Karshana Agarwal
Mohit Chand
“Witnesses are the eyes and ears of the courts” – Jeremy Bentham
The criminal justice system of each country ought to pay special regard to the persons who appear as witnesses and help the court facilitate the process of seeking justice for its people.
There are no two ways over the fact that witnesses are a vital part of any criminal proceeding. A fair trial, a right promised to all citizens of the country is not possible without the presence of witnesses. The key to every case is the testimony of the witnesses, but today’s witnesses are reluctant to testify because they fear that the criminal justice system will not have adequate systems and procedures to ensure their safety. As a result, they become hostile.
The Home Ministry, in 2018 in consultation with the National Legal Service Authority, Bureau of Police Research & Development and the State Governments, framed the Witness Protection Scheme. The Witness Protection Scheme protects witnesses based on dangerousness assessments and protection methods which include witness identity change, relocation, installation of security equipment at witnesses’ residences, use of specially equipped courtrooms, etc.
The goal of this Scheme is to guarantee that the investigation, prosecution, and conviction of defendants are not hampered because witnesses feel intimidated or fearful of giving testimony in the absence of protection from violent or other criminal retributions. The Scheme is a first step towards securing rights for witnesses and ensuring that the wheel of justice is not hampered due to witness suppression.
Upon a thorough investigation of the scheme, one can understand that the scheme has not done justice by ensuring that the provisions it lays down are watertight and are definite, and unambiguous. It has left a plethora of questions unanswered, a few of which have been highlighted below.
Classification of Protection based on Offence
Clause 2(i) of the Scheme, defines ‘offence’ as those which are punishable with a penalty of death or life imprisonment, or those which concern with crimes related to women (Sections 354, 354A, 354B, 354C, 354D and Section 509 of the Indian Penal Code). This limits the protection offered to witnesses and thus grants only witnesses of heinous crimes or crimes against women legal protection from any harm.
This definition of offences, according to which protection is provided, does little to advance the true intent of the scheme. It falls short on a two-pronged basis. First, it restricts the ambit of the protection offered by the Scheme by distinguishing between two classes of witnesses, based on the offence they were witnesses to. Thus, it determines the applicability of protection not on the real danger quotient of the offenders but by ascribing a certain amount of threat perception to a crime. Thus, it is not an objective criterion to ascertain the amount of threat to the witnesses.
The principle assumes that offenders of heinous crimes are more likely to endanger the witnesses, which is a very constructive and myopic view of the societal realities, because there can be no empirical measure to distinguish between the offender of a heinous crime and a non-heinous one, on the extent of their instinct of self-preservation. And second, it also in a vicarious sense, undermines the sense of security of a normal witness, by allowing a degree of freedom to offenders in offences outside the ambit of Clause 2(i).
The Scheme would have been better suited if protection would have been granted to all classes of witnesses, and a mechanism in the form of what the Scheme says as a ‘Competent Authority’ segregated those claims. It would have been a little time-taking but in the long run, would have allowed for a more robust and inclusive system of witness protection to take shape.
The present provision allows for a whole lot of witnesses to fall through the net of safety, thereby diminishing the impact of the scheme.
Categorisation of Witnesses
The Scheme categorises witnesses into three heads based on the threat perceived against them. Category A witnesses have a direct threat to their life or those of their family members, Category B are witnesses who have a threat to their safety, reputation, or property of themselves or their family members and Category C, the lowest rung on the protection scheme, are witnesses where the threat is “moderate” and extends to harassment or intimidation. This categorization suffers from some major lacunae.
Firstly, the categorization does not follow any objective criteria for deciding the threat-proneness of a witness. The Threat Analysis Report [hereinafter TAR] [under Clause 2 (j) defined as a report analysing the seriousness and credibility of the threat perception to the witness] specifies that the Head of Police would submit a report after investigation on the nature and seriousness of threats. Here, a TAR would constitute a detailed breakdown of the situational rubric surrounding the Witness and conclude with a threat rating.
