Witness Protection

What is Witness Protection?

Safeguarding Witnesses and their freedom to provide testimony is essential for upholding the rule of law. Witness protection entails instilling confidence in witnesses and encouraging them to step forward and aid law enforcement and judicial authorities with the assurance of their safety. It includes two broad aspects- the first relates to witness identity protection, i.e., provisions for witnesses to give evidence anonymously during criminal trials, and the second relates to physical and mental vulnerabilities of witnesses and includes all aspects of the welfare of witnesses which call for physical protection of witnesses at all stages of the criminal process.

Official Definition of Witness Protection

The BNSS has now statutorily mandated Witness Protection Scheme for all states. The necessity for a comprehensive witness protection scheme had been underscored by the Malimath Committee and various Law Commission Reports, including the 14th, 154th, 172nd, 178th, and 198th Reports.

Bharatiya Nagrik Suraksha Sanhita (BNSS)

Sec 398 of BNSS states every State Government shall prepare and notify a Witness Protection Scheme / WPS 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.

Background of Witness Protection

In 2018, the Supreme Court in Mahender Chawla Case declared this Witness Protection Scheme to be law until the Parliament or various state governments prepared and notified their own Witness Protection Schemes. Although various provisions in the IPC, IEA and CrPC recognise the vulnerabilities faced by witnesses and provide some support, the 2018 order of the Supreme Court was the first to develop a comprehensive approach towards ensuring the protection of witnesses in criminal proceedings.

Model Witness Protection Scheme, 2018

The 2018 Model Witness Protection Scheme scheme took an expansive approach to establish a holistic legal and institutional framework for the protection of witnesses. This included categorising risk/vulnerability levels of witnesses; procedures for witness protection; introduction of threat analysis reports by the police to gauge the level of protection required by witnesses; and constituting a body comprising police officials and Sessions / District Court judges to implement and oversee its functioning.

In 2019, MHA had issued instructions regarding Witness Protection Scheme to all States / UTs vide No. 24013 / 35 / 2016 - CSR.III Dated January 14, 2019. MHA had requested all States / UTs to take appropriate steps to enforce the Witness Protection Scheme, 2018 in letter and spirit and that it shall be the 'law' under Article 141/142 of the Constitution.

Legal provisions related to witness protection

Code of Criminal Procedure, 1973

• Section 173(6) of the Code of Criminal Procedure (Section 193(7) of the BNSS) allows the Police officer to ask the Magistrate for authorization to not disclose the identity of the witnesses to the accused if it is “not essential in the interests of justice and is inexpedient in the public interest”. This acts as an exception to the rule under Section 299 of the CrPC (Section 335 BNSS), which authorizes the Magistrate to record the deposition of certain witnesses in the absence of the accused, where the accused has absconded/has not been arrested. Although the same has been used only in cases where alleged terrorist activities have been committed or either child or woman witness is involved, there is no bar on following the same procedure in case of other serious offences.

• Section 195A of the CrPC (Section 216 of BNSS) stipulates that any individual who intimidates another by posing a threat of harm to their person, reputation, or property, or to someone they care about, with the intention of compelling that person to provide untrue testimony, will face imprisonment for up to seven years, a fine, or both. In cases where an innocent person is wrongly convicted and receives a sentence of death or imprisonment exceeding seven years due to such false testimony, the person who issued the threat will be subject to the same punishment and sentence to the same degree as the innocent person.

• Section 312 of the CrPC (or Section 350 of BNSS) states that subject to any rules made by the State Government, any criminal court may, if it thinks fit, order payment, on the part of the Government, of the reasonable expenses incurred by a witness.

Indian Evidence Act, 1872

• Section 132 of the Indian Evidence Act, 1872 (Section 137 of the Bharatiya Sakshya Sanhita, BSS) allows the witness to not answer any question that may subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.

• Sections 148, 149 and 150 (Sections 145,146, and 147 of BSS) protects witness aginst objectionable question in cross-examination. The Court has the power to decide when a question shall be asked, whether it is reasonable or not and when a witness is compelled to answer and if it thinks fit, warn the witness that he is not obliged to answer the question. The Court can also forbid any indecent, scandalous questions or questions which are intended to insult or annoy.

