Ways to Treat a Child Witness

What is the issue?

The police have been allegedly violated the rules while questioning the school children in Bidar (Karnataka) for a case.
After this, much of the spotlight has been on reports of how the police treated the children.

What are the international conventions?

Since 1992, India has been a signatory to the United Nations (UN) Convention on the Rights of the Child of 1989.
The Convention states that in all actions concerning children, whether undertaken by public or private social welfare institutions, law courts, etc, the best interests of the child shall be a primary consideration.

What are the international guidelines?

‘UN: Justice in Matters involving Child Victims and Witnesses in Crime: Model Law of 2009’ provided a more specific set of guidelines in the context of child witnesses.
It recommends that authorities treat children in a caring and sensitive manner, with interview techniques that minimise trauma to children.
They recommend specifically that an investigator specially trained in dealing with children be appointed to guide the interview of the child.
The investigator shall, to the extent possible, avoid repetition of the interview during the justice process in order to prevent secondary victimisation of the child.
[Secondary victimisation - Occurs not as a direct result of a criminal act, but through the response of institutions and individuals to the victim.]

How do Indian laws address the issue of child witnesses?

Under Section 118 of the Indian Evidence Act, 1872, there is no minimum age for a witness.
Usually during a trial, the court, before recording the testimony of a child witness, determines their competency on the basis of their ability to give rational answers.
When a child doesn’t understand the significance of taking an oath to speak the truth, the judge or the staff should explain to the child that s/he should speak the truth.

Have courts dealt with how child witnesses are to be treated?

The Delhi High Court (HC) has come up with guidelines for recording of evidence of vulnerable witnesses in criminal matters.
[Vulnerable witness - Anyone who has not completed 18 years of age.]
These guidelines allow for a facilitator for such a witness to be appointed by a court for effective communication between various stakeholders.
In 2016, the Delhi HC said that while children can be pliable, their testimony can be considered after careful scrutiny.

What does the JJ Act say about questioning of children?

The Juvenile Justice (Care and Protection of Children) Act, 2015 is the primary legislation in the country pertaining to children.
It says that a child-friendly approach in the adjudication and disposal of matters in the best interest of children must be adhered to.
It also requires that interviews of children be done by specialised units of police who are trained to sensitively deal with them.
It prescribes that a Special Juvenile Police Unit is to be constituted by the state government in each district and city.
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 take cognisance of any violations by the authorities in their handling of children.

What does the POCSO Act say about questioning of children?

The Protection of Children from Sexual Offences (POCSO) Act, 2012 has specific guidelines regarding interviewing children as witnesses.
While it pertains to child sexual abuse victims, child rights activists say the guidelines are a framework for all children witnesses who are being interviewed by the police.
The Act states that interviews should be conducted in a safe, neutral, child-friendly environment.
It also says a child should not be made to recount the incident in question multiple times.
The Act allows for a support person, who could be trained in counselling, to be present with the child to reduce stress and trauma.

Source: The Indian Express