The Hon’ble Supreme Court, on 5th December, 2018, in the matter of Mahender Chawla & Ors. v. Union of India & Ors. while stressing upon the importance of Witness protection gave its imprimatur to the Witness Protection Scheme, 2018 and pronounced that Union of India as well as States and Union Territories shall enforce the Witness Protection Scheme, 2018 in letter and spirit. It was further directed that till the enactment of suitable Parliamentary and/or State Legislations on the subject, the Witness Protection Scheme, 2018 shall be the ‘law’ under Article 141/142 of the Constitution. Furthermore, it was directed that in line with the provisions contained in the Scheme, in all the district courts in India, vulnerable witness deposition complexes shall be set up by the States and Union Territories within a period of one year, i.e., by the end of the year 2019 and for setting these vulnerable witness deposition complexes, the Central Government shall support this endeavour of the States/Union Territories by helping them financially and otherwise.
The Hon’ble Supreme Court observed that:
In an adversarial system, which is prevalent by India, the court is supposed to decide the cases on the basis of evidence produced before it. This evidence can be in the form of documents. It can be oral evidence as well, i.e., the deposition of witnesses. The witnesses, thus, play a vital role in facilitating the court to arrive at correct findings on disputed questions of facts and to find out where the truth lies. They are, therefore, backbone in decision making process. Whenever, in a dispute, the two sides come out with conflicting version, the witnesses become important tool to arrive at right conclusions, thereby advancing justice in a matter. This principle applies with more vigor and strength in criminal cases inasmuch as most of such cases are decided on the basis of testimonies of the witnesses, particularly, eye-witnesses, who may have seen actual occurrence/crime. It is for this reason that Bentham stated more than 150 years ago that “witnesses are eyes and ears of justice”. (Para 1)
Thus, witnesses are important players in the judicial system, who help the judges in arriving at correct factual findings. The instrument of evidence is the medium through which facts, either disputed or required to be proved, are effectively conveyed to the courts. This evidence in the form of documentary and oral is given by the witnesses. A witness may be a partisan or interested witness, i.e., a witness who is in a near relation with the victim of crime or is concerned with conviction of the accused person. Even his testimony is relevant, though, stricter scrutiny is required while adjudging the credence of such a victim. However, apart from these witnesses or the witnesses who may themselves be the victims, other witnesses may not have any personal interest in the outcome of a case. They still help the judicial system. (Para 2)
The conditions of witnesses in Indian Legal System can be termed as ‘pathetic’. There are many threats faced by the witnesses at various stages of an investigation and then during the trial of a case. Apart from facing life threatening intimidation to himself and to his relatives, he may have to face the trauma of attending the court regularly. Because of the lack of Witness Protection Programme in India and the treatment that is meted out to them, there is a tendency of reluctance in coming forward and making statement during the investigation and/or testify in courts. These witnesses neither have any legal remedy nor do they get suitably treated. The present legal system takes witnesses completely for granted. They are summoned to court regardless of their financial and personal conditions. Many times they are made to appear long after the incident of the alleged crime, which significantly hampers their ability to recall necessary details at the time of actual crime. They are not even suitably remunerated for the loss of time and the expenditure towards conveyance etc. (Para 3)
It hardly needs to be emphasised that one of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State. It is a harsh reality, particularly, in those cases where the accused persons/criminals are tried for heinous offences, or where the accused persons are influential persons or in a dominating position that they make attempts to terrorize or intimidate the witnesses because of which these witnesses either avoid coming to courts or refrain from deposing truthfully. This unfortunate situation prevails because of the reason that the State has not undertaken any protective measure to ensure the safety of these witnesses, commonly known as ‘witness protection’. (Para 5)
All this has created problems of low convictions in India. This has serious repercussions on the criminal justice system itself. Criminal justice is closely associated with human rights. Whereas, on the one hand, it is to be ensured that no innocent person is convicted and thereby deprived of his liberty, it is of equal importance to ensure, on the other hand, that victims of crime get justice by punishing the offender. In this whole process, protection of witnesses assumes significance to enable them to depose fearlessly and truthfully. That would also ensure fair trial as well, which is another concomitant of the rule of law. (Para 8)
(Para 12) In some other judgments, the Supreme Court gave some guidelines, in the following manner:
a) Sections 354 and 377 of the Indian Penal Code should be tried and inquired on the same principles mentioned under sub- section (2) of Section 327 Cr.P.C.
b) While holding the trial of rape or child sex abuse, some sort of arrangements like a screen or something like it may be used so as to make sure that victim or witnesses (who are equally vulnerable and need protection like the victim) do not confront the accused;
c) Questions raised during the cross-examination by the counsel of the accused that are directly related to and be reminiscent to the victim or the witnesses of the incident should be written down and given to the presiding officer of the court in advance. The presiding officer must put forth those questions to the victim or witness in simple and clear language and as far as possible without making her uncomfortable;
(Para 13) It hardly needs to be emphasised that failure to hear material witness is denial of fair trial. The practice, however, to give protection to the witnesses is based on ad hocism, i.e., on case to case basis. The Courts have also, in the process, adopted different means to ensure witness protection, which can be stated in brief detail:
(a) Publication of evidence of the witness only during the course of trial and not after [Naresh Shridhar Mirajkar and Others vs. State of Maharashtra and Another; [1966 (3) SCR 744]
(b) Re-trial allowed due to apprehension and threat to the life of witness [Sunil Kumar Pal vs. Phota Sheikh and Other; AIR 1984 SC 1591]
(c) Necessity of anonymity for victims in cases of rape [Delhi Domestic Working Women’s Forum vs. Union of India; (1995) 1 SCC 14)]
(d) Discouraging the practice of obtaining adjournments in cases when witness is present and accused is absent. [State of U.P. vs. Shambhu Nath Singh; (2001) 4 SCC 667]
(e) Making threatening of witnesses as a ground for cancellation of bail [Ram Govind Upadhyay v. Sudarshan Singh; II (2002) SLT 587]
(f) Cross-examination by video conferencing — This is one of the innovative methods devised, which is specifically helpful to the victims of sexual crimes, particularly, child witnesses who are victims of crime as well.
The right to testify in courts in a free and fair manner without any pressure and threat whatsoever is under serious attack today. If one is unable to testify in courts due to threats or other pressures, then it is a clear violation of Article 21 of the Constitution. The right to life guaranteed to the people of this country also includes in its fold the right to live in a society, which is free from crime and fear and right of witnesses to testify in courts without fear or pressure. (Para 16)
There is a paramount need to have witness protection regime, in a statutory form, which all the stakeholders and all the players in the criminal justice system concede. At the same time no such legislation has been brought about. These are the considerations which had influenced this Court to have a holistic regime of witness protection which should be considered as law under Article 141 of the Constitution till a suitable law is framed. (Para 34)
(Para 35) The Supreme Court also directed that :
(i) The Supreme Court has given its imprimatur to the Scheme (Witness Protection Scheme, 2018) prepared by the union government which is approved hereby. It comes into effect forthwith.
(ii) The Union of India as well as States and Union Territories shall enforce the Witness Protection Scheme, 2018 in letter and spirit.
(iii) It shall be the ‘law’ under Article 141/142 of the Constitution, till the enactment of suitable Parliamentary and/or State Legislations on the subject.
(iv) In line with the aforesaid provisions contained in the Scheme, in all the district courts in India, vulnerable witness deposition complexes shall be set up by the States and Union Territories. This should be achieved within a period of one year, i.e., by the end of the year 2019. The Central Government should also support this endeavour of the States/Union Territories by helping them financially and otherwise.
Copy of judgement: Judgement 05-Dec-2018