Unlawful Activities (Prevention) Act, 1967 (UAPA)

• Section 44 of the Unlawful Activities (Prevention) Act, 1967 states that if, upon application by a witness or the Public Prosecutor, or on its initiative, the court determines that a witness's life is at risk, it may take appropriate measures, duly recorded in writing, to safeguard the identity and address of the said witness. These measures may involve holding proceedings at a location determined by the court, refraining from disclosing the witness's name and address in orders, judgments, or accessible case records, issuing directions to prevent the disclosure of the witness's identity and address, and deciding that it is in the public interest to prohibit the publication of any proceedings before the court. Violation of any decision or direction under these provisions may result in imprisonment for up to three years and a fine.

Juvenile Justice Act, 2015

• Section 74 of the Juvenile Justice Act, 2015 prohibits disclosure of the identity of children. The provision prohibits the disclosure of the identity and details (including their pictures and records) of children in conflict with the law, in need of care and protection, or victims/witnesses of a crime in media reports. Exceptions can be made by the inquiry-conducting Board or Committee, provided they record in writing that the disclosure is in the child's best interest. Violation of these rules may lead to imprisonment for up to six months, a fine of up to two lakh rupees, or both.

The Prevention of Children from Sexual Offences Act (POCSO)

Section 37 of the Protection of Children from Sexual Offences Act states that cases under the Act are to be conducted in the presence of the parents of the child or someone in whom the child has trust or confidence and that it should be conducted in camera.

The model guidelines under Section 39 of the POCSO provide a comprehensive framework for the implementation of the Protection of Children from Sexual Offences Act, 2012. The document offers detailed instructions on interviewing children, emphasizing considerations for special needs cases and procedures for interviewing parents or caregivers. It further delves into the role and procedures of medical and health professionals, outlining legal provisions, emergency care, medical examination, and the role of medical professionals as expert witnesses. The document also outlines the role of child development experts, legal representatives, and the establishment of child-friendly courtrooms.

National Investigation Agency Act, 2008

The National Investigation Agency (NIA) Act, 2008, established the NIA to investigate and combat terrorism and other related offences at a national level.

Section 17 of the NIA Act, 2008, addresses the protection of witnesses in NIA proceedings. It empowers the Special Court to conduct proceedings on camera if deemed necessary, and it allows the court to take measures, including keeping the identity and address of a witness confidential, if it concludes that the witness's life is at risk. Such protective measures may involve determining the location of proceedings, avoiding disclosure of witness names and addresses in public records, issuing directions to prevent identity disclosure, and deciding whether it is in the public interest to restrict the publication of proceedings. Violation of these protective measures may result in imprisonment for up to three years and a fine of up to one thousand rupees.

Law Commission Reports on Witness Protection

14th Report of Law Commission

The 14th Report of Law Commission was one of the first reports in the year 1958 which discussed the need to protect witnesses. The Report emphasized the cooperation between the Sessions Judge or the District Magistrate and the District Superintendent of Police to avoid any hardship undergone by the witnesses. Even the interests of the witnesses who come on behalf of the State in criminal proceedings are overlooked by the State and the amount paid, if any, is not sufficient to compensate the witnesses. The Report, on the other hand, also recommended adopting strict measures against witnesses who willfully refuse to attend the proceedings.

4th Report of the National Police Commission, 1980

This report laid greater emphasis on the failure of the courts to pay an appropriate monetary allowance to compensate the witnesses who attend court at the loss of their own time, work and money. Even though there is a procedure through which witnesses can apply for allowances, it is not practical and the compensation received is too minimal. Hence, the report recommended allowances payable to witnesses to be fixed on a realistic basis and to make the applicable procedure more simple and convenient.

Additionally, the report also recommended examining witnesses, especially women witnesses either at someplace near the place of the offence or at their residences to avoid inconvenience.

154th Report of the Law Commission, 1996

The Law Commission's 154th Report in 1996 discussed the difficulties faced by witnesses, including inconvenience, lack of facilities, and threats from the accused.

172nd Report of the Law Commission, 2000

The 172nd Report of the Law Commission (2000), dealing with the review of rape laws suggested that the testimony of a minor in cases of child sexual abuse should be recorded at the earliest possible opportunity in the presence of a Judge and a child support professional. It further urged that the court should permit the use of video-taped interviews of the child or allow the child to testify by a closed circuit television and that the cross examination of the minor should be carried out by the Judge based on written questions submitted by the defense. The Commission also recommended the insertion of a proviso to S. 273 CrPC to the effect that it should be open to the prosecution to request the court to provide a screen so that the child victim does not see the accused during the trial.

