Criminal Justice System protects certain fundamental rights and liberties of the people guaranteed under the Constitution by enforcing the law and punishing the offender. In compatibility of this goal, the functionaries of the criminal justice framework pursue the principal “Ensure the Good and Punish the Wicked.” Succinctly, the criminal equity organization endeavors to diminish criminal conduct.
Every Criminal Justice System of the world is based on a set principle of Criminal Law and follows either Adversarial System or Inquisitorial System. The judicial framework followed in India for dispensation of criminal justice is the adversarial system of common law adopted from the British Judicial System. Adversarial System clearly focuses on the role of witness in criminal cases. The witness is the foundation on which the structure of justice and equity rests. He is, therefore, inexorable and plays a significant role in which the fate of the case depends. He is the foundation of the trial, regardless of whether it is civil or criminal. No indictment case can be developed without the proof of witnesses. The witness is vital to guide in the criminal equity framework and for the smooth running of criminal equity framework, it is necessitated that witnesses come forward and oust their testimony and statements in free and reasonable situation.
In the words of Jeremy Bentham, ‘Witnesses are eyes and ears of justice.’ Therefore, if the witnesses themselves are incapacitated from acting as eyes and ear of justice; the trial will get putrefied and paralyzed. So, in any jurisdiction witness requires special treatment. One can aptly quote Justice Gita Mittal and Justice J.R. Mirdha of the High Court of Delhi in the case of Mrs. Neelam Katara v. Union of India & Others:
“The edifice of administration of justice is based upon witnesses coming forward and deposing without fear or favor, without intimidation or allurements in Court of law. If witnesses are deposing under fear or intimidation or for favor or allurement, the foundation of the administration of justice not only gets weakened, but it may even get obliterated.”
Present Scenario of Witness in India
The condition of witnesses in the Indian Legal System can be coined as’ highly pathetic’. Witness dithers as he faces wrath, pressure, and a threat to his life and existence from accused and because of which they end up turning hostile and giving testimony and statements in favor of the accused person. The position and status of a witness in India can be comprehended from the way that an individual on getting summon from the court, to act as witness begins trembling not on the grounds that he fears examination or cross-examination in court but since of the dread that he probably won’t be analyzed at all for a few days and on all such days he would be nailed to the precincts of the courts anticipating his opportunity of being examined.
One peculiar feature of most high profile cases viz. Jessica Laal Murder Case and B.M.W. Hit and Run Case, etc. are that crucial witnesses have turned hostile not only due to threats, coercion, lures, monetary considerations but also fear of abduction and life. It hardly needs to be emphasized that one of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State. A person typically turns into a witness since he has no alternative other than ending up so. For the most part, people don’t volunteer rather they are constrained to turn into a witness due to the situational causes and in such condition, it is anything but difficult to end up antagonistic so as to dispose of specific perils and bothers. In such situations how the main aim of the criminal justice system, i.e., to capture and punish the offender be achieved?
The Supreme Court of India also expressed deep concern about the plight of witnesses in Swaran Singh v. State of Punjab in the following words:
“…A witness in a criminal trial may come from a far off place to find the case adjourned. He has to come to the Court many times and at what cost to his own self and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and he gives up. The witness is not treated with respect in the Court. He is pushed out from the crowded courtroom by the peon. He has no place to sit and no place even to have a glass of water.”
The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in the miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma.
It is highly appreciating that Hon’ble Supreme Court and High Courts have taken the issue of ‘witness security’ all-around genuinely. There are few judgments of Courts visualizing the requirement for protection of victims and witnesses for the most part on account of serious offenses. In Zahira Habibullah Sheikh v. State of Gujarat, Supreme Court expressed that the witnesses were pressurized by the accused to go back on their earlier statements and the trial was totally vitiated.
Law Commission of India has paid attention to this issue seriously and attempted to give suggestions on this issue in its different reports. It was in the 14th Law Commission Report where the witness protection was considered for the first time in a limited sense.
In its 154th Report, while discerning the plight of witnesses appearing on behalf of the State, Law Commission observed that the witnesses confront not only bothers as well as a hazard to their lives on account of offenders and Criminals. In this way, it made proposals to relieve different bothers and dilemmas. The Law Commission in its 178th Report again took up the issue of averting witnesses from turning hostile. The Report has likewise managed the issue of precautionary measure police should take at the stage of the investigation to prevent fabrication by witnesses when they are examined later at the trial. After these reports, the Commission on Reforms of Criminal Justice System under the chairmanship of Dr. Justice V.S. Malimath submitted its rather voluminous report containing as many as 158 recommendations. Some of these recommendations were made even in the 14th Report of the Law Commission about five decades ago, and yet there is little to show by way of any improvement in the quality of facilities available to a witness. Generally speaking, witness security would suggest assurance to a witness from physical damage, yet it is fascinating to take note of that, in the Indian context, it has had to some degree confined importance. Before the 198thLaw Commission Report, it has been comprehended to mean protection of witnesses from distress and burden and accordingly security has had reference just to the provision of facilities. The immediate importance of the subject of witness protection in our country motivated the Law Commission to take up the subject of ‘Witness Anonymity’ and ‘Witness Protection’ suo moto. In its 198th Report Law Commission discussed these issues very widely.
Witness Protection Scheme, 2018
In a society, administered by a Rule of Law, it is imperative to ensure that investigation, prosecution and trial of criminal offenses isn’t preferential in light of dangers or terrorizing to witnesses. The need to protect witnesses has been emphasized by the Hon’ble Supreme Court of India in “Zahira Habibulla H. Sheikh and Another v. State of Gujarat” 2004 (4) SCC 158 SC. While defining Fair Trial, the Hon’ble Supreme Court observed that “If the witnesses get threatened or are forced to give false evidence that also would not result in fair trial”.
In complex cases, where cooperation by a witness is critical to the successful prosecution of a powerful criminal group, extraordinary measures are required to ensure the witness’s safety viz. anonymity, relocation of the witness under a new identity in a new, undisclosed place of residence.
At present, there is no law/scheme holistically at the National level for the protection of witnesses. Keeping in view the Hon’ble Supreme Court has approved India’s First Witness Protection Scheme drafted by the union government. The Apex Court in the case of Mahendra Chawla & Ors. Vs. Union of India & Ors. approved the Witness Protection Scheme, 2018 and has asked the Centre, states and Union Territories to enforce it in letter and spirit. It shall be the ‘law’ under Article 141/142 of the Constitution, till the enactment of suitable Parliamentary and/or State Legislations on the subject.
The aim and objective of the scheme are to ensure that the investigation, prosecution, and trial of criminal offenses is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal accusation.
Whittaker Chambers said that “A witness is a man whose life and faith are so completely one that when the challenges come to step out and testify for his faith, he does so, disregarding all the risks, accepting all consequences.” In recent year’s extremism, terrorism and organized crimes have grown and are becoming stronger and more diverse. In the investigation becoming and prosecution of such crimes, it is essential that witnesses have trust in the criminal justice system. Witnesses need to have the confidence to come forward to assist law enforcement and prosecuting agencies.
The scheme is the first attempt at the national-level to holistically provide for the protection of the witnesses, which will go a long way in eliminating secondary victimization. This scheme attempts to ensuring that witnesses receive appropriate and adequate protection. It also strengthens the criminal justice system in the country and will consequently enhance national security scenario. Hence, the proper implementation should be made to ensure the principles of Natural Justice and Rule of Law as conceived by our constitution is maintained in its actual soul.