IN THE SUPREME COURT OF INDIA
2018 SCC Online SC 2678
Union of India
Date of Judgement
5th December, 2018
Justice S A Nazeer; Justice A Sikri
The term “Witness” refers to a person who possesses information or document about any crime considered by the competent authority as material for any criminal proceeding and who has made a statement, or who has given or accepted or is required to give evidence in relation to such procedures.
A witness is one of the vital parts of the criminal justice system. No nation can afford to expose its fair and morally euphoric citizens to the danger of being persecuted or harassed by anti-social elements, for the simple reason that they testified the truth in a court of law. The Supreme Court approved the first Witness Protection Plan of India and noted that one of the main reasons for witnesses to become hostile is that the State does not grant them adequate protection.
In this backdrop, the present case analysis deals with the landmark judgment of Mahender Chawla v. Union of India.
The Witness Protection Scheme, 2018 has been approved by the Supreme Court in its historic ruling by Mahendra Chawla v. Union of India, which makes it the first attempt to bring witness protection under the scope of the law and hold the State responsible for implementing it effectively. This ruling occurs in the context of several cases of fatal attacks suffered by witnesses in the past. In cases involving influential people, witnesses become hostile due to the threat to life and property, as they discover that there is no legal obligation on the part of the state to extend any security.
There is no definition of who constitutes a witness even in international law, although the need to establish separate units for the protection of victims and witnesses in the trial of mass crimes has been recognized in many international courts.
Rules were formulated by the International Criminal Court for Rwanda for the protection of victims and witnesses. There are similar provisions in the Statute for the creation of an International Criminal Court.
Article 14 of the International Covenant on Civil and Political Rights, which India has ratified, recognizes the right to a fair trial as a human right.
Witnesses are important actors in the judicial system, which help judges to reach correct factual conclusions. Witnesses play the sacred role of the sun that eliminates the darkness of ignorance and illuminates the face of justice. In the case of Swaran Singh v. State of Punjab, the Supreme Court noted that “witnesses are harassed a lot. They come from distant places and see that the case is postponed. They have to go to court many times alone. It has become routine for the case to be suspended until the witness is tried and stops going to court. In this process, lawyers also play an important role. Sometimes the witness is threatened, mutilated or even bribed. ”
In recent years, the criminal justice system in this country has witnessed a traumatic experience in which witnesses become hostile. The Supreme Court in the case of Ramesh and Others v. State of Haryana had indicated some of the reasons that make witnesses hostile. The Supreme Court observed that one of the reasons may be that they do not have the courage to depose the accused for threats to their lives, especially when the criminals are habitual criminals or high positions in the Government or are close to the powers, which they can be political, economic or other powers, including muscular power.
Likewise, in Sakshi v. Union of India, the threat of witnesses who become hostile was again described. The court noted that “the mere sight of the accused may induce an element of extreme fear in the mind of the victim or witnesses or may put them in shock. In such a situation, he or she may not be able to give all the details of the incident that may result in a judicial error. ”The Court also emphasized that there is a great need to develop legislation for the protection of witnesses.
The Supreme court in State of U.P. v. Ramesh Prasad Misra, held that it is equally settled law that the evidence of a hostile witness cannot be totally rejected if it is pronounced in favor of the prosecution or the accused, but it can be subjected to the closest scrutiny and that part of the Accept evidence that is consistent with the case of the prosecution or defense.
The Supreme Court in Manu Sharma v. State (NCT of Delhi), had highlighted the obvious flaws in the system such as the failure to record the statements by the police and the retraction of the statements by the witness of the accusation due to intimidation, incentive and other methods of manipulation The Courts, however, cannot close their eyes to reality. If a witness becomes hostile to subvert the judicial process, the Court will not present itself as a silent spectator and every effort should be made to bring the truth home. The criminal justice system cannot be revoked by those credulous witnesses who act under pressure, incentive or intimidation. In addition, Section 193 Indian Penal Code (IPC) imposes a penalty for giving false evidence, but is rarely invoked.”
Issues of identity protection of witnesses and witness protection program have been raised in a number of judgments like NHRC v. State of Gujarat, PUCL v. Union of India, Sakshi v. Union of India and Zahira Habibulla Sheikh v. Gujarat.
Constitutional and Statutory Provisions Discussed:
- Article 21, 32, 141 and 142 of the Constitution of India.
- Section 327, 340 of Code of Criminal Procedure (CrPC).
