How the reformed criminal laws put a cosmetic patch on India’s abiding issue with witness protection

THE SUPREME COURT OF INDIA, IN A CATENA OF DECISIONS spread over decades, has emphasised for the Witness Protection Scheme and the setbacks caused by the lack of it in offering a fair trial. However, the said plea has always been overlooked by the legislative wing of the state. The Executive, with the help of the Judiciary and vice versa, is trying its best to fill in the said gap; however, that can never be said to be infallible in the absence of a specific legislation on the subject. The anticipated law for the witness protection scheme shall also establish an independent task force in addition to the mechanism for protection.The Supreme Court in a very well-renowned decision in Krishna Mochi v. State of Bihar (2002), has more particularly observed that “the society suffers by both wrong convictions and wrong acquittals”. It goes unsaid that the role of a witness is paramount in the criminal justice system of any country. Therefore, any law aiming to redress the problem of “hostile witness” needs to be infallible..The leading cause for the high acquittal rate in criminal trials is the witnesses turning hostile to the case of the prosecution..The leading cause for the high acquittal rate in criminal trials is the witnesses turning hostile to the case of the prosecution. While there could be numerous reasons for witnesses to turn hostile, the major ones are: Lack of secrecy of the identity of the witnesses and police protection to them at least till the trial is over. Witnesses certainly are afraid of the possible wrath of the accused, who may also be an influential person. Inordinate delay in trial, particularly when the accused is not in custody. Witnesses are indirectly overstretched to recall events from years ago exactly as previously stated in their statements, as under Sections 161 and 164 of the Code of Criminal Procedure. Many naturally would rather simply deny witnessing the incident than endure the ordeal. Intimidation, direct threat, monetary inducement, etc, are clear causes of witnesses turning hostile.Cross-examinations are often conducted in a harsh and rather inhuman manner, where witnesses are not treated very kindly.To the least, there is no incentive or motivation for the witness to come forward and depose truthfully, if not to get harassed by the accused or court officials. It was observed in Swaran Singh v. State of Punjab (2000): “Here are witnesses who are harassed a lot. A witness is not treated with respect in the court, he is pushed out from the crowded courtroom by the peon. He waits for the whole day and then finds the matter adjourned. He has no place to sit and no place even to have a glass of water, and when he does appear in the court, he is subjected to prolonged and unchecked examination and cross-examination and find himself in a helpless situation. For all these reasons, a person abhors becoming a witness.”.Minor contradictions cannot be a ground to discredit the testimony of the witnesses: Supreme Court.Witnesses who come to court often face long waiting hours without access to basic amenities. Witnesses are neither given proper respect, attention or, to the least, the very basic adequate protection. Most of the time, witnesses could be seen sitting on the same bench as the accused. We cannot blame the witness for being hostile. It is the system’s holistic fault that they become hostile.Witness protection jurisprudence in IndiaIndian Law Commission's 14th Report in 1958 was the first ever reference made for the need of a witness protection scheme in India. The 154th Report of the Law Commission incorporated a chapter on protection and facilities to witnesses. The 172nd Report and the 178th Report emphasised the protection of witnesses from the accused. The fourth Report of the National Police Commission (1980) acknowledged the troubles undergone by witnesses attending proceedings in courts. Malimath Committee on Reforms of Criminal Justice System 2003 also emphasised the need for witness protection. The 198th Report of the Law Commission of India titled “Witness Identity Protection and Witness Protection Programmes, 2006” is dedicated to the subject. With all these recommendations and observations by various committees, there was and is no official document in the form of an enacted law by the centre or by the state legislature acting on these recommendations. It was only in the year 2018 that the Supreme Court in Mahender Chawla v Union of India, seeing the neglect by the legislature introduced the Witness Protection Scheme 2018 aimed at ensuring the safety and security of witnesses. .The 2018 scheme was the first structured effort to safeguard the interests of the witnesses during a criminal trial..In Mahender Chawla, the Supreme Court with the failure of the legislature to act on the most important subject stepped in and with union government’s formulation recognised the Witness Protection Scheme 2018 and declared that it will be “law” under Articles 141 and 142 of the Constitution until competent legislation on the subject is enacted by Parliament or state legislature. The centre, state and union territories shall enforce the same in letter in spirit.The 2018 scheme was the first structured effort to safeguard the interests of the witnesses during a criminal trial. In appreciation to the judiciary and the Supreme court it must be said that though the prerogative to make the law falls specifically in the domain of the legislature, and they cannot be commanded to make a law by any of the other wings of the state, the judiciary has has always acted in the interests of justice wherever necessary and as much as it could. The 2018 Witness Protection Scheme adopted a broad-based approach to creating an inclusive legal and institutional structure for safeguarding witnesses. Although there may be