Guest Post: Protected Witnesses under UAPA and the Bilal Mir Judgment

(This is a guest post by Shashank Sinha)

A bench of the Delhi High Court had the opportunity to consider the interpretation and application of Section 44 of the Unlawful Activities (Prevention) Act 1967 in Bilal Mir v. National Investigation Agency, (Crl. M.C. 5129/2025). The outcome is a peculiar judgement which discusses how important it is that even persons accused of offences under special criminal laws such as the UAPA deserve a trial that is fair and an opportunity to challenge evidence against them by confronting and cross examining witnesses, while at the same time legitimizing declaration of witnesses as protected by way of non-speaking and barely reasoned orders. 

Protected Witnesses in the UAPA

Section 44 of the UAPA allows for certain witnesses for the prosecution to be declared ‘protected witnesses’ at the instance of the witness, the state, or the presiding judge. Declaration of a witness as ‘protected witnesses’ results in their personal information being withheld from the accused throughout the proceedings. Obviously, this has significant ramifications for the accused including their right to bring into question the credibility of the witness and to confront and cross examine the witnesses. Confronting an adversarial witness is one of those rights without which one simply cannot call a trial fair in any sense of the word. It also establishes the credibility of the witness itself as a witness who is able to come out of this confrontation without having any major chinks exposed in their narration reaffirms their truthfulness and integrity in the eyes of the court. 

Since this is a provision that quite heavily curtails rights of the accused that would be considered central to what constitutes a fair trial, it would be interpreted in a very strict [Para 448 in Sahai, J’s opinion in Kartar Singh v. State of Punjab, (1994) 3 SCC 569] manner and would require a thorough judicial application of mind with regards to each witness. 

This much and more has been held by the Supreme Court in its judgement in Mohammad Asarudeen v. Union of India (2025 INSC 746). The Supreme Court held that the Special Court under UAPA is required to individually assess the situation of each witness who is sought to be made a protected witness. The Court also held that a judicial finding should be recorded that there is a danger to the life of the witness should their identity be revealed in open court or to the accused persons prior to and during the course of the trial. It is also essential that this finding be not mechanical and shows proper application of mind. Thus, the Court laid down clearly that any order declaring any witness for the prosecution as ‘protected’ under Section 44 UAPA cannot be vague, omnibus and non-speaking given the massive implications such an order has on the right of the accused to bring their character, integrity and their substantive testimony into doubt during the trial. 

Diluting Mohammad Asarudeen and ignoring it altogether

The first part of Bilal Mir correctly discusses the law on protected witnesses under UAPA and states, in slightly more detail, what has been stated in the preceding paragraphs. However, it is in applying this standard where the Court goes wrong. The Court dilutes the standard of judicial application of mind required of a Special Court under UAPA in making such an order. Where Mohammad Asarudeen requires it to reach a specific judicial satisfaction as to there being a danger to the life of the witness before passing an order under Section 44, the Court here reduced the standard to mere ‘probability’ of danger which is a substantially reduced standard. This very holding puts Bilal Mir in the teeth of Supreme Court precedent. 

Secondly, there is also a point where the Court concedes that the Special Court’s order which was passed ex parte and without referring specifically to witnesses who were sought to be made protected witnesses by the prosecution might not be in consonance with the judgement of the Supreme Court in Mohammad Asarudeen (Paras 10 and 79). Yet the High Court’s decision as to the validity of the impugned order does not turn on this. The High Court instead points to the fact that the order was not immediately challenged even when applicants had also filed an application for copies of unredacted statements of the protected witnesses in the wake of the impugned order. Thereafter, the High Court inexplicably reasoned that since applicants did not raise any particular grievance before the Special Court while it was considering the application under Section 44, they must be precluded from challenging the same before the High Court (Para 80). Needless to say, ex parte proceedings are not invitations to dispense with the requirements of judicial application of mind and pass mechanical orders. [State Bank of Patiala v. Vinesh Kumar Bhasin, (2010) 4 SCC 368 - Para 20]. Regardless, even the Court’s assertion that applicants did not challenge either during the Section 44 proceedings or after the order had been passed is not true given that the application for unredacted statements of the protected witnesses was not entertained by the Special Court on the ground that it ‘amounted to a review of its earlier order’. This could very well have been construed as a challenge as the Court itself records. 

Finally, the most peculiar part. The High Court concedes that the Impugned Order did not follow binding Supreme Court precedent. Yet, later on, it tried to justify the validity of the Impugned Order stating that the Special Court had considered the entire chargesheet before passing orders under Section 44. Where this was apparent from the impugned order, and whether consideration of the chargesheet alone is adequate to reach the ‘satisfaction’ that Mohammad Asarudeen demands of the Special Court passing an order declaring a witness as ‘protected’, the Court does not say. 

Conclusion

This might not be the last time that mechanical orders declaring witnesses as ‘protected’ in UAPA prosecutions and binding Supreme Court precedent is ignored. Considering what is at stake, it simply cannot become the norm that Special Courts under the UAPA can pass unreasoned mechanical orders to declare witnesses as ‘protected’ given the consequences for the accused during the trial and the harsh punishments that follow if the state is able to secure a conviction.

Bilal Mir may be cited as an instance of watering down extremely essential safeguards for the accused in prosecutions where the balance is already extremely tilted in favour of the state. However, considering how the Court placed such importance on the failure of the applicants to challenge the order, one can argue that the observations in Para 83 ought not to be treated as its ratio. 

(Thanks to Aadi Behle for his comments and insights).