Report No. 198

Chapter III

Certain Aspects of Victim and Witness Identity Protection Under Special Statutes in India

For the first time in 1985, the legislature thought it fit to introduce the principle of 'witness identity' protection in certain special statutes, and this started with the statutes to prevent terrorist activities. We shall now refer to them.

Certain Special Statutes: Protection of Witness Identity:

(i) Terrorists and Disruptive Activities Act, 1985: (TADA) (since repealed) introduces witness anonymity for the first time.

In the year 1985, Parliament enacted the TADA to deal with terrorist activities and it rightly felt that unless sufficient protection is granted to victims and witnesses, it is not possible to curb the menace. Section 13 of that Act provides a procedure to protect witness identity. It read as follows:

"Section 13(1): Notwithstanding anything contained in the Code, all proceedings before a Designated Court shall be conducted in camera:

Provided that where public prosecutor so applies, any proceedings or part thereof may be held in open court.

(2) A Designated Court may, on an application made by a witness in any proceeding before it or by the public prosecutor in relation to a witness or on its own motion, take such measures as it deems fit for keeping the identity and address of the witness secret.

(3) In particular and without prejudice to the generality of provisions of sub section (2), the measures which a Designated Court may take under that subsection may includ.-

(a) the holding of the proceedings at a protected place;

(b) the avoiding of the mention of the names and address of witnesses in its order or judgments or in any records of case accessible to public;

(c) the issuing of any directions for security that the identity and address of the witnesses are not disclosed.

(4) Any person who contravenes any direction issued under subsection (3) shall be punishable with imprisonment for a term which may extend to one year and with fine which may extend to one thousand rupees."

(emphasis supplied)

(ii) The Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA 1987) continues witness anonymity subject to conditions:

The 1985 Act was replaced by the 1987 Act with some changes. We do not propose to extract the section, namely section 16, but shall refer only to the changes introduced.

The provisions of section 16 of this Act of 1987 were similar to those in section 13 of the TADA, 1985 with a few changes. Under section 16 of the new Act, it is not mandatory in all cases of trials in relation to terrorist acivities to conduct the proceedings before the Designated Court in camera. The Court is given discretion to do so wherever the circumstances so desired. Again section 16(3)(d) empowered the Court to take measures in public interest so as to direct that information in regard to all or any of the proceedings pending before the Court shall not be published in any manner.

The validity of section 16 was challenged but was upheld in Kartar Singh v. State of Punjab: 1994(3) SCC 569.

(iii) Prevention of Terrorism Act, 2002: (POTA), 2002 Continues witness anonymity with conditions: (since repealed w.e.f. 21.9.2004)

The TADA, 1987 was repealed by POTA, 2002. In the POTA, section 30 deals with the subject of in camera proceedings and witness identity protection. There are some further changes made in this Act in respect of the powers of the Court. Section 30 reads as follows:

"Section 30: (1) Notwithstanding anything contained in the Code, the proceedings under this Act may, for reasons to be recorded in writing, be held in camera if the special Court so desires.

(2) A Special Court, if on an application made by a witness in any proceeding before it or by the Public Prosecutor in relation to such witness or on its own motion, is satisfied that the life of such witness is in danger, it may, for reasons to be recorded in writing, take such measures as it deems fit for keeping the identity and address of such witness secret.

(3) In particular, and without prejudice to the generality of the provisions of subsection (2), the measures which a Special Court may take under that subsection may includ.-

(a) the holding of the proceedings at a place to be decided by the Special Court;

(b) the avoiding of the mention of the names and addresses of the witnesses in its orders or judgments or in any records of the case accessible to public;

(c) the issuing of any directions for securing that the identity and address of the witnesses is not disclosed;

(d) a decision that it is in public interest to order that all or any of the proceedings pending before such a Court shall not be published in any manner.

(4) Any person who contravenes any decision or direction issued under sub section (3) shall be punishable with imprisonment for a term which may extend to one year and with fine which may extend to one thousand rupees."

The changes brought into POTA, 2002 as contained in the sub section (1) and (2) are

(i) that the Court has to record reasons for holding the proceedings in camera and also for coming to the conclusion that the 'life of such witness is in danger'.

(ii) an additional clause (d) was added in subsection (3) that publication of Court proceedings may be prohibited in 'public interest' too.

The validity of the provisions of section 30 has been upheld in PUCL v. Union of India: 2003(10) SCALE 967.

We have discussed Kartar Singh's case and PUCL case in detail in paras 5.9 and 5.16 of the Consultation Paper respectively.

The POTA has been repealed by he Prevention of Terrorism (Repeal) Act, 2004, w.e.f. 21.9.2004.

(iv) The Unlawful Activities (Prevention) Amendment Act, 2004 amended (w.e.f. 21.9.2004)

Since the publication of our Consultation Paper in August 2004, the repeal of POTA took place and amendment to the Unlawful Activities (Prevention) Act, 1967, has been made w.e.f. 21.9.2004.

The Act applies to 'unlawful activities' and also to 'terrorist acts'. Section 2(f) of the Act defines 'unlawful activities' as follows:

"2(f):'Unlawful activities', in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise.-

(i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession;

(ii) which disclaims 'questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India';

(iii) which causes or is intended to cause disaffection against India."

Section 2(k) defines 'terrorist act' and says that it has the meaning assigned to it in section 15. Section 15 defines 'terrorist act' and is a verbatim reproduction of the definition contained in section 3 of the POTA, with the addition of words 'or foreign country' in three places.

