Witness Protection in India – Legal Framework and Implementation in Kolkata

Introduction to Witness Protection in India

Witness protection is a critical component of the criminal justice system. Witnesses are the eyes and ears of justice, and without their testimony, many guilty persons would go unpunished. However, witnesses in India — particularly in cases involving organized crime, terrorism, sexual offences, and powerful accused persons — face serious threats to their lives, safety, and well-being. Witnesses are often intimidated, threatened, bribed, or physically harmed to prevent them from testifying or to make them turn hostile. The problem of witness turning hostile is a major challenge for the criminal justice system in India, including in Kolkata. Recognizing this, the Supreme Court in Mahender Chawla v. Union of India (2018) approved the Witness Protection Scheme, 2018, and directed all states to implement it. The BNSS 2023 also contains specific provisions for witness protection.

Legal Framework – Witness Protection Scheme 2018 and BNSS Provisions

The Witness Protection Scheme, 2018, approved by the Supreme Court, provides a comprehensive framework for witness protection. Key features include: (a) Categorization of witnesses based on threat perception — Category A (threat to life), Category B (threat to safety or reputation), and Category C (moderate threat). (b) Types of protection — police protection, change of identity, relocation, in-camera trial, installation of security devices, escort to and from court, and temporary residence in a safe house. (c) Competent Authority — a Standing Committee in each district headed by the District and Sessions Judge to oversee witness protection. (d) Witness Protection Fund — a dedicated fund to meet the expenses of witness protection. The BNSS 2023 incorporates some of these principles. Section 398 BNSS empowers the court to order that the identity and address of a witness shall not be disclosed. Section 399 BNSS allows the court to take measures to ensure that the witness is not confronted by the accused during testimony. The BNSS also provides for the use of video conferencing for recording evidence of vulnerable witnesses.

Types of Witness Protection Measures

The Witness Protection Scheme provides for various measures tailored to the threat level. For Category A (high threat): change of identity, relocation to a different city or state, police protection, and anonymity during trial. For Category B (medium threat): police protection during travel to court, temporary safe house, escort by police personnel, and prohibition on disclosure of address. For Category C (moderate threat): regular patrolling around the witness's residence, police verification of threats, and court-ordered protection. Additional measures include: (a) in-camera trial — the public is excluded from the courtroom during the witness's testimony; (b) use of screens — the witness testifies from behind a screen so that the accused cannot see them; (c) video conferencing — the witness testifies from a remote location, avoiding physical presence in court; (d) voice modulation — in extreme cases, the witness's voice may be modulated to prevent identification; and (e) witness anonymity orders — the court may direct that the witness's name and address not be disclosed in court records or the media.

How to Apply for Witness Protection in Kolkata

A witness who fears for their safety can apply for protection. The process involves: (a) Filing an application before the competent authority — the court where the case is pending or the District Legal Services Authority. (b) The application must state the nature of the threat, the source of the threat (if known), and the specific protection sought. (c) The competent authority assesses the threat perception based on a report from the police or the investigation agency. (d) If the threat is found credible, the competent authority orders appropriate protection measures. (e) The protection order is implemented by the police. (f) The protected witness is provided with a dedicated point of contact in the police. (g) The protection measures are reviewed periodically. In Kolkata, the Witness Protection Scheme is implemented by the Kolkata Police in coordination with the courts. The DLSA also plays a role in facilitating witness protection. Advocate Panchanand Shaw assists witnesses in filing protection applications and ensures that their safety concerns are addressed by the authorities.

Challenges in Witness Protection in Kolkata

Despite the legal framework, witness protection in Kolkata faces several challenges. (a) Lack of awareness — many witnesses are unaware of their right to protection and the existence of the Witness Protection Scheme. (b) Resource constraints — the Witness Protection Fund is often underfunded, limiting the effectiveness of protection measures. (c) Police reluctance — the police, already overburdened, may be reluctant to provide continuous protection to witnesses. (d) Witness hostility — even with protection, deep-rooted fear can cause witnesses to turn hostile. (e) Social pressures — in close-knit communities, witnesses face pressure from family, neighbors, and community leaders. (f) Inadequate relocation — the practical challenges of relocating a witness and their family to a new city, including finding employment, schools for children, and housing, are significant. (g) Lack of coordination — protection often requires coordination between the police, the courts, the legal services authority, and the witness, and lapses can occur. Advocate Panchanand Shaw works to overcome these challenges by advocating vigorously for witness protection and holding the authorities accountable.

The Role of Lawyers in Witness Protection

Lawyers play a crucial role in witness protection. Defense lawyers have a duty not to intimidate or threaten witnesses, and such conduct can result in disciplinary action by the Bar Council and criminal prosecution. Prosecutors have a duty to bring threats to witnesses to the court's attention and to seek protection orders. The court has a duty to ensure that witnesses can testify freely and without fear. The judge can order protection on their own motion if they observe that a witness is under threat. In Kolkata, the judiciary has been proactive in ordering witness protection in appropriate cases. Advocate Panchanand Shaw, in his criminal practice, ensures that witnesses in his cases are treated with respect and their safety is prioritized. He also represents witnesses facing threats and assists them in accessing protection.