But this becomes subjective to the satisfaction of the Investigating Officer. The Scheme is lacking any metric that can be used to measure the threat proneness of a witness. Thus, a proper metric has to be developed that rules out subjectivity in the process.
Another issue that crops up is that the threat assessment may not reflect the real threat level of the witness. Keeping in mind that the real objective of the Scheme is to enable the witnesses to give testimony in an environment devoid of fear, the Scheme needs to understand that often the threat perceived by the witnesses is much larger than the actual threat faced by them.
This problem arises due to the difference between the conception of threat of a trained police officer and a common man of normal sensibilities. Thus, it becomes very important to incorporate the aspect of societal sensibilities of the witness into the calculation when finding out the threat perception.
Ensuring Confidentiality of Records
The Scheme provides that the various stakeholders will ensure that there is no leak of confidential information regarding the witness during and after the completion of the trial. But the Scheme fails to provide any mechanism to ensure the same.
There exists a lack of any specific enforcement mechanism for dealing with any potential breaches of confidentiality. This, when viewed in consonance with the porous and leak-prone nature of the Indian legal system, makes the situation for the witnesses very precarious.
Additionally, it is stated that after the completion of the trial, the hard copies of the records “can” be destroyed but soft copies for the same must be preserved. No guidelines whatsoever have been provided for such a process. Also, the alarming state of the IT infrastructure of the Indian judiciary, coupled with the lack of guidelines, makes the enforcement of such a provision of confidentiality a cumbersome process. Moreover, complete discretion has been given to the Competent Authority to decide on the deletion of records which grants disproportionate autonomy to the Authority further adding to the concerns regarding the provisions.
International Legal Framework And The Way Forward
While the Indian Witness Protection Scheme aims to identify witnesses based on certain categories to be able to protect those in need of it, the criteria outlined in the Indian law appear to be much narrower than those adopted by the world.
As per the Good practices for the protection of witnesses in criminal proceedings involving organised crime, published in the year 2008 by the United Nations Office of Drugs and Crime, Vienna, there exist many more components which have to be taken into account before deciding which witness requires protection, as opposed to the sole criteria of the offence committed and the threat subsequently induced by the witness as has been laid down in the scheme of 2018.
The report clearly states that there is a need to conduct an assessment before admitting a witness to the protection scheme or program. Such an assessment is to be conducted by an authority who is entrusted with the responsibility of taking into account a variety of factors while preparing the witness’ report. The indicators must include the following:
- The level of threat to the witness’ life
- Personality and psychological fitness of the witness which indicated the level of perseverance and resistance coupled with readiness that the witness shows in light of the circumstances he is in, and also to the idea of enrolling in a witness protection program which could result in him/her being detached from his/her normal way of life and family for a while
- Level of danger involved for the witness
- The significance of the testimony given by the witness in court
- The importance of the case at hand, with an aim to dismantle criminal organisations
The above-mentioned criteria are not exhaustive, and the report acknowledges the fact that other supporting factors such as the witness’ family status must also be taken into consideration.
In light of the same, another crucial distinction that the scheme fails to outline is that between “threat” and “risk.” The Indian scheme only focuses on the level of threat that is upon the witness to decide if the person is entitled to protection or not. However, a crucial ambit of risk assessment seems to have been overlooked by the drafters of the scheme.
As per the UNODC Report, “A risk assessment examines the chances of the threat materialising and assesses how it can be mitigated.” It is suggested that the scope of the scheme be expanded to include risk assessment as well because the early identification of risk can help prevent the same from turning into a threat in the near future.
Thus, the idea being forwarded here, is that for a better effective implementation, the threat rating report should be formed keeping in mind the witness, followed by a detailed risk assessment report that also contains possible measures to be implemented.
Ensuring the confidentiality of the witnesses admitted into the Witness Protection scheme lies at the heart of any successful Witness security program. While Indian laws need to provide more stringent measures for the formation of an airtight mechanism regarding the information of witnesses provided with protection, we can always look to other successful Witness-Security like the United Nations Witness Protection programs for some measures to incorporate.
