April 9, 2022

Good morning. Every Saturday, we write about one specific right that you possess as a citizen in our country. In today’s edition of “Know Your Rights”, we look at the rights of witnesses in India.

KNOW YOUR RIGHTS – EDITION 34

Rights of a Witness in India

What do the movies Did You Hear About the Morgans? (2009), Sister Act (1992), and Killshot (2008) have in common? Their IMDb ratings don’t pass 6.5…? Well, yes, but that’s not it. All of them famously revolve around the witness protection programme. Something India still doesn’t have despite its witness hostility rate.

According to estimates, over 60% of acquittals are a result of hostile witnesses. This is when a witness provides contradictory statements in court. A Parliamentary Standing Committee report even said that the criminal conviction rate is below 10% due to this. And more often than not, that would take place due to “external stimuli”. This gets even more concerning when you realise that, at times, children are also called in as witnesses during certain cases.

So, before getting into it, let’s look at what a witness is. A witness is a person, different from the accused, who gets summoned by authorities to testify on matters of the case proceedings. Considering India has an adversarial system of justice where a court decides the outcome based on evidence provided, a witness plays a rather important role here.

Usually, there are 3 types of witnesses – an eye witness, a character witness and an expert witness. An eye-witness is one whose testimony relies on what they saw take place, and they simply go over the facts of an incident. A character witness attests to the good or bad character of the accused. And finally, an expert witness brings facts or questions on fields that the judge might not be aware of but is imperative to the case.

In general, witnesses are supposed to have the following rights:

• The right to a safe waiting place during the court proceedings.
• The right to information on the status of investigation and prosecution of the crime.
• The right to be treated with compassion and dignity.
• The right to protection from intimidation and harm.
• The right to anonymity while providing evidence if absolutely necessary.
• The right to safe transportation to and from the court proceedings.
• The right to refuse testimony if the accused in a case is a relative of the witness.
• The right to testify in a language the witness is most comfortable in.
• The right to the presence of an interpreter.
• The right to adequate legal assistance.
• The right to either be reimbursed or paid for any expenses incurred while being a witness.

As a witness, if you do receive threats or are on the receiving end of any form of extortion, the Indian Penal Code (IPC) has you covered. According to Section 195-A of the IPC, a person who threatens anyone with intent to get them to bear false witness shall be either punished with imprisonment of up to 7 years, or with a fine, and sometimes, even both.

Okay, so what happens if a person gets convicted for a crime they didn’t commit because of the extorted false witness? The IPC says that if an innocent person is convicted and sentenced with imprisonment for over 7 years or is given the death sentence because of this, the extortioner will be given the same sentence to the same extent as was given to the innocent person.

In special cases, you might have a “vulnerable witness”. This is a person who might not be able to testify in court due to certain conditions. The conditions could include them having mental disorders, they might be physically impaired, or maybe they simply don’t meet the age requirement of being 18 years or older. Such witnesses are called “vulnerable witnesses”.

For them, the rules usually followed are the guidelines set by the Delhi High Court in 2017. The aim of the guidelines is to make sure that the witnesses are allowed to testify safely and comfortably. It also ensures that the evidence given by the witnesses is secure and that they don’t have to face any secondary victimisation by taking part in the court proceedings.

Some important sections in the guidelines are mentioned below:

• Section 13 states that the vulnerable witness will be allowed to visit the court pre-trial to familiarise themselves with the environment and their surroundings.
• Section 34 says that the court shall clearly explain the proceedings to the vulnerable witness and tell them to answer truthfully only after listening and fully comprehending the questions.
• Section 38 talks about the court maintaining the confidentiality and sealing the records of the vulnerable witness.
• Section 39 says that the court will impose safety measures for vulnerable witnesses if they are at risk of any kind. This includes avoiding contact with the accused or any other related party, issuing law enforcement for protection, etc.

India, as of now, is yet to effectively implement the Witness Protection Scheme of 2018 which, considering the lack of a proper law on this, has been turned into a proper legal enactment. In fact, it is the first legal enactment regarding witness protection in India. The only thing this adds to the regulations already in place is a Witness Protection Fund which makes sure the state pays for the safety measures that a witness will need.

Several experts have called out the lacunae in the scheme as it only provides protection measures for 3 months after the court proceedings. It is also barely implemented in the country making its provisions more or less moot. While it did push us forward in terms of the conversation surrounding witness protection in the country, we still have a long way to go.