- Sections 193, 354 and 377 of Indian Penal Coe (IPC).
The instant writ petition filed by Petitioners under Article 32 of the Constitution of India raised important issues touching upon the efficacy of the criminal justice system in this country. In an adversarial system, which was prevalent by India, Court was supposed to decide cases on the basis of evidence produced before it. This evidence could be in the form of documents. It could be oral evidence as well, i.e., deposition of witnesses. Witnesses, thus, play a vital role in facilitating Court to arrive at correct findings on disputed questions of facts and to find out where the truth lies. They were, therefore, backbone in the decision-making process.
Whenever, in a dispute, two parties come out with a conflicting version, witnesses become an important tool to reach correct conclusions, thus advancing justice in an issue. This principle was applied with more vigor and force in criminal cases to the extent that most of these cases were decided based on testimony from witnesses, in particular, eyewitnesses, who may have seen actual facts/crimes. It is not necessary to emphasize that one of the main reasons for witnesses to become hostile is that the State did not grant them adequate protection. It was a harsh reality, particularly in those cases in which the accused / criminal persons were tried for heinous crimes, or where the accused persons were influential persons or in a dominant position that attempted to terrorize or intimidate the witnesses because these witnesses avoided go to court or refrain from deposing the truth.
In the present case the petitioners had approached this Court with allegations that in trials that were going on against Asaram, who was charged with the offense of committing rapes in numerous cases, witnesses had been frightened with serious consequences in case deposed against Asaram. It was alleged that as many as 10 witnesses had already been attacked and three witnesses had been killed. Petitioners had prayed for a Court-monitored SIT or a CBI probe.
- The issue pertains to the protection and security of witnesses during the proceedings.
Arguments of the Petitioners:
- The petitioners alleged that up to 10 witnesses have already been attacked and three witnesses have been killed.
- Petitioner number 1, Mahender Chawla, miraculously survived an assassination attempt in his life for daring to testify against the alleged god, Asaram Bapu and his son Narayan Sai in horrible cases of rape of a child and two sisters. Petitioner no. 1 also witnessed Narayan Sai doing Tantrik Practice on the body of a child in an Asaram in Madhya Pradesh, in which to date there has been no investigation due to Asaram’s influence.
- It was also brought to the notice of the Court that Petitioner no. 3 Karamvir Singh is the father of a child, who was raped by Asaram.
- The petitioners also alleged that despite being threatened, the Uttar Pradesh police surprisingly withdrew half of their security. Petitioner no. 4, Narendra Yadav is a journalist who survived an assassination attempt in his life because he dared to write articles to the dismay of Asaram Bapu and Narayan Sai. He now lives in constant fear of being killed, since the Uttar Pradesh police have given him a solitary security guard for only eight hours a day, leaving him to fend for himself for the remaining 16 hours. It is also claimed that Asaram’s shooter, Narayan Pandey, who is in jail for murdering a witness Kripal Singh, writes threatening letters from inside the jail.
Arguments of the Respondents:
- Venugopal learned Attorney General appeared on behalf of the Union of India, along with Ms. Pinky Anand, Additional Attorney General. It was noted that, since this Court was primarily concerned with the issue related to the witness protection program, it would be appropriate for other States to also be implemented to the extent that the issue was of significant importance to India and the protection program of witnesses should be available in all states.
- Venugopal learned Attorney General for India was also requested to give suggestions in the form of a draft scheme.
- The wise Attorney General informed that after receiving the contributions of several States and Territories of the Union, the Central Government had finalized the scheme and presented it in this Court on November 6, 2018, backed by its affidavit. The wise Attorney General also affirmed that this Court can approve the appropriate orders that indicate to all the States that adopt this scheme and provide protection to the witnesses in accordance with the same until such time as the appropriate legislation in this name is approved.
- If one cannot testify in Court due to threats or other pressures, it is a clear violation of Article 21 of the Constitution. The right to life guaranteed to the people of this country also includes within them the right to live in a society free of crimes and fears and the right of witnesses to testify in court without fear or pressure.
- The considerations that have influenced this Court to have a holistic witness protection regime should be considered as a law under Article 141 and Article 142 of the Constitution until an adequate law is framed.
