It’s a herculean task for a child to cope with the impact of a crime, let alone facing further trauma due to intensive questioning and the intimidating court environment. It is internationally recognised that a child’s testimony must be recorded and interpreted in a special manner. Article 25 of the Universal Declaration of Human Rights, 1948 provides that children as a category need special care and assistance. Notably the ‘UN Guidelines on Justice in matters involving Child Victims and Witnesses of Crime, 2005’ go further and prescribe special protection, assistance and age-appropriate support to prevent further hardship and trauma for child witnesses.
All persons are competent to testify unless they are found incapable of understanding the questions, or giving answers rationally. Foreboding court rooms, people in black and white, presence of the offender may bring the traumatic event back to life for a child and reduce them to terrified silence. This is where a Judge needs to intervene to provide a safe space for the child to testify. Guidelines outlining the methodology for dealing with child witnesses are laid out in precedent.
To mitigate a child’s encounter with the justice system, the Ministry of Women and Child Development issued Model Guidelines under Section 39 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). Chapter 3 of these guidelines outlines how a child must be interviewed. Providing assistance at the pre-trail and trial stage, as per the principles mentioned in the guidelines, means ensuring the ‘best interests of the child’ and that their ‘right to be protected from hardship during the justice process’ is not violated. Special Courts established by POCSO are empowered to ease this process for the child.
The Delhi High Court has also issued ‘Guidelines for recording of evidence of vulnerable witnesses in criminal matters’. Amongst other benefits, it mandates that the questions put to a child to assess competency shall be appropriate to his / her age and developmental level, a pre-trial court visit shall be allowed and a separate waiting area will be provided.
In September 2009, the Delhi High Court provided further guidelines on how to examine a child witness / victim of an offence in Virender Vs. The State of NCT of Delhi. The judgment observed that trial courts have unrestricted powers to put "any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant" in order to discover relevant facts, which neither party can object to. This clarifies that the court’s active participation is necessary while taking a child’s testimony. Some examples of the guidelines are:
In State Vs. Sujeet Kumar, a case involving the brutal rape of a 3 year old girl in 2012, lawyers from iProbono’s network represented the victim in the appeal. The trial court in this case held that the child’s testimony was unreliable and acquitted the accused.
Overturning the Trial Court’s judgment, the Delhi High Court ruled that evidence of a child witness cannot be rejected per se. Recognizing that assessing the competency of a child witness is not easy, the Court passed detailed guidelines on how to question a child witness. It was held that after careful scrutiny the court should accept the evidence if it is convinced that the witness is reliable, does not seem tutored and there is “impress of truth” in the testimony. While acknowledging the specific needs of a child providing testimony and developing the guidelines for it, the Court also referred to the fact that this issue has been the focus of the United Nations and legislatures of other countries.
Ultimately, to ensure justice frontline workers and legal service providers must push for the stringent implementation of the guidelines which facilitate child testimony.
Section 118 of the Indian Evidence Act, 1872
Chapter 8 of POCSO
Section 165 of the Indian Evidence Act, 1872
The article was written by Iti Pandey, iProbono’s Program Officer.