Introduction :- 

Supreme Court under Article 141/142 of the Constitution of India has provided legal sanctity to the scheme until Parliament/state legislature enacts a law on the matter. Although National Investigation Agency (NIA) act provides for witness protection, the scheme has extended it to the witnesses in all other cases as per the threat perception. Judgments/Committees in the matter :-

• Zahira sheikh vs. State of Gujarat SC observed that witness protection is necessary for free and fair trial.
• 14th report of Law commission and subsequently in and reports indicated about the need to protect witnesses.
• Concerns in the matter were also raised by the 4th Report of the National Police Commission (1980).

Art. 141 - law declared by the Supreme Court shall be binding on all courts within the territory of India. Art. 142- Under this, SC can grant appropriate relief for doing complete justice (where there is some manifest illegality, want of jurisdiction or where some pulpable injustice is shown to have resulted). Curative petition owes its origin to this article.

Need of Witness Protection Scheme :

• Rule of Law: it is imperative to ensure that investigation, prosecution and trial of criminal offences is not prejudiced because of threats or intimidation to witnesses. It will help in strengthening the Criminal Justice System in the Country and improve national security scenario.
• Rights of Witness: While offenders have range of constitutional and legal rights, witnesses have limited rights and protection in current setup. This imbalance of rights many times compels the witnesses to turn hostile.
• Threats to Witness: In many high-profile cases/scams like NRHM scam in UP, Fodder scam in Bihar key witnesses were killed adversely affecting the investigation in these cases.
• International Practice: Countries like US, UK, Canada, and New Zealand have separate programme/acts for the protection of witnesses. In many countries, local police may implement informal protection as the need arises in specific cases.

Challenges :

• Lack of resources: Indian police force has acute shortage of manpower (136 personnel per lakh population) and funds even to handle day to day policing. The witness protection duties will further increase the pressure.
• Right of accused: Law Commission mentioned that concealing the identity of witness for his/her protection can compromise the rights of the accused to demand a fair trial in case he/she wants to establish authenticity of witness.
• Privacy of Witness: Providing physical security to witnesses may not be appreciated by witness as it curtails the privacy and movement. Time frame of protection: It may be difficult to assess the time frame for protection. E.g. protection of witnesses may be required not only before, but also during and after trail and that too for years considering the delays in Criminal Justice System.
• Issue in implementation: Indian Penal Code, Juvenile Justice Act and Whistleblowers Protection Act etc. already have provisions for witness protection but lack of availability of appropriate structure limits the implementation.

Witness Protection Scheme :-

• Procedure: Secretary, District Legal Services Authority (DLSA) can pass witness protection order for the witness protection under this Scheme for protection of identity/change of identity/relocation of a witness, categorization of threat etc. The Threat Analysis Report shall be prepared by the ACP / DSP after investigation on direction from DLSA. The police officer will categorize the threat perception and suggest corrective measure. The responsibility of implementation lies on witness protection cell constituted under the scheme.
• Physical safety: Ensuring that witness and accused do not come face to face during investigation or trial. Concealment of identity of the witness by referring to him/her with the changed name or alphabet. Escort to and from the court and provision of Government vehicle date of hearing.  Close protection, regular patrolling around the witness’s house.
• Use of Technology: Holding of in-camera trials, videoconferencing, teleconferencing etc.
• Judicial Support: Ensuring expeditious deposition of cases during trial on day to day basis without adjournments.
• Financial provisions: Witness Protection Fund for the purpose of re-location, sustenance or starting new vocation/profession.
• The scheme aimed to enable a witness to depose fearlessly and truthfully. Under it, witness protection may be as simple as providing a police escort to the witness up to the courtroom or, in more complex cases involving an organised criminal group, taking extraordinary measures such as offering temporary residence in a safe house, giving a new identity, and relocation at an undisclosed place.

Witness Protection Bill 2015 :
The proposed Bill seeks to ensure the protection of witness by-

• Formulation of witness protection programme and constituting National Witness Protection Council and State Witness Protection Councils to ensure its implementation
• Constitution of a "witness protection cell" to prepare a report for the trial court to examine and grant protection to the witness referred as "protectee" after being admitted in the programme;
• Providing safeguards to ensure protection of Identity of witness;
• Providing transfer of cases out of original Jurisdiction to ensure that the witness can depose freely;
• Providing stringent punishment to the persons contravening the provisions and against false testimonies;

Way forward :

• Effective witness protection legislation should be enacted clearly defining the role of police, government and judiciary. This will create confidence among witnesses. In this regard, Witness Protection Bill 2015 can be enacted with suitable amendments. Witness protection cell established under scheme should arrange for the provisions of false identities, relocation, employment and follow up.
•  In some cases medical facilities, social services, state compensation, counseling, treatment and other support should be provided to the witness.
• The witness should be treated with fairness, respect and dignity and protection from intimidation, harassment or abuse must be prevented throughout the criminal justice process.
• Overhauling the Criminal Justice System with faster and scientific investigation, trails and convictions will reduce the need of witness protection.