There is perhaps no better test than the efficiency of the judicial system to test the excellence of the government. Since judiciary is the custodian of the rights of the citizens, any maladministration would result in jeopardy of civil liberties. As Bryce has put it succinctly; “if the lamp of justice goes out in darkness, how great is that darkness.” Drawing from herein, one cannot neglect the role of a witness in the administration of justice in a country. Justice Wadhwa in Swaransingh v. State of Punjab (AIR 2000 SC 2017) termed the witnesses to be the basis of both direct and circumstantial evidences which form the edifice of any criminal investigation. Simply put, witnesses therefore become the eyes and ears of the Court and thus their protection becomes paramount to the judicial decision being rendered.
Interestingly, hostile witnesses form a glaring reality of the criminal justice system at present. And it is to be noted that the issue is not a new one. There are everyday instances of witness retracting from their statements recorded by the police, thereby changing the outcome of a rather important judicial decision. However, with the landmark judgements of Best Bakery and Jessica Lal being delivered by the Apex Court, the case of hostile witnesses seems to have captured the limelight.
At the outset, it is to be noted that the statements made by the witnesses to the police officials are not admissible in the Court of Law by virtue of the safeguards provided by the Code of Criminal Procedure, 1973. Thus, the statements made by a witness required to be restated in the court and any event of retraction from the earlier made statements results in the witnesses turning hostile. And this is turning out to be a great menace posing a hurdle in the path of administration of justice. The reasons for the witnesses turning can be myriad. The most commonplace among them is the intimidation and manipulation the witnesses are subjected to. All of this results into a mockery of the Rule of Law.
It is also to be noted that the undue delay in the disposal of a case also furthers the cause of the witnesses turning hostile. As a step to get rid of the constant harassment faced due to the repeated summoning, the witnesses decide to turn hostile. The same has been acknowledged by the National Police Commission Report as early as 1980.But clearly, not enough action has been taken in this regard to remedy the situation. Even the Malimath Committee report (2003) acknowledged the fact of treating the witnesses with respect as they are the edifice of the justice system but unfortunately, there seems to be no formal law in place to take care of the concerns expressed.
First and foremost, what needs to be understood and appreciated in this regard is the fact that witnesses, especially the hostile ones, are a special category of victims. Therefore, the enactment of any formal legislation needs to ensure that a witness is treated as a potential and possible victim in order to facilitate the framing of the laws which are tailored to their needs. Also, the fact that there exists absolutely no protection rendered to the defence witnesses needs to be taken into consideration. Interestingly, the Constitution of India provides for a right to remain silent to the accused under the provisions of Article 20 (3) whereas the same is not extended in case of the witnesses. Hence, such a hostile attitude towards the witnesses also contributes to the further hostility exhibited by them.
In a consultation paper released by the Law Commission in 2004, the need of the hour, i.e a formal witness protection programme was recognised. In the course of framing a formal legislation in this regard, it needs to be taken into consideration that both the evidence of the witness and the witness himself requires protection. It is the second aspect which requires a careful consideration and is thus open to debates and deliberations. In the opinion of the researcher, witness anonymity is perhaps the first step to ensure such protection. Drawing from the US model and Witness Protection Act, 1970, the government should also try and relocate those witnesses and give them a new identity, thereby minimising the risk of the witnesses being victimised. Further, it is also to be noted that the laws enacted in this regard should call for a balance between the rights and duties of the witnesses. Whereas it is a right of the witness to be protected against harassment, it is also onerous upon the witness to testify before the court as and when required.
It is high time that the law makers shed a lackadaisical way of work and realise the urgent need of the protection of the witness. It is also to be ensured that the faith of the citizens as well as the witnesses in the criminal justice system is restored. The need of the hour is not only providing protection to witnesses from turning hostile but also granting a criminal sanction against the ones who turn hostile. The Supreme Court has emphasised over and again, through a plethora of judgements about that fact that such legislative measures have become imminent and inevitable in the present order of the day. This in itself point towards the imperative need of such legislations. Witness protection measures are vital for the furtherance of justice and in this regard the consultation paper submitted by the Law Commission regarding the Witness Identity and Witness Protection Programme is indeed a welcome step. However, a mere policy directive is not sufficient and it is the participation of the populace who strengthen the forces of democracy which will make the administrative attempt successful. Finally, to sum up, witness protection programmes have been a long over due but that too shall remain in a state of inactivity till the investigative agencies are made independent and free from any political colour. Till then, hostile witnesses will continue to be an epidemic and an endemic in India.
