Legal Framework for Child Witnesses in India: A Critical Analysis

ABSTRACT

Witnesses are generally considered to be the root of all evidence from the process of investigation, to a legal proceeding or trials. A child witness, on the other hand, is a person who is a witness at the time when he/she is below the majority age of 18 years. While in India, according to Section 118 of Indian Evidence Act, 1872 (i.e., §124 of Bharatiya Sakshya Adhiniyam, 2023), every person, without the limitation of age is a competent witness provided certain conditions are fulfilled, a child must also be considered a competent witness, satisfying the parameters of rationality and truth. However, the children must be competent enough to understand the questions put forth to them, must not be prone to vulnerability, or subject to any kind of influence. This Article brings out the importance of Child Witnesses under the Indian Legal Framework, highlighting the procedures involved and the factors that may psychologically affect the reliability of such witnesses. 

Keywords: Child Witnesses, Competency, Legal Proceedings, Vulnerability, Rationality and Truth

LEGAL APPROACH TO CHILD WITNESSES: AN INTRODUCTION

It is said by the famous English Philosopher Jermy Bentham that “witnesses are the eyes and ears of justice”. However, there are certain situations where the witness, at time where he is mandated to speak the truth, may not be able to speak for reasons including fear of life, or any other corrupt collusion. When coming to the concept of child witnesses, they are often considered not to be competent witnesses due to the reason of not understanding the questions put forth to them in court of law or not analysing the circumstance or the suffering (in case of being a victim in addition to being a witness) regarding which they are answering or they have gone through. While, in the case of Rameshwar S/O Kalyan Singh v. State of Rajasthan (1951), it was stated that a child will be a competent witness under §118 of the IEA till he/she has the capacity to understand and answer the questions put forth, this was later evolved to cater to the changes in the society and the vulnerability of the children. 

Starting from an era before 1872, where child witnesses did not have the right to act as witnesses even though they were competent enough to testify against an accused to convict him/her, the IEA has given the right to children to be admissible as evidences in the court of law, the CrPC has enacted laws on protection of child witnesses who are below 18 years of age from testifying in front of the accused, the POCSO act ensures protection of child victims as well as witnesses who went through the suffering of sexual abuse and the JJ (Care and Protection) Act that provides for protecting the interests and privacy of the child witnesses. The Indian laws have evolved from time to time, and is still evolving in the arena of child witnesses. It has provided a platform for voices of children by giving them the right to put forward their witness.

TESTIMONY OF CHILD WITNESSES: ADMISSIBILITY AND PROCEDURES 

A child witness, as mentioned previously, can be identified as someone who acts as an evidence and is identified as a child i.e., below the age of 18 years as mentioned in the United Nations Convention on Rights of the Child (UNCRC), an International Legal Convention accepted and ratified by India. As seen earlier, according to §118 of the IEA 1872 and §124 of BSA, 2023, any person can be a competent witness unless they don’t understand the questions that are put forth to them or are not able to give rational answers to the questions due to their tender age, unsound mind or any other reason for that cause. 

For instance, taking this provision into consideration, the Supreme Court in the landmark case of Ratansinh Dalsukhbhai Nayak v. State of Gujarat (2003), held that “a child of tender age is considered eligible to testify so long as he/she could exercise the power of its rationality to respond to the questions posed at her”. Also, in the case of Suresh v. State of Uttar Pradesh (1981), the testimony given by a 5 year old child was admitted as she was proved to be a competent witness in the court of law. However, there are no requirements of a minimum age for acting in the capacity of a witness under the act. 

But, it is pertinent to note that, under §4(1)(c) of the Oaths Act, 1969, that children who are under 12 years of age are not required to administer oath in the court of law. Under the provision, such children who are a competent witness but does not understand the nature of oath, their testimony cannot be rejected or rendered inadmissible on the basis of not affirming or taking an oath. This is also evident from the case of Emperor v. Kusha Yamaji Sutar (1908), where the Privy Council had held that “the ignorance of a child on such a matter as the nature of a solemn affirmation is not necessarily equivalent to an inability to understand ordinary questions and give rational answers”. 

Competency of a child is of utmost concerns when looking at child witnesses. To be admissible in the court of law, it is of primary significance that those children are competent enough to give a testimony in the court by understanding the logical coherence of the questions put forth to them. One of the tests that help in determining the competency of children is the ‘Voir Dire Test’, that literally translates to ‘speak the truth’. The Voir Dire Test simply tests the understanding and maturity of a child by essentially putting forth a set of simple questions that do not pertain to the ongoing case for which they are to testify for or against the accused. 

While, as given under §114 of the Indian Evidence Act (§119 of BSA, 2023), usually there is a need of corroborative evidence in all cases, the same is also required to support the child witness statement in order to convict or acquit an accused. However, in certain circumstances where the child is himself/herself a victim of rape or other sexual offences, the provision cannot be adhered to. Hence, it can be said that the rule is not hard and fast. For instance, in the case of State of Madhya Pradesh v. Ramesh (2011), it was held that, deposition of a child witness may require a supporting evidence, but where the deposition is such that it gains confidence of the court and there is no confusion or embellishment in the responses, the court may rely upon his/her testimony to decide. 

