face or using voice change mechanisms through software, of the witness to suppress his identity.
• Giving timely financial aids for the subsistence of the witness from the Witness Protection Fund^[25].

Other miscellaneous measures may be taken at the witness’ request in addition to the above protective measures; in addition to the above protective measures, the witness may request any other measures through an application to the Competent Authority.

IX. Filing of Application before Competent Authority and Procedure for processing the application

• The applicant seeking protection under this scheme must file an application (application form attached in Annexure 1) with supporting documents with the competent authority having territorial jurisdiction through the Superintendent of Police or at the time of the trial.
• Following receipt of the application by the competent authority, the Commissioner will prepare a Threat Analysis Report, keeping full confidentiality of the information contained therein in mind, and forward the report to the competent authority within five working days
• In matters of urgency, an interim order for the protection of the witness and his family members will be issued.
• The Threat Analysis Report must include the threat level perception as well as some suggested measures for the witness and his family’s adequate protection.
• Hearings on Witness Protection Applications will be held in secret by the competent authority in order to maintain complete confidentiality.
• The overall implementation of the witness protection order will be made by the State/Union Territory’s Chief of Police.
• If the Competent Authority determines that the Witness Protection Order previously issued needs to be revised, the Competent Authority may refer the matter to the Commissioner of Police, who will draw up a new Threat Analysis Report.

Drawback of the Scheme

The scheme is supposed to provide witnesses a sense of security but when the witness has no clue about the existence of the scheme how is he supposed to feel a sense of security? The Government must publicize this scheme to the public only then the people will come forward and be a witness in the criminal justice system of the country.

Not just this, the resources available are not sufficient to provide any kind of support to the witness. And the functioning of this scheme is only limited to 3 months for a witness. What after that? What is the procedure to protect the witness? None.

Finally, the task of deciding the contents of the Threat Analysis Report and preparing it has been assigned to the district’s chief of police, so in high-profile cases involving politicians or influential people, the police officer may be pressured to provide that information to those people.

Conclusion

India has undoubtedly come a long way in terms of ensuring the safety and security of witnesses, who are an important part of the criminal justice system. However, the lack of a statutory mechanism with strict penal consequences may leave the entire mechanism, which was adopted through the judicial process, in limbo. “the edifice of administration of justice is based on witnesses coming forward and deposing without fear or favour, without intimidation or allurement in Courts of Law,”^[26] as the Indian Courts have frequently stated.

As a result, stating the existence of an effective and strict Witness Protection Scheme is insufficient. It is past time for the state to assume the role of parens patriae and enact comprehensive legislation in this regard. Only then will the stream of justice be able to flow freely and without hindrance.

The drawbacks need to be rectified to move forward with the world.

1. Hathras case “Horrible”, Says top Court asks UP Government about Witness Protection available at: ndtv.com↑
2. Mahendra Chawla and Ors. v. Union of India and Ors. 2018 SCC OnLine SC 2679 ↑
3. Ms. Neelam Katara v. Union of India ILR (2003) II Del 377 ↑
4. Witness Protection and Anonymity available at: cps.gov.uk/l. ↑
5. Witness Security Program available at: usmarshals ↑
6. Siddhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1; (2010) 2 SCC (cri) 1385 ↑
7. Sanjeev Nanda v. State (NCT of Delhi) (2012) 8 SCC 450 ↑
8. DNA Edit – For Justice: Witness Protection Overdue available at: dnaindia.com ↑
9. Supra ↑
10. Witness Protection Scheme 2018 available at: mha.gov.in ↑
11. State of Gujarat v. Anirudh Singh (1997) 6 SCC 514 ↑
12. Zahira Habibulla H. Shiekh and Others v. State of Gujarat 2004 (4) SCC 158 ↑
13. People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580 (situations demanding protection of witness identity); Sakshi v. Union of India, (2004) 5 SCC 518 (Witness who may also be a victim/ child witness/ etc.) ↑
14. National Human Rights Commission v. State of Gujarat and Ors. Manu/SC/0713/2009 ↑
15. Rajubhai Dhamirbhai Baria and Ors. v. The State of Gujarat and Ors. 2012 (114) BomLR 3549; Manu/MH/1415/2012 ↑
16. Mahendra Chawla and Ors. v. Union of India and Ors. 2018 SCC OnLine SC 2679 ↑
17. Witness Protection Scheme in India available at: blog.ipleaders.in/ ↑
18. Witness Protection Scheme available at: pib.gov.in/ ↑
19. Section 2(j) – Threat Analysis Report of the Witness Protection Scheme available at: mha.gov.in ↑
20. Section 2(n) – Witness Protection Cell of the Witness Protection Scheme states that this means a dedicated Cell of the State/ Union Territory Police or Central Police Agencies assigned with the duty to implement the witness protection order. ↑
21. Part III of the Witness Protection Scheme available at: mha.gov.in ↑
22. Part IV of the Witness Protection Scheme available at: mha.gov.in↑
23. Part V of the Witness Protection Scheme available at: mha.gov.in/ ↑
24. Part VI of the Witness Protection Scheme available at: mha.gov.in ↑
25. Section 7 of the Witness Protection Scheme available at: mha.gov.in ↑
26. Ms. Neelam Katara v. Union of India ILR (2003) II Del 377 ↑