Protecting the Integrity of Witness Testimony:An Analytical Study of Witness Protection Laws in India

Introduction

Indian criminal justice system adheres to adversarial system in which the courts decide cases based on the evidences produced before them such as oral, documentary and electronic evidence. As rightly said by Jeremy Bentham, the English Jurist, “Witnesses are the eyes and ears of justice”[2], makes it clear that witnesses play an important role in the administration of justice. They are indispensable part of criminal justice system, as it is because of them that the trial finds some substance so as to arrive at a reasoned decision.

The testimonies provided by the witnesses may have direct bearing on the conviction or acquittal of the accused, hence it becomes very important to protect them from the influence of external factors such as threats, corruption, coercion and so on. These factors are the main reasons for witnesses turning hostile hence, it becomes rudimentary for the State to ensure protection of witnesses so as to assist the court to arrive at a reasonable conclusion.

The existing criminal laws emphasizes on the victim and witness centric rights which was lacking under the old law i.e., The Criminal Procedure Code, 1973. Section 398, Bharatiya Nagarik Suraksha Sanhita, 2023 lays down an express provision for the protection of witnesses and mandates the State Governments to prepare a witness protection scheme. The need to have an effective legislation on the point arises from the very reason that there are low conviction rates in India even for heinous offences. judicial system. The Witness Protection Scheme, 2018 is a progressive step towards witnesses testifying freely and this article also highlights the major contribution of Indian Judiciary which led to legal framework on witness protection.

Meaning and Definition of Witness

The ordinary meaning of the term “witness” is a person present at some event and able to give information about it. Therefore, a witness is someone who has first-hand knowledge about a crime or an event through their senses (e.g. seeing, hearing, smelling, touching) and can help certify important considerations to the crime or event. Section 2(K) of the Witness Protection Scheme[3] has defined the term ‘witness’ for the first time as, “witness is any person, who possesses information or document about any crime regarded by the competent authority as being material to any Criminal proceedings and who has made a statement, or who has given or agreed or is required to give evidence in relation to such proceedings.”

Importance of Witness and the Need for their Protection

The importance of the witnesses to the trial process could be inferred from the words of an eminent thinker Jeremy Bentham: “witnesses are the eyes and ears of justice.”  In most criminal trials, especially those involving serious offences, the prosecution’s case substantially depends on oral testimony provided by witnesses. Without reliable witnesses, the administration of criminal justice would be reduced to mere speculation, undermining public confidence in the rule of law. The Apex Court of India also held in State of Gujarat v. Anirudh Singh[4] that: “It is the salutary duty of every witness who has the knowledge of the commission of the crime, to assist the State in giving evidence.”

The paradox lies in the fact that while offenders enjoy a wide spectrum of constitutional and statutory rights, victims and especially witnesses are accorded only limited legal protection. This imbalance in the allocation of rights leaves witnesses vulnerable and inadequately safeguarded, often forcing them to turn hostile. The issue of Witness Protection should be studied in light of the fact that conviction rate is low in India. The Supreme Court too observed in Swaran Singh v State of Punjab[5], that the procedures being followed is one of reasons for a person to abhor becoming a witness.

Witness protection is an essential component of the right to a fair trial guaranteed under Article 21 of the Constitution of India. However, for a considerable period, India lacked a structured legislative or institutional mechanism to safeguard the safety and dignity of witnesses. The need for witness protection can be understood under two broad aspects. First, it is necessary to ensure that evidence collected during the investigation is not undermined when witnesses later retract or alter their statements while testifying before the court. The phenomenon of witnesses turning “hostile” due to the absence of adequate protection poses a serious challenge to the administration of justice.

The second aspect relates to the physical and psychological vulnerability of witnesses. This involves ensuring their overall welfare by providing effective protection against threats, intimidation, or harassment. Such protection must extend throughout all stages of the criminal justice process—from investigation to the final disposal of the case—through the implementation of comprehensive witness protection programmes.

The Indian judiciary has been instrumental in addressing this legislative gap. Through several progressive and landmark rulings, the Supreme Court and various High Courts have expanded the interpretation of existing legal provisions to incorporate meaningful protections for witnesses. These judicial interventions have consistently recognized that the administration of justice is undermined unless witnesses are able to depose freely, truthfully, and without fear of intimidation or reprisal. Courts have emphasized that the State has a duty not only to protect witnesses but also to preserve the credibility of the justice delivery system. A turning point came with the case of Mahender Chawla & Others v. Union of India[6] (2018), in which the Supreme Court approved the Witness Protection Scheme, 2018 as enforceable law under Article 141 of the Constitution. The scheme introduced guidelines for categorizing witnesses based on threat levels and outlined measures such as police escort, in-camera proceedings, relocation, and even identity change. While this was a landmark step, the implementation of the scheme has remained inconsistent across States.

