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How The Law Helps Children Testify In Court

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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 courtrooms, people in black and white, and the 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-trial 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 their 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:

  1. The statement of the victim shall be recorded verbatim;
  2. The officer present shall not be in police uniform;
  3. The statement shall be recorded at a place where the child can speak freely;
  4. A person whom the child trusts shall remain present;
  5. At no point should the child come in contact with the accused;
  6. Questions put to the child in cross-examination should not be designed to embarrass or confuse them; and
  7. Courts must carefully translate gestures into written record.

iProbono’s Intervention

In State Vs. Sujeet Kumar, a case involving the brutal rape of a three-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.

In a country like India, understanding and accessing the legal and judicial systems is not always easy. Therefore, iProbono hopes to share regular content that raises awareness around legislation, case law and constitutional provisions available to Indian citizens in different situations. The current piece has been written by Iti Pandey, iProbono’s Program Officer.

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Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

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The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

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Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

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A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

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As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

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A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform, demanding that the Government of Assam install
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