Need For A Witness Protection Programme: The Solution To The Problem Of Hostile Witness.
The role of a witness is very important in a trial. He is an indispensable aid in the justice dispensation system in any civilized society. According to Bentham, witnesses are the eyes and ears of justice. Their each and every statement is very important as it has a magic force to change the course of the whole case.
The greatest weakness of our criminal justice system is that it has become dogged and does not function in a fluent fashion resulting in prompt determination of the guilt or innocence of those charged with crime. The most overwhelming and important reason for this weakness is the fact that prosecution witnesses retract from statements made earlier before the police and turn hostile in the Court. Witnesses are turning hostile with predictable regularity in cases involving heinous crimes or high profile personalities due to external pressures, thereby leading to the failures of the criminal justice system.
The whole issue of hostile witness came under sharp public scrutiny after the judgement in the landmark Jessica Lal and Best Bakery case . These cases came as an eye-opener showing glaring defects in the judicial system. This paper discusses how the law relating to the protection of witnesses is inadequate and also focuses on the need for a witness protection programme.
Hostile Witness: When Does A Witness Become Hostile.
The role of a witness is paramount in the criminal justice system of any country. According to Bentham, witnesses are the "eyes and ears of justice" .
To understand the meaning of hostile witness, we have to understand the process by which a witness becomes “hostile”. Chapter XII of the Code of Criminal Procedure deals with the police powers to investigate. Section 161(3) of the Cr. P C vests in police officers the power to record statement of witnesses. However, these statements are not admissible in court by virtue of Section 162(1). The aim of S. 162 is to protect accused persons from being prejudiced by statements made to police officers who may coerce the witnesses. So what happens is that during the trial the witness has to restate what he said to the police. Here the statements recorded by the police constitute a reference to which the veracity of the witness can be tested. If the witness goes back on his/her earlier he/she may have turned hostile.
Reasons For Witness Turning Hostile
There are various reasons why a witness may turn hostile.
Witnesses are extremely vulnerable to intimidation in the form of threats by the accused. The People’s Union for Civil Liberties (PUCL) made a press release on July 2, 2003 pertaining to the Best Bakery case saying there were two ways to explain why witnesses turn hostile. The first is that the police had recorded the statements incorrectly. The second and more plausible was that the police had recorded the statements correctly but were retracted by the witnesses because of “intimidation and other methods of manipulation”.
Another major reason of this growing menace is protracted trials. The working of judicial process is very slow. Several dates are fixed for cross examination of witnesses, who becomes frustrated over because of being summoned again and again only to find that the date is adjourned. This frustration takes its toll, and the witness decides to turn hostile to get rid of the harassment. The 4th Report of the National Police Commission (1980) acknowledged the troubles undergone by witnesses attending proceedings in courts. The witnesses are not at all treated properly in our judicial system. The Mallimath Committee has expressed its opinion about such witnesses by saying, “The witness should be treated with great respects and should be considered as a guest of honour.” Lack of a witness protection programme, unsymphatetic attitude of the police, bribery and corruption are other reasons which add to the malaise. For all these reasons and others a person abhors becoming a witness.
Need Of The Hour: A Witness Protection Law
It is imperative that we come up with a better justice system, one that provides adequate safeguards to the witness. There is no law for the protection of witness in India barring few sections of Indian Evidence Act, 1872. Section 151 and Section 152 protects the witnesses from being asked indecent, scandalous, offensive questions, and questions which intend to annoy or insult them. Apart from these sections, there is no provision for the protection of witnesses in India. This fact was acknowledged by Supreme Court in the case of NHRC v. State of Gujarat where it said that “no law has yet been enacted, not even a scheme has been framed by the Union of India or by the State Government for giving protection to the witnesses”. It is high time that India introduced a witness protection programme. In fact the Law Commission recognised the need for the same and came up with a consultation paper on witness protection on 13, August, 2004 .
There are two broad aspects to the need of witness protection in India.
a) To ensure that the evidence of witnesses is protected from the danger of them turning hostile.
b) To relieve the physical and mental vulnerability of the witnesses.
