The Delhi High Court has held that while witness protection under the Unlawful Activities (Prevention) Act, 1967 (UAPA) is essential in terrorism-related prosecutions, trial courts must independently reassess, at the stage of recording evidence, whether the identity of each protected witness should continue to remain concealed or can be disclosed with adequate safeguards to ensure an accused’s right to a fair trial.
Justice Neena Bansal Krishna passed the ruling while deciding two petitions filed by UAPA accused, who challenged orders granting protected status to prosecution witnesses and sought unredacted copies of the statements of two protected witnesses before their cross-examination.
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The petitioner argued that blanket orders granting anonymity to witnesses without recording individual reasons violated the safeguards under Section 44 of the UAPA and Section 17 of the National Investigation Agency Act, besides impairing his ability to effectively cross-examine witnesses. The NIA opposed the plea, contending that disclosure of witness identities would defeat the statutory witness protection mechanism and jeopardise their safety.
The High Court observed that Section 44 of the UAPA is an exception to the ordinary rule of disclosure and can be invoked only after the Special Court independently records satisfaction that a particular witness faces a threat. Referring to the Supreme Court’s decision in Mohammed Asarudeen v. Union of India, the Court reiterated that blanket or omnibus orders granting protected status to multiple witnesses without individual assessment are impermissible.
However, the Court declined to interfere with the Special Court’s 2022 and 2023 orders granting protected status to the witnesses, noting that the petitioner had never challenged those orders earlier and had raised the issue only after the trial had substantially progressed. Accordingly, the challenge to the witness protection orders was dismissed.
On the issue of disclosure of witness identity before cross-examination, the Court held that the right to a fair trial includes a meaningful opportunity to cross-examine prosecution witnesses. At the same time, it recognised that witness anonymity is a legitimate statutory measure in terror cases where disclosure could endanger lives. The Court observed that these competing interests must be balanced on a case-by-case basis rather than through a blanket approach.
Setting aside the Special Court’s order refusing to provide unredacted statements of Protected Witnesses X-5 and X-11, the High Court remanded the matter for fresh consideration. It directed the Special Judge to independently examine, before recording the testimony of each witness, whether disclosure of their identity would genuinely endanger their lives or whether their names and addresses could be disclosed by adopting appropriate protective measures. The Court held that whichever course is adopted, the Special Court must record reasons in support of its decision.
The parties have been directed to appear before the Special Judge on August 10, 2026 for further proceedings.
