By Aashna Sheth

Edited by Madhavi Roy

The Bombay High Court recently directed the State of Maharashtra to provide police protection to witnesses in criminal cases from the initial stages of investigation itself. This direction was given in the light of a 2010 Public Interest Litigation aimed at the protection of whistleblowers and witnesses. While the state did frame a policy for the protection of whistleblowers, the Division Bench comprising Justices Abhay Oka and M. S. Sonak held that its policy regarding witness protection was deficient in several ways. As a result, it has asked the state to reconsider the entire issue and come up with a policy by the end of November this year. The directions given by the court bring to light the importance of witness protection and the dire need to introduce a comprehensive and effective witness protection policy.

As Bentham puts it, ‘Witnesses are the eyes and ears of justice’. Witness accounts and revelations play an imperative role in judicial decision-making. The evidence they provide cannot be subordinated; their accounts often hold all the answers, thereby making them extremely vulnerable and therefore susceptible to danger. Thus the question we need ask is an imperative one; what must be done to protect these witnesses? The direction provided by the Bombay High Court signals a step in the right direction – what we need is an effective witness protection policy. The importance of witness protection has been stressed time and again, yet effective steps have not been taken to materialize these suggestions into reality.

In 2004, in Zahira v The State of Gujarat, or what is popularly known as the Best Bakery case, the court stated that witnesses should be able to depose freely, without any coercion or threat from a third party or an outside person. Furthermore, the Law Commission has attempted to address this issue in a series of consecutive reports. In its 14th Report (1958), the Law Commission highlighted the importance of providing facilities to witnesses; these included transport and travel allowances to name a few. More so, in the 1996 Law Commission Report, it was explicitly stated that confidence should be instilled in the minds of witnesses so that they could depose without any fear. The Malimath Committee Report further highlighted the importance of developing a law to protect witnesses; it elaborated stating that laws should be developed in line with US laws, which deal with providing protection to witnesses and their families. Yet, an effective program or policy has not yet been introduced.

Witnesses must be looked at as assets, ones that require care and protection. They are more often than not disrespected and taken for granted. Several reports have cited cases of witnesses turning ‘hostile’, and this mainly arises because of the lack of efficiency of the courts of law. When hearings are postponed and dates after dates are issued, it is but natural for the witness to show angst towards the system and, as the reports state, turn ‘hostile’. Thus, what the witness protection policy needs to primarily address is the aforementioned issue. Furthermore, different levels of protection must be provided depending upon the vulnerability and the importance of the witness. Effective care must also be taken to ensure the least possible time gap between the application procedure and the provision of protection. More so, as the Bench pointed out, the definition of ‘witness’ must be widened to include not only those who depose before the court, but also those who possess imperative documents or information which would make them susceptible to risk as well.

Policy makers, legislators and even suggestions of the Malimath Committee Report refer to the creation of laws in line with the US Witness Protection Policy. Their Witness Security Program or WITSEC is created to protect witnesses before, during and after a trial. The gravity of their threats is first analyzed and they provide protection accordingly. Protection includes 24-hour security, medical assistance (if necessary) and identity changes for the witness and their families in grave circumstances. However, achieving and implementing a program such as this one requires time and effective resources. Developing a law along these lines appears to be extremely difficult and sometimes unattainable – however, what we can do is strive to reach this by tackling the problems which plague our criminal justice system in the first place. If we find ways to respect the witness, ensure security and speedy trials, half the seeds have already been sown.

The development of an effective witness protection policy is a need of the hour. By evaluating the deficiencies in the existing policy and providing a deadline for the reconsideration and the formulation of a new one, the Bombay High Court has signalled a move in the right direction. Along with the rule of the law, we also need the efficacious implementation of the same. The creation and implementation of such a policy should eventually aim to ameliorate the criminal justice system in our country.

Aashna Sheth is a 2nd year law student at Government Law College in Mumbai. She believes that the best form of expression is writing. She is an avid reader and deems it essential to keep abreast with recent developments. Hoping to become a successful lawyer some day, she also plays the piano and speaks fluent French. 

Posted by The Indian Economist | For the Curious Mind