Who is a witness?
A witness is someone who voluntarily undertakes the task of giving a complete account(as far as her knowledge is concerned) of the crime and everything she knows about it. Witnesses play a crucial role in giving the trial a proper direction and in the rendering of justice.
Who is eligible to be a witness?
Sec 118 of the Indian Evidence Act talks about the “competency” of individuals to testify and states that anybody can testify unless the courts find them incapable of understanding and answering questions posed at them, owing to the factors of age, disease, or physical/ intellectual infirmity. In both, Ratansinh Dalsukhbhai Nayak vs State of Gujarat and State of Karnataka vs Shantappa Madivallapa, a child of tender age was considered eligible to testify so long as she could exercise the power of its rationality well to respond to the questions posed at her. In short, age is considered no bar under the law for becoming a witness. In Suresh v. the State of UP, the court even agreed to admit the testimony of a 5-year-old child, as long as the child was able to answer satisfactorily the questions asked to her.
What is the Voir dire test?
The competency of an individual is of utmost concern to establish if she is truly fit(or not) to be involved in the proceedings as a witness. The Voir dire test is essentially a set of simple questions(not relating to the ongoing case) to evaluate the maturity of an individual(in this case, a child). The questions might be about the child’s name, her parent’s name, the school she goes to, the class she studies in, etc. As maturity is subjective, so is the discretion of the judges to announce if a person qualifies as a witness or not.
Caveats associated with having child witnesses
Children are often prone to tutoring and changing their existing stance under coercion and overwhelming pressure. A child may become regularly uncomfortable in being questioned by the authorities, especially in a system like ours, which is often filled with inconsiderate, and intimidating lawyers, judges, and officials.
Although not inside court premises, a few incidents in the past have exhibited an apparent lack of empathy on part of the Police in examining children. In the infamous 2008 Noida double murder case, a 14-year-old Anmol(a good friend of the deceased, Aarushi Talwar) was questioned for 8 hours straight, without the presence of either of his parents with him. During this time, not only was he not allowed to receive phone calls, his parents too, were not informed anything about his whereabouts. In a much recent Bidar school incident, little children were questioned for hours by the police and guardians and counsellors were not allowed to meet them throughout this span. Such incidents, whether perpetrated by the judiciary or any other arm of the government, must not be overlooked or condoned by anyone.
International perspective on protection of rights of children
Convention on the rights of the child(1989): This convention talks about the definition of a child(anybody who is less than 18 years of age) and how every child must be guarded against violence, discrimination, apathy, and abuse. It focuses on elements like nurturing, education, safety, and fundamental rights every child is entitled to, and how governments of all the ratifying states(like India) must do everything they can to secure legal protection for both children as well as their families. 4 core principles of CRC are-
- Right to life, survival, and development
- Best interests of the child
- Respect for the child’s views
Child victims and witnesses of crime are enshrined with the following ten rights:
- The right to be treated with dignity and compassion
- The right to be protected from discrimination
- The right to be informed
- The right to express opinions and concerns and to be heard
- The right to effective assistance
- The right to privacy
- The right to be protected from any harm that may be caused by the justice process
- The right to safety
- The right to reparation
- The right to special preventive measures
Child witnesses are to be treated with utmost care and sensitivity, with the interviewing techniques being as considerate as possible and the investigator being specially trained in dealing with children. All this is done to avoid inflicting double victimization on the already battered child.
International Case laws
- State v Allen: The Court ruled that the burden of proving the witness’s incompetence is on the party alleging it. Moreover, the judgment specified certain essential conditions for satisfying the competency threshold- That the witness acknowledges the need to speak the truth, has proper mental faculty at the time of the commission of the event, and sufficient memory to recall it at present, and possesses the essential ability to convey it in language.
- Ohio v Clark: In this case, the Court allowed the teachers of a toddler with whom he shared his story of abuse, to give testimony on his behalf.
