India needs a law on Witness Protection!

Dated: November 30, 2020

                                                                                                                                       - By Megha Bhatia

When addressing the value of providing a notified witness protection scheme, Justice AKJ Nambiar of the High Court of Kerala recently held that it was the duty of the legislature to establish the balance between the right to a fair trial and the right to witness protection.

At a webinar organised by Damodaram Sanjivayya National Law University (DSNLU), Visakhapatnam and the Confederation of Alumni for National Law Universities (CAN Foundation) on Protection of witnesses and whistle-blowers: Strengthening the Frameworks, Justice Nambiar spoke. Justice PS Bhati of the Rajasthan High Court and Senior Advocate Siddharth Bhatnagar were also featured in the talk.

Justice Nambiar said that the exercise of a witness protection law would include looking from inside to find out the kind of offences which are committed in India, the sense of danger, and the type of protection India can afford to offer, rather than directly borrowing provisions from foreign jurisdictions.

He pointed out that the discretionary allocation can be very limited for the judiciary itself in different states. The witness safety legislation should however, preferably come from the government, with funds being distributed for the purpose. 

He added that, preferably, the law should be implemented at both the federal and state levels. A broad structure can be given by the Centre, while the states will add the specifics, he suggested.

“... even if the legislation does take time to be notified, it is fine as long as it manages to bring a feeling of protection in the minds of the citizens.” Justice AK Jayasankaran Nambiar

Justice Nambiar started his speech by explaining the idea of providing a witness protection scheme. When an entity comes to speak out about a crime against society that he has encountered, it is called an attribute of good citizenship. As such, the judge observed, it becomes obligatory for the state to defend the witness.

While citing an example of an effort by the courts to maintain a balance between freedom  of press and the right to a fair trial, he noted, “... although the courts have held that the greater public good should be considered while deciding (on such matters), no one has defined what a greater good is.

Justice Nambiar added that the legislature must pass a statute for a witness protection scheme after a detailed review, much like the Constitution of India - a mature piece of legislation that was enacted after two years of debate and deliberation. This should be done in a practical way, he said.

A scheme or policy cannot be idealistic. A person cannot be compelled to give evidence, if he does not volunteer. Balancing of various factors in giving protection to witnesses shall be considered. For instance, a witness programme, where the name and job the witness is to be changed, will face realistic implementation setbacks in India”, said Justice Nambiar.

He concluded his speech by stating that “... even if the legislation does take time to be notified, it is fine as long as it manages to bring a feeling of protection in the minds of the citizens.”

His personal encounters as a judge and as a practising lawyer were interspersed with the address of Justice PS Bhati of the Rajasthan High Court. 

Although agreeing with the opinion of Justice Nambiar that the legislature should describe witness protection, he added a few recommendations based on his experiences.

Justice Bhati delved into a significant part of the subject - the question of hostile witnesses and how they were turned hostile at the trial by their comments at various times.

He observed, “Whether the witness can be penalised or reprimanded for turning hostile? An interesting simultaneous Jurisprudence says ‘No, you cannot do so’, else the system is likely to turn into a police regime.”

He added, “Hostile witnesses have always troubled the justice system. The conviction rate is low and the judiciary is blamed for low conviction rates as low as 4-5 %. This less conviction is not the failure of the judiciary alone, but of the entire legal system.  At the same time, we cannot put witnesses on the spot either or be hard on them, since witness independence is paramount. Therefore, we still allow cross-examination of hostile witnesses to retrieve some relevant part out of the version being given at the trial and some testimony can be restored.”

Justice Bhati said that a number of magistrates have been helped by good witness services. There could be faster proceedings, he added, if witnesses at an early stage of the trial could also be brought before the magistrate. 

He said it was necessary to aim for a culture that insists that there is a rule of law and that if citizens enter courts, administration of justice is assured. If the rule of law is not upheld, he said a tooth-for-tooth condition will exist.

Justice Bhati concluded his address by claiming that the purpose of any law should be the integrity and freedom of witnesses. He added that it must be as practical as possible as well. 

Senior Advocate Siddharth Bhatnagar agreed with the views of his co-panellists, adding that he was merely hoping that further technical intervention would take place to ensure improved witness safety.

Echoing sentiments on the need for a concrete model, he said that if the model is what all law enforcement officials will readily adopt, then it would better apply it. 

On the weaknesses of the prevailing witness protection system, he noted, “Firstly, it did not deal with the private sector. Secondly, that Bill which was passed actually requires disclosure of the name of the complainant so a witness protection issue comes up there as ultimately whistle-blowers are a subset of witness protection. Whatever information comes into the hands of an authority that is deciding on witness protection must equally be kept confidential and there must be procedures for the same.”

He noted that it was possible to review the new witness protection programme, approved by the Supreme Court in a decision in 2018, so that alternatives are added to the law that is being drafted in the future.

We don’t have a legislation but the scheme itself I think is a good starting point”, he opined.

Advocate Sriram Parakkat, EC Member, CAN Foundation, and Advocate Vishwajeet Singh facilitated the workshop. 

Prof. (Dr.) S Surya Prakash, Vice-Chancellor, DSNLU, Visakhapatnam, gave the welcoming speech.


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