DETAILS

TITLE: NEED FOR WITNESS PROTECTION AND THEIR LAW IN INDIA: LEGISLATIVE

AND JUDICIAL TRENDS

NAME: SINDHUJA. K, IIIrd BBA.LLB (HONS)

SAVEETHA SCHOOL OF LAW, CHENNAI

E-MAIL: sindhulaw2507@gmail.com

CONTACT: 9003220458/8124309325

ADDRESS: NO.9, 1 ST CROSS STREET,

LAKSHMIPURAM, THIRUNNINRAVUR

PIN CODE-602024
ABSTRACT

In most of the sense, witness plays a very crucial role in the organized by criminal delivery system. What
is the witness protection? Alternative measures and related provision. According to the Blackstonian
maxim that It is better that guilty person go unpunished of then one innocent person suffers.
Implementation of trends towards judicial and legislative trends. Is there is a violation of fundamental
rights? Witnesses under Evidence act clear defined. Methods towards witnesses protection law. The paper
makes an attempt to recognize drawbacks for the implementation of witness protection law and
implementation of programee.

KEYWORDS: Witnesses, protection, rights, judicial and legislative trends, cases.

 INTRODUCTION:

The parties shall themselves produce who are witnesses and who are not for removed either
by time (or) place. Witnesses who are for away (or) who will not stir an out shall be made to
present themselves by the order of the judge - Arthasastra

Witness plays a very crucial role in outcome of verdict in Criminal Cases. It has been given
restricted meaning witness protection would imply efforts to protect the witness from physical
harm, in Indian Context. But its understood in real sense, from discomfort and inconvenience,
through lack of facilities witness suffered should be protected. 1 Generally speaking,
implementation of protection of witness from such law and programmers reach of far cry and
silent. Today, the witness harassed a lot. The accused may be richer (or) influential person, due to
this the witness being pressured and threatened. In India ironically, there is no compressive
legislation and statutory for the witness protection law to ensure safety among the witness who
are insecure & hostile.2

DEFINITION

The word witness according to legal system may differ. In primary sense of word, "a witness
is person who acquires sense of knowledge and information about the event ". According to
Bible, Mosaic Law stated necessity of witness is absolute in all cases which came before the
justice, especially in most of the criminal cases. Not only in criminal cases, have attested two
witnesses it was necessary to make good an accusation against person. "Witness may be
classified into three categories". (a) Justice collaborators. (b) Victim-witness. (c) Other type of
victims. Justice collaborators is concept by law, a witness who is a defendant also, cannot escape
from legal charges, consideration can be taken by judge lesson the sentence provides information

1
http://thelawdictionary.org/witness-n/ ( Last visited 15/11/2016)

2
Why Does India Need Witness Protection available at http://blog.ipleaders.in/why-does-india-
need-witness-protection/ ( Last visited 24/11/2016)
can evidence to the investigators.3 Victim - witness defines as a person who suffered from
physical, emotional, psychological (or) pecuniary harm as a result n commission of crime. Other
type of witness includes innocent bystanders, expert witness and so on.

CONSTITUTIONAL VALIDITY: WITNESS PROTECTION.

Based on following principle, "Nemo tenetur prodere or nemo tenetur scripdum accusare". The
accused should not fear (or) threaten the witness to furnish evidence in favor of him. The special
fundamental right in Part III of Indian Constitution Article 20(3) states that No person accused
of any offence shall be compelled to be a witness against him". 4 The term "any person" does not
relate only include other person and witness, but also accused the contention's explained in
sec.91 (1) Cr. Pc. 5In case of state of Gujarat v Shyamlal Mohanlal chakshi, In some cases, the
accused may be from well-off background threaten can fear the witness to express about the
event not against him, there is a violation of fundamental rights article 19 states "All citizens
shall have the right to freedom of speech and expression".6

KINDS OF WITNESS UNDER EVIDENCE ACT:

