Witness Protection in India : Critically Analysis the Gap Between law in Theory and Practice

Abstract 

Witnesses who constitute the core foundation of the criminal justice system, yet they remain as the most neglected and vulnerable participants. In India, the absence of a comprehensive statutory mechanism for witness protection resulted in hostility, coercion and delay in delivering justice. Although this issue has been taken into concern by the judiciary and various witness protection measures have been introduced through judicial intervention for its successful implementation such as the Witness Protection Scheme, 2018. But due to the lack of the legislative and statutory framework, limited the scope and effectiveness of the scheme. The research in this paper is primarily Doctrinal in nature, to examine the protection of witnesses through its constitutional mandates, statutory provision and judicial interpretations. It critically evaluates whether the existing legal framework safeguards witnesses and that despite strong judicial recognition in theory, its practical implementation remains deeply flawed. The article further highlights structural deficiencies, administrative apathy and socio-economic realities that widen the gap between law in theory and law in practice and concludes with recommendation for meaningful reform.

Introduction 

“The majesty of the law is eroded if witnesses are not protected and are driven to silence by intimidation.”

Supreme Court of India

Our criminal justice system relies on the assumption that witnesses will testify freely and truthfully and ensure that justice is not merely theoretical but practically attainable. The persistent failure of the Indian criminal justice system to provide effective protection to witnesses, despite judicial recognition, witnesses continue to suffer severe risks to their life, liberty and dignity once they agree to co-operate with the legal process. The issue of witness protection has assumed critical importance in the present legal scenario due to the increasing number of hostile witnesses, unreported crimes and withdrawn testimonies. In practice, the legal system fails to adequately recognize the psychological, social and physical pressure faced by witnesses during  a criminal trial. Witnesses, particularly victims of serious offenses such as rape, are frequently subjected to intimidation and coercion. When the accused belongs to a socially, economically and politically powerful background, the threats intensify. Such threats are not limited to the witness alone but often extend to family members and close relatives, including explicit warnings of physical harm or even death if testimony is given against the accused. This intimidation represents a harsh reality that remains largely invisible within the formal legal process. The mere presence of a policy framework does not translate into effective protection on the ground. In most cases, witnesses are left to navigate the criminal justice process without meaningful institutional support, making them vulnerable to external pressure and retaliation. As a consequence, many witnesses choose not to testify or withdraw from proceedings altogether. This withdrawal is often mischaracterized as unreliability or hostility, whereas it is in fact a survival response to witness safety directly contributes to the collapse prosecutions, allowing serious offenses to go unpunished and eroding public confidence in the justice delivery system. Moreover, the article highlights the paradoxical position of witnesses and victims, who after suffering the trauma of crime, are compelled to endure additional hardship within the judicial process. Their lives remain in danger not only because of the crime itself but also due to the prolonged exposure and vulnerability inherent in criminal trials. This dual victimization raises serious concerns about the fairness and efficacy of the justice delivery system.

Judicial Interpretation 

The Indian Judiciary plays a vital role by recognising witness protection as an essential component of the criminal justice system. In Zakira Habibullah Sheikh v. State of Gujarat, The supreme court held that a fair trial is possible only when witnesses are provided adequate protection. The court observed that witness intimidation strikes at the very root of the administration of justice and seriously undermines the credibility of the criminal justice system. It emphasized that a witness must be able to depose freely and truthfully before the court, without fear, pressure or coercion. Testimony extracted under intimidation or fear cannot be regarded as voluntary or reliable, and any trial based on such evidence fails the constitutional standard of fairness.

The court further recognized that when witnesses are subjected to threats or inducement, the truth becomes a casualty, resulting in travesty of justice. This doctrinal judgement reinforced the principle that witness protection is not a matter of procedural convenience but an essential component of fair trial jurisprudence under article 21 of the constitution.

The decision in Mahender Chawla v/s Union of India represents a comprehensive doctrinal development in the area of witness protection. In this case, the supreme court explicitly acknowledged the systemic failure of the state to safeguard witnesses and approved a structured protection mechanism in the form of the Witness Protection Scheme, 2018. The court recognized that without institutional protection, witnesses remain vulnerable to intimidation, thereby weakening the prosecution and eroding public confidence in the justice delivery system. Despite approving  a structured framework, the court itself hosted a continuing deficiency arising from the absence of legislative action. It observed that the lack of a comprehensive statutory enactment has significantly restricted the effective implementation of witness protection measures. Consequently, protection continues to depend largely on executive discretion and administrative willingness, rather than enforceable legal rights. This acknowledgment by the court highlights the persistent gap between judicial recognition of witness protection and its practical realisation.

Legal Framework 

Over the decades, several Law Commission Reports and expert committee recommendations have consistently highlighted the necessity of witness protection in India. The earliest reference can be traced to the 14th Law Commission Report (1958), which recognized that the criminal justice system cannot function effectively unless witnesses are provided adequate safeguards. The report underlined the need for a structured and systematic approach to protect witnesses from intimidation and harassment, acknowledging their indispensable role in the administration of justice.

