Section 44 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) and section 17 of the National Investigation Agency Act, 2008 (NIAA) deal with the “Protection of Witnesses” concept. In this law article, we will discuss this concept thoroughly.
What Is the Protection of Witnesses?
Protection of witnesses refers to measures taken to ensure the safety and security of individuals who provide information or testimony in criminal or civil proceedings. Witnesses are often called upon to provide evidence in court or to law enforcement agencies, and their testimony can be critical to the outcome of a case.
However, witnesses may face various risks, including threats, intimidation, harassment, and even physical harm. To address these risks, many countries have implemented various witness protection programs, which may include measures such as:
- Providing a safe location for the witness to live, often under a new identity.
- Providing security measures, such as bodyguards or surveillance.
- Providing financial assistance to help the witness start a new life.
- Limiting access to the witness’s personal information.
- Offering legal and emotional support to the witness.
Witness protection programs are typically administered by law enforcement agencies or other government entities, and the specific measures taken may vary depending on the circumstances of each case.
The goal of these programs is to encourage witnesses to come forward and provide truthful testimony without fear of retaliation, ultimately ensuring a fair and just legal process.
Protection of Witnesses Under UAPA and NIAA
- It stipulates that the proceedings under these Acts may be conducted in-camera under specific exceptional circumstances and with reasons recorded in writing by the court.
- It gives the discretion to the court to keep the identity and address of any witness secret when the court is satisfied that the life of the witness is in danger and record the reasons in writing in the following three contingencies:
- On an application made by the witness in any proceeding before it; or
- On an application made by the Public Prosecutor about such a witness; or
- On its own motion.
Suppose neither the witness nor the Public Prosecutor has made an application on that behalf, nor has the court taken any decision of its own. In that case, the identity and address of the witness have to be furnished to the accused.
Here are some measures that the court may take in certain circumstances for the protection of witnesses:
- The holding of the proceedings at a place to be decided by the court;
- One of the measures is to avoid mentioning the names and addresses of the witnesses in the court’s orders, judgments, or any publicly accessible records of the cases.
- Instructing the authorities to take proper steps to ensure that the witnesses’ names and addresses be kept a secret;
- Directing, in the public interest, that all or any of the proceedings pending before such a court shall not be punished in any manner.
- It refers to the punishment that can be imposed for contravention of any direction issued by the court. The penalty for such a person is imprisonment for a term that may extend to three years, and they shall also be liable to a fine under UAPA. In the case of NIAA, the person is imprisoned for a term that may extend to three years and shall also be liable to a fine of up to Rs 1000.
In the case of UAPA, the term “court” is used, whereas in the case of NIAA, the term “Special Court” is used in place of court.
Constitutional Validity of Section 44 of UAPA and Section 17 of NIAA
The validity of sections was challenged on the ground that the right to cross-examine, which is an integral part of the fair trial and principles of natural justice, is guaranteed under Article 21 of the Indian Constitution.
Kartar Singh vs State of Punjab (1994) 3 SCC 569
Section 44 of UAPA and section 17 of NIAA do not outright deprive the court of the right to cross-examination; instead, they grant the court the discretion to protect the identity of a witness whose life may be at risk. The anonymity of witnesses is not a general rule. Identity is supposed to be withheld only in exceptional circumstances when the court is satisfied that the life of the witness is in jeopardy.
The court said if there are lack of provisions for protection to the people, they will hesitate to come forward to disclose information, significantly when they might endanger not only their lives but those of their families as well.
Therefore, such provisions become essential, as they are enacted to protect the life and liberty of a person who is able and willing to give evidence in prosecuting grave criminal offences like terrorism.
Also, cross-examination is not a universal or indispensable requirement of natural justice and fair trial.
Zahira Habibulla H. Sheikh vs State of Gujarat, (2004) 4 SCC 158
It’s one of the important judgments by the Supreme Court on the issue of the protection of witnesses and the need for a fair trial. The Supreme Court on the issue of “witness protection” observed:
“In Bentham’s words, “witnesses” are the justice system’s eyes and ears. The trial process’s quality is crucial and paramount for this reason. The trial degenerates and paralyses, and it can no longer be considered a fair trial if the witness himself cannot serve as the eyes and ears of justice. The witness’s inability to testify truthfully in court may be caused by several circumstances, including neglect, ignorance, corrupt collaboration, and other situations beyond the witness’ control.”
To prevent a trial from being tainted and derailed and truth from being lost, the State has a clear responsibility to safeguard the witnesses, at least in sensitive instances involving those in authority who have political patronage and may use their clout and financial influence. As a guardian of its people, it must ensure that a witness might testify truthfully during a court proceeding without worrying about being pursued by the people he had testified against. Protecting the life and liberty of its residents is a constitutional requirement for every state.
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