The witness is basically divided into many types; Eye Witness-a witness who testing the fast
seen, Expert Witness -to furnish the judge with certain criteria for testing the facts proved by the
evidence of the close, Defense Witness-on the request defending party a witness
summoned.7Prosecution Witness- a witness who appears on behalf of prosecution side in the
commencement of proceedings (i.e) criminal, Hostile Witness-has been described as a witness
who give his evidence show that he is untruthful in words states predicted in core Coles Vs Coles

IMPORTANCE OF WITNESS AND THEIR PROTECTION:

3
PREVENTION OF TERROISM ACT, 2002

4
http://thelawdictionary.org/witness-n/ ( Last visited 15/11/2016)

5
THE CRIMINAL PROCEDURE CODE, 1963

6
THE CONSTITTUTION LAW OF INDIA, 1950

7
A plea for witness protection laws available at http://blog.ipleaders.in/why-does-india-need-
witness-protection/ (Last visited 22/11/2016)
Witnesses are the wilder stone for the successful of, justice in Crimes and there in a violation of
human rights. Alas Bentham said: "Witness is the eyes and ears of Justice". 8A witness performs
in the court to discount the truth. Sacrifice his time to travel all the way to the court in evidence.
In the case of Ashram Bapu, the question arises. 9 Is a witness law overdue long in India? The
importance of witness and reason for the protection crucialized that criminal system is afflicted
by poor conviction yet the directions of the Apex court, in case of NHRC Vs State of Gujarat 10
no action has been taken either by the state and central government to enact a law for witness
protection, its one of the major problem in delivery of justice in criminal cases reason for
improper administration by both the legislature and executive, given direction in case of Madan
lal and others vs. state of Rajasthan.

LEGISLATIVE TRENDS:

Effect to implement witness protection in India. (Commissions & Committees on witness

protection)

14th Report Law commission (1958) a review - Respect to witness incontinence,

discomfort in different attitude towards injustice (Inadequate arrangements).

Fourth Report of the National Police Commission (1980) (Handicaps of witness):- The
witnesses who are handicap suffer inconvenience; the police commission should be taken
an effective steps and review.11

154th report of the Law Commission (1996) Lack of facilities and wrath accused: - It was
rated that review. The plight of witnesses appears on behalf of state them not only face

8
http://timesofindia.indiatimes.com/india/Deaths-continue-but-witness-protection-law-still-a-far-
cry/articleshow/48077837.cms ( Last visited 26/11/2016)

9
Why Does India Need Witness Protection available at http://blog.ipleaders.in/why-does-india-
need-witness-protection/ (Last visited 24/11/2016)

10
NHRC Vs State of Gujarat [(2008) 16SCC497].

11
TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987
 inconvenience and lack facilities but also threat from accused.12

172nd Report of the Law Commission (2000) (screen Technique) - 'Review of Rape Laws'
took the subject in case 'Sakshi vs. Union of India'.

178th Report of the Law Commission (2001) (preventing witnesses turning hostile)- The
report deal with hostile witnesses precautions the police should take at the time of
investigation to prevent witnesses prevarication examined later at the trial.13

The Criminal Amendment Bill, 2003 (preventing witnesses toning hostile).

Reforms of Criminal Justice system- report of the Justice Malinath Committee.

198th Report of the Law Commission (2006) the report in which new policy should be
formulated for the wider protection of witnesses family members.14

THE WITNESS PROTECTION BILL, 2015- Objectives to provide protection

compulsory to all persons forthcoming to provide information as witness within trusting
of India in a court of law.15

Delhi witness protection scheme, 2015- The objectives of a witness without a fear (or)
intimidation of gives testimony in a judicial in maintaining rule of law.

JUDICIAL TRENDS

12
Ibid.,

13
WITNESS PROTECTION: Legislative & Judicial Trends - Shodhganga available at
shodhganga.inflibnet.ac.in/bitstream/10603/8788/13/13_chapter%204.pdf ( Last visited
26/11/2016)

14
Importance of a witness available at http://www.lawteacher.net/free-law-essays/administrative-
law/importance-of-a-witness-law-essays.php ( Last visited 26/11/2016)

15
www.parliament.gh/assets/file/Witness%20Protection%20Bill,%202015.pdf ( Last visited
25/11/2016)
Under the concept 'Judicial trends' an analyses made relating to the cases involving witness
protection on a judiciary played different means and protection of witnesses.

