-Preet Chawla
The enactment of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, marks an important development in the Indian criminal justice system. Under this list of provisions, the only one which is distinctly different is that of Section 398, which introduces an express reference to witness protection under general criminal law. Limited safeguards for witnesses have existed in special legislation, including the Whistle Blowers Protection Act, 2014, and in the anti-terrorism context, Section 44 of the Unlawful Activities (Prevention) Act; Section 398 represents the first express attempt to place witness protection within the criminal procedural framework.
The law attempts to institutionalise a protection that has been conspicuously so far out of reach for India by requesting each state government to frame and notify its own Witness Protection Scheme.
However, despite the legislative action, it also raises concerns about uniformity, enforceability, and interstate coordination. Since there exist administrative disparities among states in the framework of a federal arrangement, additional decentralization of issues by delegating them to the state without a national framework may do more harm than good.
The Backdrop: A History of Negligence and Judicial Intervention
Witness protection in India has remained a long-standing and unresolved concern. Official reports, including the 14th Law Commission Report (1958) and the 198th Law Commission Report (2006), have acknowledged that the weakness of witnesses negatively affects the trial process and the attitude of the public towards the legal justice system. In most situations, mainly political violence, organized crime and caste crimes, witnesses are compromised and influenced through intimidation, bribery, threats, as well as coercion. In Zahira Habibullah Sheikh v. State of Gujarat (2004), commonly referred to as the Best Bakery case, the Supreme Court gave attention to the fact that the justice system failed due to the intimidation of the witnesses and made the trial “a mockery”.
The inclusion of Section 398 is therefore significant. It is a formal recognition of the fact that witness protection is not a peripheral issue. Nonetheless, figurative recognition is a limited step. The question, therefore, is whether the provision can lead to positive changes or it may end up being another law with good intentions but unsatisfactory execution.
The decision of the Supreme Court in Mahender Chawla and Ors v. Union of India and Ors. (2018) made the Witness Protection Scheme, 2018, a binding obligation throughout India, providing a judicially recognised framework for protecting witnesses.
Its implementation, however, has remained uneven. The scheme has had inconsistent implementation or inaction. Consider the example of the trial of Asaram Bapu– there were a number of witnesses who were threatened, assaulted or even killed. Although this was a high-profile trial, the state did not take many preventive measures. This exposes weaknesses in the implementation of protection measures through media scrutiny and outcry by people.
Silence on the 2018 Scheme: The Omission that speaks volumes
Finally, acting as per the instruction of the Supreme Court in Mahendra Chawla v. Union of India, the Ministry of Home Affairs introduced an elaborate scheme of Witness Protection. The plan laid down clear procedures such as the assessment of threats, creation of District Witness Protection Committees, safe housing and altered identities wherever necessary. It also contained a clause on financial aid and management of the protection requests within the set timeframe.
Although executive in nature, this scheme was enacted by the Supreme Court as a law and had the force of law under Article 141 of the Constitution and was intended to be used as a uniform command until a law was made by Parliament. It was therefore reasonable to expect that the BNSS would either follow this model or develop it further. However, the 2018 Witness Protection Scheme is not mentioned in Section 398.
Rather, it merely leaves the task to individual state governments and gives them every discretion to create their own schemes. There are no templates, no minimum standards, no need to conform to what the 2018 Scheme had already defined. Effectively, a cohesive national structure that was judicially supported has been substituted by a decentralised one that has no explicit protection.
The Danger of the Unbalanced Protection: The Geography of Rights
The consequences of decentralisation of witness protection are not only technical. In practice, some States have sought to build upon the framework of the 2018 Scheme. States such as Delhi, Goa, Assam, Meghalaya and Haryana have already made steps by notifying their respective schemes. They have demonstrated that with political goodwill and administrative motivation, it can be possible to develop mechanisms capable of providing meaningful protection.
But of greater concern are those states which are rendering watered- down schemes which have no actual procedures, no trained staff and no facilities to support them. In states that have stringent budgets or bureaucracies with limited capacity, witness protection is likely to be just a formality.
This disparity raises a fundamental concern since the security of a witness will be based solely on the neighbourhood in which they reside. One state may provide a witness with safe accommodation, legal anonymity and financial assistance. In another, they may be left fully exposed. Such pin-code-based protection undermines the principle of the basic structure that gives equal protection under Article 14 of the Constitution of India.
We have already witnessed unbalanced application of reforms in police, compensation of victims, and custodial safeguards. In the absence of a strong national law, it cannot be expected that implementation of a witness protection scheme would be any different.
No Enforceable Rights, No Remedies: A Right in Books Only
A further concern is that Section 398 does not confer any enforceable rights to the witnesses. The clause does not provide any explicit way of redress within a time period or for challenging a ruling. This absence limits its practical effectiveness.
This is retrogressive to the past judicial trend, under which witness protection began to be conceptualized as an extension of the right to life and individual liberty under Article 21. The Supreme Court in Mahender Chawla had pointed out that witnesses are entitled to testify freely and without fear, having its basis in constitutional jurisprudence.
The whole system is left to the discretion of the administration. When a state government delays the protection request or implements it inadequately or adopts an ad hoc approach, Section 398 does not provide a clear and uniform mechanism through which a witness may challenge that decision or inaction. This absence creates a significant accountability gap.