178th Law Commission Report, 2001

In its 178th Report, the Law Commission recommended the insertion of S.164A in the CrPC to provide for the recording of the statement of material witnesses in the presence of Magistrates where the offences were punishable with imprisonment of 10 years or more.

198th Law Commission Report, 2006

This was one of the most important Law Commission Reports on this subject matter, focussing on the Witness Identity Protection and Witness Protection Programme. It extensively explores two critical facets in the context of the 2004 Consultation Paper of the Law Commission (which recommended the enactment of legislative measures to prohibit witness tampering): 1) Witness Identity Protection and 2) Witness Protection Programmes.

The report discusses the responses given in a questionnaire attached as an annexure to the August 2004 Report and the recommendations given by the various stakeholders, both regarding Witness Identity Protection and the Witness Protection Programmes. The report also annexes a draft bill; The Witness (Identity) Protection Bill, 2006. The issue of witness protection was taken up by the Law Commission suo motu in the light of the observations of the Supreme Court in NHRC v. State of Gujarat, PUCL v. Union of India, Zahira Habibullah H Sheikh and Others v. State of Gujarat, and Shakshi v. Union of India that a law in this regard is necessary.

This report addresses the need for an equilibrium between the constitutional rights of the accused and the imperative necessity of shielding witnesses. It points out that the IPC and CrPC provisions show that neither the right to an open public trial nor the right of examination of the prosecution witnesses in the immediate presence of the accused are absolute, so there is no bar on the enactment of a law for the protection of witnesses. Additionally, they reiterated that the protection of witnesses is not necessarily confined to cases of terrorism, or sexual offences against women or children and measures can also be laid down for serious offences where there is a likelihood of danger and classified serious offences as those exclusively triable by the Court of Sessions.

The proposed Witness Identity Protection Bill suggested multifaceted measures to be employed during distinct phases of legal proceedings, ranging from investigation to trial (investigation, pre-trial, and post-trial) including the use of closed-circuit television. It emphasized the Magistrate's role in authorizing anonymity, particularly in cases involving victims known or unknown to the accused. It discussed Witness Protection Programmes that transcend the courtroom, involving the provision of new identities and potential relocations for witnesses. It envisioned a detailed memorandum of understanding (MOU) outlining specific obligations for both the protected witness and the state, with its breach entailing removal of the witness from protection. However, this Bill was not passed.

Witness Protection Scheme 2018

The Witness Protection Scheme, 2018 was prepared by the Ministry of Home Affairs in collaboration with the National Legal Service Authority, Bureau of Police Research & Development, and other State Governments. Its objective is to safeguard witnesses by assessing threats and implementing various protective measures such as identity changes, relocation, security device installation, and the use of specialized courtrooms.

The Supreme Court of India, in the case of Mahender Chawla & Ors. v. Union of India & Ors., endorsed this scheme and directed the Union of India, as well as states and union territories, to enforce it in full compliance, considering it as the "law" under Article 141/142 of the Constitution until suitable parliamentary and/or state legislations are enacted on the subject.

The scheme states that the ordered witness protection measures should be proportionate to the level of threat and regularly reviewed. They may include preventing face-to-face encounters between the witness and accused, monitoring communications, changing phone numbers, installing security devices in the witness's home, concealing the witness's identity, providing emergency contacts, offering close protection and patrolling, temporary relocation, court escorts, in-camera trials, support persons during statements, specially designed courtrooms, expeditious deposition recording, financial aid from the Witness Protection Fund, and additional measures as requested.

Categorization of Witnesses

Witnesses in the report have been categorized into three levels based on the threat:

1. Category A: where the threat extends to the life of a witness or his family members, during investigation/ trial or thereafter.
2. Category B: where the threat extends to the safety, reputation or property of the witness or his family members, during the investigation/trial or thereafter.  
3. Category C: where the threat is moderate and extends to harassment or intimidation of the witness or his family members, reputation or property of the witness or his family members, during the investigation/trial or thereafter.

Procedure

Upon receipt of an application by the Competent Authority of the district where the offence occurred, the Member Secretary will promptly issue an order to obtain a Threat Analysis Report from the ACP/DSP in charge of the concerned Police Sub Division. Depending on the urgency, interim protection orders for the witness or their family may be granted.

