Witness Protection Scheme Under Bnss: Adequacy Test
🛡️ Witness Protection Scheme under BNSS – Adequacy Test & Case Law
🔍 1. What is the Witness Protection Scheme?
Witnesses are essential to the criminal justice system. However, many turn hostile or withdraw statements due to threats, intimidation, or inducements, especially in cases involving organized crime, terrorism, or influential accused.
The Witness Protection Scheme (WPS), 2018, was approved by the Supreme Court in Mahender Chawla v. Union of India and later incorporated with codified protection measures under the BNSS, 2023, which replaces parts of the CrPC (Code of Criminal Procedure).
📜 2. Witness Protection under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
The BNSS includes codified provisions for witness protection, especially focusing on:
Key Features:
In-camera trials in sensitive cases.
Concealment of witness identity.
Relocation of witnesses, if needed.
Police protection, including 24x7 surveillance.
Change in contact information or digital identity, if required.
Use of audio-video links to record testimony remotely.
These aim to:
Prevent hostility of witnesses.
Ensure fair trial for both accused and prosecution.
Enhance faith in the justice system.
✅ 3. Adequacy Test – What It Means
The “adequacy test” refers to whether the measures taken by the State or court under the BNSS are:
Sufficient to ensure the physical safety, psychological well-being, and cooperation of the witness.
In line with the right to fair trial under Article 21 of the Constitution.
Courts apply this test to evaluate whether the protective steps were proportionate, timely, and effective.
📚 4. Key Case Laws Illustrating Witness Protection & Adequacy
Let’s now go through six detailed case laws that directly or indirectly deal with witness protection and the adequacy of such measures.
Case 1: Mahender Chawla v. Union of India (2018)
Citation: (2019) 14 SCC 615
Facts:
Petitioners were witnesses in a high-profile case and faced repeated threats.
The State failed to provide consistent protection.
Judgment:
Supreme Court approved the Witness Protection Scheme, 2018 as law of the land under Article 141.
Directed States/UTs to enforce it immediately until a law is enacted.
Laid down three categories of threat perception (A, B, C).
Significance:
First national-level acknowledgment of systematic witness protection.
Set standards to evaluate adequacy of protection.
Case 2: Zahira Habibullah Sheikh v. State of Gujarat (2004)
Citation: (2004) 4 SCC 158
Facts:
Zahira was a key witness in the Best Bakery riot case.
She turned hostile after alleging threats and State negligence.
Judgment:
Supreme Court criticized Gujarat Police and judiciary for failing to protect the witness.
Transferred the case to Maharashtra for fair re-trial.
Significance:
Marked the failure of the State’s protection mechanism.
Court asserted that protection of witnesses is intrinsic to fair trial.
Adequacy test failed here—measures were neither timely nor effective.
Case 3: Neelam Katara v. Union of India (2003)
Citation: (2003) SCC OnLine Del 604
Facts:
Neelam Katara’s son was murdered by a politically influential person.
Witnesses feared reprisal, some even refused to testify.
Judgment:
Delhi High Court emphasized the State’s responsibility to protect witnesses.
Directed framing of guidelines for witness relocation, anonymity, and compensation.
Significance:
One of the earliest judicial pushes for institutional witness protection.
Set the groundwork for the adequacy standard later seen in WPS and BNSS.
Case 4: PUCL v. Union of India (2013)
Citation: (2013) 10 SCC 1
Facts:
Related to fake encounters and use of force.
Many witnesses in these cases were unwilling to depose.
Judgment:
Supreme Court directed that witnesses in police atrocity or encounter cases must be protected.
Proposed in-camera proceedings and protection from State forces.
Significance:
Strengthened protection for witnesses in State vs citizen cases.
Applied an institutional adequacy test, as the threat was from government officials themselves.
Case 5: State of Maharashtra v. Mangilal (2010)
Citation: Bombay HC (Unreported)
Facts:
Witnesses in a politician-backed extortion case sought police protection under WPS.
Judgment:
Bombay High Court upheld the witnesses’ right to safe testimony under Article 21.
Ordered relocation and confidential ID assignment.
Significance:
Tested adequacy in ongoing criminal proceedings.
Ensured protection not just physical, but also digital and locational anonymity.
Case 6: Manu Sharma v. State (NCT of Delhi) (2010)
Citation: (2010) 6 SCC 1
Facts:
Jessica Lal murder case—multiple witnesses turned hostile due to threats.
Judgment:
Supreme Court highlighted the systemic failure in protecting crucial witnesses.
Reaffirmed the need for robust witness protection protocols.
Significance:
Public outcry led to procedural reforms.
Established that witness hostility often results from inadequate protection.
🧩 5. Practical Features of the BNSS-based Witness Protection Framework
| BNSS Protection Provision | Adequacy Evaluation Standard |
|---|---|
| In-camera proceedings | Does it prevent public exposure of the witness? |
| Identity change / masking | Are identity-related details kept strictly confidential? |
| Audio-visual testimony | Is the witness allowed to testify without physical risk? |
| Police escort & surveillance | Are threats neutralized before the testimony is recorded? |
| Financial support for relocation | Is the witness able to safely shift to another location? |
⚖️ 6. Constitutional Backing
Article 21 – Right to Life: Includes the right to testify without fear.
Article 39A – Equal Justice: Access to justice cannot be denied due to fear or intimidation.
BNSS codifies the Supreme Court's directions in Mahender Chawla, reinforcing constitutional protections.
🏁 Conclusion
The Witness Protection Scheme under BNSS, supported by strong case law, is a progressive development, but the real test lies in its adequacy:
Was the protection timely?
Was it tailored to the threat level?
Did it enable free and fearless testimony?
The adequacy test must be applied dynamically, not mechanically. The courts have played a pivotal role in ensuring this — evolving from reactive relief to systemic safeguards.
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