Introduction
The criminal justice system’s capacity to punish the most serious forms of organised crime is fundamentally contingent on the willingness and ability of witnesses to testify truthfully in open court. This dependence creates a structural vulnerability that organised crime exploits with precision. The more serious the crime and the more powerful the criminal enterprise, the greater the risk to any witness who testifies against it, and therefore the greater the incentive for witnesses to retract, become hostile, or simply disappear. India has experienced this dynamic in some of its most high-profile criminal proceedings, from the 1993 Bombay serial blasts case to the Sohrabuddin Sheikh alleged encounter case, from organised crime prosecutions under the Maharashtra Control of Organised Crime Act to terrorism cases tried under special legislation. In each of these contexts, witness testimony has been compromised by fear, corruption, or violence, and the state’s response has been characterised by improvisation rather than the systematic protection that vulnerable witnesses require.
This article traces the development of witness protection law in India, examining the Supreme Court’s intervention in Mahender Chawla v. Union of India (2018), the Model Witness Protection Scheme 2018, the provisions of MCOCA and other special statutes, and the substantial gap between what exists on paper and what witnesses actually experience in practice. It also draws on international models to argue for a structural overhaul of the approach to witness protection that moves beyond judicial discretion to legislative mandate and dedicated institutional machinery.
Legal Framework
India does not have a comprehensive central witness protection statute. The position as of 2026 remains that witness protection is largely dependent on administrative schemes, judicial orders, and the limited provisions available under special statutes. This legislative gap is remarkable given the long-recognised importance of witnesses to the criminal justice system and the well-documented problem of witness intimidation in organised crime and terrorism cases.
The Maharashtra Control of Organised Crime Act 1999 contains provisions relevant to witness protection, including the ability to hold trials in camera and to record witness statements under conditions of greater security than ordinary trial procedure would provide. MCOCA’s stringent provisions on admissibility of statements recorded by police officers have also been relevant in cases where witnesses have subsequently retracted testimony given during investigation. However, these provisions address witness management within the trial process rather than the physical protection of witnesses and their families outside the courtroom.
Section 195A IPC, introduced in 2006 and now corresponding to provisions in the BNS, makes threatening a witness or inducing a person not to give evidence an offence. While symbolically important, this provision does not provide for the protective infrastructure that witnesses in organised crime cases require. A witness who faces the prospect of violence does not derive meaningful protection from the existence of an offence against threatening witnesses; the threat is made precisely because the person making it is unconcerned about the legal consequences.
The Supreme Court’s direction in Mahender Chawla v. Union of India (2018) was a significant intervention in the absence of legislative action. The Court directed all states and union territories to implement the Model Witness Protection Scheme 2018 drafted by the Bureau of Police Research and Development, treating the scheme as enforceable until Parliament enacts specific legislation. The Model Scheme provides for threat assessment by a competent authority, protective measures ranging from changed phone numbers and police protection to identity change and relocation, and a Witness Protection Fund to meet the costs of protection. The scheme classifies witnesses into three categories based on the level of threat and prescribes measures appropriate to each.
Judicial Developments
The Hussainara Khatoon litigation of 1979 and 1980, while primarily concerned with undertrial prisoners, contained early observations about the state’s obligations toward persons whose cooperation with the criminal justice system exposed them to risk. These observations established a constitutional foundation for witness protection claims under Article 21.
The 1993 Bombay serial blasts case, one of the most complex criminal prosecutions in Indian legal history, involved over seven hundred accused and hundreds of witnesses. The trial before the TADA court spanned years, and the difficulties of witness protection over such a prolonged period were severe. Multiple witnesses turned hostile, and the attrition of witness testimony through a combination of fear, inducement, and the sheer passage of time significantly complicated the prosecution. The case illustrated that ordinary witness protection measures are inadequate for prolonged high-profile proceedings.
The Sohrabuddin Sheikh encounter case, involving allegations of extrajudicial killing by police officials, saw multiple witnesses die in suspicious circumstances during the course of proceedings. This pattern of witness deaths attracted Supreme Court attention and led to the transfer of the trial from Gujarat to Mumbai, but it also illustrated that judicial oversight, however attentive, cannot substitute for a properly resourced and institutionalised witness protection programme.
The acquittal of all twenty-two accused in the Sohrabuddin case by the CBI court in 2019 was attributed by many observers partly to the difficulty of maintaining witness testimony in circumstances of sustained intimidation and fear. Whether or not this attribution is accurate, it reflects the widespread perception within the legal community that organised intimidation of witnesses in high-profile cases is a real and inadequately addressed phenomenon.
The cases relating to Phoolan Devi, and the witness difficulties that characterised earlier dacoit trials in Madhya Pradesh and Uttar Pradesh, have historical parallels with the problems encountered in contemporary organised crime prosecutions. The pattern is consistent: in cases involving powerful accused with the resources and networks to intimidate, the testimony of prosecution witnesses degrades over time.
Contemporary Issues and Analysis
The Model Witness Protection Scheme 2018, despite the Supreme Court’s direction that it be implemented by all states, has been implemented unevenly and in many jurisdictions inadequately. A study of implementation conducted by researchers associated with the National Law School of India University found that most states had not established the dedicated institutional mechanisms that the scheme requires, had not constituted the competent authority mandated to make threat assessments, and had not created Witness Protection Funds with adequate corpus.