At the primary level, the least effort action that can be taken is to ensure that there is no reporting of witnesses in cases that warrant such action. For instance, in the criminal system of the United Kingdom, Section 49 of the Children and Young Persons Act 1933 (CJPA 1933) provides automatic reporting restrictions for those under 18 who are defendants or witnesses in criminal proceedings. Currently, Indian Courts allow such restrictions on explicit filing of such requests but legislation for the same shall go a long way in reducing the initial impact on witnesses.
The second pedestal of confidentiality is of the witness inside the scheme. The umbrella of privacy here has to be stricter, as the degree of threat is proportionally higher for entrants into the scheme. Two important points need to be addressed here in the Indian context – what are the requisite action steps, and who is the designated authority for ensuring compliance of the same?
The German Witness protection system provides invaluable insight into a possible model that we can adopt. The German system has separate protection units and all such files related to witnesses are maintained by such designated units and not included in the general investigation files.
Furthermore, they have a tier-based witness protection system with protection units at both the federal and state level. This serves two purposes – there exists a proper hierarchy for the redressal of complaints as well as it allows for more effective implementation of the Protection programmes, as now they can be in tune with different ground realities in different states.
In India, we can hope to replicate this kind of model, with the Central Witness Protection unit at the centre and its sister units at the State level. But ensuring efficient synergy between both levels is requisite for its successful implementation, and thus the majority of the onus to do so falls in the centre.
Also, another concern that plagues the Protection Scheme, particularly the issue of confidentiality, is the degree of freedom given to what constitutes “Competent Authority”. Though the Scheme gives us an initial framework of what constitutes such an authority, there are no checks in place for erroneous usage of authority. An appeal mechanism is a fundamental necessity for ensuring proper implementation and also serves as a check on arbitrary usage of power.
The Witness Protection Ordinance of Hong Kong provides a very detailed appeals mechanism against ” decisions that disallow inclusion of a witness in the programme, terminate protection or determine that a change of identity would not be among the applicable measures.” It allows for the formation of a review board with members from both the public as well as private spheres to protect against state partiality.
We should also look to emulate such a Board in our Protection Scheme. Such a Board can constitute State level functionaries like the Commissioner of Police, the Advocate General of the State, and a nominee of the Ministry of Justice and can even include a Retired High Court Judge to ensure adequate representation of all potential stakeholders.
Another concept that, though seemingly distant, does synergize with the goal of confidentiality is that of the right to be forgotten. Simply put, the right refers to the inherent control that a person has over his data and thus he may decide to remove any such information from the internet or any other such sources when the information becomes unnecessary or irrelevant.
Witness Protection Programmes often fail at maintaining complete confidentiality for a host of reasons including, but not limited to, human fallibility. This, combined with the fact that we live in a world where your digital footprints are available to anyone readily, becomes even more important to protect witnesses’ confidentiality on online forums.
Thus, the right to be forgotten can be looked at as a protection measure that is extended to witnesses at a very high threshold of danger. A witness’s personal information can be permanently deleted from the internet, search, databases, websites, or any other public platform. India currently does not have a law regarding the right to be forgotten but this is an arena that can be further looked into for efficient confidentiality protection.
Conclusion
It is not a new observation in the country that there exists a lack of measures, laws, rules, and regulations ensuring protection for witnesses. Every day and with every case the importance of the same is realised and stressed. The Witness Protection Scheme of 2018 came as a ray of hope in the form of some development in the area of witness protection, however the same is still at a nascent stage.
The criminal justice system of India is known for its ideals of balancing the rights of all stakeholders involved in the process, and it must ensure the same for its witnesses which form an imperative part of the process ensuring that justice in the country is served to all. The suggestions put forward here are aimed at serving as a guiding light for proper implementation of the same.
Karshana Agarwal and Mohit Chand are both 3rd year B.A. LL.B. (Hons.) students at National Law University, Odisha.