The application is processed with interactions with witness and their family, ensuring all hearings are conducted in-camera. Once the Threat Analysis Report, which suggests protection measures, is submitted, the application is to be disposed of, with implementation responsibilities resting on the Witness Protection Cell of the State/UT or the Trial Court. The Witness Protection Order for identity change and relocation will be implemented by the Department of Home of the concerned State/UT. The Witness Protection Cell shall file a monthly follow-up report. If needed, the Competent Authority may revise the Witness Protection Order or call for a fresh Threat Analysis Report after trial completion.

Implementation of the scheme in Different States

Different courts have issued the notification in furtherance of the order passed in the case of Mahendra Chawla & Ors. v. Union of India & Ors. to implement the witness protection scheme in their respective states. Out of the ones available on the website, the states of Assam, Bihar, Goa, Manipur, Odisha, Punjab, and Tripura have issued the same witness protection scheme as the original one issued by the Centre. Some variations are there in the ones issued by Haryana, Rajasthan and Uttarakhand. Furthermore, the Karnataka High Court has stated that the expenses incurred by the witnesses for their examination for purposes of the cases should be borne by the department as per the Karnataka Conduct of Government Litigation Act, 2023. Additionally, the states of Maharashtra and Delhi, due to their Act in place even before the scheme was out, have been dealt with separately.

Haryana

The notification issued by the Haryana Government states some additional provisions. The State Witness Protection Fund provision also, in Appendix-II of the notification, lays down how the assessment of expenditure to be incurred in the implementation of Witness Protection Orders is to be done. Additionally, the administration of the Witness Protection Cell is to be handled by people at different posts.

Rajasthan

The witness protection scheme passed by Rajasthan does not cover offences under Section 354-354D of the Indian Penal Code. Additionally, Rajasthan incorporates an additional clause, 9(6), which addresses the effects in cases of voluntary disclosure, serving as an add-on to the scheme. ‘Recovery of Expenses’, ‘Relocation of the witnesses’, and ‘Change of Identity' have not been covered under the Act.  

Uttarakhand

The Act passed by the Uttarakhand government, unlike the witness protection scheme, also includes grandparents in the definition of a family member. However, it does not state any measures or rules about the change in identity of the witness or his/her relocation. Additionally, it states in sections 13 and 14 that the decisions of the competent authority under the Act will not be actionable in civil courts and also talks about the applicability of certain provisions of the Right to Information Act Power to make rules.

Delhi

The Delhi government had a witness protection scheme in place since 2015 even before the Witness Protection Scheme 2018 was enacted. Even the Delhi State Legal Service Authorities follow the provision of the “Delhi Witness Protection Scheme, 2018” which protects the witnesses. However, the in case of family members, the definition clause does not mention live-in partners unlike the Witness Protection Scheme 2018. Additionally, the term ‘witness’ has been defined more specifically by confining witnesses to those who have information about a crime “regarded by the competent authority as being material to any Criminal proceedings and also include those who have given or agreed to give evidence about such proceedings. The Act also includes the State Legal Services Authority but has omitted the offence under section 354 of the Indian Penal Code from the definition of serious offences under the Act. ‘Recovery of Expenses’, ‘Relocation of the witnesses’, and ‘Change of Identity’, have not been covered under the Act.  

Maharashtra

The Maharashtra Witness Protection and Security Act, 2017, was enacted with the primary objective of protecting the witnesses and their relatives involved in criminal trials, specifically those related to serious offences.

Under the Act, the State Government can constitute the State Witness Protection Committee and the District Witness Protection Committee for each district. It outlines factors that should be considered by the Committee while providing protection, including the nature of the case, the importance of witnesses, the degree of threat perception, the previous record of witnesses, and any other factors as may be prescribed.

Procedures for providing protection during investigation and trial are detailed in the Act. Witnesses can apply for protection, and the Committee may extend protection based on factors like the degree of threat perception. The Act also empowers the investigating officer, with the approval of the concerned Committee, to protect persons whose lives are in danger during the investigation. Additionally, the court can, on its motion or upon application, direct the District Committee to protect witnesses during the trial.

The Act emphasizes the non-disclosure of names and addresses of witnesses to whom protection has been provided during the investigation. It grants the court the authority to take various protective measures during the trial, such as holding proceedings at a specified place and time, recording evidence via video-link, avoiding the mention of names and addresses of witnesses in orders and judgments, and restricting the publication or telecast of proceedings.

