The Unnao and Surat Rape Case: Vulnerability of witnesses in criminal trials and the need for effective legislation

There is an element of difference between a victim and a witness of crime. A witness of crime may not necessarily be the victim, and the victim is not always a witness. While both have different needs, they can be the same, contingent on the facts and circumstances of each case.

The need for Witnesses protection

The first question that might arise is what kind of protection we are referring to in the context of witnesses. Per se there are three kinds of protection available 1) to the life and property of all witnesses, to prevent them from getting intimidated. It is not only the witness whose life and property may be in danger it can extend to the relatives and acquaintances of the witnesses as well 2) Not only his life and property but his identity as well, revealing the name of the witness leaves him vulnerable to cronies of the accused, especially if he happens to be an influential person. The third kind of protection is from trauma, the witnesses have seen the commission of the crime and may be traumatized. The cross-examination of the witnesses while in furtherance of a fair trial, should not be conducted in a manner that makes them relive the experience. Particularly in cases of sexual abuse, questions for cross-examination needs to be censored for purposes of protecting the dignity and privacy of the witness.

How Witnesses are to be protected

Traditionally there were no provisions with respect to witness’s protection in court. All emphasis was on arrest because it was felt once the accused had got arrested there was no need for protecting witnesses. With the augmentation of science and technology, even while being in jail for non-bail able offences the accused had access to all the sophisticated technology, allowing them to communicate with the outside world. He/she was no longer the caged lion as was considered before and posed a threat to the security of the witnesses by his cronies and money, especially if the accused was of a high profile. The above concern finds application, in a very recent case the Unnao Rape Case. Kuldeep Singh Sengar one of the accused, an MLA of the ruling party in Uttar Pradesh got the father of the victims killed even while being in police custody and the uncle arrested in a twenty-year-old case. When the girl was going to the court to testify with her relatives, her car met with an accident, which has been established which was more of a pre-mediated murder. The victims and the lawyer were critically injured the aunts lost their lives. The same incident which took place in the 21st Century, and gives us only a glimpse into the plight of victims.

In The Surat Rape Case, more than ten people thought to be aware of the rape committed by Asaram and his son, were found murdered under mysterious circumstances, which has yet not been unravelled by investigating agencies. Therefore, a threat to the lives of witnesses is not some rant and protections are required in criminal law, to prevent witnesses from getting harmed. For, if witnesses are always seething from the fear of being harmed, they will be deterred from testifying. If the judiciary fails to protect witnesses, then it might be too presumptuous of the law to expect their help.

The advent of the concept of Witness Protection

The concept of witness protection is not newfound in criminal jurisprudence and has been in place since the 1950’s, being perceived in consonance to the offence of perjury. A plethora of intimidated witnesses have a trend of turning hostile, to ensure their safety as the state and judiciary fail to come to their rescue. The bandwidth of power of lower courts with respect to witness protection was laid down by the Apex Court in a 1977 judgment  Bindeshwari Prasad v. Kali (complaint case) wherein it dictated subordinate courts, lacking the inherent power cannot enact orders on the protection of witnesses or their anonymity. The same power was vested only with the High Court under Section 482 C.r.P.C. However, the High Court is likely to suggest the accused to go to the police for protection and as has gotten exemplified by the Unnao and Surat Rape Case, the police are often hands and gloves with the accused. Therefore, a more transparent, independent manner of protecting the witness should be devised.

The 2003 Malimanth Committee Report highlighted on the plight of witnesses, on them not having a particular room to sit, dispersing light on the deplorable manner in which they are treated in courts by lawyers, accused and how the indifferent treatment paves way for perjury. The report stressed the importance of a scheme for witness protection, with special emphasis on the elevation of conditions of witnesses in court.

Supreme Court, however, has generally ignored the plight of witnesses. In  Zahira Habibullah H Sheikh V. State of Gujarat, 2004 filed in pursuance to the Gujarat Riots (2002). Zahira Seikh a witness to the fateful homicide resigned from her statement as a witness upon repeated intimidation and the trial court acquitted the accused. The prosecution was perfunctory and no proper investigation was conducted by the police. The court failed to play a proactive role, operating as an acolyte of the ruling party. Consequently, Zahira appealed to the High court and challenged the acquittal, stating further evidence should be taken, her contention was rejected. She approached the Supreme Court challenging the fairness of the trial, on grounds of witnesses’ intimidation and the High Court should either have ordained further evidence or a “de novo” trial. Supreme Court in the case punished Zahira for perjury and deliberated on the vulnerability of witnesses and how general protection was required. It made certain general observations asking the court to play a proactive role under Section 311 of C.r.P.C and 165 of Indian Evidence Act, if they felt the witnesses were being threatened, but failed to lay down any guidelines pertaining to the same.