Shayonee Dasgupta, Director SACJ 2009-10
Interestingly, hostile witnesses form a glaring reality of the criminal justice system at present. And it is to be noted that the issue is not a new one. There are everyday instances of witness retracting from their statements recorded by the police, thereby changing the outcome of a rather important judicial decision. However, with the landmark judgements of Best Bakery and Jessica Lal being delivered by the Apex Court, the case of hostile witnesses seems to have captured the limelight.
At the outset, it is to be noted that the statements made by the witnesses to the police officials are not admissible in the Court of Law by virtue of the safeguards provided by the Code of Criminal Procedure, 1973. Thus, the statements made by a witness required to be restated in the court and any event of retraction from the earlier made statements results in the witnesses turning hostile. And this is turning out to be a great menace posing a hurdle in the path of administration of justice. The reasons for the witnesses turning can be myriad. The most commonplace among them is the intimidation and manipulation the witnesses are subjected to. All of this results into a mockery of the Rule of Law.
It is also to be noted that the undue delay in the disposal of a case also furthers the cause of the witnesses turning hostile. As a step to get rid of the constant harassment faced due to the repeated summoning, the witnesses decide to turn hostile. The same has been acknowledged by the National Police Commission Report as early as 1980.But clearly, not enough action has been taken in this regard to remedy the situation. Even the Malimath Committee report (2003) acknowledged the fact of treating the witnesses with respect as they are the edifice of the justice system but unfortunately, there seems to be no formal law in place to take care of the concerns expressed.
First and foremost, what needs to be understood and appreciated in this regard is the fact that witnesses, especially the hostile ones, are a special category of victims. Therefore, the enactment of any formal legislation needs to ensure that a witness is treated as a potential and possible victim in order to facilitate the framing of the laws which are tailored to their needs. Also, the fact that there exists absolutely no protection rendered to the defence witnesses needs to be taken into consideration. Interestingly, the Constitution of India provides for a right to remain silent to the accused under the provisions of Article 20 (3) whereas the same is not extended in case of the witnesses. Hence, such a hostile attitude towards the witnesses also contributes to the further hostility exhibited by them.
In a consultation paper released by the Law Commission in 2004, the need of the hour, i.e a formal witness protection programme was recognised. In the course of framing a formal legislation in this regard, it needs to be taken into consideration that both the evidence of the witness and the witness himself requires protection. It is the second aspect which requires a careful consideration and is thus open to debates and deliberations. In the opinion of the researcher, witness anonymity is perhaps the first step to ensure such protection. Drawing from the US model and Witness Protection Act, 1970, the government should also try and relocate those witnesses and give them a new identity, thereby minimising the risk of the witnesses being victimised. Further, it is also to be noted that the laws enacted in this regard should call for a balance between the rights and duties of the witnesses. Whereas it is a right of the witness to be protected against harassment, it is also onerous upon the witness to testify before the court as and when required.
It is high time that the law makers shed a lackadaisical way of work and realise the urgent need of the protection of the witness. It is also to be ensured that the faith of the citizens as well as the witnesses in the criminal justice system is restored. The need of the hour is not only providing protection to witnesses from turning hostile but also granting a criminal sanction against the ones who turn hostile. The Supreme Court has emphasised over and again, through a plethora of judgements about that fact that such legislative measures have become imminent and inevitable in the present order of the day. This in itself point towards the imperative need of such legislations. Witness protection measures are vital for the furtherance of justice and in this regard the consultation paper submitted by the Law Commission regarding the Witness Identity and Witness Protection Programme is indeed a welcome step. However, a mere policy directive is not sufficient and it is the participation of the populace who strengthen the forces of democracy which will make the administrative attempt successful. Finally, to sum up, witness protection programmes have been a long over due but that too shall remain in a state of inactivity till the investigative agencies are made independent and free from any political colour. Till then, hostile witnesses will continue to be an epidemic and an endemic in India.
Shayonee Dasgupta, Director SACJ 2009-10
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