Witness Protection in India

Witness Protection in India

News: The Supreme Court-appointed special investigation team (SIT) re-investigating nine 2002 Gujarat riots cases has withdrawn police and paramilitary protection to all the witnesses, including retired judge Jyotsana Yagnik.

Who is a witness?
• Although the term “witness” is widely used in criminal law, it hasn’t been defined properly in the statute books.
• However, Section 161 CrPC dealt with the examination of witnesses and allowed investigating police officers to orally examine anyone “supposed to be acquainted” with the case’s facts and circumstances. It also said the witness is bound to answer all questions “truly” but needn’t answer questions that expose them to criminal charges, penalties, or forfeiture.
• Notably, Section 398 of the Bharatiya Nagarik Suraksha Sanhita, which has replaced the CrPC, states that every state government shall prepare and notify a Witness Protection Scheme for the state to ensure the protection of witnesses.

Why is there a need to protect witnesses?
• In Swaran Singh vs. State of Punjab (2000), the SC observed that a criminal case is built upon the edifice of evidence that is admissible in law, and for that, witnesses are of paramount importance.

What efforts have been made to protect witnesses?
• Justice VS Malimath Committee Report (2003) said “a law should be enacted for giving protection to the witnesses and their family members on the lines of the laws in USA and other countries.”
• The Delhi government also notified a witness protection scheme on July 31, 2015.
• There are inbuilt protections in laws such as Section 195A IPC, Sections 151–52 of the Indian Evidence Act, and Section 327 CrPC, like criminalising threatening of witnesses etc, it wasn’t until December 2018 that the SC drew up a nationwide Witness Protection Scheme.

What is the Witness Protection scheme? How does it work?
• In Mahender Chawla vs. Union of India (2019), the SC observed that witnesses turned hostile due to inadequate protection by the state and directed the Centre, states, and UTs to “enforce” the scheme “in letter and spirit” until the Parliament enacts a law on it.
• First, an application is made by a witness, their family member, lawyer, or the concerned IO/SHO/SDPO/Jail Superintendent before “a competent authority through its Member Secretary” for a Witness Protection Order under the 2018 Scheme. Then, a “Threat Analysis Report” is prepared and submitted by the Head of the Police in the investigating district concerning the seriousness and credibility of the threat. This report also categorises threat perception and suggests witness protection measures that should be taken.
• The Scheme operates by identifying three categories (Category A, B and C) of threat perceptions for witnesses.
• Depending on the urgency, the ‘competent authority’ can pass orders for interim protection. However, the police can provide immediate protection in cases of grave and imminent threats to life.
• The report also includes suggestive protective measures like ensuring witnesses and accused don’t come face-to-face during the probe, protection of identity, relocation of witnesses, confidentiality and preservation of records, and recovery of expenses.