The right to a fair trial has been recognized as the soul of Criminal jurisprudence and is considered the most crucial facet of a democratic nation. As per the Hon'ble Apex Court, "denial of "fair trial" is the crucifixion of human rights." Further, a fair trial is a fundamental right under Article 21 of the Constitution of India ("Constitution"), and denying a fair trial amounts to a denial of human rights.
A fair trial includes the principles of fair prosecution, impartial Judge, etc., but the key ingredient is a Witness. However, that role is not a laboriously discussed matter in India. It is often seen that witnesses are either blackmailed or bribed to stay quiet or change their stand in a case. This article briefly explains the current laws/guidelines on protecting the witness. Still, first, we must understand the importance of a witness and India's position regarding the same.
Who is a witness? Witness Protection Act.
A witness who witnessed a crime can describe what they saw to the court. The Indian Evidence Act 1872 defines a witness as a person competent enough to understand the questions asked by the court. Thus, a witness can be anyone who understands the questions and can answer them unless they are incapable of understanding them.
The Supreme Court defined 'valuable witness' while hearing a special leave petition, Smruti Tukaram Badade v. State of Maharashtra and Anr., which said that 'vulnerable witness' might not be constrained to child witnesses. It was about the Delhi High Court Guidelines on the protection of vulnerable witnesses, section 3 of the guidelines defines a helpless witness as someone who has not reached the age of 18.
The helpless witness has not been defined under Section 118 of the Indian Evidence Act. However, the Youth Justice and Criminal Evidence Act 1999 of the United Kingdom mentioned a few measures for the safety of vulnerable witnesses.
The Supreme Court had also made efforts to protect witnesses. In 2017, the SC ordered the immediate facility of at least two vulnerable witness deposition centres under the jurisdiction of every High Court.
The decision was taken to secure susceptible witnesses in criminal proceedings as it has become a growing problem. It is designed for child witnesses and victims who have turned witnesses in heinous crimes such as rape, sexual assault, etc. These centres have protective measures to ensure a haven for the witnesses.
In 2019, Gujarat established its first witness deposition centre in Vadodara. The centre was directly attached to the Chhota Udepur District Court. It was designed to have no direct or indirect contact between the witness and the people outside. Further, the centre has a separate washroom, pantry, television set, children's play area, etc.
2017 guidelines to protect witnesses in India issued by the Delhi High Court:
Objectives of these guidelines
- Ensure that the witnesses can give evidence while maintaining the fairness of the trial.
- Reduce secondary victimization and harm caused to vulnerable witnesses as a result of their participation in the criminal justice system.
- To reserve the evidence given by the witnesses.
Important sections under the 2017 guidelines:
- Section 13 allows the vulnerable witness to visit the court before trial to get familiarized with the surroundings.
- Section 17 provides legal assistance to vulnerable witnesses.
- Section 34 obliges the court to explain to the helpless witness to listen to the questions and answer them truthfully.
- Maintenance of confidentiality of the witness u/s 38 clauses (a)
- Section 39 directs the court to impose protective measures for the safety of the vulnerable witness.
Witness protection in India
Witness protection has become a raging issue in India. In the case of Mahendra Chawla and Ors. v. Union of India and Ors. (2019), the court held that one of the significant reasons witnesses change their stand is the lack of proper protection given by the state government, hence a threat to life. Such witnesses are known as hostile witnesses. The 4th National Police Commission Report 1980 remarked that most witnesses in India are turning hostile because of coercion by the accused and that regulation is required.
Witness Protection Scheme 2018
The first legal enactment set by the Indian Government was the Witness Protection Scheme in 2018. The Apex Court in the State of Gujarat v. Anirudh Singh (1997) held that a witness must aid the State by giving evidence. The objective of the Scheme is to protect and safeguard the interests of the witnesses in the country. It further divides witnesses into three categories:
- Class A: This class consists of witnesses and their family members who get threats during the proceedings.
- Class B: threats to the reputation, safety, and property of the witness and their family members during the investigation.
- Class C:- harassment of the witness and their family during the proceedings.
Further, the Scheme provides for a Witness Protection Fund. According to an order, it is created for the expenses incurred while protecting a witness. The Scheme also covers the witness's identity and family members during the investigation. Some of the other protective measures mentioned in this Scheme include:-
- Installation of security cameras at the witness's house.
- Regular patrolling at the witness's home.
- Monitoring the calls, emails, messages, etc., of the witness.
The 14th Law Commission Report in 1958 first mentioned witness protection in India; this topic has come a long way. Witnesses are exposed to life threats, coercion, etc., by the accused and thus, they turn hostile. To avoid this, the Government of India needs to have a stance.
We have the Witness Protection Scheme 2018. However, apart from the Delhi High Court guidelines, there are no other legal mentions for protecting vulnerable witnesses. Even if there are provisions, people are unaware of their rights. Therefore, it is essential to understand the rights of a witness before turning hostile.