Report No. 198

Part II

Witness Identity Protection v. Rights of Accused

Chapter V

Protection of Identity of Witnesses v. Rights of Accuse.- Principles of Law Developed by The Supreme Court and The High Courts

5.1 Introduction:

In the absence of a general statute covering witness identity protection and partial restriction of the rights of the accused, the Supreme Court has taken the lead. Some of the High Courts have also gone into this issue recently. We shall start our discussion with the law declared by Supreme Court in 1978.

5.2 The decision of the Supreme Court in Maneka Gandhi's case (AIR 1978 SC 597: 1978(1) 240 continues to have a profound impact on the administration of criminal justice in India. In terms of that case, the phrase "procedure established by law" in Article 21 of the Constitution no longer means "any procedure" whatsoever as interpreted in earlier judgments of the Court but now means a "just, fair and reasonable" procedure. In a criminal trial, a fair trial alone can be beneficial both to the accused as well as society in as much as the right to a fair trial in a criminal prosecution is enshrined in Article 21 of the Constitution of India.

The primary object of criminal procedure is to bring offenders to book and to ensure a fair trial to accused persons. Every criminal trial begins with the presumption of innocence in favour of the accused; and, in India, the provisions of the Code of Criminal Procedure, 1973 are so framed that a criminal trial should begin with and be throughout governed by this essential presumption.

A fair trial has two objectives in view, i.e. first, it must be fair to the accused and secondly, it must also be fair to the prosecution or the victims. Thus, it is of utmost importance that in a criminal trial, witnesses should be able to give evidence without any inducement, allurement or threat either from the prosecution or the defence.

These judgments of the Supreme Court have laid down various rules or guidelines for protection of witnesses but they cannot and are not complete and, in any event, cannot be as effective as the provisions of a special statute on the subject would otherwise be. We have already stated in Chapter I that in a vast number of countries, the problem is attempted to be solved by enacting legislation. But until appropriate legislation is made, judgments of Courts will certainly be helpful. Courts have also suggested that appropriate statutory provisions should be made to protect the rights of witnesses and victims on the one hand and the rights of the accused to a fair trial, on the other.

We shall now refer to the case law in India in this behalf.