Recording of Evidence of Vulnerable Witnesses

The Supreme Court in Smruti Tukaram Badade v. State of Maharashtra & Anr. discussed the importance of setting up facilities to create a safe environment for recording the evidence of vulnerable witnesses. It directed the High Courts to adopt and notify a Vulnerable Witnesses Deposition Centres Scheme, or make modifications to existing schemes to ensure the implementation of these guidelines and to establish an in-house permanent Vulnerable Witnesses Deposition Centres Committee in every High Court to supervise the implementation of the directions and assess the need for deposition centres in each district. They also recommended the creation of an All India Vulnerable Witnesses Deposition Centres Training Programme to conduct training programs for all stakeholders and engage with the Legal Services Authorities to facilitate training and implementation of the scheme.

There are also some policies adopted by some of the states independently to implement measures to protect the witnesses especially in cases where the government is one of the litigators and the witnesses are appearing on behalf of the government. Post these judgements, most of the states and their high courts including Andhra Pradesh, Arunachal Pradesh, Bihar, Chhattisgarh, Haryana, Himachal Pradesh, Karnataka, Madhya Pradesh, Manipur, Meghalaya, Odisha, Sikkim, Telangana, Uttar Pradesh, Uttarakhand, and West Bengal have issued circulars and notifications to their respective police departments regarding the same. Many states issued notifications and the status report of the establishment of the Vulnerable Witness Deposition Centre is also attached to the case on the official website.

Appearances in Official Databases

Supreme Court Website

The reports from various High Courts in compliance with the order to establish Vulnerable Witness Disposition Centers (VWDC) have been published in one of the judgements which can be accessed on the website of the Supreme Court. A screenshot of the status report has been provided below.

A Snapshot of the Status Report

Research that engages with witness protection

There is a lot of discourse surrounding the concept of witness protection and research has been done by a lot of scholars and organizations. The following lists some important research done in this area:

Witness Protection in India & The United States: A Comparative Analysis

This article discusses the dire situation of witness protection in India, contrasting it with the effectiveness in United States. They do this via examples like the Jessica Lal case where some witnesses displayed courage, but many others refrained from supporting victims in court due to the lack of witness protection. Highlighting the effectiveness of Witness Protection Programs in the U.S. the authors argue that such programs are crucial for ensuring the courage of witnesses. It further analyses the issue of witness intimidation, emphasising its impact on the criminal justice system and society's confidence. Additionally, the author proposes some recommendations for improving witness protection in India.

Witness Protection: A Comparative Analysis of Indian and Australian Legislation

This research paper is another comparative analysis using the Australian Justice system. It examines the crucial role of witnesses in the criminal justice system and the challenges faced, especially instances of witness hostility due to external pressures. Despite the introduction of the Witness Protection Scheme in India in 2018, the paper observes that it has not effectively served its purpose. The study then conducts a comparative analysis between witness protection programs in India and Australia, aiming to draw insights from the latter's success. The introduction underscores the importance of witnesses in the justice system, quoting legal opinions and philosophical perspectives. Overall, the paper emphasizes the need for a proper and effective witness protection policy in India and seeks to identify potential improvements by studying the Australian model.

State of the Indian Judiciary (2016): Indian Judiciary and Access to Justice: An Appraisal of Approaches

The chapter delves into the status of the Indian judiciary in 2016, particularly focusing on its pivotal role in ensuring access to justice, a critical component for effective witness protection. Using the Indian Constitution as a normative benchmark, it seeks to establish the constitutional ideal of justice that necessitates access. The author examines the implications of this constitutional ideal on the judiciary's normative understanding of its role in facilitating access to justice. It sets the stage for an evaluation of trends and approaches in judicial reform aimed at improving access. The objective is to discern the extent to which these reforms for access to judtice align with, or fall short of, its constitutional conception. In the context of witness protection, this analysis becomes crucial to gauge the judiciary's effectiveness in ensuring a legal environment where witnesses can safely and confidently contribute to the dispensation of justice.

A Proposal for a Model Witness Protection Programme: Need and Legal Ramification

This paper addresses the critical issue of witness protection within the criminal justice system. The introduction highlights instances where witnesses in high-profile cases have faced attacks or death, emphasizing the urgent need for witness protection.

The paper traces the legal landscape, from Supreme Court directives expressing concerns over witness protection to recommendations of the Law Commission of India. It outlines efforts by states, like Delhi's successful witness protection scheme, and mentions proposed bills at both state and national levels. Despite these initiatives, the paper notes the lack of consensus among states, leading to a referral for examination of the feasibility and financial implications of a witness protection program.