- R v Norbury: A child may not understand the meaning of her oath, but this alone cannot be justification for the non-admissibility of her testimony. If she is able to understand the nature/meaning of the questions asked to her and can answer them satisfactorily, her testimony is fit to be accepted.
National perspective and the law in place
- Juvenile Justice Act 2015: The Juvenile Justice Act suggests the state government set up a ‘Special Juvenile Police Unit’ in each district, with two social workers in it(one of whom must be a woman), and both of whom must have experience in the field of juvenile caregiving. The Act also establishes a ‘Child Welfare Committee’ in each district to investigate any transgressions by authorities in the protection of children. In general, the act seeks to develop a child-friendly mode of operation for juvenile offenders and resource-deprived children.
- Protection of Children from Sexual Offences(herein POCSO) Act 2019: The POCSO Act of 2012 includes specific instructions for examining children as witnesses. While it majorly concerns child sexual abuse victims, some say the rules serve as a template for how child witnesses should be questioned by the police, in general, and at all times. The Act says that interviews should take place in a comfortable child-friendly environment, even at the child’s home if she raises a request for it. The child should not be unnecessarily reminded of the incident over and over, as this might serve as a negative trigger for her. The Act also allows for the engagement of a support worker, who may arm the child with professional tools to handle her trauma better.
- State of Madhya Pradesh v Ramesh & Anr: It’s crucial that the child understands the significance of speaking the truth, otherwise her testimony shall be partly or completely rejected. Wherever child witnesses are involved, there’s always a looming possibility of tutoring taking place but this cannot be the sole reason to conclude that tutoring has been done. Then law does not say that evidence should be rejected just cause it’s given by a child, but it must still be subjected to a heightened degree of scrutiny.
- State v Yenkappa: The testimony should not be rejected simply on the basis that it has been provided by a child. But the Courts must be wary of the potentiality of the child being tutored.
- Nivrutti Pandurang Kokata & Ors. v. State of Maharashtra: Child’s testimony must corroborate with other pieces of evidence and it should be checked whether it was given under some kind of coercion or not. The demeanour of the child should be normal and there should be no aspect of tutoring involved.
In the case of Virender vs State of NCT Delhi, a set of guidelines was formulated:
- The child should not come under contact with the accused, otherwise, she may feel intimidated and her statement may ultimately get impacted or changed.
- The utmost care and sensitivity should be shown throughout the course of recording the testimony.
- The examining authority should not be in uniform.
- The child must not be separated from her parents/guardians unless the parents are apprised of being abusive or violent towards the child.
- The courtroom premises might prove to be a daunting place for the child, so a child-friendly environment should be established for the purpose of examination.
- Sarcastic, hurtful, or offensive language should not be employed in use.
- The language used for interaction with the child should be the one in which she is most comfortable speaking.
- Sufficient breaks should be given to child witnesses in between.
- Cases involving child witnesses should be given precedence over other cases so the duration for which the child has to endure the pressure of being part of court proceedings can be reduced.
- The statement should be recorded verbatim.
The Indian Evidence Act, Section 114, requires a certain degree of corroboration of witness accounts. Given the challenges and concerns so typically aligned with child testimonies, the standard for corroboration is marginally higher in this situation. If the child can recall and explain the details of an occurrence perfectly alright, the threshold for validating the evidence is lower but is still subject to the standards of rational scrutiny. It is suggested that trained counsellors and child experts work with the court, so as to deal with children in a sensitive manner. Although judges might not be specifically trained in dealing with children, they should still be sensitized and made aware of the basics of child behaviour and psychology. They should be properly trained to oversee the trials, so lawyers do not end up harassing the child witnesses under the pretext of questioning them. In case a third person is speaking on the child’s behalf, courts should be vigilant in determining to which extent testimony of a person other than the child can be admitted; if at all it can be admitted.
Author(s) Name: Anshika Singh (Nirma University, Ahmedabad)