- Recently, in a case related to a school, the Karnataka State Commission for Protection of Child Rights criticised the district police for violations, including repeated questioning of the children.
- A PIL was also in the Karnataka High Court seeking a departmental inquiry against the policemen, for questioning children without the consent of their parents or guardians, and also video-recording them without consent.
- The PIL has asked for guidelines to be issued to police regarding interrogation of minors in criminal proceedings in accordance with the Juvenile Justice Act and United Nations resolutions.
- This provides the context to understand the procedure while dealing with child witnesses.
International conventions on child witnesses
- The Convention on the Rights of the Child, was adopted by the General Assembly of the United Nations in 1989. India became a signatory to the Convention in 1992.
- As per the Convention, in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child should be a primary consideration.
United Nations: Justice in Matters involving Child Victims and Witnesses in Crime: Model Law
- In 2009, the ‘United Nations: Justice in Matters involving Child Victims and Witnesses in Crime: Model Law’ provided a more specific set of guidelines in the context of child witnesses.
- These guidelines recommend that authorities treat children in a caring and sensitive manner, with interview techniques that “minimise distress or trauma to children”.
- They recommend specifically that an investigator specially trained in dealing with children be appointed to guide the interview of the child, using a child-sensitive approach.
- As much as possible, the investigator should avoid repetition of the interview during the justice process in order to prevent secondary victimisation of the child.
- Secondary victimisation is defined as victimisation that occurs not as a direct result of a criminal act, but through the response of institutions and individuals to the victim.
- According to child rights activists, children repeatedly questioned by authorities while in police uniform, without the presence of their parents, can lead to such trauma.
Norms for dealing with child witnesses in India
- Under Section 118 of the Indian Evidence Act, 1872, there is no minimum age for a witness. Children as young as three years old have been presented before trial courts in cases of sexual abuse.
- In 2016, the Delhi High Court said that while children can be pliable, their testimony can be considered after careful scrutiny.
- Trials involving children as witnesses have primarily been in cases of child sexual abuse. Other criminal cases where children are examined as witnesses have included those where a parent is the victim of violence at home, in the sole presence of the child.
- Usually during a trial, the court, before recording the testimony of a child witness, determines his or her competency on the basis of their ability to give rational answers.
- A child is usually asked questions like their name, the school they study in, and the names of their parents to determine their competency.
- If the child is very young and does not understand the significance of taking an oath to speak the truth, the judge or the staff explain to the child that he or she should speak the truth, thinking of whichever God they believe in.
Delhi High Court guidelines for child witnesses
- The Delhi High Court has come up with guidelines for recording of evidence of vulnerable witnesses in criminal matters. A vulnerable witness is defined as anyone who has not completed 18 years of age.
- The guidelines underline the importance of the criminal justice system to respond proactively, sensitively, and in an age-appropriate manner when dealing with children.
- As per the guidelines, the lengthy process of navigating the formal criminal justice system can affect the vulnerable witnesses’ psychological development.
- The guidelines also allow for a facilitator, for a vulnerable witness to be appointed by a court for effective communication between various stakeholders including the police.
Laws related to the questioning of children in India
Juvenile Justice Act:
- The primary legislation in the country pertaining to children is The Juvenile Justice (Care and Protection of Children) Act, 2015. The Act does not provide guidelines specifically relating to questioning or interviewing of children as witnesses.
- The Act’s preamble, however, says that a child-friendly approach in the adjudication and disposal of matters in the best interest of children must be followed. This means following the general guidelines related to the juvenile justice system — for instance, the police should not be in their uniform while dealing with children.
- It also requires that interviews of children be done by specialised units of police who are trained to sensitively deal with them.
- The Act prescribes that a Special Juvenile Police Unit should be constituted by the state government in each district and city, headed by a police officer not below the rank of Deputy Superintendent of Police.
- The unit should also include two social workers, at least one of whom must be a woman, and both of whom should be experienced in the field of child welfare. Their work includes coordinating with the police towards sensitive treatment of children.
- The Act also provides for a Child Welfare Committee in every district to keep track of any violations by the authorities in their handling of children.
- Apart from the Juvenile Justice Act, The Protection of Children from Sexual Offences (POCSO) Act, 2012 has specific guidelines regarding interviewing children as witnesses.
- Although, the guidelines are related to child sexual abuse victims, child rights activists say the guidelines are a framework for all children who are being interviewed by the police as witnesses.
- The Act states that interviews should be conducted in a safe, neutral, child-friendly environment, including allowing for them to be done at homes. It further says that a child should not be made to recount the incident in question multiple times.
- The Act also allows for a support person, who could be trained in counselling, to be present with the child to reduce stress and trauma.
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