Witness Protection: A Critical Appraisal of the Existing Criminal Justice
System in India and a Way Forward
Witnesses are one of the essential elements of a criminal justice system. Protecting the lives
and identities of witnesses who give evidence against criminals is essential for a successful
criminal justice system that aims to deter crime and maintain law and order in the society.
The constitutional courts in India have acknowledged the idea of witness protection and
taken it into consideration, but its execution has been insufficient and not up to the mark. The
statutory witness protection programme offered by the Central Government’s Witness
Protection Scheme, 2018, constitutes the majority of the witness protection measures that are
available in India. But there are a number of flaws in the plan, including the lack of a legal
framework, scarce funding, and poor infrastructure, among others.
The need for witness protection is pressing in India, where witnesses are often subjected to
intimidation, harassment, and even physical violence. The lack of effective witness protection
measures has led to low conviction rates and impunity for offenders. This research article
critically examines the existing criminal justice system in India in relation to protection of
witnesses. In order to strengthen and improve the current criminal justice system, the
research piece also offers some recommendations related to witnesses of the crime. The role
of judiciary in protection of the witnesses has also been discussed, particularly in the recent
past.
Key Words: Witness, criminal justice system, intimidation, harassment, physical violence.
1. Introduction
“Witnesses are the eyes and ears of justice.”
Jeremy Bentham
In spite of high crime rate, India does not have a witness protection law. 1 The basic goals of
an effective criminal justice system are to reduce crime and punish offenders, which cannot
be accomplished without safeguarding and protecting witnesses. The criminal justice system
also upholds rule of law, and provides justice to the victims of crime. The system is set up to
guarantee that people who have been charged with a crime have a fair trial and that those who
are found guilty are punished in accordance with the law. Although a criminal justice system
is crucial to upholding law and order in society, it is also the target of criticism and scrutiny.
1
Qureshi, D. (2021). Witness Protection: An Imperative for Criminal Justice. Journal of Victimology and Victim
Justice, 4(2), 197–208. [Link]
In India, numerous proponents of criminal justice reform contend that systemic changes are
required to solve problems including excessive incarceration, racial inequities, and police
brutality, among others. Realising the importance of the witnesses in a criminal justice
system, Wadhwa, J., in Swaransingh v. State of Punjab 2 held, “A criminal case is built on the
edifice of evidence, evidence that is admissible in law. For that witnesses are required,
whether it is direct evidence or circumstantial evidence.” Hence the importance of the witness
in a criminal justice system cannot be underestimated.
For the courts to determine the truth and punish the guilty, witnesses are a crucial source of
information. As a result, the importance of witnesses in the criminal justice system cannot be
undercut. “In search of truth, he plays that sacred role of the sun, eliminating the darkness of
ignorance and illuminating the face of justice, surrounded by devils of humanity and
compassion,” wrote American author Whittaker Chambers on the significance of the witness
in the criminal justice system. But the sad reality is that, alarmingly, the state of witnesses in
the judicial administration system is deteriorating day by day. Daily, numerous cases of
witnesses being coerced, threatened, harassed, or intimidated make headlines in newspapers,
instilling fear in the minds of witnesses and making them hesitant to participate in legal
proceedings. As a result, they frequently turn hostile, which undermines the goals of justice.
Intimidation of the witnesses has been one of the major concerns in Indian Criminal Justice
System. In fact, the numbers of cases where witnesses are threatened are increasing. In
Hathras Rape Case the family of a Dalit girl complained of pressure from district magistrate.
A NGO named Citizens for Justice and Peace, has submitted an intervention application to
the Supreme Court in which it requested that the Hathras case’s witnesses must be given
protection from Central paramilitary forces and that the trial be moved to Delhi. 3 The Unnao
Rape Case Survivor claimed that the witnesses testifying against her uncle Mahesh Singh are
often threatened, endangering both their lives and her own. The accused has also forced them
to withdraw the complaint.
The rape survivor further said that “The witnesses in my uncle’s case have been accosted by
Sengar’s supporters and threatened that if they don’t withdraw their statements they will have
to pay for their life.”4 The notorious murder of Babu Singh, a witness who was set to testify
against self-styled godman Asha Ram Bapu in a sexual assault case, is known as the “Asha
2
Swaransingh v. State of Punjab, AIR 2000 S.C. 2017
3
Available at [Link]
4
Available at [Link]
Ram Babu case.” A few days prior to giving evidence in court, Babu Singh was fatally shot
in Jodhpur, Rajasthan, in 2013. The incident shows that India needs a witness protection
programme that is more effective in order to protect witnesses who come forward to testify
against accused especially influential people. The primary witness in the 2005 BSP MLA
Raju Pal murder case, Umesh Pal, was shot dead on February 24 in Prayagra, Uttar Pradesh.