- The Court observed that the scheme has been finalized in consultation with the National Legal Services Authority (NALSA). The Court mentioned that the objective of the plan is to ensure that the investigation, prosecution, and prosecution of criminal offenses are not harmed because witnesses feel intimidated or scared to give unprotected evidence against violent or other criminal recrimination. Its objective is to promote the application of the law by facilitating the protection of people who participate directly or indirectly in the provision of assistance to the agencies of criminal law enforcement and the general administration of justice.
- The Court observed that Witnesses are the eyes and ears of justice and in the cases involving influential people, witnesses turn hostile because of the threat to life and property.
- The Court observed that by giving evidence relating to the commission of an offense, a witness performs a sacred duty of assisting the court to discover the truth according to the Malimath Committee on Reforms of Criminal Justice System report of 2003.
- The court also took note of the 4th National Police Commission Report, 1980 and observed that ‘prosecution witnesses are turning hostile because of the pressure of accused and there is need of regulation to check manipulation of witnesses.”
- The court observed that the essential characteristics of the Witness Protection Program, 2018 include the identification of threat perception categories, the preparation of a “Threat Analysis Report” by the Chief of Police, the types of protection measures such as ensuring that the witness and defendant are not face to face during the investigation. etc. Identity protection, change of identity, relocation of witnesses, witnesses to be informed of the scheme, confidentiality, and preservation of records, recovery of expenses, etc..
- As pointed out above, in Sakshi’s case, the Court had insisted on the need to come up with legislation for the protection of witnesses. However, the court rejected the suggestion of the Law Commission regarding the examination of vulnerable witnesses in the absence of the accused. The court took into consideration the provision of Section 273 of the Code of Criminal Procedure, which is based on the tenets of the principle of natural justice, that the witness must be examined in the presence of the accused, such a principle cannot be sacrificed in trials and inquiries regarding sexual offenses.
- The directions of Delhi High Court and setting up special centers for vulnerable witnesses are consistent with the decision of the Supreme Court in the case of State of Maharashtra v. Bandu alias Daulat.
- The Court directed the Union of India, as well as States and Union Territories, shall enforce the Witness Protection Scheme, 2018.
- The Court directed that it shall be the ‘law’ under Article 141/142 of the Constitution until a suitable legislation is enacted on the subject.
- In line with the aforesaid provisions contained in the Scheme, in all the district courts in India, vulnerable witness deposition complexes shall be set up by the States and Union Territories.
The Witness Protection Scheme, 2018 (Draft) is the first attempt at the national level to provide comprehensive witness protection, which will greatly contribute to eliminating secondary victimization. Witnesses are the eyes and ears of justice, and they play an important role in bringing the perpetrators of crimes to justice. This scheme attempts to ensure that witnesses receive adequate and adequate protection. This will contribute greatly to the strengthening of the criminal justice system in the country and, consequently, will improve the national security scenario.
Edited by Parul Soni
Approved & Published – Sakshi Raje
 Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice System, https://www.justice.gov/usao-nj/victim-witness/handbook (Last visited Feb. 7, 2020, 7:00 P.M).
 Soibam Rocky Singh, India gets the first witness protection scheme, The Hindu, December 5, 2018, https://www.thehindu.com/news/national/sc-approves-centres-draft-witness-protection-scheme/article25669784.ece.
 Mahender Chawla v. Union of India, 2018 SCC Online SC 1778.
 Icelandic Human Rights Centre, Statute of the International Criminal Tribunal For Rwanda, http://www.humanrights.is/en/human-rights-education-project/human-rights-instruments/international-law-instruments/statute-of-the-international-criminal-tribunal-for-rwanda (last visited Feb 8, 2020, 8:00 P.M).
 United Nations Human Rights Office of the High Commissioner, International Covenant on Civil and Political Rights, https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx ( last visited Feb 8, 2020, 9:00 P.M).
 Swaran Singh v. State of Punjab, (1991) 3 SLR 22.
 Ramesh and Others v. State of Haryana, 2010 SCC 13 409.
 Krishna Mochi v. State of Bihar, (2002) 6 SCC 81.
 Sakshi v. Union of India, (2004) 5 SCC 518.
 State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360.
 Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1.
 NHRC v. State of Gujarat, (2009) 6 SCC 767.
 PUCL v. Union of India, (2007) 1 SCC 719.
 Supra note 10.
 Zahira Habibulla Sheikh v. Gujarat, (2006) 3 SCC 374.
 Supra note 10.
 State of Maharashtra v. Bandu alias Daulat, (2018) 11 SCC 163.