Discovery, vindication and establishment of truth are the three pillars that define every court of justice. The gathering of the evidence from a witness is the base on which the whole mechanism of criminal justice rests. Time and again, the Supreme Court has reiterated the importance of a witness in a plethora of cases like State of Gujarat v. Anirudh Singh[i] and Zahira Habbibulla H. Sheikh and Another v. State of Gujarat.[ii] The practice of a witness turning hostile is a major barrier responsible for the not-so-swift administration of criminal justice in our nation.
The term ‘witness’ or ‘hostile witness’ is not defined under the Code of Criminal Procedure, 1973. The closest definition inferred from an Indian statute comes from Section 3 of the Indian Evidence Act 1872, which describes ‘Evidence’ as:
- all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
- all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.
The Black’s Law Dictionary, which provides a comprehensive list of the terms used in the world of legal jargon, defines ‘witness’ as: ― “In the primary sense of the word, a witness is a person who has knowledge of an event. As the most direct mode of acquiring knowledge of an event is by seeing it, ―the witness has acquired the sense of a person who is present at and observes a transaction.”[iii] The 2018 Witness Protection Scheme defines a witness as, “any person, who possesses information or document about any offence”.
A Hostile Witness
A witness turning hostile is nothing but when, during a trial, he rebuts his own statement that was given to the concerned authority before. In Sat Pal V/s. Delhi Administration,[iv] the Supreme Court had attempted to shed a light on this term by stating, “to steer clear controversy over the meaning of hostile witness, adverse witnesses, an unfavourable witness which had given rise to considerable difficulty and conflict of opinions, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that in India the grant of permission to cross-examine his own witness by the party is not conditional on the witness being declared adverse or hostile.” Thus, the label of a hostile witness can be given to any witness who changes their testimony.
The reasons for a witness to turn hostile can be countless. It can be intimidation or a threat to life or property. It can be a result of monetary enticements or political pressure. One factor that is often overlooked is the absence of a proper witness protection scheme.
Witness Protection in India
As of now, there exists no proper legislative framework on the realm of witness protection in India, as compared to other nations like the USA, UK or Australia. Even though there exist a few laws on this matter, they are weak and are not consolidated in single, separate legislation. As a result, there arises a need for legislation that provides anonymity and security for the witnesses in a situation where there can be a threat to his life and property.
The following are some of the provisions relating to witness protection found in our current legislations:
- Section 299 of Code of Criminal Procedure, 1973 denies the accused, in certain exceptional situations, to cross-examine a prosecution witness in open court.
- Section 228A of the Indian Penal Code makes it a punishable offence to reveal the identity of the victims in certain offences.
- Sections 44 of the Unlawful Activities (Prevention) Act, 1967 provides for identity protection of witnesses. This Act also allows the proceedings to be done on camera.
- Section 16 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and Section 30 of Prevention of Terrorism Act, 2002 allows the Special Court to take measures to protect the identity of the witness and keep the address of any witness secret on an application made by a witness or his prosecutor or court on suo moto cognizance.
The realm of witness protection has also been the centre of focus for several studies and expert body reports. The 14th Law Commission had referred to providing adequate facilities to witnesses who attend the court for various proceedings. The 4th Report of the National Police Commission had also referred to the inconveniences and harassment caused to witnesses in attending courts. Chapter X of the 154th Report of the Law Commission had once again reiterated that the reluctance of witnesses to come forward to attend court promptly was justified due to the lack of a proper mechanism to cater to their needs. In 2001, the Law Commission had come up with its 178th Report that brought in many recommendations to prevent a witness from turning hostile. The commission had also suggested the implementation of a system to provide physical protection to witnesses and their family members, similar to the Witness Protection Program in the United States.[v]
In 2018, the Supreme Court had approved India’s first Witness Protection Scheme that was drafted by the Union Government and had asked the centre and the states to implement it. It has led to the setting up of vulnerable witness deposition complexes that are equipped with facilities to prevent the accused and witness coming face to face. Section 2 of the Scheme provides for preparation of a report which shall be called ‘Threat Analysis Report’. The report shall analyze the seriousness of threat perception and it shall be prepared by the head of the police in the District. Section 3 classifies witnesses into three categories:
- Category A – Those cases where threat extends to the life of witness or family members during the investigation, trial or even thereafter.