The authors then propose a model witness protection program for India, drawing on global examples and considering the country's demographics. Sections of the paper delve into the role of witnesses, causes of witness hostility, and an analysis of existing global schemes. The final sections assess potential hurdles in implementing the proposed model and provide suggestions for overcoming these challenges. The paper concludes by urging essential steps from both Central and State governments for the successful implementation of comprehensive witness protection scheme.

Comparative Analysis of Witness Protection in Common Law Countries: Challenges and their Potential Solutions

The paper addresses the crucial role witnesses play in the criminal justice system and the challenges they face, particularly turning hostile due to factors like threats, resulting in a miscarriage of justice. The authors discuss the definition of a 'witness,' emphasize the importance of witness protection, and explore reasons why witnesses turn hostile. The paper then conducts a comparative analysis of witness protection statutes in India, the U.K, and the U.S.A. The authors conclude with suggestions and recommendations for improving witness protection laws, highlighting the significance of witnesses in ensuring a fair trial and addressing challenges in the current legal system.

Statutory Witness Protection in India: A Cardinal Urgency

This paper emphasizes the pivotal role of witnesses in the criminal justice system and advocates for witness protection in India. It identifies the challenges witnesses face, hindering the delivery of crucial evidence. The absence of statutory protection in India is highlighted as a significant issue impacting the fairness of criminal trials. The paper aims to study the importance of witnesses, evaluate the inadequacy of current laws, and conduct a comparative analysis with global witness protection programs. The conclusion stresses the urgent need for independent legislation on witness protection in India to ensure a fair trial and build public confidence in the justice system.

Law Commission Report 2004, Chapter VI: A comparative study of case law in other countries

This is a consultation paper by the Law Commission of India. Chapter VI particularly, delves into the concept of witness anonymity and the balancing of the rights of the accused, providing a comparative study of case law and practices in various countries. The chapter discusses legal developments in the United Kingdom, Australia, New Zealand, Canada, South Africa, the United States, and the European Court of Human Rights regarding protecting witness identity. It explores the approach of different jurisdictions in granting witness anonymity and how they navigate the tension between safeguarding witnesses and ensuring a fair trial for the accused. The chapter emphasizes the need for a comprehensive legislation on witness protection, taking into account the diverse practices and principles across jurisdictions.

Unprotected Witness: A Critique of the Witness Protection Scheme, 2018

This article examines India's 2018 Witness Protection Scheme, emphasizing the importance of safeguarding witnesses for a fair criminal justice system. It critiques the scheme's limitations, including restrictive classifications based on offence severity and subjective threat assessments. The article proposes a more inclusive protection approach, objective criteria for threat evaluations, and comprehensive assessments inspired by international standards. It advocates for a tier-based protection system, and an appeals mechanism, and explores the concept of the right to be forgotten to enhance witness confidentiality in the digital era. Overall, it calls for a more robust and comprehensive witness protection framework in India.

Witness Protection Scheme in India: Issues and Challenges

This paper seeks to argue that while the introduction of the Witness Protection Scheme in India in 2018 was a significant step towards ensuring the safety of witnesses within the criminal justice system, its implementation has encountered various challenges. The paper emphasises the critical role witnesses play in ensuring justice and highlights the need for a robust witness protection framework to address witness vulnerabilities, prevent intimidation, and uphold the rule of law. It explores the international context of witness protection laws, underlining their importance in maintaining fair trials and public confidence in the legal system. The ultimate goal is to create a secure environment where witnesses can testify without fear, particularly in high-profile cases involving organised crime, terrorism, or corruption, thereby contributing to the overall fairness and efficiency of the criminal justice system in India. The paper provides recommendations for improving the existing framework to enhance witness protection measures and address the identified challenges.

Impact Analysis of the Witness Protection Scheme, with Reference to Pune, Maharashtra

This paper underscores the crucial role of witnesses in the Indian legal system and emphasizes the sacred duty witnesses hold in revealing the truth. It refers to an empirical research study in Pune investigating the impact of the Witness Protection Scheme, 2018, on witnesses, particularly focusing on personnel and officers of the Maharashtra Police residing in the Pune District. Given that police often serve as primary witnesses in cases, the study aims to discern the scheme's influence on their testimonial experiences.