Law Commission Reports on Protection of Witness

The Law Commission in its various reports dwell upon the issue of witness identity protection and witness protection programmes. As early as in 1958 in its 14th Report, the Law Commission referred to witness protection but in limited sense which was related to providing adequate facilities to witnesses attending courts, payment of traveling allowance to the witnesses to attend the court, proper sitting and waiting facilities within court premises[7]. The 4th National Police Commission Report 1980[8] noted that witnesses often turn hostile under pressure from the accused, highlighting the urgent need for a strong witness protection law to preserve the integrity of the justice system. 

Later in the year 1996, the 154th Report contained a Chapter on Protection and facilities to Witnesses[9]. The recommendations were mostly related to allowances and facilities to be made available for the witnesses:

• For the purpose of attending the court, the allowances must be paid to the witnesses to ensure that there is no inconvenience to them.
• The facilities for their stay must be made.
• Protection from hardened criminals must be given importance.
• The trial must be conducted on day-to-day basis and frequent adjournments must be avoided, so that the cases are listed in such a manner that the witnesses can be examined.

The Law Commission of India, in its 172nd Report (2000)[10] and 198th Report (2006)[11], strongly recommended the establishment of a national witness protection programme. In the year 2006, the Law Commission for the first time came out with a Report exclusively dealing with witness protection. The 198th Report was an outcome of several decisions of the Supreme Court in which the Court has shown concern for witness protection in our country. The 198th Report especially proposed measures such as non-disclosure of identity, in-camera trials, and government-sponsored relocation, many of which were eventually incorporated into the 2018 Scheme.

Witness Protection Scheme, 2018

“The Witness Protection Scheme” was developed by the Ministry of Home Affairs in consultation with the National Legal Services Authority (NALSA). The primary objective of this scheme is to ensure that the prosecution, investigation, and trial proceedings remain unaffected by any possible intimidation or fear experienced by the witnesses, which may hinder their willingness to provide evidence. The scheme seeks to create a safe environment for witnesses to come forward and testify without any fear of retribution, thereby enabling the smooth functioning of the justice system. The Hon’ble Supreme Court approved this scheme on 6th December 2018 in the case of Mahendra Chawla V. Union of India[12]. The court ruled that the scheme should be considered “law” under Articles 141 and 142 of the Constitution until formal legislation is enacted. 

• • Article 141 states that the law declared by the Supreme Court shall be binding on all courts within the territory of India.[13] 
  • Article 142 gives the Supreme Court the power to pass orders or decrees to ensure complete justice in any case or matter before it.[14]

According to Section 398 of BNSS, 2023,[15] to protect witnesses, all state governments will prepare and notify a “Witness Protection Scheme” for the state.

Key Features of the Scheme Include[16]:

• Threat Categorization:[17] The Scheme, inter alia, provides for classifying witnesses into three categories as per threat analysis, i.e.,

1. Category A: Those cases where threat extends to the life of witness or family members during the investigation, trial or even thereafter.
2. Category B: Those cases where the threat extends to safety, reputation or property of the witness or family members during the investigation, trial or even thereafter.
3. Category C: Cases where the threat is moderate and extends to harassment or intimidation of the witness or his family members, reputation or property during the investigation, trial or thereafter.
4. Aims and Objectives: The main objective is to ensure that witnesses are not intimidated or frightened, which could prejudice the investigation, prosecution, or trial of criminal offences. It aims to promote law enforcement by helping the justice system function without undue interference or threats to witnesses. 
5. Competent Authority for Witness Protection: The Competent Authority is a Standing Committee established in each district, chaired by the District and Sessions Judge, with the District Police Head and the District Prosecutor as members. This committee is responsible for overseeing witness protection measures in its jurisdiction. 
6. Filing of Application before Competent Authority: The application for seeking protection order under this scheme can be filed in the prescribed form before the Competent Authority of the concerned District where the offence is committed, through its Member Secretary along with supporting documents, if any.
7. Threat Analysis Report (TAR): The Witness Protection Scheme, 2018 calls for preparation of a ‘Threat Analysis Report’ of the witness by the Additional Commissioner of Police/ Deputy Commissioner of Police in charge of concerned Police Station. The Threat Analysis Report shall be prepared expeditiously while maintaining full confidentiality and it shall reach the Competent Authority within five working days of receipt of the order. The said Clause further confers power on the Competent Authority to pass interim protection order, till final decision on witness’s application and monthly follow up and review of final order of protection so passed.