The problem is partly one of resources and partly one of political will. Witness protection, particularly in organised crime cases, requires protecting witnesses against persons who may have political connections or who can leverage official relationships. The police officers tasked with protecting witnesses are sometimes not insulated from the pressures that organised crime can bring to bear. There have been cases where witnesses placed under police protection have nonetheless been reached by the very networks they were supposedly being protected against.
The dependence on judicial discretion rather than legislative mandate creates inconsistency. The content of protection available to a witness in a MCOCA case in Maharashtra may be substantively different from what is available to a witness in a comparable case in a state that has not effectively implemented the Model Scheme. This inconsistency is not merely a matter of administrative efficiency; it affects the fundamental fairness of criminal proceedings and the rights of accused and prosecution alike.
The phenomenon of witness turning hostile occupies a central place in organised crime prosecutions. The CBI and state police regularly attribute case outcomes to witnesses retracting or contradicting earlier statements, and courts have expressed frustration at the pattern. The Evidence Act’s provisions on treating one’s own witness as hostile and cross-examining them are procedural tools that partially address the problem, but they cannot overcome a systematic campaign of witness intimidation.
The situation is exacerbated by India’s slow trial process. A witness in an organised crime case may be called to testify years after the incident, during which period their original resolve may have eroded, their memory may have faded, and the accused’s ability to locate and pressure them may have been exercised repeatedly. The combination of trial delay and inadequate protection is particularly corrosive.
Comparative and International Perspective
The United States Witness Security Program, operated by the US Marshals Service since 1971, is the most extensively studied model of comprehensive witness protection. The programme provides new identities, relocation, housing assistance, and ongoing financial support to protected witnesses and their immediate families. Over its history, the programme has protected more than nineteen thousand witnesses and no witness or family member who has complied with programme requirements has been killed. The programme operates under statutory authority and has a dedicated budget. Its success reflects not merely the provision of resources but the institutional coherence of having a single federal agency with clear authority and accountability.
The United Kingdom’s approach under the Serious Organised Crime and Police Act 2005 provides for witness anonymity orders, allowing witnesses in organised crime and terrorism cases to give evidence without disclosing their identity to the accused. These orders are subject to judicial supervision and are counterbalanced by safeguards to ensure that the accused has a fair trial. The UK also has a dedicated witness care infrastructure under the National Witness Care Unit, providing support to witnesses through the court process including information, practical assistance, and liaison with police and prosecutors.
Italy developed its witness protection model in response to Mafia prosecutions in the 1980s. The Italian State Witness Programme for pentiti (informers who cooperate with the prosecution) has been instrumental in successful prosecutions of the Camorra, Cosa Nostra, and ‘Ndrangheta. The programme involves identity change, relocation, and ongoing support and has legislative backing under the Mafia laws. The Italian experience illustrates that organised crime of sufficient complexity requires a dedicated institutional response that cannot be improvised case by case.
Practical and Policy Implications
The failure to protect witnesses has practical consequences that extend beyond individual cases. When it becomes known in a community that witnesses against organised crime figures face retaliation while the state provides inadequate protection, the effect on future willingness to cooperate with law enforcement is severe. Potential witnesses calculate the risk-benefit ratio and conclude that cooperation is rational only if protection is credible. Inadequate witness protection is therefore self-reinforcing: it produces fewer cooperating witnesses, which weakens prosecution, which emboldens organised crime, which increases the risk to potential witnesses.
The Special Courts established under MCOCA, NDPS, and other special statutes have jurisdiction over cases where witness protection is most acutely needed. Making witness protection adequate in these courts should be treated as a priority that is commensurate with the seriousness with which Parliament has treated the underlying offences. A legislature that decides to create special courts with special procedures and stringent bail conditions for organised crime but fails to provide for witness protection has not completed the institutional architecture that effective prosecution requires.
Suggestions and Reforms
Parliament should enact a comprehensive Witness Protection Act that gives statutory force to the essential elements of the Model Scheme, establishes a Witness Protection Authority at the national level with authority to coordinate with state agencies, and creates a dedicated fund with assured annual appropriation. The Act should define rights and obligations of protected witnesses, establish clear procedures for threat assessment and the grant or withdrawal of protection, and provide for penalties for violation of confidentiality.
States should establish Witness Care Units within the prosecution service, separate from the investigating police, to provide witnesses with a point of contact that is insulated from investigative pressures. The existing Legal Services Authorities network could be utilised to assist witnesses in navigating the court process and understanding their rights.
In the most sensitive cases, judges should have the authority to order video-link testimony as a matter of course, rather than only in exceptional circumstances, and to permit testimony behind screens where the witness faces documented threats. These procedural accommodations fall within the constitutional guarantee of fair trial while recognising that a witness’s right not to be intimidated is also constitutionally protected.
Conclusion
India’s witness protection framework remains significantly underdeveloped relative to the scale and sophistication of the threats that witnesses in organised crime and terrorism cases face. The Supreme Court’s direction in Mahender Chawla has provided an important normative foundation and has produced some improvement in formal compliance, but it has not been translated into the operational reality that witnesses need. The dependence on judicial discretion in individual cases, the absence of a statutory framework, and the inadequate and uneven implementation of the Model Scheme collectively mean that the most dangerous witnesses, those whose testimony is most important to successful prosecution of the most serious crimes, are also the least adequately protected. Enacting comprehensive witness protection legislation is not a luxury; it is a prerequisite for the credible prosecution of organised crime.
