DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

RIGHTS OF VICTIMS AND WITNESSES

SUBJECT

HUMAN RIGHTS AND HUMANITARIAN LAW

NAME OF FACULTY : Dr. Ch. Lakshmi

NAME OF STUDENT : Samuel Sankeerth. K

ROLL NO. : 2015057

SEMESTER : VI

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 ACKNOWLEDGEMENT

I would sincerely like to put forward my heartfelt appreciation to our respected Human
Rights and Humanitarian law Ma’am Dr.Ch.Lakshmi for giving me a golden opportunity to
take up this project regarding the topic “Rights of Victims and Witnesses”. I have tried my
best to collect information about the project in various possible ways to depict clear picture
about the given project topic.

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 TABLE OF CONTENTS

1. ABSTRACT
2. OBJECTIVE OF THE STUDY
3. SIGNIFICANCE OF THE STUDY
4. SCOPE OF THE STUDY
5. RESEARCH METHODOLOGY
6. BODY OF THE PROJECT
 Introduction
 Definition
 Classification
 Witness Protection Laws And Programmes In Other Parts Of The World
 Developments In India
 Law commission Reports
 Relevant Case Laws With Reasoning
7. CONCLUSION
8. BIBLIOGRAPHY

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ABSTRACT
During ancient times, victims had many rights and they used to play a crucial role in the
criminal justice system. This was true during the reign of Hindu kings as well as the Muslim
Period. Even though their system of criminal trial and punishment was harsh and in many
cases the main aim was to impart justice to the victims.

Rights of gross human rights violation victims have been much regulated in a number of
constitutional regulations. However, conceptual shortfalls in substantial formulations are still
present in the positive law. The substantial aspect shortfalls have the potential to have
detrimental implication to the protection of gross human right violation victim’s rights
considering the procedural aspects will refer to the material law. This condition certainly
become a challenge which is expected to motivate all related parties to improve and bring
their best contribution in the effort to protect, improve human rights, and enforce law and
justice to the victim.

However, with the emergence of the ‘adversarial system of justice’, the struggle of the
victims became worse and they became forgotten people except for their minor role in the
criminal justice system as a prosecution witness. It was believed that the claim of the victim
was sufficiently satisfied by the conviction and sentencing of the offender. This assumption is
neither fair nor just. Justice demands that when society and the State are resorting to every
possible measure of correction and rehabilitation of offenders, equal concern must be shown
for the victims by at least providing compensation to them for their loss, agony, physical and
mental torture.

It thus became important to gain knowledge about victims of crime, the struggles faced by
such people in coping with the adverse effects of a criminal act, and how could the Justice
System compensate and rehabilitate such victims.

A witness is one of the indispensible parts of the criminal justice system, as his stand
determines the very backbone of the decision of the case. Therefore, the truthfulness of the
witness’s testimony becomes the cornerstone of justice and hence the witness is made to offer
statement under oath. A witness must depose without force, fear and pressure and out of his
or her own free will and consent. The quality of the statements given by a witness also
determines the pace of a particular case.

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OBJECTIVE OF THE STUDY

The main objective of the study is to analyse the propaganda of the Rights of Victims and
Witnesses and the reasons for the need for constitutional protection and the heights of its
suppression and violatoin that shows impact on international human rights.

SIGNIFICANCE OF THE STUDY

This research lets us to know about the various articles which were framed for the victims
and witnesses and the ways they were being suppressed by the criminals which ultimately
results in the violation of the human rights.

SCOPE OF THE STUDY

The researcher has limited the scope of the study to the country India and partially covers the
international laws and articles which were playing the prominent role in the protection of the
Human Rights.

RESEARCH METHODOLOGY
The methodology used for the research by the researcher is purely doctrinal which includes
descriptive, explanatory and analytical research. The resource includes various articles
published, books, journals and also web sources. The Citation methodology followed in this
project is APA (American Psychological Association). The Project is an interpretation and
analytical one.

The demonstrations and the information is purely based upon the existence of the articles for
the protection of the Rights of Victims and Witnesses in the present and the prevailing time
period.

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INTRODUCTION

The development of criminology theories in criminal law and the Practice of criminal court
system in a number of decades have gone through a big transformation, especially in its
relation to the attentions of experts, academicians, and practitioners towards the position of
the victim in criminal court processes. A higher degree of attention towards the position of
the victim in criminal court is shown by the adoption of a various legal regulation in the
international and national level which regulates the protection and assurance of the victim’s
rights. In Indonesia, the attention towards the position of the victim in the criminal court
system became clear with the adoption of the Act 13 of 2006 on the protection of witnesses
and victims. In the act, there are three matters which are being regulated. The first is the
formulation of rights and the forms of protection given to victims and witnesses. The second
concern is the institutional aspects of Lembaga Perlindungan Saksi dan Korban (Witnesses
and Victims Protection Institution). The third is the conditions on the granting of protection
and aids regarding mechanism aspects and procedures of the Witnesses and Victims
Protection Institution.