Umesh Pal earlier claimed that he was abducted on February 28, 2006, under fear of force,
since he refused to back down and submit to the pressure of accused.5
2. Law Related to Witness Protection in India
It is most unfortunate that the Code of criminal Procedure, 1973, 6 umbrella legislation on
criminal procedural law, has not defined the term witness who plays a critical role in
administration of justice. The Indian Evidence Act, 1872 7, a comprehensive law on evidence,
has also not explicitly defined the term witness, but Section (3) describes Evidence as
“Evidence means and includes- (1) all statements which the Court permits or requires to be
made before it by witnesses, in relation to matters of fact under inquiry; such statements are
called oral evidence; (2) all documents including electronic records produced for the
inspection of the Court; such documents are called documentary evidence.” The Witness
Protection Scheme, 2018 defined the term witness under Section 2 (k) 8 as “any person, who
possesses information or document about any offence”.
Overall, we can say that a witness is simply someone who has knowledge of the occurrence
of an offence and is also able to provide testimony in front of a judge or a court of law. A
witness is referred to as a hostile witness if he disputes the information he has already
provided to the police in his own account. Or these are the witnesses who occasionally revise
their testimony or make statements that are unfavourable to the party who called them. It is
possible for a witness to become hostile for a variety of reasons that can differ from case to
case. In some cases, hostility is influenced by the particular facts and circumstances of the
case. Some of the causes of hostile witnesses include unjustified delays in case resolution,
threats of death or other forms of intimidation directed at the witness, monetary inducement,
political and administrative pressure, etc.
5
Available at [Link]
asad-ahmed-s-father-atiq-ahmed-umesh-pal-murder-case-up-3036093
6
The Code of Criminal Procedure, 1973 (Act No. 2 of 1974)
7
The Indian Evidence Act, 1872 (Act No. 1 of 1872)
8
The Witness Protection Scheme, 2018. Section 2 (k)
Witness hostility remains a big challenge facing the criminal justice system in India. In Best
Bakery Case,9 all the accused were acquitted as the prosecution failed to prove the case since
the witnesses turned hostile. The accused being powerful and rich forced the witness to turn
hostile. Later on the accused have accepted that thy have turned hostile out fear of death.
In an infamous BMW Hit and Run Case10, in Delhi, a young man named Sanjeev Nanda was
accused of crashing his BMW into people who were sleeping on the road side. Three people
passed away instantly, and other others suffered severe injuries. The strong accused in this
case once more purchased a sizable number of witnesses, and Monoj Mallick, the only
survivor, testified in court that he was struck by a truck. One witness fled, and the main
witness, Hari Shankar, refused to name the BMW. In actuality, none of the witnesses gave
the prosecution support. Resultantly, the defendants were exonerated.
India needed to pass witness protection legislation long ago. 11 The Supreme Court of Indian,
while disposing the matter, in Mahender Chawla v. Union of India12 has directed the states to
implement a witness protection scheme. According, the the Government of NCT of Delhi has
enacted a scheme called as a witness protection scheme. This scheme is first of its king to be
implemented in India. Under this Scheme, witness protection cell shall be established at
district level which shall be fully dedicated with a duty to implement witness protection
order.
Realising the importance of witness in criminal proceedings, the Law Commission of India in
its 14th Report remarkably observed that there is no provision for the witnesses’ convenience
when they attend court. The witnesses are required to wait outside in the shade of the trees or
on the verandas of the courthouses. There are witness sheds in some jurisdictions that are
roofed yet unprotected on all sides and are frequently used for other court functions. The
Commission made the comment that there should be proper accommodations for the
witnesses in the courtrooms and, at the same, they shouldn’t be rounded up and handled like
cattle.13
9
Zahira Habibulla H. Sheikh v. State of Gujarat, AR 446/2004, 6 June 2005
10
Available at [Link]
accused-pulls-up-police-495069
11
Verma, S., Krishnakumar, A. Towards a witness centric approach: analysis of witness protection scheme,
2018. Crime Law Soc Change 75, 433-444 (2021). [Link]
12
Mahender Chawla v. Union of India, 2018 SCC Online SC 1778
13
14th Report, the Law Commission of India, Ministry of Law and Justice, Government of India. Reform of
Judicial Administration (1958)
Also, the Law Commission of India in its 198 th report in its consultation paper on the Witness
Identity Protection and Witness Protection Programs has recommended about the witness
anonymity and protection to their lives, property, relatives during investigation, inquiry, trial
and even after that. Based on this report, a bill was prepared named as the Witness Protection
Bill, 2015. In this bill it was mentioned that witnesses must be provided with a
comprehensive witness protection program at all the stages of the case and even after the
pronouncement of the judgement. The Bill also mentioned about the Witness Protection Cell.
