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Report No. 198

5.16 PUCL case: Witness protection under section30 of the POTA (2003)

In PUCL v. Union of India: 2003 (10) SCALE 967, where the validity of several provisions of the Prevention of Terrorism Act, 2002 (POTA), came up for consideration, the Supreme Court considered the validity of section 30 of the Act which deals with 'protection of witnesses'. The provisions of section 30 are similar to those in section 16 of the TADA, 1987, which were upheld in Kartar Singh's case already referred to above. In PUCL, the Court referred to Gurubachan Singh v. State of Bombay 1952 SCR 737, and other cases, and observed that one cannot shy away from the reality that several witnesses do not come to depose before the Court in serious cases due to fear of their life.

Under section 30 a fair balance between the rights and interests of witnesses, the rights of the accused and larger public interest has, it was held, been maintained. It was held that section 30 was also aimed to assist the State in the administration of justice and to encourage others to do the same under given circumstances. Anonymity of witnesses is to be provided only in exceptional circumstances when the Special Court is satisfied that the life of witnesses is in jeopardy.

The Court in PUCL has pointed out that the need for existence and exercise of power to grant protection to a witness and preserve his or her identity in a criminal trial has been universally recognized. A provision of this nature should not be looked at merely from the angle of protection of the witness whose life may be in danger if his or her identity is disclosed but also in the interests of the community to ensure that heinous offences like terrorist acts are effectively prosecuted and persons found guilty are punished and to prevent reprisals.

Under compelling circumstances, the disclosure of identity of the witnesses can be dispensed with by evolving a mechanism which complies with natural justice and this ensures a fair trial. The reasons for keeping the identity and address of a witness secret are required to be recorded in writing and such reasons should be weighty. A mechanism can be evolved whereby the Special Court is obliged to satisfy itself about the truthfulness and reliability of the statement or deposition of the witness whose identity is sought to be protected.

On the subject of protection of identity of witnesses, section 30 of the Prevention of Terrorism Act, 2002 is similar to section 16 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. It is necessary to advert to the contentions raised in the case. While challenging the constitutional validity of section 30 of the Prevention of Terrorism Act, 2002 in People's Union of Civil Liberties v. Union of India (2003) 10 SCALE 967, the petitioner (PUCL) argued as follows:

"that the right to cross-examine is an important part of fair trial and principles of natural justice which is guaranteed under article 21; that even during Emergency, fundamental rights under articles 20 and 21 cannot be taken away; that section 30 is in violation of the dictum in Kartar Singh's case because it does not contain the provision of disclosures of names and identities of the witnesses before commencement of trial; that fair trial includes the right for the defence to ascertain the true identity of an accused; that therefore the same has to be declared unconstitutional."

Responding on behalf of Union of India, the learned AttorneyGeneral for India submitted as follows:

"Such provisions (section 30) or exercise of such powers are enacted to protect the life and liberty of a person who is able and willing to give evidence in prosecution of grave criminal offences; that the section is not only in the interest of witness whose life is in danger but also in the interests of community which lies in ensuring that heinous offences like terrorist acts are effectively prosecuted and punished; that if the witnesses are not given immunity they would not come forward to give evidence and there would be no effective prosecution of terrorist offences and the entire object of the Act would be frustrated;
that cross-examination is not a universal or indispensable requirement of natural justice and fair trial; that under compelling circumstances, it can be dispensed with, and natural justice and fair trial can be evolved; that the section requires the court to be satisfied that the life of witness is in danger and the reasons for keeping the identity of witness secret are required to be recorded in writing; that therefore, it is reasonable to hold that section is necessary for the operation of the Act."

In PUCL, the Supreme Court speaking through Justice Rajendra Babu observed (in para 57) as follows:

"In order to decide the constitutional validity of section 30, we do not think, it is necessary to go into the larger debate, which learned counsel for both sides have argued, that whether right to crossexamine is central to fair trial or not. Because right to crossexamination per se is not taken away by section 30. The section only confers discretion to the concerned court to keep the identity of witness secret if the life of such witness is in danger.

In our view, a fair balance between the rights and interests of witness, rights of accused and larger public interest has been maintained under section 30. It is also aimed to assist the State in justice administration and encourage others to do the same under the given circumstance. Anonymity of witness is not the general rule under section 30. Identity will be withheld only in exceptional circumstances when the special court is satisfied that the life of witness is in jeopardy."

The Court further observed (in para 59) as follows:

"The present position is that section 30 (2) requires the Court to be satisfied that the life of a witness is in danger to invoke a provision of this nature. Furthermore, reasons for keeping the identity and address of a witness secret are required to be recorded in writing and such reasons should be weighty. In order to safeguard the right of an accused to a fair trial and basic requirements of the due process, a mechanism can be evolved whereby the Special Court is obligated to satisfy itself about the truthfulness and reliability of the statement or deposition of the witness whose identity is sought to be protected."

Finally, the Court while upholding the validity of section 30, observed (in para 62) as follows:

"It is not feasible for us to suggest the procedure that has to be adopted by the special Courts for keeping the identity of witness secret. It shall be appropriate for the concerned courts to take into account all the factual circumstances of individual cases and to forge appropriate methods to ensure the safety of individual witness."

In PUCL, the attention of the Court was drawn to the legal position in USA, Canada, New Zealand, Australia and UK, as well as the view expressed in the European Court of Human Rights in various decisions. However, the Court did not consider it necessary to refer to any of them in detail because the legal position has been fully set out and explained in Kartar Singh's case.

It was stated further in PUCL that the effort of the Court is to strike a balance between the right of the witness as to his life and liberty and the right of the community in the effective prosecution of persons guilty of heinous criminal offences on the one hand and the right of the accused to a fair trial, on the other. The Court observed: (p 993)

"This is done by devising a mechanism or arrangement to preserve anonymity of the witness when there is an identifiable threat to the life or physical safety of the witness or others whereby the Court satisfies itself about the weight to be attached to the evidence of the witness. In some jurisdictions, an independent counsel has been appointed for the purpose to act as amicus curiae and after going through the deposition evidence assist the Court in forming an opinion about the weight of the evidence in a given case or in appropriate cases to be cross-examined on the basis of the question formulated and given to him by either of the parties. Useful reference may be made in this context to the recommendation of the Law Commission of New Zealand."

While elaborating further the need for keeping the identity of the witness secret, the Court observed: (p 994)

"It is not feasible for us to suggest the procedure that has to be adopted by the Special Courts for keeping the identity of witness secret."



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