The researcher will discuss briefly the protection and rights of victims ofgross human rights
violations which is written in the international human rights law and the practical context of
the regulation and implementation in national law. To formulate this publication, the term
gross human rights violation refers to the definition written in Act 26 of 2000 on the Human
Rights Court. The Human Rights Court Act determines that there are two actions, genocide
and crime against humanity, as gross human rights violation. In the context of law
enforcement, complexity will arise in conceptual and technical forms. This publication is
meant to answer and find opportunities of solutions that might be found based on experience
and theoretical and practical knowledge.

International and National Human Rights Law

The main reference in international human rights law of the definition of victims is the
Declaration of Basic Principle of Justice for Victim and Abuse of Power, adopted by General
Assembly Resolution 40/ 34 of 29 November 1985 which this publication will refer as victim
declaration. Other major reference is in the International Criminal Court (ICC) Rules of
Procedure and Evidence which formulation strengthens the concept of victims in the context
of gross human rights violations. Regarding gross human rights violations in national law,

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definition of victims refers to Government Regulation 2 of 2002 on the Procedure of Human
Rights Violation Victims and Witnesses Protection and Act 13 of 2006 on Witness and
Victim Protection.

DEFINITION OF VICTIM

Witness and Victim Protection Act

Victim is a person suffering mental, physical and/or economical loss due to a criminal
action.1

Government Regulation 2 of 2002

Victim is an individual or group suffering gross human right violations which require
physical and mental protection from threats, terror, and violence from any party.

Declaration of Basic Principles of Justice for Victims2

Victims means persons who, individually or collectively, have suffered harm, including
physical or mental injury, emotional suffering, economic loss or substantial impairment of
their fundamental rights, through acts or omissions that are in violation of criminal laws
operative within Member States, including those laws proscribing criminal abuse of power.

International Criminal Court3

(a)“Victims” means natural persons who have suffered harm as a result of the commission of
any crime within the jurisdiction of the Court;

(b)Victims may include organizations or institutions that have sustained direct harm to any of
their property which is dedicated to religion, education, art or science or charitable purposes,
and to their historic monuments, hospitals and other places and objects for humanitarian
purposes.

Black’s Law Dictionary

1
Government Regulation 44 of 2008 has the same definition of victim with Witness and Victim Protection Act
2
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (adopted by General
Assembly resolution 40/ 34 of November 1985)
3
Rules of Procedure and Evidence: Rule 85 Definiton Of Victims For the purposes of the Statute and the Rules
of Procedure and Evidence

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“In the primary sense of the word, a witness is a person who has knowledge of

an event. As the most direct mode of acquiring knowledge of an event is by

seeing it, “witness” has acquired the sense of a person who is present at and
observes a transaction”.

CLASSIFICATION OF VICTIM

(i) Primary Victim–

Any person, group or entity who has suffered injury, harm or loss due to illegal activity
of someone is called a primary victim. The harm may be physical, psychological or financial.

(ii) Secondary Victim–

There may also be secondary victim who suffer injury or harm as a result of injury or
harm to the primary victim.

(iii) Tertiary Victim–

Tertiary victim are those who experience harm or injury due to the criminal act of the
offender. He is another person besides the immediate victim, who is victimized as a result of
the perpetrator’s action.

WITNESS PROTECTION LAWS AND PROGRAMMES IN OTHER PARTS OF THE

WORLD

International Law

There is no definition as to who constitutes a witness even in international law, though the
need for setting up separate victim and witness protection units in the trial of mass crimes has
been recognised in many international tribunals.

The International Criminal Tribunal for Rwanda has formulated rules for protection of
victims and witnesses. Similar provisions exist in the Statute for the creation of an
International Criminal Court. They have identified that protection is necessary so that there is
no miscarriage of justice; but protection is also necessary to restore in them, a sense of human

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dignity which stands shatters at the occurrence of a crime. The list of duties for providing
protective measures under the Statutes for the Yugoslav and Rwandan Tribunals and recently
in the newly agreed Statute for the International Criminal Court includes

 delaying the disclosure of witness details to the defense

 allowing testimony to be given by one way closed circuit television

 closed session hearings

 the use of voice and image altering devices

 total non-disclosure of information relating to the identity of the witness

The European Court in a landmark case of Doorson v. Netherlands4, appeared to recognize

that witnesses should be accorded rights. The International Criminal Court has established a
separate unit that provides support to the witnesses and responds immediately if witnesses
receive threats or intimidation. Moreover, the protection and support services are provided
not only during the trial stage, but if required, at all stages of the criminal proceedings, from
investigation to post-trial.