The Threat Analysis Report shall categorize the threat perception and also include suggestive protection measures for providing adequate protection to the witness or his family. While processing the application for witness protection, the Competent Authority shall also interact preferably in person and if not possible through electronic means with the witness and/or his family members/employers or any other person deemed fit so as to ascertain the witness protection needs of the witness.

State Witness Protection Fund: There shall be a Fund, namely, the Witness Protection Fund from which the expenses incurred during the implementation of Witness Protection Order passed by the Competent Authority and other related expenditure, shall be met. The said Fund shall be operated by the Department/Ministry of Home under State/UT Government. The Witness Protection Fund shall comprise the following:

• Budgetary allocation made in the Annual Budget by the State Government;
• Receipt of amount of costs imposed/ ordered to be deposited by the courts/tribunals in the Witness Protection Fund;
• Donations/contributions from Philanthropist/ Charitable Institutions/Organizations and individuals permitted by the Government.
• Funds contributed under Corporate Social Responsibility.

Types Of Protection Measures: The witness protection measures ordered shall be proportionate to the threat and shall be for a specific duration not exceeding three months at a time. These may include:

• Ensuring that witness and accused do not come face to face during investigation or trial.
• Monitoring of mail and telephone calls.
• Arrangement with the telephone company to change the witness’s telephone number or assign him or her an unlisted telephone number.
• Installingsecurity devices at their residence such as CCTV, alarms, fencing etc. 
• Concealing the witness’s identity, providing escorts, in-camera trials, and holding trials in specially designed courtrooms. 
• Ensuring that there are no unnecessary adjournments and there is expeditious recording of deposition.
• Granting time to time periodical financial aids to the witness from Witness Protection Fund for the purpose of re-location, sustenance or starting a new vocation/profession.
• Any other form of protection measures considered necessary.

Recovery of Expenses: In case the witness has lodged a false complaint, the Home Department of the concerned Government can initiate proceedings for recovery of the expenditure incurred from the Witness Protection Fund.

• Review: In case the witness or the police authorities are aggrieved by the decisions of the Competent Authority, a review application may be filed within 15 days of passing of the orders by the Competent Authority.
• Other Features: The Scheme also makes provisions regarding protection of identity of witness (Clause 9); change of identity (Clause 10); relocation of witness (Clause 11); Confidentiality and preservation of Records (Clause 13); Further, as per Clause 12 of the Scheme, it has been made incumbent on every state to give wide publicity to the scheme and on the Investigation Officer and Court to inform the witnesses about the existence of the Scheme and its salient feature.

Persistent Challenges:

Although the Witness Protection Scheme, 2018 is a commendable step toward ensuring the safety of witnesses and victims, it suffers from certain inherent shortcomings. Firstly, the protection provided under the Scheme is granted only for a limited period of three months at a time. Secondly, the orders issued under the Scheme largely depend on the recommendations or advice contained in the Threat Analysis Reports (TARs) prepared by police officials, who may be susceptible to corruption, external influence, or political and hierarchical pressures. Further, though, the scheme envisages for confidentiality and preservation of records, however, no penal provisions against such violation are provided for therein. The Scheme also does not make any provision for occupation/ work/ education, in the interim, of the witnesses.

The other challenges that hinder the effectiveness of the scheme are:

• Lack of Uniform Implementation of the Witness Protection Scheme, 2018: Although the Scheme has been declared binding by the Supreme Court, its enforcement remains uneven across different States. Several States have failed to establish the mandated State Witness Protection Funds, and applications for protection are frequently delayed or handled with inadequate seriousness by district-level committees.
• Inadequate Infrastructure and Trained Personnel: There is a significant shortage of trained police personnel, forensic experts, and administrative staff required to effectively implement witness protection measures. Additionally, courts often encounter resistance or lack of cooperation from local law enforcement agencies, particularly in politically sensitive cases.
• Absence of Legislative Backing: Despite repeated calls by the Law Commission and the Supreme Court, there is still no comprehensive legislation on witness protection in India. The new criminal law i.e., BNSS, 2023 has introduced a provision on witness protection under Section 398, though it is mandatory in nature, but there are many States who are yet to frame a comprehensive legislation. The scheme currently in operation lacks the legal force, budgetary backing, and institutional stability that a parliamentary statute would provide.
• Lack of online witness abuse: The scheme does not include any provisions to combat online witness abuse or intimidation. To combat witness intimidation on the internet, legislative action is required. The imposition of harsh sanctions for witness intimidation might improve witness protection procedures.

