A Policy Analysis of the Witness Protection Scheme 2018-explainer

 

1. The Witness as the "Eyes and Ears of Justice"

In the architecture of the Indian adversarial legal system, the witness serves as the fundamental pivot upon which the scales of justice balance. The integrity of oral testimony is not merely a procedural convenience; it is the primary strategic asset for any court engaged in the arduous process of uncovering factual truth. Within this framework, the witness acts as the medium through which facts—disputed or otherwise—are effectively conveyed to the judiciary, forming the backbone of the decision-making process.

This role finds its philosophical foundation in the works of Jeremy Bentham and Whittaker Chambers. Bentham famously characterized witnesses as the "eyes and ears of justice" more than 150 years ago, a functional metaphor emphasizing the court's sensory reliance on external testimony. 

2. Deconstructing Systemic Failure: The 'Pathetic' State of the Witness

Historically, the Indian criminal justice system has functioned with a profound neglect of its primary stakeholders: the witnesses. Understanding this failure is not merely a matter of addressing logistical lapses; it is a strategic necessity for preserving the Rule of Law. As observed in Swaran Singh v. State of Punjab and reaffirmed in the Mahender Chawla judgment, the treatment meted out to witnesses is nothing short of "pathetic," representing a fundamental breach of procedural due process.

The specific hardships can be categorized into three distinct layers of systemic failure:

• Institutional Harassment: Witnesses are often denied basic human dignity within the court complex. This includes being "pulled out of the courtroom by the peon," a lack of sitting space, and the absence of basic amenities like drinking water.
• Procedural Trauma: The system frequently rewards the accused through a "routine" of unnecessary adjournments. Trials are often protracted until the witness is "tired out" and ceases to appear. Furthermore, witnesses are subjected to "prolonged stretched examinations" long after the incident, when memory has naturally decayed.
• Economic Burden: Witnesses are summoned regardless of their financial condition, often traveling from distant locations at their own expense without timely or suitable remuneration for travel or loss of productive time.

This environment fosters a "tendency of reluctance" among the citizenry. This reluctance does not merely "reward the accused"; it effectively grants immunity to those with the means to intimidate, creating a tiered system of justice that is fundamentally unconstitutional. When the court permits this harassment, it unintentionally becomes a party to a miscarriage of justice.

3. The Anatomy of Hostility: Forces Undermining the Trial Process

The phenomenon of the "hostile witness" is a corrosive force that undermines public confidence in the judiciary and renders trials "putrefied and paralyzed." When a witness retracts their statement, the trial is reduced to a "mockery," making the attainment of truth a casualty of the process.

In Ramesh v. State of Haryana, the Court analyzed the catalysts for such retractions, identifying seven primary reasons (Paragraph 44):

• Threat and Intimidation: Direct peril to the witness or their family members.
• Inducement: Monetary considerations or other "tempting offers."
• Muscle and Money Power: The influence of habitual criminals or those high in government.
• Stock Witnesses: The reliance on professional or compromised individuals.
• Protracted Trials: The exhaustion of the witness through years of delay.
• Investigation/Trial Hassles: The general trauma and lack of respect within the machinery.
• Lack of Legislation: The historical absence of a formal, structured protection program.

The power dynamics of "political patronage" and "money power" highlighted in Zahira Habibullah Sheikh and Krishna Mochi v. State of Bihar demonstrate how the influential can derail the search for truth. Furthermore, as noted in Sakshi v. Union of India, the "mere sight of the accused" can induce extreme fear or shock. This psychological barrier necessitates physical safeguards, as a witness incapacitated by fear cannot serve as the eyes and ears of justice.

4. Case Study in Crisis: The Asaram Bapu and Narayan Sai Trials

The petition filed by Mahender Chawla and others served as a critical "stress test" for the criminal justice system, highlighting the specific atrocities committed by influential accused persons to stifle testimony. In the trials involving Asaram Bapu and Narayan Sai, the petitioners revealed a shocking collapse of State protection:

• Mahender Chawla: Survived a murder attempt after testifying regarding child rape and witnessing Narayan Sai performing "Tantrik practices on the dead body of a child in an Ashram in Madhya Pradesh"—an investigation that was stifled by influence.
• Naresh Gupta: The father of Akhil Gupta, a witness who was murdered for daring to testify against the accused.
• Karamvir Singh: The father of a child rape victim whose family lived in constant fear. His son, Somvir, was threatened by attackers who were "shockingly" released on bail. One such attacker, Narayan Pandey, subsequently murdered another prosecution witness, Kripal Singh.
• Narendra Yadav: A journalist who survived a murder attempt and continued to receive death threats from the jailed sharpshooter, Narayan Pandey.

