Protection of witness is sacrosanct feature of a
fair trial. Hon’ble
Apex Court in the case of Zahira
Habibulla H. Shiekh and Another v. State of Gujarat and others1 has
defined fair trial as one “in
which bias or prejudice for or against the accused, the witnesses, or the cause
which is being tried is eliminated. If the witnesses get threatened or are
forced to give false evidence that also would not result in a fair trial. The
failure to hear material witnesses is certainly denial of fair trial.”
A Judge is expected to ensure
the equilibrium in a fair trial by ensuring the accused gets a fair chance to
defend himself and the victim is given an equal opportunity to prove the guilt
of the accused.2
Declaration of Human Rights (UDHR) and Article 14 of the International Covenant
on Civil and Political Rights (ICCPR), to which India is a signatory, mention
that right to a fair trial is a prerogative every person is entitled to.
Although the right to fair trial is not extensive to the concerns of witness
protection, however, in circumstances where the life, liberty or security of a
victim/witness may be at stake, Contracting States to the ICCPR and the UDHR
should organise their criminal proceedings in such a way that those
interests are not unjustifiably jeopardized.3
In the Neelam Katara versus Union of
the Apex Court observed that the whole mechanism of administration of justice
is based upon witnesses coming forward and testifying without fear or favour,
without intimidation or allurements in court of law. If witnesses are
intimidated or allured, the foundation of administration of justice gets
weakened and even annihilated.
Since witnesses are the eyes and ears
of the justice system and when a witness is coerced or killed
or harassed, it is not only the witness who is threatened but also the
fundamental right of a citizen to a free and fair trial is exonerated.5
No country, dedicated to cultivate equality and harmony among
citizens, can afford to let its morally correct citizens be daunted by
anti-social elements like rapists and murderers.6 The
Apex Court observed in the Best Bakery case7
that legislative measures to absolutely abstain witness tampering have become
an imminent and unavoidable need of the day.
2 Doorson v. The Netherlands, (1996) ECHR 14,
(1996, European Court of Human Rights)
5 Himanshu Singh Sabharwal Vs. State of Madhya Pradesh and Ors.
6 Sanjeev Nanda v. The State, 160 (2009) DLT 775.
7 Zahira Habibulla H. Sheikh and Anr. v. State of
Gujarat and Ors., 2004 (4) SCC 158.