certain limitations to the framework of the 2018 Scheme, such as overreliance on the police for threat assessment or limiting the scope of witness protection to three months, this scheme was a first step towards a comprehensive legal framework for witness protection.In 2018, the court conviction rate was 50 percent, rising slightly to 50.4 percent in 2019. By 2020, it reached 59.2 percent, the highest in five years. This suggests that the Witness Protection scheme may have played a role in improving convictions.While it has its own limitations, the 2018 scheme surely seems to have contributed to criminal justice reforms in India. The 2018 scheme remains limited by an underdeveloped framework, with the judiciary handling it largely on its own due to a lack of support from the legislature..What does ‘Indianisation’ and ‘reform’ mean in the context of the three new criminal law Bills?.The overlooked call for witness protection in the criminal law reformsThe ongoing failure of criminal trials, largely due to crucial witnesses turning hostile, has prompted the legislature to finally recognise the urgent need for a witness protection scheme. As a result, a new section, Section 398, was introduced in the recently enacted criminal laws. However, the problem lies in the fact that, rather than offering a concrete solution, this trailblazing section essentially echoes Mahender Chawla’s plea for a witness protection scheme. The section conveniently shifts the burden onto the State legislature to take action. .Protecting the evidence of witnesses from the danger of their turning hostile has received limited attention at the hands of Parliament..Section 398 of the BNSS (Bharatiya Nagarik Suraksha Sanhita, 2023) reads as; "Every State Government shall prepare and notify a Witness Protection Scheme for the State with a view to ensuring the protection of witnesses."At this point, the crucial question is: What will the implications of this provision be? Will it compel state legislatures to take action, or will it merely become another overlooked promise?More than a year has passed since these new laws and Section 398 were implemented, yet nothing has changed. One might even argue that Section 398 exists only to create the illusion of progress without any real substance behind it. Nevertheless, at least the issue is gathering a little momentum and attention by the legislature. With the progress up till now, we can optimistically hope that within the next decade, an effective witness protection scheme will be implemented in every state.As things stand, and in the absence of specific state laws, it seems likely that the 2018 witness protection scheme will continue to operate until state-specific laws are enacted. Section 398 of the BNSS, 2023, clearly stands as a delegated legislation provision. The provision mandates State action but lacks grip without a binding nature.Truly a fair trial?While there has been both critique and praise for the newly enacted criminal laws, the consensus largely indicates that these laws introduce only cosmetic changes, failing to address the deep-rooted and glaring issues within our criminal justice system. As per the settled legal position, a crime committed against a person is a crime committed against society at large. In this context, while we are critical of the rights of the accused, a little consideration is given to the rights, protection and security of the society. We focus on the principle that no innocent should be punished for the offence he did not commit, while there being no harm in adopting to the said preposition, but along with that, there is no justification as to why there is a failure to ensure that a person who has committed that offence does not go unpunished. The principle for conviction of the guilty has always been unreasonably overshadowed by the principle that no innocent should be punished, though that might lead to thousands of guilty going unpunished. The protection of society from its evils is a duty of the State. The State must ensure that justice is served by both safeguarding the rights of the innocent and effectively punishing those who have committed crimes. In Zahira Habibulla H. Sheikh v. State of Gujarat (2006), while defining ‘a fair trial’, the Supreme Court very rightfully observed that “If the witnesses get threatened or are forced to give false evidence, that also would not result in a fair trial”. .A question thus arises as to whether a trial with its witnesses turned hostile can really be said to be a fair trial? It could be fair to the accused, but in no way can it be called fair for society. Protecting the evidence of witnesses from the danger of their turning hostile has received limited attention at the hands of Parliament. The failure of the country’s criminal justice system is multifaceted. With the dynamic and ever-evolving society, there will always be gaps in the law; however, the legislature must be reactive to such a simple thing..What the surge in criticism of the three new criminal laws is all about.The failure to protect witnesses undermines the very foundation of a fair trial and, by extension, the broader goal of justice. While the recent inclusion of Section 398 in criminal laws signals some progress, it remains to be seen whether this will compel tangible change or merely add to the list of unfulfilled promises. The issue of witness protection remains an overlooked critical concern in India’s criminal justice system, and immediate action is desired to restore faith in the criminal justice system and ensure justice for all. While new criminal laws are brought into force purportedly for revolutionising the criminal justice system, perhaps they may mostly contain cosmetic changes under the guise of revolution.

How the reformed criminal laws put a cosmetic patch on India’s abiding issue with witness protection

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