The establishment of the National Witness Protection Council and State Witness Protection
Councils was also covered in the bill as being necessary for the efficient operation of the
witness protection programme.14
India has made some progress towards enforcing witness protection laws, but there are still a
number of important areas that require improvement. A detailed piece of legislation,
sufficient funding, prompt legal proceedings, and awareness efforts are a few examples.
Building trust and confidence in the witness protection framework in India requires resolving
these issues since the safety and security of witnesses is critical to safeguarding the integrity
of the legal system.
3. Judicial Pronouncements on Witness Protection
In any civilised society, a witness is an essential tool in the administration of justice. 15 It is
incumbent upon the judiciary to make sure that the witnesses who play a crucial role in
dissemination of justice must be protected, and should not be threatened or intimidated. On
numerous occasions, in India, the constitutional courts have passed various landmark
judgements from highlighting the importance of witnesses in criminal justice system to
issuing slew of directions protecting the witnesses.
The Delhi High Court highlighted in the case of Neelam Katara v. Union of India 16 held the
fundamental rule of justice is that witnesses must testify in court by giving accurate
information without fear or pressure. His candour will determine the specifics of the case and
how guilt or innocence will be established. However, giving a testimony out of fear,
excessive pressure, or temptation will taint the case’s proceedings and threaten the integrity
of justice.
14
198th Report, the Law Commission of India, Ministry of Law and Justice, Government of India. Witness
Identity Protection and Witness Protection Programme.
15
Zubair Ahmed Khan, “Need For Witness Protection in India: A Legal Analysis” 7(1) DLR (2015)
16
4 ILR (2003) II Del 377
The Supreme Court in Sawaran Singh v. State of Punjab 17 emphasised the significance of
witnesses in the administration of justice generally. When a case is pending and is being
adjourned from one date to another, it is common for witnesses to endure repeated ordeals
during the court process, which delays the trial. Given that they have no specific security;
witnesses can end themselves dead or beaten. They are needlessly tormented for a protracted
amount of time during cross-examination. As a result, regular people frequently strive to keep
away from the legal system and investigative authorities. They fail to appear as a witness
before the court of law. However, when the case involves violence against women and the
victim is a witness, the situation worsens and becomes more perilous. Few important
witnesses in Manu Sharma v. State NCT of Delhi 18, also known as Jassica Lal Murder Case,
became hostile. When the trial court found all of the accused not guilty of committing a crime
due to insufficient evidence, there was a great public outrage. However, Delhi High Court
finally found all the accused guilty due to the courageous efforts of some of the witness.
In Surinder Singh v. State of Haryana19, the situation of the witness has also garnered the
attention of the Indian Supreme Court as well. The Supreme Court made a good point and
opined that the trial courts must be watchful and respond quickly when hostile witnesses
giving false evidence and adverse evidence. When the judge at the trial court must encourage
the witnesses and give them self-confidence.
Additionally, the top court in Himanshu Singh Sabharwal v. State of M.P. 20 has shed light
upon the significance of witnesses in trial court, opining that if witnesses are barred from
testifying in court, it will have a negative effect on the fairness of the trial and paralyse the
proceedings in the lower court. The court held, “If the witness himself is incapacitated from
acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can
constitute a fair trial. The incapacitation may be due to several factors like the witness being
not in a position for reasons beyond control to speak the truth in the Court or due to
negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of
numerous experiences faced by Courts on account of frequent turning of witnesses as hostile,
either due to threats, coercion, lures and monetary considerations at the instance of those in
power, their henchmen and hirelings, political clouts and patronage and innumerable other
corrupt practices ingenuously adopted to smoother and stifle truth and realities coming out to
17
Sawaran Singh v. State of Punjab, 5 AIR 2000 SC 2017
18
Manu Sharma v. State NCT of Delhi, (2010) 6 SCC 1
19
Surinder Singh v. State of Haryana, Criminal Appeal No. 1791 of 2008.
20
Himanshu Singh Sabharwal v. State of M.P. (2008) INSC 425
surface rendering truth and justice, to become ultimate casualties.” The court has emphasised
a variety of reasons as to why the witnesses do not to come forward and testify before the
court, including witness disinterest due to circumstances beyond their control, political and
bureaucratic pressure, negligence, corrupt collaboration, and political pressure.
4. Critical Appraisal
Concerns regarding the safety and security of witnesses, particularly in high-profile and
sensitive cases, have led to discussion and debate over witness protection laws under India's
current criminal justice system. Although India realised the need for witness protection and
implemented some measures, there have been questions about the overall efficacy and
enforcement of these laws. The Witness Protection Scheme, 2018, developed by the Ministry
of Home Affairs, is one of the main pieces of law pertaining to witness protection in India.