Conclusion

Witnesses are the cornerstone of the criminal justice system, as their free and truthful testimony is essential to the rule of law and the delivery of justice. In India, however, witnesses have historically remained highly vulnerable, leading to frequent case failures, especially in matters involving organized crime, sexual offences, and politically sensitive cases. Persistent instances of witness intimidation, hostility, retraction of statements, and even targeted violence expose serious institutional shortcomings in protecting those who assist the judicial process.

This article has argued that judicial directions and administrative schemes, in the absence of a comprehensive central legislation, have proved inadequate, as they suffer from inconsistent execution, weak accountability, and lack of assured funding, thereby failing to provide sustained and reliable protection to witnesses.

Reference(S):

Statutes, Schemes and Constitutional Provisions:

1. The Constitution of India, 1950.
2. Witness Protection Scheme, 2018, approved in Mahender Chawla & Ors. v. Union of India, (2019) 14 SCC 615.
3. Bharatiya Nagrik Suraksha Sanhita, 2023.
4. Bharatiya Nyaya Sanhita, 2023.
5. Bharatiya Sakshya Adhiniyam, 2023.

Committee Reports:

1. Law Commission of India, 198th Report on Witness Identity Protection and Witness Protection Programmes (2006).
2. Law Commission of India, 154th Report on the Code of Criminal Procedure, 1973 (1996).
3. Committee on Reforms of Criminal Justice System (Malimath Committee), Report (Government of India, 2003).
4. Ministry of Home Affairs, Government of India, Draft Witness Protection Scheme (2018).

Books:

1. Ratanlal & Dhirajlal, The Code of Criminal Procedure (LexisNexis, 22nd edn., 2023).
2. N. Chandrasekharan Pillai, Criminal Justice System in India (Oxford University Press, 2020).
3. Kelkar R.V., Criminal Procedure (Eastern Book Company, 7th edn., 2021).

Journal Articles:

1. Aparna Chandra, Witness Protection in India: A Judicial Response to Legislative Vacuum, 61 Journal of the Indian Law Institute 245 (2019).
2. Ishwara Bhat, Fair Trial and Witness Protection under Article 21 of the Constitution, 5 NUJS Law Review 321 (2018).
3. Siddharth Luthra, Witness Protection and the Right to Fair Trial, 9 National Law School of India Review 87 (2017).

[1] Neelam Katara v. Union of India, ILR (2003) II Del 377 260.

[2] 1 JEREMY BENTHAM, RATIONALE OF JUDICIAL EVIDENCE 17 (John Stuart Mill ed., 1827).

[3] Witness Protection Scheme, 2018, Ministry of Home Affairs, Government of India, § 2(K).

[4] State of Gujarat v. Anirudh Singh, (1997)6 SCC 514. 

[5] Swaran Singh v State of Punjab, AIR 2000 SC 2017.

[6] Mahender Chawla & Others v. Union of India, 2019 (14) SCC 615.

[7] Law Commission of India, Reform of Judicial Administration, Report No. 14, 1958.

[8] National Police Commission Report, Fourth Report, 1980.

[9] Law Commission of India, The Code of Criminal Procedure, 1973, Report No. 154, 1996.

[10] Law Commission of India, Review of Rape Laws, Report No. 172, 2000.

[11] Law Commission of India, Witness Identity Protection and Witness Protection Programmes, Report No. 198, 2006.

[12] Mahender Chawla & Others v. Union of India, 2019 (14) SCC 615.

[13] India Const. art. 141.

[14] India Const. art. 142.

[15] The Bharatiya Nagarik Suraksha Sanhita, 2023, §398.

[16] Witness Protection Scheme, 2018, Ministry of Home Affairs, Government of India (Issued on Dec. 5, 2018).

[17] Approved in Mahender Chawla & Others v. Union of India, 2019 (14) SCC 615, ¶ 25.