Witness Protection Jurisprudence in India: A Critical Analysis

The paper delves into the critical role of witnesses in the Indian legal system, emphasizing their importance in ensuring a fair trial and the pursuit of justice. It highlights the prevalent issue of witnesses turning hostile, often influenced by threats, criminal intimidation, and external pressures. The absence of comprehensive legislation for witness protection is noted, with previous bills failing to secure passage. The study critically examines the Witness Protection Scheme of 2018, assessing its effectiveness in curbing witness hostility and its impact on conviction rates in India. The paper concludes by underlining the pressing need for comprehensive legislation to safeguard witnesses.

International Experiences

Many countries have witness protection schemes and systems in place to implement the same.

Australia

Australia has a federal system of government due to which state witness protection laws work in addition to the Commonwealth Witness Protection laws. The state laws came into place before the Commonwealth Witness Protection Act 1994 was enacted. It provided a statutory witness protection framework allowing the police to coordinate a national program that provides for the placement and removal of witnesses; assignment of new and restoration of previous identities; establishment of a participant register; safeguards for identity documents such as tax file numbers and passports; the creation of offences for divulgement of information regarding participants and mechanisms to prevent participants from using new identities to avoid civil or criminal liability. The Commissioner of the Australian Federal Police can also enter agreements with State and Territory Commissioners of Police and the Chair of the National Crime Authority (NCA) in order to protect witnesses subject to those agencies.

The duration of involvement of a witness in the National Witness Protection Program is determined based on individual circumstances, such as the length of court proceedings and ongoing security concerns. Entry into the program is contingent upon the signing of a MoU that outlines the terms of participation. If a participant breaches any terms of the MoU or provides false or misleading information to the Commissioner, they may be removed from the program. Removal can also occur if a participant's actions jeopardize the integrity of the program, if they pose a threat, or if they are no longer considered high risk due to successful relocation and the passage of sufficient time in a new community. Alternatively, participants have the option to request termination in writing, bringing their protection and assistance under the program to a conclusion. Several Australian states and territories have established witness protection programs, each with its own legislation. Victoria pioneered this with the Witness Protection Act 1991, following issues with the ad hoc Victoria Police Protective Security Group. These state and territory laws complement the Commonwealth legislation (Witness Protection Act 1994), allowing the issuance of Commonwealth identity documents to those under state or territory protection. Identity document integrity, crucial for establishing new identities, is protected under Commonwealth legislation, with agreements in place with all states and territories except Tasmania and the Northern Territory.

New South Wales, the Northern Territory, South Australia, Victoria, and Western Australia have largely replicated the Commonwealth legislation, maintaining similar eligibility criteria. The Australian Capital Territory directly references the Commonwealth's criteria, while Tasmania adds its own eligibility requirements. Queensland diverges by considering a witness's potential assistance to authorities and operates its witness protection program under the Crime and Corruption Commission—an independent body—unlike other states and territories.

United Kingdom

The United Kingdom has a nationwide protection program in place which also takes care of protecting witnesses. It is managed by the United Kingdom Protected Persons Service (UKPPS). It works with the National Crime Agency is also a part of the UK law enforcement framework and concentrates solely on keeping people safe. Witness protection services are provided for under Section 4 of the Serious Organised Crime and Police Act 2005. Even though the Act does not create a national programme in the United Kingdom, it creates uniform criteria for admission and eligibility and lays down provisions for punishing those who disclose information about protection arrangements or about the identity of the protected witnesses. It also allows the transfer of responsibility for witnesses between police forces.

The United Kingdom lacks a centralized national police force, relying instead on 43 regional police forces in England and Wales, 8 in Scotland, and 1 in Northern Ireland. Witness protection varies across regions, with the Scottish Crime and Drug Enforcement Agency handling it for Scotland's eight police forces. In England, Northern Ireland, and Wales, witness protection operates locally, with dedicated programs in major areas. Forces without their programs often outsource to neighbouring ones.

The Serious Organised Crime Agency operates at the national level, established under the Serious Organised Crime and Police Act of 2005, houses a witness protection unit. The Witness Protection Bureau, part of the UK's Home Office, lacks operational capacity but supports local units, offering services like social housing, benefits, and medical care. Additionally, the Bureau serves as the central point for international relocations and operations. In the country, witnesses are under protection and their family members receive educational support to aid their adjustment to a new life. This transition typically spans 3–4 months, and its success hinges on the adaptability of the protected individuals, particularly young children, to the alterations. Agencies take caution not to entirely overhaul the witness's life and instead concentrate on modifying only essential aspects.