The plan lays forth rules for the defence of witnesses, their loved ones, and other connected
parties. However, there have been variations as to how this plan has been implemented in
different states and regions.
One of the major criticisms of the witness protection laws in India is the lack of a
comprehensive and uniform legal framework. The Witness Protection Scheme, being an
executive scheme, lacks statutory backing, which limits its enforceability. There is a need for
a dedicated legislation at the national level to ensure consistent implementation and
protection of witnesses across the country. The insufficient infrastructure and resource
allocation for witness protection is a further point of concern. An efficient witness protection
programme requires the availability of enough resources, safe houses, trained people, and
technology support. Due to inadequate security and support, witnesses have, nonetheless,
occasionally been the target of threats and intimidation.
Another key concern is the problem of delays in the judicial procedure. The Indian court
system frequently subjects witnesses to hazards for prolonged periods of time, raising the
potential of intimidation or coercion. To speed up trials and reduce the risks witnesses
confront, more comprehensive justice system reforms are required in addition to
strengthening the framework for witness protection. Another major issue is that witnesses are
not informed of their rights or the protection options that are available. It's possible that many
witnesses, especially those from disadvantaged origins or lower socioeconomic strata, are
unaware of the protections and resources available to them. To inform witnesses about their
rights and the value of their testimony, extensive awareness efforts and legal aid programmes
are required.
Criticising the present criminal justice system on matters related to the witnesses, Malimath
Committee21 has remarkably observed that, “Unfortunately there is no dearth of witnesses
who come to the courts and give false evidence with impunity. This is a major cause of the
failure of the system. The procedure prescribed for taking action against perjury is as
cumbersome and as it is unsatisfactory. Many witnesses give false evidence either because of
inducement or because of the threats to him or his family members. There is no law to give
protection to the witnesses subject to such threats, similar to witness protection laws available
in other countries.” The Committee has further recommended that whenever a witness gives
his account before the court he/she must be treated with dignity and shown due courtesy. A
separate cell must also be established for witnesses with adequate amenities including seating
arrangement, restrooms, and drinking water etc.22
5. Conclusion and Recommendations
By offering first-hand descriptions or information of events and aiding in the pursuit of
justice, witnesses play a critical role in the criminal justice system. But frequently, witnesses
are faced with serious dangers and difficulties that discourage them from coming forward or
giving accurate testimony. There is an urgent need for strong witness protection laws in India
to address these issues, guarantee the safety of witnesses, and encourage their participation.
Protecting the physical safety and well-being of witnesses is one of the main goals of witness
protection laws. In order to silence them, criminal organisations or powerful individuals
frequently target witnesses with threats, intimidation, harassment, and even physical violence.
A legal framework to reduce these risks and safeguard witnesses and their families would be
provided by witness protection laws.
Generally, witnesses are reluctant to testify in court because they fear being punished or are
worried for their personal safety. By putting witness protection law into effect, one may
foster a climate of certainty and trust that will motivate witnesses to assist with law
enforcement and the legal system. As a result, the criminal justice system will be
strengthened by ensuring that crucial evidence is made available and the guilty are dealt with
according to the law.
21
Committee on Reforms of Criminal Justice System, 2003. Ministry of Home Affairs, Government of India.
22
Ibid.
Witness intimidation and tampering are significant challenges faced by the Indian justice
system. Criminal elements frequently use money, threats, or other forms of coercion to
influence witnesses or sway their testimony. Witness protection law also would serve as a
deterrent to such behaviour and aid in preserving the fairness of the justice system and
promoting rule of law.
Witnesses who worry about their safety may omit important details or decline to testify,
which can result in shaky prosecutions and acquittals. The Indian judicial system can ensure a
more effective and efficient procedure by putting witness protection law into place.
Witnesses will be more inclined to come forward, testify honestly, and offer crucial
information, improving the overall standard of legal procedures.
For the rights of witnesses to be upheld, witness protection laws are of paramount
importance. In order to ensure that witnesses are treated properly and given the help they
need throughout their involvement in the legal process, witness protection measures may
include the provision of legal assistance, psychiatric counselling, relocation assistance,
change of identity, and financial support.
Overall, witness protection laws are essential for fostering a safe and secure environment
where people including witnesses feel free to come forward and take part in the criminal
justice system. India can strengthen the legitimacy of its legal system, encourage witness
cooperation, and eventually raise the effectiveness of investigations and trials by enacting
comprehensive witness protection laws. The Indian government must act quickly to enact and
enforce strong witness protection laws that provide the necessary safeguards for witnesses.