Therefore, any law for witness protection must take into account both the points. The first aspect has received attention in the form of proposed amendment to Section 164 of the Cr. P C. In its 178th Report (2001), the Law Commission recommended the insertion of s.164A in the Cr.PC to provide for recording of the statement of material witnesses in the presence of Magistrates on oath 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 in the Rajya Sabha and is still pending.
However, the second aspect has hardly received any attention in India. The Law Commission looked for the second aspect in the consultation paper on witness protection and has suggested measures like witness anonymity and physical protection to the witnesses. It also drew attention to special statues on terrorism like TADA and POTA which have provisions for protecting the identity and address of witnesses; and suggested a general law dealing with witness anonymity be implemented.
Recently, the Delhi High Court issued guidelines to the police on providing protection to witnesses to curb the menace of witnesses turning hostile leading to acquittal of accused in heinous crimes. This decision was given on a petition filed by Neelam Katara whose son Nitish was kidnapped form a marriage party by Vikas Yadav. These guidelines focused on the providing protection to the witnesses by a competent authority. These guidelines are commendable and must be taken into consideration at the time of formulation of the law.
Both the Law commission and the Courts are advocating for a witness protection programme. India should soon implement a witness protection programme if it does not want its criminal justice system to fall.
Witness Protection Programme In Other Countries.
India is not the first country to have seen the necessity for a witness protection programme. Many countries such the United States of America, Canada, Thailand, Australia, South Africa among others have enacted witness protection legislation, while many others have informal physical security systems such as the United Kingdom. Therefore, it would be of importance to consider the legislations enacted some countries and study them in the Indian context.
• United States of America: The USA has one of the most well developed witness protection programs. The United States Federal Witness Security Program better known as the Witness Security (WITSEC) Program was enacted in 1970 under the Witness Protection Act. The protection of the witnesses is mostly the duty of the U.S. Marshals Service, although some states have their own state specific witness protection enactments for crimes not covered by the federal program. The U.S. Federal Government both relocates and gives new identities to witnesses who risk their lives by giving testimony as well as providing financial and employment aid. The Federal Government also gives grants to the states to enable them to provide the same program. However, due to a lack of specific guidelines in the program, the Witness Security Reform Act of 1984 was enacted which made the system more comprehensive. It has been claimed that in the 25 years after the Reform Act, over 6,600 witnesses, along with over 8,000 family members, have been provided services as participants in the Program.
• Australia: The witness protection program constituted under the Witness Protection Act 1991 is an extremely comprehensive system and nearly everything has been contemplated while enacting the legislation. The definition of witness itself is wide in its ambit and is not seen merely in the strict sense of a witness with regard to a statement before a criminal court under oath. S. 4 (2) (d) (of the Amending Act of 1996) include the flexible phrase of “a person who, for any other reason, may require protection or other assistance under this Act.”
Another very interesting feature of the Act is the very express inclusion of changed identities (S. 3A (a)) and the specific guidelines for changing identities with regard to the Register of births, deaths and marriages (under the Registration of Births Deaths and Marriages Act, 1959, S. 24 of which does not apply) under S. 4 of the said Act. Although, it is to be noted that under the Act, specific authorities and a nominated member of the local authority can maintain a record of the original identity of the witness is to be given the details of the original identity of the person(s). At the outset, this may appear to defeat the purpose of the Act by widening the security circle, but the same provision is protected by a rigorous punishment of ten years for unauthorised breach of security and revealing identity. It is also protected by exclusion from the Freedom of Information Act.
Thus, in the researcher’s opinion, the Australian statute is model legislation, although he does not have any statistics with regard to its practical usage.
The need for setting up separate victim and witness protection units in the trial of mass crimes has been acknowledged in the setting up of international tribunals to deal with them. The International Criminal Tribunal for Rwanda has formulated rules for protection of victims and witnesses. Similar provisions exist in the Statute for the creation of an International Criminal Court (ICC). The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power was adopted by the United Nations General Assembly in resolution 40/34 of 29 November 1985. Although this specifies victims of the crimes, it is nonetheless highly effective in showing how necessary it is to provide peace of mind to witnesses.
