Hostile witnesses have always troubled the justice system, Justice PS Bhati on need for Witness Protection law

While discussing the importance of having a notified witness protection programme, Justice AKJ Nambiar of the Kerala High Court recently opined that it was the legislature’s responsibility to define the balance between the right to fair trial and protection of witnesses..Justice Nambiar was speaking at a webinar on Protection of witnesses and whistleblowers: Strengthening the Frameworks organised by Damodaram Sanjivayya National Law University (DSNLU), Visakhapatnam and the Confederation of Alumni for National Law Universities (CAN Foundation). The talk also featured Justice PS Bhati of the Rajasthan High Court and Senior Advocate Siddharth Bhatnagar..Watch the video:.Justice Nambiar said that the exercise of making a witness protection law must involve looking from within to find out the kind of offences which are committed in India, the threat perception, and the kind of protection that India can afford to give, rather than directly borrowing provisions from foreign jurisdictions. .He pointed out that the budgetary allocation for the judiciary itself in various states can be quite low. Therefore, ideally, the witness protection law should come from the legislature, with funds being allocated for the purpose. .He added that the legislation should ideally be enacted at both the Central and the State levels. The Centre may give a broad framework, while the states can add the details, he suggested. .“... even if the legislation does take time to be notified, it is fine as long as it manages to bring a feeling of protection in the minds of the citizens."Justice AK Jayasankaran Nambiar.Justice Nambiar commenced his address by speaking on the principle behind having a witness protection programme. When a person comes to speak out against a crime he has witnessed against society, it is considered to be an attribute of good citizenship. As such, it becomes obligatory on the State to protect the witness, the judge remarked. .While citing an example where the courts have strived to maintain a balance between the freedom of press and the right to a fair trial, he observed, “... although the courts have held that the greater public good should be considered while deciding (on such matters), no one has defined what a greater good is.”.Justice Nambiar added that just like the Constitution of India - a mature piece of legislation that was passed after two years of discussion and deliberation - the legislature must, after a thorough study, pass a law for a witness protection programme..He added that this should be done in a realistic manner."A scheme or policy cannot be idealistic. A person cannot be compelled to give evidence, if he does not volunteer. Balancing of various factors in giving protection to witnesses shall be considered. For instance, a witness programme, where the name and job the witness is to be changed, will face realistic implementation setbacks in India”, said Justice Nambiar..He concluded his speech by stating that “... even if the legislation does take time to be notified, it is fine as long as it manages to bring a feeling of protection in the minds of the citizens.".The address by Justice PS Bhati of the Rajasthan High Court was interspersed with his personal experiences as a judge and as a practising lawyer. .While agreeing with Justice Nambiar’s view that witness protection should be defined by the legislature, he added a few suggestions based on his experiences..Justice Bhati delved into an important facet of the topic - the issue of hostile witnesses and how their statements at different stages rendered them hostile at the trial. .He observed,"Whether the witness can be penalised or reprimanded for turning hostile? An interesting simultaneous Jurisprudence says 'No, you cannot do so', else the system is likely to turn into a police regime.”.He added,“Hostile witnesses have always troubled the justice system. The conviction rate is low and the judiciary is blamed for low conviction rates as low as 4-5 %. This less conviction is not the failure of the judiciary alone, but of the entire legal system. At the same time, we cannot put witnesses on the spot either or be hard on them, since witness independence is paramount. Therefore, we still allow cross-examination of hostile witnesses to retrieve some relevant part out of the version being given at the trial and some testimony can be restored.”.Justice Bhati opined that good witness programmes have helped a lot of magistrates. There could be quicker trials, he said, if witnesses could also be produced before the magistrate at an early stage of the trial..He opined that it was important to strive for a society that believes there is rule of law and where the administration of justice is guaranteed if the people approach courts. If rule of law is not maintained, a tooth for tooth situation would arise, he added..Justice Bhati concluded his address by stating that the credibility and independence of witnesses should be the aim of any legislation. He added that it also has to be as realistic as possible..Senior Advocate Siddharth Bhatnagar agreed with the opinions of his co-panellists, adding that he only hoped that there will be more technological involvement to ensure the better protection of witnesses..Echoing sentiments on the need for a realistic model, he said that if the model is something that can easily be followed by all law enforcement agencies, then it will aid implementation..On the shortcomings of the prevailing witness protection scheme, he noted,“Firstly, it did not deal with the private sector. Secondly, that Bill which was passed actually requires disclosure of the name of the complainant so a witness protection issue comes up there as ultimately whistleblowers are a subset of witness protection. Whatever information comes into the hands of an authority that is deciding on witness protection must equally be kept confidential and there must be procedures for the same.”.He added that the current witness protection scheme, which was approved by the Supreme Court through a judgment in 2018, could be studied so that solutions are added in the legislation that is drafted in the future.."We don't have a legislation but the scheme itself I think is a good starting point", he opined..The session was moderated by Advocate Sriram Parakkat, EC Member, CAN Foundation and Advocate Vishwajeet Singh. .The welcome address was delivered by Prof (Dr) S Surya Prakash, Vice-Chancellor, DSNLU, Visakhapatnam.