Witness Protection Law in India: Issues and Current Status

A witness is a person who possesses relevant information to criminal proceedings about which he or she has given or is about to give testimony. The testimony may be out of free will or under some compulsion; and it can be oral or written.

What is Importance of witness protection?

The importance of a witness can be gauged from the observation of Supreme Court in the Himanshu Singh Sabharwal Vs. State of Madhya Pradesh and Ors. 2008 case, whereby the court observed that witnesses are the eyes and ears of the justice system and when a witness is threatened or killed or harassed, it is not only the witness who is threatened but also the fundamental right of a citizen to a free and fair trial is vindicated. Protection of the witness is the duty of the state and when state fails to protect a witness, it actually fails to uphold the national motto – Satyamev Jayate.

Similarly, in the Neelam Katara versus Union of India case, SC observed that the edifice of administration of justice is based upon witnesses coming forward and deposing without fear or favour, without intimidation or allurements in court of law. If witnesses are intimidated or allured, the foundation of administration of justice gets weakened and even obliterated.

What are key Witness Protection Laws around the world?

Witness protection laws are not in all countries, however, in most countries, the local police may provide some kind of protection when needed. A few countries where there are proper witness protection laws include Canada (Witness Protection Program Act), Ireland (Witness Security Programme), Israel (witness protection law and authority), Italy (Central Protection Department), UK (United Kingdom Protected Persons Service), Thailand (Witness Protection Office); United States (Federal Witness Protection Program) etc.

What has been progress on Witness Protection Law in India so far?

India does not have a witness protection law as of now. The subject was addressed by several committees and commissions in past.

• In a first, the 14th Report of the Law Commission (1958) had addressed the inadequate arrangements for witnesses and recommended some travel allowances and facilities for witnesses. The report said that if the witness is not taken care of, he or she may develop an attitude of indifference to the question of bringing guilty to justice.
• The issue was also addressed by 4th National Police Commission (1980) report which said that while a prisoner suffers from some act, witness suffers for no fault of his own. The report advocated removing inconveniences / handicaps and also a daily allowance payable to witnesses for appearance in the Courts.
• Similarly, the Law Commission in its 178th report, 2001 addressed the issue of preventing witnesses turning hostile. This report suggested that Police should take precautions during investigations to prevent prevarication by witnesses when they are examined. The most significant recommendation of this report was to amend the Code of Criminal Procedure, 1973 and insert a new section 164-A which would to provide for recording of the statement of material witnesses in the presence of Magistrates where the offences were punishable with imprisonment of 10 years and more. On the basis of this recommendation, the Criminal Law (Amendment) Bill, 2003 was introduced to make it mandatory to record statement before a Magistrate where the sentence for the offence could be seven years or more.
• The Justice Malimath Committee on Reforms of Criminal Justice System also addressed the issue and said that a law should be enacted for giving protection to the witnesses and their family members on the lines of the laws in USA and other countries.
• The 198th report of Law Commission most elaborately addressed the issue covering various aspects such as Witness Identity Protection v. Rights of accused, Witness Protection Programmes on the lines of exisitng laws in New Zealand and Portugal.

On the basis of the 198th report and the proposed ‘witness identity protection and witness protection programme’, a bill was prepared towards witness protection.

Witness Protection Bill, 2015

This bill was prepared and introduced in parliament in 2015. Its objective was to put in place a strong law for witness protection in a manner which ensures a fair trial to both the parties. The bill sought to ensure protection of witness by the following:

• Formulation of witness protection programme to be provided to a witness at all stages i.e. during the course of an investigation; during the process of trial; and after the judgment is pronounced
• Constitution of a “witness protection cell” to prepare a report for the judge of the trial court to examine and grant protection to the witness referred a “protectee” after being admitted in the programme
• Constitution of National Witness Protection Council and State Witness Protection Councils to ensure implementation of witness protection programme in its letter and spirit
• Providing safeguards to ensure protection of Identity of witness
• Providing transfer of cases out of original Jurisdiction to ensure that the witness can depose freely
• Providing stringent punishment to the persons contravening the provisions;
• Prescribing stringent actions against false testimonies and misleading statements.

The above bill has not been passed so far.

Key challenges and Issues

The above bill was circulated to the state governments and UT administrators but no consensus could be formed. Since police and public order are State Subjects under the seventh Schedule to the Constitution, the state governments are responsible for witness protection also. At the same time, the criminal law and criminal procedure are under concurrent list, so best the Central government can do is amend those laws to the extent of its jurisdiction. Further, the witness protection programme would incur huge expenditures also which shall be paid by the states. Most states are reluctant in India to incur expenditures on such things.

Current Status

Due to non-consensus among the states, the witness protection programme was shelved. In 2016, the Union Government entrusted the Bureau of Police Research and Development (BPR&D) with the task of examining the concerns raised by them regarding the feasibility of the programme and also look into the financial implications of the scheme. As of now, this matter thus lies with BPR&D.