Vulnerable witness
Who is a 'Vulnerable Witness'?
A witness is someone who, be it through voluntary means or under forces of compulsion, provides the court with testimonial evidence, which can be in an oral or written format, of what they know or claim to know as true. A Vulnerable Witness is a subsection of this group that refers to a set of socially vulnerable individuals including but is not limited to child witnesses, who have not attained the age of majority, categories of age-neutral victims of sexual assault, gender-neutral victims of sexual assault, witnesses suffering from mental illness and any witness deemed to have threat perception under the witness protection scheme of 2018 of the Union government.
Official Definitions
High Court Guidelines
As each state of India has its own guidelines issued for the identification and protection of vulnerable witnesses, the definitions have been extracted from respective state High Court orders.
3(a) Vulnerable Witness - For the purpose of these guidelines, "vulnerable witness" means and includes-
(i) any child victim or witness who has not completed 18 years of age;
(ii) any victim of an offence under the POCSO Act, 2012;
(iii) any victim of an offence under Sections 376(1), 376(2), 376A, 376AB, 376B, 376C, 376D, 376DA, 376 D, 376E, 354, 354A, 354B, 354C, 354D and 377 of the Indian Penal Code;
(iv) any person with disability as defined under Section 2(s) of the Rights of Persons with Disabilities Act, 2016 and considered to be a vulnerable witness by the concerned court;
(v) any witness suffering from "mental illness" as defined under Section 2(s) of the Mental Healthcare Act, 2017 read with Section 118 of the Indian Evidence Act, 1872;
(vi) any witness deemed to have a threat perception under the Witness Protection Scheme, 2018 of the Union Government as approved by the Supreme Court in Mahendra Chawla v. Union of India; and
(vii) any other witness deemed to be vulnerable by the concerned court,+
* [including Family Courts, Children's Courts, Juvenile Justice Board, civil and criminal courts, or any tribunal or forum.]*
*Subject to clarificatory orders of the Supreme Court.
As defined in case law(s)
The directions are enumerated below from the landmark judgement of Smruti Tukaram Badade Versus State of Maharashtra & Anr. 2022 LiveLaw SC (80).
“(i) The definition of “vulnerable witness” contained in Clause 3(a) of the ‘Guidelines for recording evidence of vulnerable witnesses in criminal matters’ 4 of the High Court of Delhi shall not be limited only to child witnesses who have attained the age of 18 years and should be expanded to include, inter alia, the following categories of vulnerable witnesses:
(a) Age neutral victims of sexual assault read with Sections 273 and 327 of the Code of Criminal Procedure 1973 and Section 354 of the Indian Penal Code 1860 5;
(b) Gender neutral victims of sexual assault read with Section 2(d) of the Protection of Children from Sexual Offences Act 2012;
(c) Age and gender neutral victims of sexual assault under Section 377 of the Indian Penal Code 1860 read with paragraph 34(1) of the decision in Sakshi (supra);
(d) Witnesses suffering from “mental illness” as defined under Section 2(s) of the Mental Healthcare Act 2017 read with Section 118 of the Indian Evidence Act 1872;
(e) Any witness deemed to have a threat perception under the Witness Protection Scheme 2018 of the Union Government as approved by this Court in Mahendra Chawla v Union of India ;
(f) Any speech or hearing impaired individual or a person suffering from any other disability who is considered to be a vulnerable witness by the competent court; and “VWDC Scheme”
(g) Any other witness deemed to be vulnerable by the concerned court.”
Category of Vulnerable Witness
The broad idea of a vulnerable witness broadly derives itself from the Witness Protection Program that the country currently subscribes to. The BNSS has legally introduced a Witness Protection Scheme.
- 398. Every State Government shall prepare and notify a Witness Protection Scheme for the State with a view to ensure protection of the witnesses.
This clause is an entirely new addition proposed in the criminal procedural framework and requires state governments to prepare and notify schemes for witness protection. In 2018, the Supreme Court in the Mahendra Chawla Case declared this WPS scheme to be law until the Parliament or various state governments prepared and notified their own Witness Protection Schemes.
