Abstract
The concept of bail as one of the safeguards of individual liberty under Article 21 of the Constitution has been at the heart of understanding criminal jurisprudence in India. Concurrently, the judicial system has a major responsibility in guarding witnesses and victims from threats, molestation or harm. This article aims to discuss the tenuous balance between liberty of the accused and safety of the witness. By charting the course of jurisprudential developments, providing a comparative analysis of Indian law with jurisprudence globally and assessing practical challenges, an argument will be put forth that one should not have to choose between liberty and safety and we can simultaneously protect liberty without compromising justice and constitutional guaranteed rights.
Introduction
In India, bail has shifted from procedural protection to constitutional protection founded in Article 21. Where the accused abuse their bail, the balance of liberty swings in favour of justice and the courts have the authority to cancel bail. On the other hand, witness protection has become a parallel protection that provides for witnesses giving testimony freely and without fear. The Witness Protection Scheme 2018, which has been approved by the Supreme Court, is a step in that direction. However, the courts have noted on a number of occasions, that such schemes cannot be a basis for cancelling bail when the conduct of the accused justifies it. There is a distinction between bailing cancellation and a witness protection scheme.
Keywords: Bail, Witness Protection, Article 21, Bail Cancellation, Supreme Court, Liberty, Safety of Witnesses
The Constitutional Balance
Since formulating the principle of liberty in Maneka Gandhi v. Union of India 1978 AIR 597
Liberty has received high protection in Indian constitutional law and has been elevated by the Supreme Court’s characterization of Article 21 as a greater guarantee of fairness, justice, and reasonableness. Subsequently, bail has become understood as a sub-category of this holding, as courts have continued to articulate that “bail is the rule, jail is the exception.”
Liberty must not, however, become a tool for injustice. Article 21 also recognizes the rights of victims and society to receive a fair trial. Witnesses are, in particular, the “eyes and ears of justice:” when witnesses are unsafe, the credibility of the courts has no credibility. The courts have long recognized this dual obligation to liberty and not letting liberty become the enemy of justice: it is a balancing exercise where the courts must weigh the liberty of the accused against the systemic need for the safety of witnesses to allow for a fair trial. Whenever these two values do clash will require the courts to analyse which condition needed, a freedom vs. the safety of witnesses and a fair trial.
Witness Protection in India: A Brief Overview
The absence of witness protection allowed witness intimidation to flourish, causing extremely high acquittal rates in cases involving organized criminal groups, or the powerful being accused. In Zahira Habibullah Sheikh v. State of Gujarat AIR 2004 SC 1367, the Supreme Court noted that while witness intimidation and hostility by witnesses links justice”, institutional safeguards are needed.
This led to the establishment of the Witness Protection Scheme in 2018. The Scheme sets forth protective measures including:
- Police escort during trial,
- Hiding identity and address,
- In-camera proceedings, and
- Relocation or identity change in extreme cases.
The Witness Protection Scheme is innovative, but not “a one size fits all” solution. Since the enforcement of the “scheme” is reliant on State machinery, implementation will differ from one jurisdiction to another. Secondly, the ‘protection’ provided in the scheme is preventative, and only requires that the witnesses are protected from threats. The scheme does not relieve any witness from any underlying misconduct on behalf of the accused, who are taking advantage of their liberty to intimidate the witnesses. This is where bail cancellation is crucial.
Bail Cancellation Jurisprudence: Guiding Principles
Indian courts have confirmed the circumstances under which bail can be revoked. In State (Delhi Admn.) v. Sanjay Gandhi AIR 1978 SC 961, the Supreme Court confirmed this element of bail, stipulating that bail can be revoked if the accused obstructs or interferes with the trial; while in Puran v. Rambilas AIR 2001 SC 2023, the Court confirmed that the potential for supervening circumstances (like attempt to interfere with evidence or influencing witness) required cancelling bail.
Two principles can be identified:
- Bail is conditional liberty – Bail is granted with the expectation that the accused will act appropriately while on bail.
- Cancellation is for prevention, not punishment – Cancellation is for the protection of the trial process – not a punishment in the sense of punishing the accused beforehand.
Recent Judgment
In Phireram v. State of Uttar Pradesh & Anr. (2025 INSC 1074), the salient issues arose subsequent to the grant of bail to an accused facing serious charges. Thereafter, a range of complaints indicated that the accused was threatening prosecution witnesses. The High Court refused to cancel bail on the basis that witness protection mechanisms would resolve any safety issues. Upon appeal, the Supreme Court rejected this line of logic with its key holdings being:
1. Witness protection ≠ means to cancel bail – the Court held that witness protection could protect witnesses, the Court however held that it could not neutralise the harm caused by threatening witnesses on an ongoing basis from an accused.
2. Bail is misused – the accused is going to threaten witnesses. Bail has conditionality. If the accused follows-up on the threats to witnesses, it presumably is contrary to breaching this condition so that cancelling bail should be the only remedy.
3. justice is a right – fairness in the administration of this right should be seen in patrimonial terms not just to an accused but also to respective victims and witnesses.
4. a balancing test – if liberties of an accused limit the safety of witnesses, in the interests of justice, safety takes priority from the holders of liberty.
Broader Implications of Phireram
- The ruling provides some confidence to witnesses, by reassuring them that the courts will react appropriately to intimidation.
- High Courts have been told not to rely too heavily on witness protection programs when it is clear the accused will mis-use bail.
- The Constitution advocates fair trial rights with bail jurisprudence shows the multifaceted character of Article 21.
- Prosecutors will now be more inclined to apply to the court to cancel bail in cases of intimidation, thus improving accountability.
Comparative-Global practice
The United States illustrates this; federal law provides for witness protection through the Witness Security Program, but permits revocation of bail in cases of intimidation. Again, the United Kingdom Bail Act, 1976 states that a court may refuse or revoke bail if it is satisfied that the accused poses a risk of interfering with witnesses; again, ruling granted access to some Ontario Courts reiterates the same principle expressed in Phireram – liberty last precisely, where justice is threatened.
Conclusion
There are witness protection schemes that serve purpose however they in isolation, cannot mitigate the risk of an accused creating discomfort with witnesses through intimidation while enjoying the grant of bail. The Supreme Court’s judgement fosters jurisprudence of balance, where liberty of the accused, does not blind the courts to the need for safety of witnesses, and impartiality of the trial. The judgement is a startling reminder that, while Article 21 protects the liberty of the accused, it equally protects rights society has to justice.
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Written by- Anwesha Anant