The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power was
adopted by the United Nations General Assembly in November 1985. According to this
declaration, victims of crime are described as persons who, individually or collectively, have
suffered harm, including physical or mental injury, emotional suffering, economic loss or
substantial impairment of their fundamental rights. Article 14 of the International Covenant
on Civil and Political Rights, which India has ratified, recognizes the right to fair trial as a
human right.

United States of America5

The United States Federal Witness Security Program, commonly known as the Witness
Security (WITSEC) Program is one of the most developed of all existing Witness Protection
programs in the world. Before this, witness protection had been instituted under the Ku Klux
Klan Act of 1871 to protect people testifying against members of the Ku Klux Klan. It was
the Organised Crime Control Act, 1970 and later the Comprehensive Crime Control Act,

4
(1996) 22 EHRR 330
5
https://www.justice.gov/usao/resources/crime-victims-rights-ombudsman/victims-rights-act

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1984 which authorised the Witness Security Program as we know it today. To make the
guidelines in the program more specific, the Witness Security Reform Act of 1984 was
enacted. In the USA, agencies such as The United States Marshals Service, the Office of
Enforcement Operations (OEO) and the Federal Bureau of Prisons (BOP) and The U.S.
Attorney General’s office, are associated with the programme. The main purpose is to keep
the witnesses safe so that they can testify at trials that could convict members of organized
crime, dangerous criminals, gangs or terrorist networks. The Program assists in providing
housing, medical care, job training and assistance in obtaining employment and subsistence
funding until the witness becomes self-sufficient.

Before witness protection funds are provided, law enforcement must make an assessment
which includes an analysis of the extent the person or persons making the threats appear to
have the resources, intent, and motivation to carry out the threats and how credible and
serious the threats appear to be.

The witness and family members sign a Memorandum of Understanding which is coordinated
by multiple government agencies, in good timing and total secrecy. The witness receives a
pre-admittance briefing by Marshals Service personnel and agrees to enter the program,
he/she and his/her family are immediately removed from their current location and taken to a
temporary, secure holding area. Further assistance in the form of finding a house, temporary
employment and payment of a subsistence payment on average of $60,000 per year (approx
Rs 33 lakhs) is paid out. Further the witness is provided with new identity documents for
him/her and family. Counselling service is also arranged by the agency. Once in the program,
the Marshals Service provides 24-hour protection while they are in a high-threat area,
including pre-trial proceedings and court appearances. Once assimilated into new
environments, contact with the government is only required once per year or on case of
emergencies.

They presume new identities once the trial is over. Further, protected witnesses are expected
to find employment and become self-sufficient as soon as possible with the assistance from
the Marshals Service. Since the program’s inception in 1970 in the US, in 89% of the cases
where witnesses were involved, the State was able to secure a successful conviction,
according to the Marshals Service.

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Australia6

The witness protection program constituted under the Witness Protection Act 1991 is an
extremely comprehensive system. The definition of witness itself is wide in its ambit and S.
4 (2) (d) (of the Amending Act of 1996) include the flexible phrase of “a person who, for any
other reason, may require protection or other assistance under this Act.”

The express inclusion of changed identities and the specific guidelines for changing identities
with regard to the Register of births, deaths and marriages (under the Registration of Births
Deaths and Marriages Act, 1959) etc are excellent provisions under this Act. Although there
are no statistics to substantiate, it is felt that the Australian scheme is model legislation.

United Kingdom7

The U.K. Government enacted the Criminal Justice and Public Order Act, 1994 which
provides for punishment for intimidation of witnesses. S.51 of the Act not only protects a
person who is actually going to give evidence at a trial, but also protects a person who is
helping with or could help with the investigation of a crime. Also, Sections.16 to 33 of the
Youth Justice and Criminal Evidence Act, 1999 requires the court to consider special
measures of various kinds for the protection of vulnerable and intimidated witnesses.

The procedure for application of Witness anonymity orders is given in the Coroners and
Justice Act, 2009. Witness anonymity order ensures that specified measures are taken in
relation to a witness in criminal proceedings as the court considers appropriate to ensure that
the identity of the witnesses are not revealed to ensure their safety. “Witness”, in relation to
any criminal proceedings, means any person called, or proposed to be called, to give evidence
at the trial or hearing in question. The personal details of witnesses may be withheld, or
removed from the documents disclosed to the parties or he may use a pseudonym, and it will
also be ensured that he will not be asked any leading questions that will disclose his identity.
The witness will also be screened in a manner that the judges and/ or jury can see him and
also his voice will be subjected to modulation to some extent.

