Fundamental Right Of Witnesses To Testify In Courts Without Pressure & Threat Under Serious Attack Today: Supreme Court Highlights Importance Of Witness Protection Scheme

The Supreme Court observed that the right of witnesses to testify in Courts in a free and fair manner without any pressure and threat whatsoever is under serious attack today. 

Right to life guaranteed to the people of this country also includes in its fold the right to live in a society which is free from crime and fear and the right of witnesses to testify in Courts without fear or pressure, the court observed.

The bench of Justices L. Nageswara Rao, Sanjiv Khanna and BR Gavai added that if a witness is unable to testify in Courts due to threats or other pressures, then it is a clear violation of Article 19 (1) (a) and Article 21 of the Constitution.

The court was considering a case of honour killing. The Trial Court had sentenced some of the accused to death. The High Court commuted the death sentence to life imprisonment.  In this case, the evidence of one of the eye witnesses was initially recorded on 09.04.1992. She has narrated the sequence of events and the involvement of the accused in the crime. Thereafter, due to an interim order passed by the High Court, the trial was stayed for a period of six years. When she was recalled to depose in Trial Court on 21.02.1998, she turned hostile. She was later declared hostile along with 11 other prosecution witnesses.

The court said that the evidence of prosecution witnesses cannot be rejected in toto merely because the prosecution chose to treat them as hostile and cross- examined them. The reasons for her turning hostile are understandable as she comes from a lower-strata of the society, living in a village dominated by the caste to which the accused persons belong, the court noted.

In this context, the bench made the following observations:

Violation Of Fundamental Right To Testify In Courts

28. Right to testify in Courts in a free and fair manner without any pressure and threat whatsoever is under serious attack today. If one is unable to testify in Courts due to threats or other pressures, then it is a clear violation of Article 19 (1) (a) and Article 21 of the Constitution. Right to life guaranteed to the people of this country also includes in its fold the right to live in a society which is free from crime and fear and the right of witnesses to testify in Courts without fear or pressure. It needs to be emphasised that one of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State. It is a harsh reality, particularly, in those cases where the accused persons/criminals are tried for heinous offences, or where the accused persons are influential persons or in a dominating position that they make attempts to terrorise or intimidate the witnesses because of which these witnesses either avoid coming to Courts or refrain from deposing truthfully. This unfortunate situation prevails because of the reason that the State has not undertaken any protective measures to ensure the safety of these witnesses, commonly known as "witness protection".

State has obligation to ensure that during a trial in the court the witness could safely depose the truth 

29. The State has a definite role to play in protecting the witnesses, to start with, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens, it has to ensure that during a trial in the court the witness could safely depose the truth without any fear of being haunted by those against whom the witness had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like caste, creed, religion, political belief or ideology

The court noted that in Ashwin Kumar Upadhyay v. Union of India and Anr., a direction was given by this Court to the Union of India and the State Governments to strictly enforce the Witness Protection Scheme, 2018. The court observed:

31. The present case squarely falls under the situations contemplated by this Court while necessitating the formulation of scheme/guidelines/programmes for protection of witnesses. Implementation of the Witness Protection Scheme at the time when the witnesses were deposing in the present case, would have prevented the prosecution witnesses from turning hostile. If the material witnesses were relocated from the village and escorted to the courtroom, they would have deposed freely in court.

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