Federal Fragmentation: Threats and Inter- State Challenges
The inability to consider the trans-jurisdictional nature of threats is another shortcoming of Section 398. Criminal networks and the threats they pose are not confined by State boundaries. For instance, A citizen of Delhi can be targeted by the actors of Uttar Pradesh. A journalist who gave testimony against a case in Maharashtra may require relocation for safety.
The provision, however, does not establish any inter-state coordination mechanisms. It has no central database, no threat-sharing protocol, no shared funds, and no institutional architecture of cooperation. Despite the cross-border nature of threats, the framework leaves states to operate largely independently.
It is particularly an issue with crimes such as terrorism, caste-based violence, political corruption or communal riots, wherein witnesses can be the weakest link in the chain of justice. This issue had been previously identified even by the previous committees such as the Law Commission (198th Report), and even the Malimath Committee, which had recommended that a central authority or nodal body be established to oversee witness protection.
Infrastructure and Awareness: The Absent Administrative Underpinning
The effectiveness of Section 398 ultimately depends upon its enforcement and administrative capacity, since they expand far beyond mere logistical conveniences in actually determining whether witnesses can participate in proceedings without exposing themselves to retaliation. Where such infrastructure is lacking, formal entitlement may provide little security in reality. The resulting vulnerability can disincentivise witness cooperation and undermine the fairness of the trial itself. Various districts still do not have the basic infrastructure to aid witness protection. Safe houses, trained officers and in-camera or anonymised testimony courtroom arrangements are non-existent.
Technology is underutilised, though it is becoming more available. Video conferencing, voice modulation or digital masking of identity by remote testimony might provide safe options, but there is no push to incorporate them into trial practices.
The post-trial vulnerability is also not addressed. When the trial is finished, the witnesses are exposed to retaliation. Relocation, financial rehabilitation and psychological support are not consistently provided. Thus, protection lacks in extending a constitutional guarantee.
What Other Countries Get Right: Learning from Global Models
It has been recognised by many countries and international conventions that witness protection is not merely a procedural formality but a component of justice itself.
Article 24 of the United Nations Convention against Transnational Organised Crime urges nations to protect witnesses against retaliation and intimidation.
Similarly, Article 68 of the Rome Statute of the International Criminal Court provides measures addressing the safety, dignity and psychological well-being of victims and witnesses.
The Witness Security Program (WITSEC) is centrally administered in the United States as a part of the U.S. Marshals Service. The threatened witnesses are given identity change, relocation, and long-term support regardless of their residential area. It thus provides greater uniformity and reduces dependence on local authorities
The Witness Protection Act of 1998 in South Africa is also institutional. It establishes an independent body with legal jurisdiction that has cross-provincial coverage. It works outside the standard police and also has legal as well as psychological assistance to witnesses.
Canada’s Witness Protection Program Act of 1996 has also contributed to transparent procedures. It has periodic checks, explicit eligibility policies and the entitlement to appeal. It also aims at reintegration beyond fundamental security by assisting the witnesses through employment training, counselling and long-term support services.
These frameworks demonstrate the importance of clear procedures, institutional responsibility and enforceable safeguards.
The Road Ahead: Structure, Standards and Statutory Guarantees
The legislative reform should build upon the Witness Protection Scheme, 2018 while addressing the gaps identified above.
First, the fragmented laws require uniform central-level statutory standards. While the state governments may retain flexibility in implementation, the legislation should prescribe minimum standards for threat assessment, eligibility and forms of protection.
Second, the absence of an effective remedy requires heightened judicial and institutional scrutiny. Courts should have the power to intervene in urgent cases for the protection of witnesses, while the witnesses should have a defined mechanism to challenge the denial or withdrawal of protection, thereby giving them a fair opportunity to seek review against adverse decisions.
Third, the inter-state nature of threats requires a national coordination mechanism. A National Witness Protection Authority should exist, independent of police control, which coordinates across states, manages the data, monitors compliance, and deals with interstate moves. The Centre should provide adequate funding, protecting it as a constitutional duty in Article 21 rather than merely as a welfare policy.
Finally, practical safeguards are required to cover the infrastructural and post-trial gaps. Secure video-conferencing, identity anonymisation measures, redesigned courtroom arrangements and appropriate digital case management systems should be incorporated. Further, Oversight bodies and periodic audits would help enhance the accountability of the framework, along with additional measures like financial support, relocation, etc., to extend protection beyond mere testimony.
Conclusion: A Statutory Skeleton Needs a Constitutional Soul
Section 398 of the Bharatiya Nagarik Suraksha Sanhita, 2023 marks a positive shift in legislative priorities by giving statutory recognition to witness protection. It addresses a longstanding gap in India’s criminal justice framework and recognises the need to protect witnesses from coercion or intimidation. However, its decentralised design leaves uniformity, enforceability and institutional capacity unresolved.
Section 398 is therefore a milestone in statutory recognition, but a missed opportunity in execution to establish a comprehensive and enforceable framework for witness protection. Thus, its significance ultimately depends on whether the legislative mandate is backed by uniform standards, enforceable remedies and administrative capacity to translate the protection into practice. It has to be rooted in law, implemented in practice and secured in principle.
The author is a fourth-year B.A. LL.B. (Hons.) student at Symbiosis Law School, Pune.
