Aaditi Anand Sinha
Introduction
While discourse on Witness Protection Scheme has seen another development, with Assam drafting its own Scheme under Bharatiya Nagarik Suraksha Sanhita 2023 [“BNSS”], there is hardly any discussion on an equally important aspect–compensation provided to the witnesses for their statements although courts have reiterated its importance time and again. Mere safety is insufficient if a witness is unable to appear in court due to financial constraints. Studies have been conducted on ethics and economics of payments made to witnesses on behalf of the defence, and in civil cases. But hardly is there any study into the provision under BNSS [previously “Code of Criminal Procedure”], and related state rules. Surprisingly, there is also no judicial precedent in India which discusses the necessity of adequate payment to the witnesses at length; there are only ancillary remarks to the matter. Nonetheless, witness protection is closely tied to the issue of compensating them for their testimony.
By testifying, witnesses risk their lives and those of their families, and also endure significant personal and financial hardships. The Law Commission [“LC”] in its 154th report, in 1996, brought notice to the pathetic condition of the witnesses in the criminal justice system. It noted that the primary reason why the public was discouraged from appearing as witnesses was not only lack of protection, but also the absence of adequate facilities by and in the court for the same. The popular remark of “tareekh pe tareekh” or “court date after court date” is representative of this – the court adjourns cases and fixes next dates, without any regard to the convenience of the witnesses summoned. Furthermore, if the witness does not obey the summons, they are punished under §208 of the Bharatiya Nyaya Sanhita 2023 [“BNS”]. Therefore, it is crucial to assess whether the Indian criminal justice system adequately addresses this need which encompasses not only the protection of witnesses but also providing them with appropriate financial support for their attendance and testimony.
This essay first outlines the current legal provisions for compensating witnesses for their attendance expenses. Second, it demonstrates how the current system is inefficient at providing reasonable expenses to the witnesses. Herein, it will argue for a dual classification of witnesses, based on both income and the nature of their testimony, to develop a more equitable compensation structure.
This essay first outlines the current legal provisions for compensating witnesses for their attendance expenses. Second, it demonstrates how the current system is inefficient at providing reasonable expenses to the witnesses. Herein, it will argue for a dual classification of witnesses, based on both income and the nature of their testimony, to develop a more equitable compensation structure.
Current Legal Provisions for Compensation to Witnesses
§350 of BNSS outlines the provision of expenses of both complainants and witnesses. It further provides that these expenses, subject to the rules made by State governments, must be reasonable, and would be paid out of the purse of the Government. The qualification of reasonability in calculating such expenses seems to open the ground for subjectivity and hence, ambiguity. Thus, rules by the state government provide more information on the rates at which payment to be made. This essay is restricted to the rules made by three state governments – Odisha, West Bengal, and Tripura. Nonetheless, there are other states with similar rules, like Punjab and Haryana.
All three of the above-mentioned rules, that is, rules made by Odisha, West Bengal, and Tripura for compensation of witnesses, provide for three types of compensation – diet allowance, conveyance expenses, and compensation for loss of earnings. Out of these three, compensation for loss of earnings, in cases where loss is more than the amount mentioned in rules, is reported to the Government. Similarly, conveyance allowance is typically granted based on travel distance and mode of transport. However, it is the diet allowance that warrants deeper inspection due to reasons that follow, and hence, this essay will be restricted to it.
Diet allowance is payment made for daily attendance to the court, and is based on rates pertaining to different classes of the witnesses. Different state rules have created different categories of witnesses for payment of diet allowance, as has been demonstrated below–
| Categories of witnesses | Payment |
| Tripura Rules, 1972 | |
| Labourers and ordinary cultivators, and others of similar position | Rs. 6/- |
| Persons of better position | Rs. 10/- |
| West Bengal Rules, 1981 | |
| Those without any income and agricultural labourers | Rs. 4.00 |
| Those earning below Rs.400/- | ≤ Rs. 10.00 |
| Those earning between Rs.400/- to Rs.899/- | ≤ Rs. 12.00 |
| Those earning more than Rs.900/- | ≤ Rs. 15.00 |
| Odisha Rules, 2012 | |
| General witness | Rs 100.00 |
| Retired Government servants (like Doctors, Engineers etc) and also retired servants of non-Government Institutions like local bodies, Zilla Parishads and Life Insurance Corporation, etc. appearing as witnesses in connection with their duty. | Rs 100.00 |
It is clear that the present rules concerning payment to the witnesses in the states of Odisha, West Bengal, and Tripura, categorise witnesses in different ways, but the common ground seems to be only that of profession and income. The next section will demonstrate how this form of categorisation relying solely on income, along with rates and procedure to receive them, are insufficient for promoting witness testimony.
Insufficiency in the Current System
The Bharatiya Sakshya Adhiniyam 2023 [“BSA”], among other, classifies child, and dumb witnesses, while the Indian courts have created separate classes of independent, chance, expert witnesses, and hostile witnesses. Additionally, §326, 328, and 329 of the BNSS mention reports prepared by medical witnesses, officers of Mint, and government scientific experts, respectively. Although, these provisions make it clear that none of them qualify as a “witness” in terms of BSA. On the other hand, the above-mentioned rules pertaining to witness compensation in Odisha, West Bengal, and Tripura do not incorporate such classes, rather creating one fit all category for all witnesses and grounding further classes solely on the basis of income. But is this ground even valid? While this piece does not delve in comparative analysis, a simple look at other jurisdictions will show that there are other considerations too. The UK Crown Prosecution Service categorises witnesses into four classes – ordinary, professional, expert, and interpreter. Thus, it is argued that there is utility in categorising witnesses on dual grounds – income and nature of testimony derived.