Subsequently, the 154th Law Commission Report further emphasized the practical difficulties faced by witnesses during criminal trials. It highlighted the need for realistic allowances, proper logistical arrangements, and humane treatment of witnesses while attending court proceedings. The report recognized that repeated adjournments, financial burden, and lack of basic facilities discourage witnesses from cooperating with the justice system, thereby affecting the quality of evidence.

The 178th Law Commission Report advanced the discourse by recommending the implementation of legal provisions for witness anonymity. It acknowledged that in many cases, threats arise directly from the disclosure of a witness’s identity. Therefore, the report suggested that laws must be enacted to protect the identity of witnesses wherever necessary, particularly in cases involving organized crime, political influence, or serious offenses.

Further, the 198th Law Commission Report proposed a more structured framework by categorizing witnesses into three groups based on the level of threat they face. This categorization aimed to ensure that protection measures are proportionate to the risk involved. The report reflected a shift from a uniform approach to a threat-based protection mechanism, which is essential for effective implementation.

In addition to Law Commission Reports, the Malimath Committee on Criminal Justice Reforms (2003) strongly recommended comprehensive witness protection measures. The Committee recognized that the existing adversarial system places an excessive burden on witnesses without ensuring their safety. It recommended learning from international practices and incorporating institutional protection mechanisms to strengthen the criminal justice system.

At the international level, the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) laid down foundational principles emphasising the critical need to protect victims who are also witnesses. The Declaration stressed that States must adopt measures to minimise inconvenience to victims, safeguard their privacy, and ensure their safety throughout the criminal justice process. This international obligation further reinforces India’s responsibility to provide effective witness protection.

Recent statutory developments also reflect a growing acknowledgment of this issue. Under Section 398 of the Bharatiya Nyaya Sanhita (BNS), certain procedural timelines and limitations have been extended, reflecting an attempt to accommodate the practical realities faced by victims and witnesses. However, these measures remain limited in scope and do not constitute a comprehensive protection framework.

The Witness Protection Bill, 2015 was a significant legislative attempt aimed at institutionalising witness protection in India. The Bill sought to introduce comprehensive measures for safeguarding witnesses, including protection of identity, relocation of witnesses, provision for in-camera trials, and penalties for the unauthorised disclosure of protected information relating to witnesses and victims. Through these measures, the Bill attempted to address the systemic vulnerabilities faced by witnesses during criminal proceedings.

The primary advantage of the Bill lay in its recognition of witness protection as a statutory obligation, rather than leaving it to discretionary administrative measures or ad hoc judicial directions. By proposing a formal legal framework, the Bill acknowledged that witness safety is an essential component of a fair criminal justice system.

However, the Bill suffered from several critical shortcomings, which ultimately prevented its enactment. It lacked a clear and effective implementation mechanism, failed to provide for dedicated funding, and did not envisage the establishment of an independent witness protection authority. Additionally, the Bill did not adequately address long-term protection or rehabilitation of witnesses. It also failed to clearly define accountability in cases where protection measures were not provided or proved ineffective.

Due to these structural deficiencies and the absence of political consensus, the Witness Protection Bill, 2015 was never enacted. As a result, witness protection in India continues to remain largely dependent on judicial directions and executive schemes, rather than being governed by a comprehensive and enforceable statutory framework.

Neelam Kataria v Union of India: Judicial Recognition and Practical Limitations

Neelam Kataria v Union of India was a landmark case in which Neelam Kataria, the mother of the murder victim, filed a petition before the Delhi High Court under Article 226 of the Constitution. Through this petition, she established how crucial victim and witness protection is, particularly in high-profile cases. She urged the Court to frame guidelines for the protection and safeguarding of victims and witnesses, especially in cases involving influential and powerful accused persons such as senior political leaders, Members of Legislative Assemblies, and Members of Parliament.

The background of the case was the murder of Nitesh Kataria in 2002. The murder was allegedly committed due to his relationship with the sister of the main accused, who was the son of a sitting Member of the Rajya Sabha. The case involved serious instances of witness intimidation. In response, Neelam Kataria filed a petition under Article 226 highlighting the threats faced by witnesses and sought protection for them. The matter subsequently assumed the character of an Public Interest Litigation.

While noting that the original petition was partly personal in nature, the Delhi High Court recognized that it raised a vital issue concerning witness protection. The Court identified the absence of adequate safeguards for witnesses as a serious threat to a fair trial and the administration of justice. Consequently, the Court issued guidelines relating to witness security and protection, emphasizing that such measures are essential to enable witnesses to depose freely and fearlessly.

The judgment played a significant role in strengthening the justice delivery system by acknowledging that witness protection is crucial for ensuring fairness in criminal trials. The case, when read alongside similar decisions such as Himanshu Singh Sabharwal v State of Madhya Pradesh, reinforced the principle that witness intimidation undermines the very foundation of justice. Yet, it simultaneously demonstrates that without comprehensive legislative intervention, judicial directions alone are insufficient to address the systemic vulnerabilities faced by witnesses.

