HRF/108/04
17 November 2004
Justice At Risk
The Need for a Witness Protection Programme in India
The about-turn of Zaheera Sheikh, key witness in the Best Bakery murders case, throws up important questions related to the role of witnesses in criminal trials. The principal aim of criminal law is to ensure the right of the accused to a fair trial. Simultaneously, the interest of the State lies in prosecuting the crime, and for this purpose, obtaining credible and legally tenable evidence from the witnesses. To this end, witnesses are entitled to protection from intimidation, considering the crucial role played by them in the delivery of criminal justice.
The Law Commission of India recently released a consultation paper on the issue. The Commission will submit its recommendations after receiving and considering the responses to its paper. In doing so, it must also address a key concern – that of protection to defence witnesses. While the state provides protection to the prosecution witnesses, there is no such mechanism to protect the defence witnesses who are likely to be intimidated at the hands of the State. Clearly, there are gaps in the existing legislation that need to be fixed.
Witness protection under international law
The Rome Statute of the International Criminal Court has one of the most extensive lists of due process guarantees, and any initiative on witness protection would do well to use the Statute as a guidebook. Protections include the presumption of innocence, right to counsel, right to present evidence and confront witnesses, right to remain silent, right to be present during trial, and the right to have charges proved beyond reasonable doubt.
The Rome Statute also requires the setting up of a Victims and Witnesses Unit (VAW) by the Registrar. The Rules of Procedure and Evidence of the International Criminal Court details the functions of the Unit. The rights of witness protection extend to all victims and witnesses.
The Unit shall provide counseling and other appropriate assistance for witnesses, victims who appear before the court and others who are at risk on account of testimony given by such witnesses. The Unit should provide adequate protective and security measures for victims, witnesses and others who may be at risk on account of their testimony and assist them in obtaining medical, psychological or any other kind of assistance.
With respect to witnesses, the Unit advises them on where to obtain legal advice regarding their testimony, assist them when they have to testify in Court, and take gender sensitive measures to facilitate the testimony of victims of sexual violence. The Unit shall give due regard to the particular needs of children, elderly persons and persons with disabilities. The Unit shall also ensure training of its staff with respect to victims’ and witnesses’ security, including matters relating to gender and cultural sensitivity.
The Court has the authority to conceal the identity of the witnesses whenever it is deemed appropriate. But, it is important to note that the protection offered to victims and witnesses under the Rome Statute are to be applied in a manner that is not inconsistent with the rights of the accused. Any violation of the rights of the accused must be redressed with just compensation, in accordance with international human rights law.
Apart from the Rome Statute, the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power states, “victims should be treated with compassion and respect for their dignity.” It might be implied that such treatment would include a victim’s physical and psychological treatment as a witness in criminal proceedings. The Declaration also states that the judicial and administrative measures should be taken to minimize inconvenience, protect privacy and ensure safety of the victims and witnesses on their behalf.
The European Convention on Human Rights is of particular significance while considering witness protection. It entitles the accused inter alia to “examine or have examined against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” These rights require that the defendant be given an adequate opportunity to question a witness against him either when he was making a statement or at a later stage in the proceeding, as was held in the European Court of Human Rights in the Asch case. In another landmark decision in the Doorson case, the European Court decided that the statement made by an anonymous witness could also be used, if there is corroborative evidence. This implies that no conviction should be either solely or to a decisive extent based on anonymous statements.
The Council of Europe has acknowledged the variety of situations in which witnesses may need protection in a wide-ranging Recommendation on the Intimidation of Witnesses and Rights of the Defence [R (97) 11]. The significant recommendations were that witnesses should be provided with alternative methods of giving evidence which protects them from face to face confrontation with the accused like audio visual recording of statements, pre-trial statements, revealing identity of the witness at later stages of the proceedings and excluding the media and the public from all or part of the trial. These recommendations also allow certain witnesses to provide evidence anonymously and advocate the setting up of witness protection programmes for vulnerable witnesses in member states.
Despite these positive developments, there exists no specific legal code relating to the protection of witnesses in international law.
‘Shielding the defence’: Protecting the defence witnesses
While drafting a law on witness protection, the rights of defence witnesses must be considered, given their importance in criminal proceedings. While protection of prosecution witnesses by the state is generally more clearly defined, there seems to be a general presumption against defence witnesses, as if they do not face the risk of intimidation and therefore, do not require protection.
As long as adequate protection is not granted to all classes of witnesses, the problem of hostile witnesses can never be resolved. Unlike the United States Constitution, the Constitution of India provides the right to silence under Article 20(3) only to the accused. This right does not extend to witnesses. Witnesses mostly turn hostile because of the hostile animus exhibited towards them by India’s criminal justice system.
Furthermore, in the Best Bakery case, Ms. Sheikh retracted her previous statements and alleged that her life was under threat from the human rights activist, Ms. Teesta Setalvad, who supposedly “forced” her to lie in court. This indicates a need to categorise witnesses to identify the “vulnerable” or “intimidated” witnesses to ensure effective segregation of those witnesses who need protection and those who do not.
Balancing the Rights of the Accused and the Rights of the Witness
Under Indian criminal law, there are very few safeguards to protect witnesses, namely those under special anti terror laws like the now repealed TADA and POTA. Section 30 of POTA provided that any proceeding under the Act, at the discretion of the Court, could be held in camera. The Act also provided that in certain cases, on the basis of an application made by the witness, the Court may keep the identity and address of the witness secret. Although POTA stands repealed, the very same provisions relating to witness protection have been reintroduced in the Unlawful Activities (Prevention) Amendment Ordinance 2004.
More often than not, the ability to rebut testimony of a given witness depends on knowledge of the witnesses’ identity and background. Without that knowledge, the whole idea behind conducting a cross-examination is rendered ineffective and the defence operates at a noticeable disadvantage. This protection deprives the defence the opportunity to test the credibility or reliability of the witness, thereby biasing the proceedings against the accused.
This protection seems to be supported on the ground that the witnesses might be afraid of deposing against the accused. Again, no corresponding protection exists for the defence witnesses who have information regarding police atrocities and who might be afraid to depose against the police.
There have been little efforts made at the domestic level to articulate the conflict between the rights of the accused and those of the witness. The Malimath Committee has vaguely recommended that witnesses be afforded protection without affecting the right of the accused to cross-examine them.
The initiative taken by the Law Commission of India to draft a special law on witness protection is commendable, but to ensure that the law in this regard is effective and in conformity with international criminal and human rights law, the gaps in the legal protection of witnesses must first be identified. The protection that is currently available to a certain category of witnesses, especially in terrorist cases, is based upon the discretion of the court and is highly arbitrary and unpredictable. There is an urgent need to establish a neutral agency that can consider the needs of all witnesses, not just those brought by the prosecution.
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