Report No. 198
Protection of Witnesses in Criminal Case.- Need for new la.- Observations of the Supreme Court
1.1 The criminal justice system in our country has been the focus of several studies and reports of expert bodies. The Law Commission of India has itself submitted several reports on topics related to the substantive and procedural aspects of the criminal justice system. Among the problem areas that have been highlighted is the one relating to intimidation or allurement of victims or witnesses for the prosecution leading to the inevitable consequence of the collapse of the trial.
The criminal courts in the capital city New Delhi have witnessed this phenomenon with fair regularity in the recent past in a series of trials involving sensational and ghastly crimes. The impunity with which persons facing charges of mass murders, rape and gruesome killings are able to frustrate the justice process through the tactics of intimidation, threats and even elimination of witnesses has given cause for grave concern. Several recent pronouncements of the Supreme Court of India, including the one in the Best Bakery case, have highlighted the immediate need for legislation in this area.
1.2 There are two broad aspects to the need for witness protection. The first is to ensure that evidence of witnesses that has already been collected at the stage of investigation is not allowed to be destroyed by witnesses resiling from their statements while deposing on oath before a court. This phenomenon of witnesses turning `hostile' on account of the failure to `protect' their evidence is one aspect of the problem.
This in turn would entail special procedures to be introduced into the criminal law after knowing all details about witnesses, to balance the need for anonymity of witnesses on the one hand and rights of the accused for an open public trial with a right to cross-examination of the witnesses, on the other hand.
1.3 The other aspect is the physical and mental vulnerability of the witness and to the taking care of his or her welfare in various respects which calls for physical protection of the witness at all stages of the criminal justice process till the conclusion of the case.
1.4 While the first aspect of protecting the evidence of witnesses from the danger of their turning `hostile' has received limited attention at the hands of Parliament, there is an urgent need to have a comprehensive legislative scheme dealing with the second aspect of physical protection of the witness as well. Further, witness protection will have to be ensured in all criminal cases involving grave crimes not limited to terrorist crimes. The implementation of such a law would involve drawing up of Witness Protection Programmes.
1.5 Today, "Witness Identity Protection" statutes as well as "Witness Protection Programmes" have come into being in a number of countries. Initiatives have been taken, both on the judicial side as well as by legislation, in several countries including the USA, UK, Scotland, Germany, Canada, South Africa, France, Portugal, Brazil, Japan, Philippines, Hong Kong, Korea, Pakistan, Malaysia, China, Fiji, Laos, Nigeria, Tanzania, Papua New Guinea and Thailand.
These encompass witness identity protection and witness protection programmes. The statutes and rules governing the functioning of the Tribunals constituted by the United Nations to try the crimes against humanity in Yugoslavia and Rwanda also make provisions not only for protection of identity of witnesses for the prosecution (including victims of offences) but also, in certain cases, to the protection of identity of witnesses on behalf of the defence.
1.6 The judicial pronouncements of the courts in some of the countries referred to above have dealt with complex issues concerning the rights of witnesses/ victims for protecting their identity and for a proper balancing of the rights of the accused to a fair trial. In several countries case law as well as rules require the witnesses to be examined under a one way video-link where the witness does not see the accused or where the accused does not see the witness, but the Judge and the defence counsel will be able to see the witness and watch his demeanour. Likewise, statutes or rules have been made in several countries in regard to comprehensive Witness Protection Programmes.
1.7 In certain situations the public and the media are not allowed inside the court and in certain other cases, media is prohibited from publishing facts relating to the identity of witness. We may point out incidentally that issues also arise whether public or the media can be allowed to know the identity of the victim/ witness.
Cases where the witness's identity has to be kept confidential have raised serious issues of alleged breach of right of the accused to confront the witness by way of cross examination in open Court and questions are debated as to whether there can be an effective cross-examination if the crucial facts relating to the identity and place of residence of the witness are not disclosed to the accused. Statutes as well as Court judgments have come forward with a variety of solutions to balance rights of the accused and of the witnesses.
There are also a large number of Witness Protection Programmes in other countries in which personal protection is granted to the witness; sometimes he is shifted to a different place or even a different country; he is paid some money for his maintenance or he is even provided with employment elsewhere. These are all the various aspects for discussion in this Consultation Paper.