The "shocking" negligence of the police—including the withdrawal of security despite active threats—prompted a constitutional intervention. The Court established a direct nexus between the ability to testify and Article 21, ruling that the "right to life" includes the right to live in a society free from crime and fear. If a citizen is unable to testify due to intimidation, it is a direct violation of their constitutional right to the protection of the law.

5. The Evolution of Witness Protection Policy in India

The 2018 Scheme is the culmination of decades of unimplemented recommendations, marking a strategic shift from a "case-to-case" approach to a structured procedural mandate.

The policy evolution includes:

• 14th Law Commission Report (1958): The first formal recognition of the need for protection.
• 154th, 178th, and 198th Reports: Progressive advocacy for witness identity protection.
• 2003 Malimath Committee Report: Emphasized the "sacred duty" of the witness and the necessity of anonymity or physical disguise.

Previous legislative attempts, such as Section 195A IPC or the Whistle Blowers Protection Act, 2011, were insufficient because they were piecemeal; they failed to provide the physical, relocational, and holistic framework required for a comprehensive program. The 2018 Scheme fills this legislative vacuum, incorporating inputs from 18 States, the National Legal Services Authority (NALSA), and civil society.

6. Structural Deconstruction of the Witness Protection Scheme, 2018

The objective of the Scheme is to ensure that investigation and trial are not prejudiced by intimidation. It introduces a "Taxonomy of Threat" to categorize protection needs:

• Category ‘A’: Threat extends to the life of the witness or their family.
• Category ‘B’: Threat extends to safety, reputation, or property.
• Category ‘C’: Moderate threat involving harassment or intimidation.

The procedural mechanics are designed for rapid response:

1. Filing: Application to the Competent Authority (District and Sessions Judge).
2. Threat Analysis Report (TAR): Mandated from the Head of Police within five working days.
3. Disposal: The application must be decided within five working days of receiving the TAR.

This strict 10-day timeline is a critical safeguard against the "delay tactics" that usually lead to witness elimination. Protection measures are proportionate to the threat, ranging from CCTV installation to "Change of Identity" and "Relocation," funded by the "State Witness Protection Fund."

7. The Architecture of Safety: Vulnerable Witness Deposition Complexes (VWDC)

Strategic physical architecture is essential to reduce witness trauma. The "Delhi Model," exemplified by the Dwarka District Court, provides the blueprint for these facilities, featuring:

• One-way mirrors and screens to prevent direct eye contact.
• Modified audio-visual feeds to disguise face and voice.
• Separate passages and entry points for witnesses to avoid the accused.

These complexes address a significant legal tension regarding Section 273 Cr.P.C., which requires evidence to be taken in the "presence of the accused." The Court specifically rejected Law Commission suggestions to examine witnesses in the absence of the accused, citing principles of natural justice. Instead, VWDCs utilize video conferencing as the "middle path," satisfying the requirement of the accused's "presence" while shielding the witness from the "shame or embarrassment" often weaponized by defense counsel during cross-examinations.

8. Conclusion: The Scheme as 'Law' under Article 141

The Witness Protection Scheme, 2018, represents a transformative constitutional correction. In the absence of Parliamentary legislation, the Supreme Court exercised its plenary powers under Article 142 to fill a legislative vacuum, giving its "imprimatur" to the Scheme and declaring it the "law" under Article 141.

The Court’s mandate includes:

• Immediate enforcement of the Scheme across all States and Union Territories.
• The creation of Vulnerable Witness Deposition Complexes in every district court in India by the end of 2019.
• The directive for the Central Government to provide financial and logistical support to the States.

This "beneficial and benevolent" scheme finally accords the witness the dignity required to sustain the criminal justice system. By protecting those who perform their "sacred duty," the Scheme ensures that the "eyes and ears of justice" remain open, effectively eliminating the darkness of intimidation and illuminating the face of justice.