- Category B: Those cases where the threat extends to safety, reputation or property of the witness or family members during the investigation or trial.
- Category C: Cases where the threat is moderate and extends to harassment or intimidation of the witness or his family members, reputation or property during the investigation, trial or thereafter.
The other sections of the Scheme provide various protective measures to witnesses including regular patrolling around the witness‘s house, temporary change of residence, awarding time to time periodical financial aids to the witness from Witness Protection Fund (Section 7); protection of the identity of witnesses during the course of investigation or trial (Section 9); change of identity of a witness by granting new identities (Section 10); and relocation of witness to a safe place in any State and Union Territory of India (Section 11).
Although these steps taken by the government for the protection of the witnesses is a progressive step towards curbing the problems faced by a witness during and after a trial, they have their limitations as well. The provisions of the Witness Protection Scheme are often not practical in a society as large as India, as the protection offered is limited and does not cater to all the needs of a witness
Witness Protection in the United States
The United States has one of the most extensive and highly sophisticated systems of witness protection. The Organized Crime Control Act of 1970 formally established the United States Federal Witness Protection Program or the WITSEC, and it is administered by the Department of Justice and operated by the US Marshall Service. It came into prominence during the 1970s to curb the effect the Mafia had on people who broke ranks and cooperated with the police. The Mafia had an unwritten code of silence, known as the omertà, and the WITSEC was enacted to protect threatened witnesses before, during, and after a trial.
Although the legislation was originally intended to protect only witnesses of organised crime, the current form provides protective services to witnesses and family members in cases involving organized crime “or other serious offence, if the Attorney General determines that an offence involving a crime of violence directed at the witness . . . is likely to be committed.”[vi] These services are to be provided as long as the threat to the witness persists.
An individual is subjected to a psychological examination, and his suitability is evaluated before he is admitted to the program. Moreover, a memorandum of understanding is executed by the witness that outlines all his rights and obligations – to testify in any proceedings concerning the criminal proceedings, not to commit any other felonies and to cooperate with the law enforcement. The Attorney General has the power to terminate the protection program if there is a ‘substantial breach’ of the provisions in the memorandum.
The protection services provided by the WITSEC mainly involves physical protection to the witness and his family. They are usually relocated to a new place and are provided with false identities. They receive new birth certificates, driver’s licenses, and social security cards. Often subsistence for living and assistance in finding new employment opportunities are provided by the program.
The WITSEC was originally created as a Federal Witness Program by Gerald Sher, Attorney in Charge of the Intelligence and Special Services Unit of the Organized Crime and Racketeering Section of the United States Department of Justice. In addition to the Federal program, many states including California, Connecticut, Texas, New York, Illinois and Washington D.C. have their own smaller, less extensive witness protection programmes for crimes that are not covered under the Federal program.
It is a fact that an effective witness protection program is a necessity to combat organised crime. The criminal justice system in India has focused more on the rights of the accused over the rights of the witnesses who testify against him. India has a long way to go as far as the protection of witnesses is concerned when compared to the systems found in other developed countries. The Supreme Court’s endorsement of the Witness Protection Scheme 2018 in Mahender Chawla & Ors. v Union of India & Ors,[vii] is indeed a progressive step in this realm. However, even this legislation is limited in it’s extended and practicality.
Also, it should be noted that the responsibility of the protection of a witness is not the sole responsibility of the Judiciary and the police but that of the society as a whole. It involves a high degree of sensitivity and a sense of mutual understanding amongst all the concerned authorities and state organs.
[i] State of Gujarat v. Anirudh Singh, (1997) 6 S.C.C. 514 (The Supreme Court of India).
[ii] Zahira Habbibulla H. Sheikh and Another v. State of Gujarat and Another, (2004) 4 S.C.C. 158 (The Supreme Court of India).
[iii] Bryan A. Garner (ed.) Black‘s Law Dictionary, West Group, St. Paul, Minnesota,(17th Ed.,1999), P. 1596.
[iv] Sat Pal V/s. Delhi Administration A.I.R. 1976 S.C. 294.
[v] Recommendations for Amending Various Enactments, Both Civil and Criminal. Published in December 2001.
[vi] 18 U.S.C. § 3521(a)(1) (2000)
[vii] Mahender Chawla & Ors. v/s Union of India & Ors Writ Petition (Criminal) No. 156 Of 2016.
Student, National University of Advanced Legal Studies
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