- Income
The essay does not argue for eliminating income-based categorization altogether. It acknowledges the socio-economic factors that might influence the credibility, availability, and motivation of a witness. For example, lower-income witnesses may be more susceptible to intimidation or bribery, or they may find it difficult to attend court proceedings due to financial constraints. On the other hand, witnesses with higher income may be perceived as more credible, though they could also be seen as having vested interests, especially in cases involving corporate disputes or high-stakes litigation. Therefore, considering income as a factor does help in assessing the reliability, availability, and potential biases of a witness.
- Nature of testimony
However, the current system lacks the necessary nuances that account for the diverse backgrounds of witnesses. It overlooks the fact that compensation should not solely depend on income but also on the nature and significance of the testimony provided. Different types of testimonies, such as eyewitness accounts, expert opinions, or character evidence, require different standards of evaluation. For instance, eyewitnesses are often subject to rigorous cross-examination due to the well-known issues with human memory and perception, while expert witnesses need to be evaluated based on their qualifications and the scientific validity of their opinions.
Both grounds of categorization are not exclusive of each other – a low-income eye-witness might easily be intimidated and a high-income expert witness can be susceptible to bribes in cases involving higher financial stakes. For reference, the table below offers an adequate guide of the issues pertaining to each category –
| Income/Type of Testimony | Eye-witnesses | Expert Testimony | Character Evidence |
| Low | Likely to face challenges attending court. Higher susceptibility to intimidation or bribery. | Perceived as uncredible if financial difficulties affect their qualifications. Susceptible to external pressures affecting their testimony. | May struggle with court appearances. Potentially influenced by financial pressures. |
| Middle | Generally reliable but may face moderate socio-economic pressures. May have to balance court and work commitments. Moderate susceptibility to external incentives or pressures. | Fairly reliable but may have some limitations based on socio-economic pressures. Likely able to provide expert testimony with fewer constraints. | Relatively stable credibility but should be assessed for any potential biases. Likely to be available but might need flexible scheduling. |
| High | Often perceived as more credible but may have vested interests. Likely to attend court with lesser issues. Potential for bias due to personal or financial interests in the case. | Highly credible but must be evaluated for any conflicts of interest. Likely to be available and provide thorough expert analysis. | Generally high credibility but should be examined for any potential biases. Typically, reliable and able to attend court. |
Thus, this dual categorization will facilitate a more nuanced assessment of witness compensation based on their income and potential reliability in the trial. It will also enable the implementation of targeted measures, such as evaluating witness bias and providing flexible court attendance schedules. By addressing these factors, the criminal justice system can become more efficient and responsive to the needs of witnesses, thereby enhancing fairness and effectiveness.
Moreover, presently the three rules for Odisha, West Bengal, and Tripura mentioned above follow the same principle – if the witness does not give testimony or are not examined by the court, they will not get paid the allowance. This necessarily leads to the assumption that the courts function efficiently and witnesses are examined on days they are summoned. But the LC in its 198th report, highlighted that it is not true–cases go on for a long time, with witnesses practically being bullied by the system. The courts have also discouraged the practice of adjourning the trial when the witness has been summoned and is in attendance. Therefore, it was suggested that the procedure to the payment be made more accessible – the witness must not be made to run pillar to post to get what is rightly due to them. They must be paid for all the days they attend the court, not just for days they give testimonies. Thus, the current system, based on outdated state rules, is still inadequate.
Conclusion
Therefore, it is evident from the above discussion that the current framework for compensating witnesses in India’s criminal justice system is both outdated and inadequate, as evidenced by the rules in states like Odisha, West Bengal, and Tripura. The existing provisions focus primarily on income-based categorization without considering the diverse nature of testimonies provided by witnesses. This narrow approach overlooks critical factors such as the complexity of the testimony, the professional status of the witness, and the various hardships faced by them in attending court proceedings. Additionally, the procedural delays and bureaucratic hurdles further discourage witnesses from participating, as compensation is not readily accessible, and witnesses are often not paid for days when they attend but are not examined.
To address these challenges, this essay proposes a two-pronged reform. First, witnesses should be categorised not only by their income but also by the nature of their testimony—such as eyewitnesses, expert witnesses, and professional witnesses—recognizing that each type of testimony carries different burdens and requires distinct considerations. Second, the process for compensating witnesses should be streamlined to ensure that they are fairly reimbursed for all days they attend court, not just the days they testify. This reform will provide witnesses with the necessary financial support and respect, thereby encouraging greater participation, reducing intimidation and undue influence, and ultimately improving the integrity and efficiency of the criminal justice system. By adopting this dual-pronged approach, India can better safeguard the rights and interests of witnesses, ensuring that they are treated with the dignity and fairness they deserve.
The author is a second year law student at the National Law School of India University, Bangalore.
NUALS Law Journal 