WITNESS IDENTITY PROTECTION AND WITNESS PROTECTION PROGRAMMEE

In the case of NHRC vs. State of Gujarat 16 concerning the case important aspects be noted (1)
Fair trial (2) Modalities to ensure the witnesses depose freely the context need to protect the
witness from interferences by persons connected to the protection of victims.

In the case of Zahira Habibullab sheikh and Sakshi vs. union of India, the SC dealt with 'witness
protection' and the need for fair trial.17

In the case of Rabun Vs Union of India, they dealt with very with the executive to frames
'witness protection Laws and provide Protection to witnesses.

Rishipal vs. State of U.P, delivered by Honble Yahindra Singh, witness protection programmed
is an important aspect of criminal justice system.

In case of Ashram Bapu Case, dose the India fail to protect the witness? Noted the idea of
witness protection does not take one of the police may also much consider. The crime syndicates
the witness Protection. 18

ALTERNATIVE MEASURES

To bridge a gap between a number of schemes provided distinct from witnesses protection

16
Ibid.,

17
http://www.slideshare.net/Langrial/witness-protection-in-punjab ( Last visited 26/11/2016)

18
India desperately needs a witness protection law. Just look at the Asaram Bapu case available at
india-desperately-needs-a-witness-protection-law-just-look-at-the-asaram-bapu-case ( Last
visited 24/11/2016)
programmed more difficult at risk and intimate witnesses, are referrers as 'alternative measure'
(witness protection programmers)19

Target hardening: - Security from the police to protect the witness and family members use of
discreet premises brief and interview the witness.

Procedural witness protection: - Measures to avoid certain categories (a) avoid face - to -face
confrontation with defendants (b) difficult to trace and identity witness through crime (c)
psychological stress and public limit the exposure of witness.

Self-protection:- witness support to tool on their own protection and security.20

EXAMINATION OF WITNESS AND VICTIMS IN CAMERA

In some of abhorrent offences, the witness may be child, minor and girl need for special
protection Sec 352 Cr.Pc judge may direct to leave from court, take other protection that in
reasonable interest for the witness protection given by the separate law. The child Law, 1993 and
the Anti- Trafficking in personal Laws, 2005.21

Drawbacks

The utmost demerits absence of man power, no initiative steps taken by the government, the
witnesses. But the law like prevention Terries Act, 2005 and then Terrorist and Disruptive
19
http://www.asianage.com/india/all-india/241116/supreme-court-calls-for-witness-protection-
scheme.html ( Last visited 20/11/2016)

20
http://www.powershow.com/view/14a5d0-
MTliN/OFFICE_FOR_WITNESS_PROTECTION_powerpoint_ppt_presentation ( Last visited
26/11/2016)

21
Ensuring witness safety central to rule of law available at
http://www.thehindu.com/opinion/op-ed/ensuring-witness-safety-central-to-rule-of-
law/article4508080.ece ( Last visited 20/11/2016)
Activities act 1980 no procedure in law available to tackle situation. Still challenges aforesaid,
for the implementation of witnesses determination of witnesses protection to conduct fair trial in
the determination of witnesses against the threat of accused. Sometimes, the police play an
ineffective role in those circumstances.

CONCLUSION

The Holy bible says: Thou shalt do no murder, thou shalt not commit adultery, thou salt not
steal and present Circumstance thou salt not fear false witness . Today, under Lack of Proper
evidence, many of the accused were acquitted. Concerned with the justice initiative steps taken
by the authorities. But Ironically in India, need for comphrensive law on protection of witnesses
According to Bentham, witnesses are eyes, and ears of justice. Many programmers should be
conducted towards the witness and their family member for the protection. Based on the
evidence pronounced by the witnesses it imposes a positive strategy on the judge to discover
truth and then render justice.