Section 44 (1) to (4) of the above Act bears the heading 'Protection of Witness' and is in identical language as section 30(1) to (4) of the POTA, 2002. We do not, therefore, propose to repeat them. Obviously, for the reasons stated in the Judgment of the Supreme Court in PUCL, these provisions of section 44 must be treated as valid.

(v) Juvenile Justice (Care and Protection of Children) Act, 200.- Protection of identity of Juvenile

The Juvenile Justice (Care and Protection of Children) Act, 2000 provides for 'prohibition of publication of name, etc. of Juvenile involved in any proceeding under the Act' in section 21 which reads as follows:

"Section 21: (1) No report in any newspaper, magazine, news-sheet or visual made of any inquiry regarding a juvenile in conflict with law under this Act shall disclose the name, address or school or any other particulars calculated to lead to the identification of the Juvenile nor shall any picture of any juvenile be published:

Provided that for reasons to be recorded in writing, the authority holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the interest of the juvenile."

(vi) Sexual Offences and Victim 'Screening':

The 172 nd Report of the Law Commission (2002) accepts 'screening' procedure:

We have referred to this Report of the Law Commission in detail in para 4.5 of the Consultation Paper.

The subject of review of rape laws (172 nd Report, 2000) was undertaken by the Law Commission in pursuance of a reference by the Supreme Court in Sakshi v. Union of India. During the course of the study, it was urged before the Law Commission by NGO Sakshi that videotaped interviews and closed-circuit television be permitted to be used while recording evidence of victims of sexual offences, especially children and minors. It was urged that the procedure for trial of such cases must include:

(i) permitting use of a video-taped interview of the child's statement, in support of the child's version;

(ii) allowing a child to testify via close-circuit television or from behind a screen to obtain a full and candid account of the acts complained of;

(iii) the cross examination of the minor being carried out by the Judge be based on written questions submitted by the defence upon perusal of testimony of the minor;

(iv) that whenever a child is required to give testimony, sufficient break to be given as and when required by the child.

The Law Commission considered these suggestions but did not accept the same. It referred to section 273 of the Code of Criminal Procedure which states "except as otherwise expressly provided, all evidence taken in the course of a trial or other proceeding, shall be taken in the presence of the accused or when his personal attendance is dispensed with, in the presence of his pleader' and the Commission agreed for a screen to be put in between the victim and the accused. It suggested insertion of a proviso to section 273 as follows:

"provided that where the evidence of a person below sixteen years who is alleged to have been subjected to sexual assault or any other sexual offence, is to be recorded, the Court may, take appropriate measures to ensure that such person is not confronted by the accused while at the same time ensuring the right of cross examination of the accused."

(viii) Victims and Witness screening: Sakshi v. Union of India: 2004(6) SCALE 15:

After the 172nd Report was presented to the Supreme Court, it passed judgment in Sakshi v. Union of India: 2004(6) SCALE. 15.

The Supreme Court in Sakshi v. Union of India: 2004(6) SCALE 15 (26.5.2004) accepted 'video conferencing' and 'written questions' in sexual and other trials in the absence of a statute.

The Court accepted three of the suggestions made by SAKSHI before the Law Commission, namely,

(i) video-conferencing procedure, and

(ii) putting written questions to the witnesses.

(iii) sufficient break to be given while recording evidence

These were in addition to the 'screening' method suggested by the Law Commission in its Report.

By the date the Supreme Court decided SAKSHI, on 26.5.2004, the Court had in another case, the State of Maharashtra v. Dr. Praful B. Desai: 2003(4) SCC 60) (which concerned allegations as to medical negligence), permitted the evidence of a foreign medical expert to be received by videoconferencing. In that case, the Supreme Court followed Maryland v. Craig: (1990) 497 US 836 decided by the US Supreme Court.

In Sakshi, the Supreme Court, while following Praful B. Desai case, accepted that such evidence by video conference must be treated to be in compliance with requirements of section 273 which states that all evidence in the course of the trial or other proceedings shall be taken "in the presence of the accused" and it does not mean that the accused should have full view of the witness. The Supreme Court observed in Sakshi (p 34):

"Section 273 CrPC merely requires the evidence to be taken in the presence of the accused. The section, however, does not say that the evidence should have been recorded in such a manner that the accused should have full view of the victim or witnesses. Recording of evidence by way of video conferencing vis-à-vis section 273 has been held to be permissible in a recent decision of this Court in State of Maharashtra v. Dr. Praful B. Desai 2003(4) SCC 601."

The Supreme Court, after stating why the victims and witnesses should be allowed to give evidence in an uninhibited manner or by means of a screen interposed, gave the following among other directions (p 35):

"In holding trial of child sex abuse or rape:

(i) a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused.;

(ii) the question put in cross-examination on behalf of the accused, in so far as they relate directly to the incident, should be given in writing to the presiding officer of the Court who may put them to the victim or witnesses in a language which is clear and is not embarrassing;

(iii) the victims of child abuse or rape, while giving testimony in Court, should be allowed sufficient breaks as and when required."

It will be seen from the above directions of the Supreme Court in Sakshi that video-conferencing and putting written questions, were accepted in addition to screening suggested by the Law Commission. It held that these procedures do not offend the provisions of section 273 which requires a trial in the presence of the accused.