International Experience
The concept of a “vulnerable witness” refers to individuals who, due to their personal characteristics or external circumstances, require special measures to ensure their safety, comfort, and ability to provide testimony in legal proceedings. Vulnerable witnesses often include children, victims of violence (domestic, sexual, or otherwise), individuals with cognitive or physical impairments, and those exposed to traumatic or life-threatening situations. Courts around the world, as well as international and hybrid tribunals, have adopted various measures to protect these witnesses from secondary victimisation and intimidation, ensuring their rights are upheld without compromising the rights of the accused. However, despite the commonality of the term in legal contexts, there is no universally accepted definition of a vulnerable witness, leading to variations in how different countries and legal systems approach the issue.
Sources for Comparative Analysis of Vulnerable Witnesses:
1. Recommendation No. (97) 13 of the Committee of Ministers of the Council of Europe
- Chapter IV provides guidance on the treatment of vulnerable witnesses, especially in domestic violence and family-related cases.
2. Directive 2012/29/EU of the European Parliament and Council
- Establishes minimum standards on the rights, support, and protection of victims of crime, including references to those who are "particularly vulnerable."
3. Youth Justice and Criminal Evidence Act 1999 (United Kingdom)
- Defines two categories of vulnerable witnesses and introduces measures for their protection, such as for children and individuals with mental or physical impairments.
4. Evidence Act 2008 (Australia)
- Includes categories of vulnerable witnesses such as children, victims of serious crimes, and individuals under threat, with procedures for special protections.
5. Criminal Code 1985 and Canada Evidence Act
- Provides measures to protect children and adults with disabilities and outlines the court’s discretion in treating witnesses as vulnerable based on specific circumstances.
6. International Criminal Tribunal for Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR)
- Rule 75(B) addresses protections for vulnerable witnesses, including provisions for in-camera sessions and closed-circuit television (CCTV) testimony.
7. International Criminal Court (ICC) – Regulations on the Operation of the Registry
- Defines a vulnerable witness and includes measures to protect them from psychological harm and facilitate their testimony.
8. Special Tribunal for Lebanon (STL)
- Rule 133C empowers the court to implement protective measures for vulnerable witnesses, such as using CCTV or screens to prevent direct visual contact with the accused.
9. Kosovo Specialist Chambers (KSC)
- Rule 80(4) addresses special measures for vulnerable witnesses, including those traumatised by sexual or gender-based violence.
Databases
There are no records maintained in any database related to witnesses. However, the court records and case files uploaded in official databases mention if there were any witnesses in that particular case.
Challenges
1. Transparency, Accessibility, and Reliability of Data
Databases that track cases involving vulnerable witnesses are often limited to official government records or internal reports of legal bodies, and further, this data is not easily available. Primarily focusing on the implementation of the Vulnerable Witness Deposition Centres, there is no pre-existing singular database that provides access to the growth of these centres or its development.
2. Standardisation and Harmonisation of Data
There is no uniform methodology for collecting data across different states or courts in India as each state has its own set of guidelines which may result in differences in recording and categorising information.
3. Implementation Status of Processes
Although there are legal provisions to protect vulnerable witnesses, their implementation varies widely across jurisdictions. In some regions, courts are more proactive in providing protections, while in others, procedural safeguards may be overlooked. The Supreme Court of India has directed all High Courts to set up Vulnerable Witness Deposition Centres (VWDCs) in every district by April 30, 2024. While this is a significant step towards institutionalising protection for vulnerable witnesses, the challenge lies in ensuring that these centres are uniformly established and adequately equipped.
Way Ahead
Improving Data Collection
Stakeholders and legal experts have suggested creating a centralised national database to record all cases involving vulnerable witnesses, ensuring transparency and consistency across states. The database should include details such as the vulnerability type, protections provided, and case outcomes. The data compiled by senior advocate Vibha Dutta Makhija, highlights the lack of consistency in data collection across states. Further, a standardised data collection framework across all High Courts and district courts is essential. The Supreme Court’s directive to set up Vulnerable Witness Deposition Centres (VWDCs) by April 2024 underscores the need for systematic data recording. The Supreme Court also directed states to adopt the Delhi High Court’s guidelines for recording evidence, including special provisions like the use of screens to protect witnesses from seeing the accused.
