UAPA Orders Barring Witness Statement Disclosure Must Record Reasons for Each Witness: Kerala High Court

Introduction

In a significant ruling for cases involving national security, the Kerala High Court has emphasized the need for individualized scrutiny in protecting witnesses under anti-terrorism laws. A Division Bench comprising Justice Sushrut Arvind Dharmadhikari and Justice P.V. Balakrishnan set aside orders from the Special Court for NIA Cases in Ernakulam that had barred the disclosure of statements from eight witnesses in a terrorism-related prosecution. The petitioners, accused Nos. 6 and 7 in the underlying case—R. Ragavendran and B.G. Krishnamurthy—challenged the Special Court's decisions under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), arguing that the orders lacked specific reasoning and failed to assess threats to each witness separately. The court, while acknowledging the gravity of Unlawful Activities (Prevention) Act (UAPA) offences, remitted the matter back for fresh consideration, reinforcing that blanket protections undermine fair trial rights. This decision, delivered on February 6, 2026, in Crl.MC No. 10590 of 2025, underscores the balance between witness safety and the accused's access to evidence in sensitive UAPA proceedings.

The case stems from a National Investigation Agency (NIA) probe into alleged terrorist activities, where the accused face charges under Sections 120B, 121A, and 122 of the Indian Penal Code (IPC), along with Sections 18, 18B, 20, 38, and 39 of the UAPA. Arrested in November 2024, the petitioners received a chargesheet in May 2025, and the trial remains pending. The Union's application to treat certain court witnesses (CWs) as protected and redact their statements was granted without the required per-witness analysis, prompting this High Court intervention. For legal professionals handling NIA cases, this ruling serves as a procedural safeguard, ensuring that protections under Section 44 of the UAPA are not applied mechanically but with judicial rigor.

Case Background

The dispute arises from RC No. 01/2022/NIA/Kochi, a high-stakes investigation by the NIA into activities deemed unlawful under the UAPA. The petitioners, R. Ragavendran from Tamil Nadu and B.G. Krishnamurthy from Karnataka, are listed as accused Nos. 6 and 7 in the sessions case (SC 2/2025/NIA) before the Special Court for Trial of NIA Cases in Ernakulam. They were arrested on November 27, 2024, following allegations of involvement in conspiracies related to terrorist acts, including membership in banned organizations and facilitation of unlawful activities. The chargesheet, filed on May 21, 2025, detailed evidence from multiple witnesses, including statements recorded under Section 161 of the Code of Criminal Procedure (CrPC)—now transitioned to the BNSS framework.

As the trial progressed, the respondent, the Union of India represented by the NIA, sought extraordinary measures to shield key prosecution witnesses. On an application under Section 44 of the UAPA, the NIA requested that CWs 49 to 53, CW 61, CW 62, and CW 79 be designated as protected witnesses. The plea highlighted risks to their lives due to the nature of the offences and sought to withhold their Section 161 statements and related documents that could reveal identities. Additionally, under Section 193(7) of the BNSS, the NIA filed for redaction of specific documents (Nos. 30 to 36, 74 to 79, 86, and 87) in the chargesheet supplied to the accused.

The Special Court acceded to both requests on September 3, 2025, via orders in Crl.MP Nos. 115/2025 and 95/2025. It deemed the prosecution's reasons "convincing" and found no prejudice to the accused's defense. Aggrieved by what they viewed as opaque and overbroad rulings, the petitioners approached the Kerala High Court under Section 528 BNSS, invoking the supervisory jurisdiction to quash the orders. The High Court heard arguments from counsel Thushar Nirmal Sarathy and P.A. Shyna for the petitioners, and Deputy Solicitor General O.M. Shalina for the Union. The bench's scrutiny revealed procedural lapses, leading to the remand. This timeline—from arrests in late 2024 to the High Court's order in early 2026—illustrates the protracted nature of UAPA trials, where evidence disclosure battles can delay justice.

Arguments Presented

The petitioners mounted a multi-pronged attack on the Special Court's orders, emphasizing procedural fairness and the right to a full defense. Their counsel argued that the rulings violated foundational principles of criminal jurisprudence by imposing a blanket bar on witness statements without individualized justification. Specifically, they pointed out that the identities of two witnesses (among the eight) had already been inadvertently revealed by the prosecution itself, rendering Section 44(2) UAPA protections futile for those individuals. "The very purpose of Section 44(2) of UAPA is lost," counsel submitted, citing the Supreme Court's ruling in Mohammed Asarudeen v. Union of India (2025 KHC Online 6526), which prohibits indiscriminate restrictions on evidence access.

Further, the petitioners contended that the orders were "non-speaking" and bereft of application of mind. The Special Court had failed to record satisfaction regarding a "real threat" to each witness's life, relying instead on vague, generalized assertions about the seriousness of UAPA offences. No materials were analyzed per witness, they argued, and the mere statement that the prosecution's petition was "convincing" did not suffice. This, they claimed, prejudiced their ability to cross-examine effectively, contravening Article 21 of the Constitution and the accused's statutory rights under the BNSS. The counsel stressed that while witness safety is paramount, it cannot override the accused's need for unredacted evidence unless a specific, material-based danger is established.

