In the case of In Re Children in Street Situations, the Supreme Court on 01.02.2022 prioritized the importance of ensuring the safety of child witnesses during the COVID-19 pandemic and issued directions to ensure that criminal trials of child-trafficking/child exploitation are conducted in camera wherever possible.
A public interest litigation (“PIL”) was filed pertaining to the safety of trafficked children who were forced to travel long distances in the COVID -19 pandemic and the issue a mandamus was sought to record the evidence of the child victims/witnesses by video-conferencing from government facilities within the local jurisdiction of their places of residence. Considering the gravity of the matter, the petition was accepted and an advocate was appointed as an Amicus Curiae.
The Amicus Curiae suggested a ‘Pilot Project’ where four cases of child exploitation were selected, and directions were issued to examine the evidence via video-conferencing. The rescued children in these particular cases were sent back to their hometowns and certain instructions were issued-
- An assessment of the available infrastructure within the area where the trial was supposed to take place (“Court Point”) and the court complex/District Legal Services Authority office located near the residence of the victims or witnesses (“Remote Point”). At this stage, the availability and feasibility of the video-conference feature was to be assessed.
- The Judge at the Court Point was supposed to fix a date of hearing and issue summons to the victims/witnesses who would be briefed about the address and location of the Remote Point, and they would be required to carry some identity proof along with them.
- It would be ensured that the examination of child witnesses is conducted in-camera without any influence.
Once the Amicus Curiae was satisfied with a trial run of the examination of child witnesses at the Remote Points, he submitted a draft Standard Operating Procedure (“SOP”) which was served on all the High Courts, State governments and Union Territories for their comments on the order of the Court. The SOP was modified as per the suggestions of the High Courts and contained important guidelines.
Standard Operating Procedure
The modified SOP reads as follows:
- Testimony of children be recorded through video conferencing either at the video conferencing room of the court complex in the district or the office of DLSA where the child is residing.
- District Judges to ascertain the availability of video conferencing facility in the district/Taluk court complex or DLSA office and communicate the same to the jurisdictional High Court. The High Courts were asked to place the said information on its website on or before 30-04-2022 and ensure availability of video-conferencing infrastructure in every district, especially where the incidence of child trafficking cases is high.
- DLSA to be the Remote Point Coordinator (RPC) for recording of the testimony of child witnesses or appoint a Retired judicial Officer as a RPC, information of which, i.e., the names and contact details of the RPC of each district on the website.
- In cases of inter-state/inter-district child trafficking the Trial Court should ordinarily give preference to examination of the child witness through video conferencing.
- The authorized officer at the Court Point to get in touch with the RPC at the Remote Point and work out all modalities for recording of the child witness statement through video conferencing.
- The child witness be entitled to the presence of a support person under Protection of Children from Sexual Offences Rules, 2020, a diet money on the basis of the distance travelled to reach the remote point and any other best practice required by the law.
- Copy of documents required to be marked or shown to the witness may be transmitted by the Court electronically to the RPC.
- Questions posed by the Public Prosecutor/Defence Counsel may be put to the Trial Judge, who in turn will put them to the witness and the Trial Court would record the testimony of the witness.
- On completion of recording of evidence, the deposition will be sent by the Trial Court on email to the RPC who shall read the same out to the witness. After ascertaining the deposition is correct and verified as under law including the affixation of the child’s thumb impression/signature, the RPC may certify the same and send the deposition back, in a secure manner, to the Trial Court by Speed Post and by electronic means as permitted by law. An original may also be kept by RPC in case the Speed Post is misplaced for some reason.
- Whenever a Trial Court proposes to record the testimony of a child witness, who is residing in another State, an intimation of the same should also be given to the Registrar of the High Court of the Court point, who shall intimate the High Court of the Remote Point with a request to render all assistance possible for recording of the testimony of the child.
- The SOP is only a broad guideline. The method and manner of recording of testimony be dependent upon the video conferencing rules framed by the respective High Courts and the recording of the testimony should be done expeditiously.
Observations of the Court– The Court appreciated the willingness of the National Legal Services Authority (‘NALSA”) to cooperate with the above-mentioned instructions and directed all courts to follow the SOP for the examination of child witnesses in criminal trials not residing near Court Points instead of physically examining such witnesses and to ensure child-friendly practices during such examination.
The Court finally ordered for in-camera recording of evidence at the Remote Point wherever required and to follow all guidelines to ensure that the same is possible.
– Vaishali Jain, Advocate & Associate – POSH at Work & Rhea Bazaz, Final Year Student, Symbiosis Law School, Pune