Problems In Application Of Witness Protection Program In India
There are many hindrances to the practical efficacy of the witness protection programme in India.
• The first and most important problem is with regard to anonymity of witnesses and the balancing of interests of the prosecution in protecting the witness and the rights of the accused. The Section 327 of the Code of Criminal Procedure in India specifies the importance of an open trial. Thus, the rights of the accused in knowing who is testifying against him are very important, especially if he has to defend himself against such testimony. Section 299 of the same statute gives one of the few exceptions to this rule and says that only if the accused is not available or has absconded and cannot be found by reasonable means, then the court can order the prosecution witnesses to testify without the presence of the accused.
• There are many practical problems when talking about such an extensive programme.
1. The most obvious is that of the costs of implementation and infrastructure. When talking about providing bodyguards, security, relocation to another area etc, the costs that are involved are bound to be enormous. The fact may remain the no cost is too great when it comes to providing justice, but practical realities must be kept in mind. Although, countries like Thailand and Puerto Rico have successfully implemented witness protection, despite their not being developed countries the same cannot be said of India, as India is comparatively much more vast and unwieldy. However, the problem could be countered by carefully choosing the cases, which merit protection, and not every other case. Thus by reviewing cases which may be high profile, communally charged, involving drugs or organised crime syndicates or cases involving grave offences where the authority observes a possible threat, protection could be provided.
2. The most important problem is that of corruption in the administration and judiciary. Though the argument seems rhetorical and trite, no witness protection programme can function with a corrupt administration. If one is provided with false identities and relocated and the approved authority is bribed and sells the information, the whole system is undermined. Thus, corruption and political pressure remains the main problem when addressing the hostile witness situation.
Therefore, it is suggested that a completely different body that lies outside political control be constituted to ensure the protection of witnesses during all stages of trial. Nearly all countries that have witness protection legislation have constituted a Witness Protection Cell, which may have a hotline that can be reached. The cell must also arrange for the provision of false identities, relocation and follow up.
• Even if all the above provisions were enacted, the system would be futile if witnesses were not informed about their rights. They must have the right to be informed about the judicial process, their role, forms of protection available to them and possible reparations. Not only must they have a right, but it must be the duty of the magistrate and the public prosecutor to inform the witnesses about such rights.
It is high time that the malaise of ‘hostile witness’ be tackled. No nation can afford to expose its righteous and morally elated citizens to the peril of being haunted or harassed by anti social elements, for the simple reason that they testified the truth in a court of law. Adequate steps must be taken for the protection of witnesses who appear before the court so as to render a helping hand in the dispensation of justice. As long as witnesses continue to go hostile and do not make truthful deposition in Court, justice will always suffer and people’s faith in the credibility of judicial process and justice system will continue to erode and shatter. Former Attorney General Soli J. Sorabjee said “Nothing shakes public confidence in the criminal justice delivery system more then the collapse of the prosecution owing to witnesses turning hostile and retracting their previous statements.” If the cases like Best Bakery or Jessica Lal are repeated, it would shatter the strength and credibility of our criminal justice system.
The government must take a stand on this matter and implement a system that is not a new or novel concept to criminal justice systems around the world. Enough witnesses have turned hostile, enough people have been murdered and yet no solution from the government’s side appears to be in the offing. So, Indian Parliament should take a note of the current scenario and implement a witness protection programme in the country.
• The Indian Penal Code, 1860
• The Indian Evidence Act, 1872
• The Code of Criminal Procedure, 1973
• Terrorist and Disruptive Activities (Prevention) Act, 1987 [since repealed]
• Prevention of Terrorism Act, 2002 [since repealed]
• Victim and Witness Protection Act, 1982 of USA, available at http://www.usdoj.gov/usao/gas/vw/victim_witness.html.
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