Individualised Witness-Protection Orders under UAPA & NIA Act: Supreme Court of India Clarifies Twin-Stage Test and Accused’s Right to Be Heard

1. Introduction

In Mohammed Asarudeen v. Union of India & Ors. (2025 INSC 746) the Supreme Court of India has delivered a precedent-setting ruling that recalibrates the delicate balance between witness security in terrorism-related prosecutions and the fair-trial rights of the accused. The appellant, an accused in an NIA-investigated murder case, challenged orders of the Special Court (NIA) and the Madras High Court which had, in effect, denied him copies of Section 161 CrPC witness statements pertaining to fifteen “protected witnesses” even after their examination-in-chief.

The core legal controversy concerned the interpretation and application of Section 44(2) UAPA and the pari materia Section 17(2) NIA Act, provisions that empower Special Courts to conceal the identity of witnesses whose lives are in danger. The Court seized the opportunity to clarify:

• the pre-conditions for invoking these provisions,
• the procedural safeguards necessary to respect the accused’s right of defence, and
• the scope of orders that may validly be passed by Special Courts regarding disclosure of witness statements.

2. Summary of the Judgment

Allowing the appeal, the Supreme Court (Justices Abhay S. Oka & Ujjal Bhuyan) set aside both the Special Court’s protective-order (21 Aug 2019) and the Madras High Court’s affirming judgment (21 Oct 2024). Key holdings are:

1. Twin-Stage Test: Section 44(2) UAPA and Section 17(2) NIA Act require (i) a reasoned satisfaction that the life of each particular witness is in danger, and (ii) a separate, reasoned determination of the specific protective measures needed. General or omnibus orders are impermissible.
2. Accused’s Right of Hearing: Principles of natural justice are not excluded; the accused must be heard on the prosecution’s application, though the court may withhold sensitive material if disclosure would defeat the purpose.
3. Limited Non-Disclosure: Total embargo on supplying Section 161 statements is not automatic. Courts must tailor the extent of non-disclosure and record reasons.
4. Fresh Application Permitted: The NIA/Prosecutor may file a fresh, individualised application within eight weeks; meanwhile, interim anonymity of the concerned witnesses shall continue.

3. Detailed Analysis

3.1 Precedents & Statutory Provisions Considered

• Mahender Chawla v. Union Of India (2019) 14 SCC 615.
  • Supreme Court approved the Witness Protection Scheme, 2018. The present Bench distinguished the statutory powers of courts under UAPA/NIA Act from the administrative mechanism under the Scheme.
• Section 173(6) & Section 207 CrPC.
  • Provide for withholding parts of the police report “in the public interest”. The Court emphasised that UAPA/NIA protection provisions are exceptions and therefore require strict construction.

3.2 Court’s Legal Reasoning

“Since sub-section 2 of Section 44… is an exception to the general rule, the condition precedent… must be complied with.”

The Bench disaggregated Section 44(2) into two mandatory steps:

1. Satisfaction Stage: The Court must first determine that the life of each witness is indeed in danger, based on concrete material (threat reports, affidavits, prior incidents, etc.). Absent such satisfaction, the power cannot be exercised.
2. Measure-Selection Stage: Only after satisfaction is recorded may the Court choose from the menu in Section 44(3) (in-camera trial, anonymisation, publication ban, etc.). The extent of non-disclosure must be proportionate; blanket denial of Section 161 statements till trial-end is an extreme measure requiring cogent reasoning.

Applying this framework, the Court found that the Special Court’s order contained only a vague remark that “it felt” witnesses’ identities should be concealed. It addressed no witness-specific threat, and mechanically granted anonymity to fifteen witnesses. The High Court aggravated the error by converting a time-bound concealment (till completion of examination-in-chief) into a blanket prohibition for the entire trial without undertaking the required Stage 2 analysis.

On the right of hearing, the ASG argued that applications under Section 44(2) are ex-parte. The Bench rejected this, holding that natural justice applies unless the statute expressly excludes it. However, courts retain discretion to withhold sensitive intelligence from the defence while adjudicating the application. This nuanced approach mirrors comparative jurisprudence on “Public Interest Immunity” and “special advocates” in other jurisdictions.

3.3 Impact of the Judgment

The decision lays down binding procedural law for all Special Courts trying cases under UAPA or investigated by the NIA. Its ripple effects include:

• Higher Evidentiary Threshold: Prosecution must provide witness-specific threat material rather than omnibus pleas.
• Structured Orders: Special Courts must draft reasoned, two-part orders—(i) finding of danger; (ii) specific protective steps.
• Enhanced Defence Rights: Accused receive an opportunity to contest protective applications, improving transparency and reducing undue secrecy.
• Guidance for Lower Judiciary: Trial courts across India now have a template for handling similar requests under PMLA, NDPS, and other statutes containing witness-protection clauses.
• Policy Feedback: The ruling may prompt revision of the Witness Protection Scheme to dovetail with this “twin-stage” judicial test.

4. Complex Concepts Simplified

• Protected Witness: A witness whose identity is kept confidential to shield them from intimidation or physical harm.
• Section 161 CrPC Statement: A witness’s statement recorded by police during investigation; ordinarily supplied to the accused to enable cross-examination.
• In-Camera Proceedings: Trial (or parts of it) conducted in private, without public or media access.
• Non-Obstante Clause: A legal provision beginning with “notwithstanding anything contained…” that overrides conflicting laws.
• Natural Justice: Fundamental procedural fairness—principally, the right to a fair hearing and an unbiased adjudicator.

5. Conclusion

Mohammed Asarudeen is a landmark pronouncement that reconciles the State’s imperative of protecting witnesses in terror cases with the constitutional mandate of a fair trial. By insisting on an individualised, reasoned approach and preserving the accused’s participation, the Supreme Court has:

• Plugged a systematic gap where blanket protective orders were increasingly common;
• Provided detailed practical guidance to Special Courts on the exercise of Sections 44(2) UAPA and 17(2) NIA Act;
• Affirmed that secrecy in criminal procedure must be the exception, not the norm, and must survive rigorous judicial scrutiny.

Going forward, prosecutors will need to marshal concrete threat assessments, and courts will need to craft nuanced, witness-specific orders. The decision thus strengthens both the integrity of witness-protection mechanisms and the legitimacy of convictions obtained in such sensitive prosecutions.