6
https://aic.gov.au/publications/rpp/rpp19
7
https://www.gov.uk/your-rights-after-crime

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Under section 17 (1), witnesses are eligible for assistance on grounds of fear or distress about
testifying. A child witness (who is below the age of 17 at the time of hearing) may be
accompanied by a witness supporter.

DEVELOPMENTS IN INDIA

Indian Statutes8

The word witness has not been defined anywhere in the Code of Criminal Procedure. Any
Court may, at any stage of any inquiry, trial or other proceeding under the Criminal
Procedure Code, summon any person as a witness, or examine any person in attendance,
though not summoned as a witness, or recall and re- examine any person already examined;
and the Court shall summon and examine or recall and re- examine any such person if his
evidence appears to it to be essential to the just decision of the case.

Subject to any rules made by the State Government, any Criminal Court may, if it thinks fit,
order payment, on the part of Government, of the reasonable expenses of any complainant or
witness attending for the purposes of any inquiry, trial or other proceeding before such Court
under this Code.

Evidence as defined in Section 3 of the Indian Evidence Act, 1872 covers evidence of
witnesses and documentary evidences. Chapter IX titled “OF WITNESSES” of the Indian
Evidence Act, 1872 consists of seventeen Sections spreading from Sections 118 to 134. The
main aspects are dealt with here are:

1. Competency- A witness is said to be competent when there is nothing in law to

prevent him from being sworn and examined if he wishes to give evidence.

2. Compellability- Further a witness though compellable to give evidence may be

privileged or protected from answering certain questions. Even if witness be willing
to depose about certain things, the court will not allow disclosure in some cases

3. Privileges

4. Quantity of Witnesses required for judicial decisions (No particular number of

witnesses is required for proof of any fact and this section enshrines the maxim
that Evidence has to be weighed and not counted.)
8
http://www.legalserviceindia.com/articles/cjc.htm

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Section 151 and 152 of the Evidence Act protects the witnesses from being asked indecent,
scandalous, offensive questions, and questions which intend to annoy or insult them. Also,
when an accused is released on bail, one of the terms and conditions imposed by the Court on
the accused is that he shall not tamper the evidence, or approach the witnesses. This, again, is
not as a provision for protection of the witnesses per say, but only to ensure the trial is not
tampered with.

There are provisions to protect witnesses, though not physically, under the special statues like
The West Bengal Act of 1932, Juvenile (Care and Protection of Children) Act, 2000. Section
17 of the National Investigation Agency Act, 2008 says that on an application made by a
witness in any proceeding before it or by the Public Prosecutor in relation to such witness, if
the Special Court is satisfied that the life of such a witness is in danger, it may take measures
it deems fit for keeping the identity of such witnesses secret. Any person who contravenes
any decision or direction with regard to this will be punished with imprisonment for a term
which may extend to three tears and with fine up to one thousand rupees.

LAW COMMISSION REPORTS9

14th Law Commission Report (1958) referred to ‘witness-protection’ in a limited sense and
the main feature with respect to this was the provision for adequate arrangements for the
convenience of the witness within the court premises and provision of allowance enabling
them to arrive for testimony promptly and thus avoiding delay. There was no mention for the
provision of any physical protection for the witness within this report.

The 154th Report of the Law Commission contains a chapter on Protection and facilities to
Witnesses. One of the recommendations was: “Witnesses should be protected from the wrath
of the accused in any eventuality”, but the Commission did not suggest any measures for the
physical protection of witnesses. This Report suggested to prevent witnesses from turning
hostile by taking the signature of the witness, if he is literate, on his statement, giving a copy
of the statement to the deponent under acknowledgement and to send copies of the statements
to the appropriate magistrate as well as to the superior Police office.

In the 172nd Report of the Law Commission, the Law Commission took up the subject on a
request made by the Supreme Court of India in Sakshi v. Union of India10 and discussed the

9
http://lawcommissionofindia.nic.in/
10
AIR 2004 SC 3566

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issues raised by the Petitioner NGO and other women organizations. After taking into
consideration the various suggestions by these organisations, it was held that a minor who has
been assaulted sexually, should not be required to give his/her evidence in the presence of the
accused.

178th Report of Law Commission, suggested an amendment to insert S.164 A to the Code
of Criminal Procedure.