United States of America

In 1970, the Organized Crime Control Act granted authority to the United States Attorney General to safeguard witnesses cooperating truthfully in cases involving organized crime and serious offences. Operating under this authority, the United States Witness Security (WITSEC) Program ensures the physical protection of at-risk witnesses primarily by relocating them to undisclosed residences with altered names and new identities.

Addressing shortcomings identified after more than a decade of operation, the Witness Security Reform Act of 1984 tackled key issues integral to all witness protection programs. These include stringent admission criteria, the establishment of a fund compensating victims of crimes committed by program participants, a memorandum of understanding outlining witness obligations, procedures for breaches, disclosure protocols, and safeguards for third-party rights, including honouring debts and non-relocated parent rights.

Qualification for the WITSEC Program demands a case of exceptional significance, where the witness's testimony is crucial for prosecution success, and there are no alternative means to ensure their physical safety. Additional conditions involve the witness' psychological profile and their ability to comply with program rules. Over time, eligibility has expanded beyond witnesses to Mafia-style crimes, encompassing those associated with other organized crime types such as drug cartels, motorcycle gangs, prison gangs, and violent street gangs.

Canada

The Witness Protection Act establishes the Witness Protection Program in Canada, administered by the Commissioner of the Royal Canadian Mounted Police (RCMP). The program aims to safeguard individuals involved in law enforcement, national security, and designated programs by providing protection, which may include relocation, accommodation, and identity changes. The Commissioner has the authority to admit witnesses to the program based on various factors, and protection agreements outline obligations for both the protectee and the Commissioner. The Act strictly prohibits the disclosure of information related to protected persons, their locations, or means of protection, with exceptions made for specific purposes and under carefully defined circumstances. The Act also allows for the termination of protection under certain conditions and mandates annual reporting on program operations.

Section 8 of the Witness Protection Act outlines the deemed terms of a protection agreement. Specifically, the protection agreement is considered to include an obligation on the part of the Commissioner to take reasonable steps necessary to provide the agreed-upon protection to the protectee. On the part of the protectee, the agreement includes obligations such as providing information or evidence, cooperating in legal proceedings, meeting financial obligations not covered by the Commissioner, refraining from activities that may compromise security, and accepting reasonable requests and directions from the Commissioner regarding protection and obligations. This section establishes the mutual responsibilities between the Commissioner and the protectee within the framework of the protection agreement.

Section 11(1) of the Witness Protection Act prohibits the direct or indirect disclosure of certain information. Specifically, no person is allowed to disclose information that reveals the location or change of identity of a protected person, any information about the means and methods used to protect persons, or the identity and role of those involved in providing protection, if such disclosure could result in substantial harm to the individuals involved. This section emphasizes the confidentiality and protection of the sensitive information related to the individuals under witness protection, safeguarding their security and well-being.

South Africa

Before the implementation of the 1996 National Crime Prevention Strategy in South Africa, witness protection was governed by section 185A of the Criminal Procedure Act of 1977. This approach was oppressive and used during apartheid to compel witnesses to testify. The 1996 strategy recognized the importance of witness protection in obtaining evidence from vulnerable witnesses and identified it as a weak point in the criminal justice system.

In 2000, the Witness Protection Act 112 of 1998 was enacted, replacing the previous system. The new law established the National Office for Witness Protection, headed by a national director, and branch offices in the country's provinces. The law regulated the director's functions, including the power to decide on admission to the protection program based on recommendations from law enforcement agencies and the National Prosecuting Authority. The Director's decisions could be reviewed by the Minister of Justice and Constitutional Development.

The law outlined the types of crimes for which witnesses could seek protection, the application procedure, and eligible applicants. The Director had the discretion to approve protection for witnesses in other cases if safety warranted it. The law allowed the suspension of civil proceedings against protected witnesses to prevent disclosure of their identity.

It also defined offences and penalties for disclosing information about protected witnesses or program officials. The Director had the authority to decide on information disclosure, considering representations and applicable laws. Additionally, the law empowered the Minister of Justice to make agreements with other countries or international organizations regarding the relocation of foreign witnesses to South Africa and their admission to the witness protection program, with such relocations requiring ministerial approval.

Section 11(4) of the 'Witness Protection Act, 1998' in South Africa imposes a responsibility on the Director of the Office of Protection. This obligation entails taking reasonable measures to furnish the protected individual with the necessary protection and associated services as outlined in the relevant protection agreement. Furthermore, it stipulates that the Director should refrain from housing a protected person in a prison or police cell unless there is an alternative agreement in place.