Suggestion 

India continues to rely on the Witness Protection Scheme, 2018, which lacks enforceability, uniform application, and legal certainty. The absence of statutory backing makes the Indian scheme largely discretionary, resulting in inconsistent implementation across states. Enacting a comprehensive Witness Protection Act in India would ensure enforceability, legal accountability, and nationwide uniformity in protection measures. Further, there is an urgent need to establish an independent Witness Protection Authority. Such an authority should be responsible for assessing threat perception, determining appropriate protection measures, implementing safeguards, and continuously monitoring their effectiveness. Unlike the current system, where protection depends largely on judicial discretion and executive willingness, an independent authority would ensure objectivity, insulation from political influence, and systematic application of protection measures based on threat levels.

One of the core reasons for the failure of effective witness protection in India is the lack of adequate funding and resource allocation. Protection measures such as relocation, identity change, financial assistance, and rehabilitation require sustained financial support. Without a dedicated witness protection fund, these measures remain symbolic rather than substantive. Financial assistance must be structured to cover not only immediate security expenses but also long-term needs such as housing, employment, and livelihood support.

Another critical shortcoming is the limited duration of protection, which in many serious cases is provided for a maximum period of three months. Given that criminal trials in India often extend over several years, such short-term protection is grossly inadequate. Witnesses remain vulnerable throughout the prosecution of the trial, and threats often persist until the final adjudication of the case. Therefore, witness protection must be extended for the entire duration of the trial.

Additionally, the current framework fails to adequately address long-term rehabilitation and psychological support. Witnesses often suffer severe mental trauma, social isolation and fear of retaliation. A comprehensive protection mechanism must include counseling services, psychological support, and rehabilitation programs to help witnesses reintegrate into society with dignity and security. There is a pressing need to strengthen confidentiality and accountability mechanisms. Clear procedures must be laid down to prevent the disclosure of protected information, and strict liability should be imposed on authorities for failure to provide protection. Addressing administrative and judicial lapses through accountability mechanisms would restore witness confidence in the justice system. A proactive and restorative approach towards witness protection is essential to rebuild trust, reduce hostility, and ensure that witnesses are willing to testify freely and fearlessly, thereby strengthening the credibility and efficiency of the criminal justice system.

Conclusion 

The system failure to ensure effective witness protection reflects a serious institutional responsibility deficit. This systemic weakness has become a recurring legacy of the criminal justice process, resulting in low conviction rates and enabling hardened criminals to escape punishment. Such failures severely undermine public confidence in the justice delivery system. When witnesses are left unprotected and vulnerable to intimidation, the credibility of prosecutions collapses, and the public perception of law enforcement and judicial institutions deteriorates. Ultimately, the absence of robust witness protection mechanisms compromises not only individual cases but also the integrity of the criminal justice system as a whole.

As observed by the Supreme Court, “If witnesses are not able to depose correctly in the court of law, it results in a low rate of conviction and many times even hardened criminals escape conviction. It shakes public confidence in the criminal justice delivery system.” This observation encapsulates the core concern highlighted throughout this study. Structural deficiencies, administrative apathy, inadequate funding, short-term protection measures, and the absence of rehabilitation and psychological support continue to expose witnesses to intimidation and retaliation.

To bridge the gap between law in theory and law in practice, witness protection in India must move beyond ad hoc judicial directions and executive schemes. The enactment of a comprehensive Witness Protection Act, supported by an independent protection authority, adequate financial resources, long-term protection, and rehabilitation mechanisms is imperative.

BIBLIOGRAPHY

Cases

1. Zahira Habibullah Sheikh v State of Gujarat (2004) 4 SCC 158.
2. Mahender Chawla v Union of India (2019) 14 SCC 615.
3. Neelam Katara v Union of India 2003 SCC OnLine Del 974.
4. Himanshu Singh Sabharwal v State of Madhya Pradesh (2008) 3 SCC 602.

Statutes and Constitutional Provisions

1. Constitution of India 1950.
2. Bharatiya Nyaya Sanhita 2023.
3. The Witness Protection Bill 2015.

III. Reports and Committee Recommendations

1. Law Commission of India, 14th Report on Reform of Judicial Administration (1958).
2. Law Commission of India, 154th Report on the Code of Criminal Procedure, 1973 (1996).
3. Law Commission of India, 178th Report on Recommendations for Amending Various Provisions of the Code of Criminal Procedure, 1973 (2001).
4. Law Commission of India, 198th Report on Witness Identity Protection and Witness Protection Programmes (2006).
5. Committee on Reforms of Criminal Justice System (Malimath Committee), Report (Ministry of Home Affairs, Government of India, 2003).

International Instruments

1. United Nations General Assembly, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (adopted 29 November 1985).

Policies and Schemes

1. Witness Protection Scheme, 2018.

Books and Articles 

1. Abhishek Kumar Tiwari, Veer Vikram Singh and Deepmala Srivastava, ‘Witness Protection in India: Laws and Practice’ (2024) ShodhKosh: Journal of Visual and Performing Arts.
2. Rama and Rahul Varshney, ‘A Study on Witness Protection Laws in India and the USA: A Comparative Perspective’ (2024) ShodhKosh: Journal of Visual and Performing Arts.