“Child witnesses & India’s legal system”

In the Bidar school sedition case, the spotlight has fallen on reports that police questioned children. 

The issue:

• The Karnataka State Commission for Protection of Child Rights has pulled up the district police for violations, including repeated questioning of the children.
• Additionally, a public interest petition has been filed in the Karnataka High Court seeking a departmental inquiry against the policemen who allegedly questioned the children of Shaheen School, aged between 9 and 12, without the consent of their parents or guardians, and also video-recorded them without consent.
• The PIL referred to a statement by the Shaheen Alumni Association to say that the children were questioned by policemen carrying guns, which created an “intimidating and fearful environment”.
• The PIL has asked for guidelines to be issued to police regarding the interrogation of minors in criminal proceedings in accordance with the Juvenile Justice Act and United Nations resolutions. 

Does Indian Law recognize Child Witnesses?

• Indian jurisprudence has accepted child witnesses as a part of the legal system.
• The interpretation of Section 118 of the Evidence Act allows for a child to be a witness. 
• The Supreme Court has, on occasion affirmed that the test of competency, if satisfied by a child even as young as 5 years old, would allow him to be a witness.
• The view of the Supreme Court has been to discard age as a deciding factor in terms of disqualification.
• A child witness must understand the onus of truth and the magnitude of responsibility that is associated with the act of testifying.
• The responsibility to ensure the satisfaction of that onus rests with the Judge.

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.
• Children as young as three years old have deposed before trial courts in cases of sexual abuse.
• Usually during a trial, the court, before recording the testimony of a child witness, determines his or her competence on the basis of their ability to give rational answers.
  • Type of cases:
• 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.
• A child is usually asked questions like their name, the school they study in, and the names of their parents to determine their competency. 

International conventions on children:

• Convention on the Rights of the Child: 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 shall be a primary consideration.
  • India has been a signatory to the Convention on the Rights of the Child since 1992, which was adopted by the General Assembly of the United Nations in 1989. 
• 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.