The Committee on Reforms of Criminal Justice System under the chairmanship of Dr.
Justice V. S. Malimath, submitted a Report containing 158 recommendations. It contains a
casual statement that a law should be enacted for giving protection to witnesses and their
family members, without specifying any provision or scheme whatsoever. The prosecution
and the Court could direct that the identity and the address of the witness be kept secret. The
Court could even avoid the mention of the names and addresses in its order or judgement. A
chapter of the report named, “A Hybrid System of Criminal Justice” has sought to
incorporate certain features of the ‘inquisitorial” system of trial into the ‘adversarial’ system,
namely “empowering judges further with the duty of leading evidence with the object of
seeking the truth and focusing on justice to victims.” It is felt that, focusing on “justice to
victims” is possible, only if careful consideration is paid to “the rights of witnesses”,
“considering them as a special category of victims” and acknowledging their insecurity and
vulnerability in general.

The Criminal Law (Amendment) Act, 2005 (No.2 of 2006) has made many important
amendments including the introduction of Section 195A to the Penal Code, whereby
threatening or inducing any person to give false evidence is made punishable. Other changes
include amendment of Section 195 of Cr.P.C and Section 154 of Evidence.

In the 198th Report of the Law Commission, a Consultation Paper on Witness Identity
Protection and Witness Protection Programmes’ was prepared. In the Final Report, the
Commission identified three categories of witnesses: (i) victim-witnesses who are known to
the accused; (ii) victims-witnesses not known to the accused and (iii) witnesses whose
identity is not known to the accused. Category (i) requires protection from trauma and
categories (ii) and (iii) require protection against disclosure of identity.

The committee comprising Members of Parliament from the Rajya Sabha was reviewing the
status of promises made by the government in 2009 to amend necessary laws to protect

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witnesses. The commission recommended witness anonymity and protection where there
isdanger to the witness, to his properties or to those of his relatives, at all stages –
investigation, inquiry, trial, appeal – and thereafter also.

RELEVANT CASE LAWS WITH REASONING

The earliest judgment that dealt with the aspect of witnesses’ protection was in the case
of Naresh Shridhar Mirajkar v. State of Maharashtra 11wherein protection of publication
of evidence of the witness was allowed by the High Court and later re-affirmed by the
Supreme Court as otherwise the business interests of the witness would have been hampered.

The most historic and relevant case that brought witness protection into focus was the Zahira
Habibulla Sheikh v. State of Gujarat12. In this case, the Supreme Court decided to shift the
venue of the case from Gujarat to Maharashtra since the Court felt that the witnesses would
not be able to depose their statements freely in the said state. The Supreme Court reiterated
“legislative measures to emphasise prohibition against tampering with witness, victim or
informant, have become the imminent and inevitable need of the day.”In Delhi Domestic
Working Women’s Forum v. Union of India13, the Supreme Court emphasised the
maintenance of the anonymity of the victims of rape who would be the key witnesses in trials
involving the offence of rape. The guidelines for witness protection laid down by the Delhi
High Court in Neelam Katara v. Union of India14 but they did not deal with the manner in
which the identity of the witness can be kept confidential either before or during the trial. The
judgment of the Full Bench of the Punjab and Haryana High Court in Bimal Kaur Khalsa,
which provides for protection of the witness from the media, does not deal with all the
aspects of the problem.

11
AIR 1967 SC 1
12
(2004 (5) SCC 353)
13
1995 1 SCC 14
14
1 SCC96 (1992)

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CONCLUSION

It could be concluded from the explanation above that the conceptual weaknesses from the
substance of the constitutional regulation regarding the victim of gross violation of human
right is still exist in our positive law. The substantial aspects could result in a bad implication
towards the protection of the gross violation of human right victim’s rights, whereas the
procedural aspect is almost clearly referring to the material law. This condition would
become a challenge that could stimulate every party to fix and give their best contribution in
protecting, human right development, also law enforcement and justice for the victim.

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BIBLIOGRAPHY

 http://lawcommissionofindia.nic.in/
 https://law.lclark.edu/live/files/11823-fundamentals-of-victims-rights-a-summary-of-
12
 Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal
Justice System (2003).
 Jon Kyl, Steven Twist, & Stephen Higgins, On the Wings of Their Angels: The Scott
Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime
Victims’ Rights Act, 9 Lewis & Clark L. Rev. 581, 596 (2005).
 18 U.S.C. § 3771. Even the United States Attorney General recognizes that the CVRA
affords crime victims standing to assert their rights. See 2005 Attorney General
Guidelines for Victim and Witness Assistance 8.
 Black’s Law Dictionary, Sixth Edition

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