In opposition, the Union's counsel, the Deputy Solicitor General, defended the Special Court's discretion, underscoring the perilous context of terrorism prosecutions. The offences under IPC Sections 120B (criminal conspiracy), 121A (conspiracy to wage war), and 122 (collecting arms for war), coupled with UAPA provisions on membership (Section 20), funding (Section 18B), and abetment (Sections 38-39), painted a picture of grave national security threats. Disclosure of witness identities, she argued, could endanger lives, as the petitioners were allegedly linked to organized terrorist networks. The NIA's application included "specific averments" for each witness, detailing potential dangers based on investigation findings. The counsel asserted that the Special Court had duly considered these materials and that redaction struck a balanced approach, causing "no prejudice" to the defense since core evidence remained accessible. She urged the High Court not to interfere, warning that excessive scrutiny could hamper anti-terror efforts and expose informants to reprisals.

Legal Analysis

The Kerala High Court's reasoning centered on a meticulous interpretation of Section 44 UAPA, which empowers courts to protect witnesses whose lives are in danger but mandates reasoned, evidence-based decisions. The bench dissected the provision: Subsection (2) requires the court to be "satisfied that the life of such witness is in danger" before taking measures like withholding identities or holding in-camera proceedings. Crucially, this satisfaction must be "recorded in writing," and measures adopted must include "reasons to be recorded." The court contrasted this with blanket applications, drawing directly from the Supreme Court's elucidation in Mohammed Asarudeen v. Union of India .

In that precedent, the Apex Court held that restrictions on witness statements cannot be wholesale; each must stem from an "individual assessment" of threats, calibrated to the case's facts. The Kerala bench applied this by noting that while the NIA's application contained "specific averments" for the eight witnesses, the Special Court overlooked them. The orders merely echoed the petition's claims as "convincing" without analyzing materials or addressing the revealed identities of two witnesses—a point that "defeats the purpose" of Section 44(2). This echoed the Supreme Court's directive that courts must probe whether a "real threat" exists, avoiding mechanical approvals that erode fair trial guarantees under Article 21.

The analysis distinguished UAPA's special regime from routine criminal trials: while Section 17 of the NIA Act mirrors Section 44 UAPA for parity, both demand judicial oversight to prevent abuse. The bench clarified that protection is not absolute; redaction under BNSS Section 193(7) must align with UAPA's safeguards, ensuring accused access to non-identity-revealing evidence. No other precedents were cited, but the ruling implicitly reinforces broader jurisprudence on evidence disclosure, such as in Zahira Habibullah Sheikh v. State of Gujarat (2004), where withheld witness details were deemed violative of natural justice. Here, the offences' severity—conspiracy and abetment in terrorism—did not justify procedural shortcuts; instead, it heightened the need for transparency to uphold convictions' integrity. The court's remand directive exemplifies balanced adjudication: protecting witnesses without compromising defense rights.

Key Observations

The judgment is replete with pointed critiques of procedural inadequacies, extracted below to illuminate the bench's stance:

On the mandatory basis for satisfaction: "The recording of satisfaction by the Special Court that the life of the concerned witness is in danger, must be based on the materials available before the court. It was also held that the extent and the nature of the material required to record such satisfaction, will depend upon the facts and circumstances of each case and that the recording of clear satisfaction, based on materials is mandatory."

Critiquing the Special Court's order: "The impugned orders does not reflect consideration of the materials on record, before deciding the measures to be taken for keeping the identity of the witnesses secret. No reasons, at least in brief, is also not stated for allowing the application and the order merely says that 'the reasons stated in the petition are convincing'."

Emphasizing individual scrutiny: "That apart, the Special Court has also not considered the case of each witnesses separately, regarding the possible dangers to their lives based on the materials on record and has merely allowed the application by finding that no prejudice is caused to the accused."

On the futility for revealed identities: "Even though the petitioners have specifically contended that the identity of two of the witnesses have already been revealed by the prosecution and that the very purpose of Section 44(2) of UAP Act is defeated, the same has also not been considered by the Special Court."

These observations, drawn verbatim from the order, highlight the court's insistence on reasoned judicial discretion, serving as a template for future UAPA applications.

Court's Decision

The Division Bench unequivocally allowed the Criminal Miscellaneous Case, setting aside both impugned orders dated September 3, 2025, in Crl.MP Nos. 115/2025 and 95/2025. It remitted the applications back to the Special Court for "fresh consideration and disposal as per law, in the light of the observations made in this order," directing expeditious resolution to avoid trial delays. The operative portion states: "Crl.M.C.No.10590/2025 is allowed as follows: i) The order dated 03.09.2025 in Crl.M.P.No.115/2025... is set aside. ii) The order dated 3.9.2025 in Crl.M.P.No.95/2025... is also set aside. iii) Crl.M.P.No.115/2025 and Crl.M.P.No.95/2025 are remitted back to the Special Court... iv) The Special Court shall make every endeavour to dispose of these applications as expeditiously as possible."

Practically, this mandates the Special Court to revisit the NIA's pleas with granular analysis: evaluating threats per witness, considering disclosed identities, and justifying redactions with brief reasons grounded in evidence. For the petitioners, it restores potential access to fuller statements, bolstering their defense in the ongoing sessions trial. Broader implications ripple through UAPA and NIA jurisprudence: special courts must now eschew pro forma approvals, fostering accountability in terrorism cases where convictions often hinge on informant testimony. This could slow initial proceedings but enhances legitimacy, reducing appellate reversals. For legal practitioners, it signals a shift toward robust documentation—counsel must furnish detailed threat assessments, while judges apply mind independently. In an era of rising UAPA invocations, this ruling safeguards constitutional equilibria, ensuring witness protections do not morph into evidence blackouts that imperil justice.

The decision's citation as positions it as persuasive authority nationwide, potentially influencing other high courts and even the Supreme Court in analogous matters. Ultimately, by prioritizing procedural due process, the Kerala High Court reaffirms that even in the shadow of national security, the scales of justice must remain even.