Enabling Systemic Analysis
High Courts and district courts should conduct regular reviews of how vulnerable witness protections are implemented. A committee, chaired by former Jammu and Kashmir High Court Chief Justice Gita Mittal, has been established to engage with all High Courts to ensure the creation of deposition centres and prepare training modules for court personnel. Research bodies have suggested incorporating methods to analyse large datasets and track trends, such as the number of cases involving vulnerable witnesses and the effectiveness of VWDCs. The January 2022 Supreme Court order, which expanded the definition of vulnerable witnesses to be age- and gender-neutral, offers a broader scope for analysis.
Process Efficiency
A clear disparity exists in the establishment of VWDCs across states. As of October 2021, Maharashtra leads with 116 VWDCs, while states like Uttar Pradesh, West Bengal, Kerala, and Himachal Pradesh have yet to establish even one. This inconsistency highlights the need for process efficiency and uniform implementation across judicial districts. Ensuring these centres are well-resourced and functional across all states remains a significant challenge. States like Tamil Nadu and Punjab are struggling with delays due to funding and infrastructure constraints. Finally, the Supreme Court panel has been tasked with preparing training modules to manage VWDCs effectively.
Related Terms for 'Vulnerable Witness'
Comparable Terms
Witness Protection Scheme: Refers to broader protections for witnesses who may face threats or retaliation.
Child Witness: Specifically refers to minors involved in legal proceedings.
Victim of Sexual Assault: Often considered a vulnerable witness in trials involving sexual offences.
Umbrella Terms
- Vulnerable Persons: A broader term encompassing not only witnesses but also individuals who require special consideration under the law due to age, gender, mental health, or disability, as expanded in the January 2022 Supreme Court judgement.
- Protected Witness: Used in some jurisdictions to refer to individuals granted specific protections, such as anonymity or physical shielding during a trial.
Vulnerable Witness Deposition Scheme
As of 04-10-2019, Notices were issued to all the High Courts through the Registrars of the respective High Courts, for status reports with regard to the establishment of the vulnerable witness deposition courtrooms in compliance with the directions of this Court in State of Maharashtra Vs. Bandu, reported in (2018) 11 SCC 163.
Through a Court Order Dated 11-01-2022 - There is a detailed report on the action of states vis-a-vis the VWDS and its implementation. The report was Submitted by Vibha Datta Makhija, Senior Advocate on Reports from various High Courts in compliance of order dated 4.10.2019 passed by the Hon’ble Supreme Court for the establishment of Vulnerable Witness Deposition Centers (VWDC) for hearing on 25.10.2021.
- 24 out of 25 High Courts have submitted status reports regarding establishment of Vulnerable Witness Deposition Centers. Report from Manipur High Court has not been filed as per office report dated 25.10.2021.
- In 15 out of 25 High Courts, at least 1 Permanent Vulnerable Witness Deposition Centre has been established. In 9 remaining High Courts, not even 1 Permanent Vulnerable Witness Deposition Centre has been established.
- Delhi has established at least 1 Permanent Vulnerable Witness Deposition Centre in all its functional District Courts.
- Delhi High Court has also formulated guidelines for recording of evidence of vulnerable witnesses in criminal matters. This has been adopted by other High Courts as well.
- Maharashtra has the most number of Permanent Vulnerable Witness Deposition Centers in its District and Subordinate Courts.