Looking at the perspective of child witnesses who are also victims in cases of molestation and sexual abuse, it is a question as to whether they can testify as witnesses in their own case where they stand as victims. For the same, the POCSO Act, that came into effect on 14th of November, 2012, was implemented to ensure welfare and best interests of such children. The POCSO Act also provides instructions as to the examination of child witnesses, wherein, it places its major focus on the victims of sexual abuse. According to the rules laid down in the provisions, it is mandatory that the interrogation process takes place in a child-friendly environment that makes children comfortable to respond to the questions. 

Also, in the Statutory law of Code of Criminal Procedure, 1973, under §273 (§308 of Bharatiya Nyaya Suraksha Sanhita, 2023), evidence is needed to be taken in the presence of the accused in the course of trial. However, the insertion of the proviso clause in 2013, has paved a way for the protection of ‘girl children/women’ since an woman below the age of 18 years who has been subjected to any of the sexual offences is allowed not to face the accused, however ensuring that the accused is also placed in such a way that cross-examination is possible. Even under §21, in the legislation of the Juvenile Justice (Care and Protection of Children) Act, 2000, the act expressly prohibits the publication of the name of a child who is need of care and protection or the juvenile in any media and provides the punishment for people who contradict the same. 

FACTORS AFFECTING RELIABILITY OF CHILD WITNESSES 

Child witnesses, being less than 18 years of age, may be prone to different factors that can change their statement or pressurize them to testify before the court of law. They are often tutored on changing their statement/testimony by coercion or any other influences. The Indian legal system where questions are poured into the witnesses during trials, is often intimidating and make the atmosphere very uncomfortable to answer even for adult witnesses. Furthermore, children, being more easily influenced by leading questions, may get mentally and emotionally terrified, affecting the reliability of their testimony. 

For instance, in the very popular 2008 Double Murder Case that took place in Noida, a friend of the deceased Aarushi Talwar, named Anmol who was of the age of 14 years, was continuously questioned during the initial investigation processes, for about 8 hours, without allowing him to use his cell phone. Further, the police had interrogated him without even informing his parents about where he was being held. Such interrogation processes where children are taken into enquiry without even informing about the whereabouts of him/her to their parents, and continuously questioning them, can put the child into the place of a pressurized atmosphere, where children may not be able to answer properly. 

Henceforth, in order to curtail issues that affect the reliability of the child witnesses, it is necessary to make a psychological evaluation to assess their statement’s credibility. It is pertinent to observe that children usually face a lot of psychological impact when testifying in a court of law, especially when they make allegations against their own parents or relatives. In addition, when children are subject to sexual abuse and rape, the perpetrators who are involved in such crimes threaten children with harm to not reveal the same to any other person. Such non-disclosure and lack of knowledge about the abuse cause more mental agony to children.

Such problems must be curtailed and for the same, measures to protect child witnesses must be sought by legal institutions. For the same, legislations, as seen earlier, were formulated and passed, wherein children, either as victims or only witnesses are sought to be protected. Besides this, various judicial pronouncements have been made that have helped evolve the protection mechanisms for child witnesses. 

One such case is ‘Virender v. State of NCT Delhi (2009)’ where, a set of guidelines were formulated so as to protect the children from any mental pressure. It was held that, firstly, the children who are part of the trial process and were victims, should not come in direct contact with the accused so as to be intimated by the person. Secondly, in the course of recording statements from the child, utmost care must be taken. Thirdly, the child must not be separated from his/her parents and in the process, the examining authority must not be in uniform. Fourthly, a child-friendly environment must be created and no offensive language must be used while examining. In addition to this, measures such as recording of testimony in camera, child-friendly procedures for examination of child witnesses, frequent breaks during interrogation, assistance of translator are also provided to child witnesses.  

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WRITTEN BY: THANUJA ANTHIYUR ARAVINDAN 

REFERENCES

1. Ministry of Home Affairs, Witness Protection Scheme, 2018, <https://www.mha.gov.in/sites/default/files/2022-08/Documents_PolNGuide_finalWPS_08072019%5B1%5D.pdf>. 
2. Rameshwar S/O Kalyan Singh v. State of Rajasthan 1952 AIR 54. 
3. United Nations Convention on Rights of the Child, Nov. 20 1989, General assembly resolution 44/25.
4. Ratansinh Dalsukhbhai Nayak v. State of Gujarat (2004) 1 SCC 64.
5. The Oaths Act, No. 44 of 1969, INDIA CODE (1969).
6. Emperor v. Kusha Yamaji Sutar 15 Bom L.R. 551.
7. State of Madhya Pradesh v. Ramesh & Anr. (2011) 4 SCC 786. 
8. The Juvenile Justice (Care and Protection of Children) Act, No. 2 of 2016, INDIA CODE (2015).
9. The Indian Evidence Act, No. 1 of 1872, INDIA CODE (1872).
10. Dr. Rajesh Talwar And Another v. Central Bureau of Investigation 2013 (82) ACC 303.
11. Tanima Biswas, He was the friend Aarushi spoke to most, NDTV, Nov. 25, 2013.
12. The Code of Criminal Procedure, No. 7 of 1974, INDIA CODE (1973).
13. Virender v. State of NCT of Delhi Crl.A.No. 121/2008. 
14. Bharatiya Sakshya Adhiniyam,  No. 47 of 2023, INDIA CODE (2024).
15. Bharatiya Nyaya Suraksha Sanhita, No. 46 of 2023, INDIA CODE (2024).