In the case of Neelam Katara v. Union of India the Delhi High Court filled in the void and laid down guidelines. A line of the judgment read “If witnesses are deposing under fear or intimidation or for favour or allurement, the foundation of the administration of justice not only gets weakened, but it may even get obliterated. The court however confined its scope to police protection, only. A competent authority (The Legal Services Authority) was to decide if there was a threat to the well being of the witness, and the police was supposed to be informed accordingly.  The case failed to comment on witness anonymity. The cases where witness protection could be sought was limited to serious cases of life imprisonment. Additionally, because the guidelines were issued by the Delhi High Court as per principles of Satire Decisis, it was not bound on other courts and rendered only limited effect.

The 198th Law Commission in a comprehensive Report of 2006 stated protection must be ensured to victims and witnesses testifying for “serious offences” . The report stressed on a “witness protection program” and “witness identity program”. A draft was prepared w.r.t the “witness protection program” suggesting the protection of witnesses should not be limited to the stage of investigation only and should extend to trial and enquiry. Even after the trial the report suggested the identity of the witness should be kept anonymous. The commission considered amending sections 207, 208, 273, 327 (in-camera proceedings) in furtherance of ameliorating witness protection.

Developments Post 198th Law Commission Report (2006)

In light of the Law Commission report, two amendments were incorporated in C.r.P.C and IPC. Section 195A of C.r.P.C enacted provisions punishing the act of threatening or coercing any person to deliver false evidence. There were some provisions with respect to witness anonymity and protection in  Section 16 of the TADA  and Section 30 of the POTA 2002 and similar provisions were incorporated in the Unlawful Activities Prevention Act, 1967 (Section 44). However, these provisos were exceptions and not a rule, unlike the C.r.P.C or IPC where provisions on witness protection were enacted for the first time.

In retrospect, there has been very limited use of 195A, because of the associated legal challenges of accusing an individual of coercing false evidence. Additionally, criminalizing a particular act does not resolve the underlying problem. In the case of Manendar Chawla v. Union of India 2018, the Supreme Court took cognizance of this fact. It asked all the states to prepare a witness protection scheme. One of the most important changes implemented in the draft was “vulnerable witness deposition complex” to ensure some sort of a screen between the witness and accused, to make it easier for vulnerable witnesses to depose. The court suggested conducting expeditious trials in cases where the identity of the witness is threatened. All these measures were asked to be enforced to ensure the protection of witnesses.

Conclusion and Suggestions

Economic and social augmentation of a country is enhanced when accompanied by peace and security, which in turn may be ensured by an effective criminal justice system. There are certain questions which may arise in the course of discussion pertaining to the case. Whether the schemes have been implemented by the respective state governments, whether the central or the state governments have released the requisite funds for the implementation of suggestive measures and construction of deposition complexes. As has been witnessed in the case of Kuldeep Singh, despite police protection the witnesses are still prone to attacks.

A major problem delaying the effective implementation of a witness Protection Scheme in India is the inadequacy of manpower in the Police force, with only 138 police personnel per lakh lower than most countries and the US’s recommendation of 222. The paucity of infrastructure coupled with manpower makes the protection of witnesses in India costly and a difficult practice in reality. It is high time for the Government of India to lay down a Witness Protection Legislation or formulate a Witness Protection Scheme to fill in the voids and ensure greater transparency in answering the questions raised above. It is the suggestion of the authors that provisions for safe houses for lodging witnesses like the US and UK during and after the trial if necessary, on behalf of the government may be interlaced in the fabric of any upcoming Witness Protection Legislation. Speedy trial and swift disposal of cases after conviction should be ensured. The Legislature should refer to Witness Protection Schemes across various constituencies to ratify well-planned legislation aided by a system of checks and balances that shall pave way for fair criminal trials in India.


Indrashish Majumder

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Indrasish Majumder a second-year student pursuing B.A L.L. B (Hons) from National Law University Odisha, with a special interest in Humanitarian Law and Human Rights.

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