| Concerned High Court | Date of Status Report | Number of vulnerable witness deposition centers – permanent | Number of vulnerable witness deposition centers – temporary/insufficient infrastructure | Guidelines |
|---|---|---|---|---|
| Bombay High Court | 6.9.2019 | 116 | NIL | Guidelines adopted from Crl. Appeal No. 1101 of 2019 |
| Rajasthan High Court | 09.01.2020 | 24 | 10 | No guidelines available |
| Gujarat High Court | 05.02.2020 | 24 | NIL | No guidelines available |
| Delhi High Court | 20.01.2020 | 10 | NIL | Delhi guidelines adopted for vulnerable witnesses |
| Orissa High Court | 21.01.2020 | 9 | NIL | No guidelines available |
| Madras High Court | 02.01.2020 | 6 | NIL | No guidelines available |
| Punjab & Haryana High Court | 21.12.2019 | 1 (Chandigarh), 5 (Punjab) | NIL | No guidelines available |
| Karnataka High Court | 20.12.2019 | 4 | 1 | No guidelines available |
| Madhya Pradesh High Court | 16.01.2020 | 4 | NIL | Own guidelines formulated |
| Jharkhand High Court | 11.12.2019 | 3 | 4 | No guidelines available |
| Uttarakhand High Court | 13.12.2019 | 2 | NIL | No guidelines available |
| Tripura High Court | 09.12.2019 | 2 | NIL | No guidelines available |
| Meghalaya High Court | 25.10.2019 | 2 | NIL | Draft guidelines, not notified |
| Jammu & Kashmir High Court | 25.10.2019 | 1 | NIL | No guidelines available |
| Patna High Court | 10.12.2019 | 1 | NIL | No guidelines available |
| Himachal Pradesh High Court | 04.01.2020 | NIL | 3 | Guidelines adopted from Delhi High Court |
| Chhattisgarh High Court | 17.12.2019 | NIL | 3 | No guidelines available |
| Guwahati High Court | 07.02.2020 | NIL | NIL | No guidelines available |
| Sikkim High Court | 19.12.2019 | NIL | NIL | No guidelines available |
| Calcutta High Court | 06.12.2019 | NIL | NIL | No guidelines available |
| Kerala High Court | 20.11.2019 | NIL | NIL | No guidelines available |
| Andhra Pradesh High Court | 17.02.2020 | NIL | NIL | No guidelines available |
| Telangana High Court | 24.02.2020 | NIL | NIL | No guidelines available |
| Allahabad High Court | 20.12.2019 | NIL | NIL | No guidelines available |
Further, Two reports by Hon’ble Justice Gita Mittal, former Chief Justice of Jammu and Kashmir, were submitted on 14 March 2022, and the Court heard submissions from amicus curiae Ms. Vibha Datta Makhija and Ms. Aditi Choudhary, Registrar (Vigilance) of the Delhi High Court. On 11 March 2022, Model Guidelines for Vulnerable Witness Deposition Centres (VWDCs) were circulated to all Chief Justices of the High Courts, with a request for feedback by 20 May 2022 to incorporate suggestions into the final version, aiming for a uniform national model for implementation.
The Court accepted the suggestion that VWDCs be used not only in criminal cases but also in civil jurisdictions, family courts, juvenile justice boards, and Children’s courts, allowing for the recording of vulnerable witnesses across all jurisdictions. A prototype of VWDC drawings and guidelines has been shared with the High Courts to guide fresh construction or modifications of existing setups. The Committee, chaired by Justice Mittal, is developing a training module, with the possibility of engaging international and Indian experts via video conferencing if needed. The Ministry of Women and Child Development has been implemented and designated as the coordinating body responsible for working with Justice Gita Mittal, Chairperson of the Committee on vulnerable witnesses.
As of recently, an order dated 16 January 2024, The term of appointment for Justice Gita Mittal, former Chief Justice of Jammu and Kashmir, had been extended until 31 July 2024 to continue overseeing the establishment and monitoring of Vulnerable Witness Deposition Centres (VWDCs). All High Courts were directed to ensure the setup of VWDCs in every district by 30 April 2024, with a fresh updated status report to be submitted by Justice Mittal in the first week of May 2024. It was noted that two High Courts have not yet implemented the 2022 VWDC guidelines. Specifically, the State of Odisha has yet to implement the guidelines for civil cases, while Tamil Nadu has taken no action regarding the expanded definition of vulnerable witnesses. This report has not been published as yet, and additionally, Justice Geeta Mittals Term has been extended till from 1 August 2024 until 31 July 2025.
In response to this order, communications were sent to all High Courts, and updated reports dated 8 and 9 July 2024 were received on the operationalization of VWDCs. A compliance report from the Registrar General of the Karnataka High Court dated 21 May 2024 was also submitted. Additionally, four reports from Justice Gita Mittal, submitted between May 2023 and December 2023, have been included in the paper books for the Court's review. The matter is now listed for further directions. Furthermore, four reports submitted by Justice Gita Mittal, former Chief Justice of Jammu and Kashmir High Court, dated 12 May 2023, 5 July 2023, and 22 December 2023, have been received and added to the paper books for the Court's review. The Miscellaneous Application is now listed before the Court for further directions as of 9 August 2024.
