MAHENDRA CHAWLA & ORS V UNION OF INDIA & ORS: ENSURING “RULE OF LAW” BY PROTECTING WITNESSES
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https://doi.org/10.55662/Abstract
“A witness is a man whose life and faith are so completely one that when the challenges come to step out and testify for his faith, he does so, disregarding all the risks, accepting all consequences.”
- Whittaker Chambers
India follows the adversarial form of judicial system where judges decide the matter on the basis of evidences produced before it. Evidence whether in the form of documentary or oral are essential for arriving at definite conclusion and ensuring that justice is done. Hence witnesses play a prominent role in dispensing justice, even more so in criminal cases where oral testimonies play a dominant role. Hence their protection is sine qua non of a modern judicial structure.
The need for witness protection was hence a long overdue. It was emphasized by Law Commission in its 198th Report (Witness Identity protection and witness protection programme). This sad situation was reiterated by Malimath Commission in 2003 which also advocated for witness protection legislation. Supreme Court asked centre and states to implement the witness protection scheme 2018. This was ordered in the wake of increasing number of attacks on the witnesses and numerous witnesses turning hostile (witness in legal case that supports opposite side). Such incidents led to an increase in arrears of criminal cases pending in the court since witnesses hesitate to come before the court. Over 22 lakhs which are over a decade old are pending in various subordinate courts of the country. These cases constitute 8.29 per cent of the total nearly 2.50 Crore cases pending in the lower courts.
Protection of witness is a pre-requisite for an efficient judicial system in a country which in turn is required for sustenance and proper functioning of state governed by rule of law. Prevailing feeling of fear in the country seriously impairs the right of the people of the country to live in a free society governed by rule of law. If one is unable to testify in courts due to threats or other pressures, then it is a clear violation of Article 21 of the Constitution. The 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 right of witnesses to testify in courts without fear or pressure.
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