Children go through great trauma when they have to appear in court. Ketan Tanna on what happens when a young rape victim is asked to explain her ordeal in front of others or a little boy has to give evidence against a parent
Last year, a 16-year-old girl was raped by her teacher in Mumbai. She managed to contact a psychiatrist who took her to the police station in a western suburb of Mumbai. A policeman asked her to describe in graphic detail, in front of her rapist, what he did to her. The psychiatrist was livid, but could do little. â€œThe police arranged for a settlement. The parents of the girl did not want to pursue the case and the rapist was punished by the police who gave him a few punches and made him promise he would never do that â€˜ganda kaamâ€™ again,â€ the psychiatrist recounts. The matter ended there. If the case had been pursued, the girl might have got justice but she would have undergone what another 14-year-old girl had to about four years ago.
That girl had stood in the middle of a juvenile courtroom in Mumbai. Surrounded by about 20 people, mostly strangers, she was shivering. She had been raped by two boys in her neighbourhood. She was asked in front of the two boys â€” â€œWhat did these two boys do to you behind the bushes?â€ She could not answer and the two boys stood there with smirks on their faces. It was only much later, when the victim was called to the magistrate, that she managed to give the details. The two boys were eventually punished.
Less fortunate was a 10-year-old girl who was gangraped. According to a person who was present during the proceedings, â€œShe had to undergo humiliating questions for three days. The defence lawyers tried every nasty trick in the book to prove that their clients were innocent. She was questioned on the minor differences on the points she made in the witness box. And her three rapists were there all the time. Sometimes, out of sheer embarrassment, she would giggle at the risquÃ© questions of the lawyers. That was used by lawyers who reasoned that she might have enjoyed what had happened to her. Nothing came out of the case.â€
A child witness in India is anyone below the age of 18 who is called to give evidence in court. According to Section 118 of the Indian Evidence Act of 1872, a child is competent to testify if he or she can understand the questions and can give rational answers. A child under the age of 12 need not give evidence under oath as it is presumed that the child may not understand the nature of an oath or the consequences of falsehood.
Asha Bajpai, a professor at The Tata Institute of Social Sciences and author of Child Rights in India: Law, Policy, and Practice, says that juvenile victims suffer another form of abuse at the doorsteps of the justice system. â€œThe language of the child is not understood by the legal system. Trained personnel are not there to interview them.â€ She feels that judges, police and lawyers have to be suitably trained to deal with children. Also, though many child depositions are recorded on camera in India, the system has not been able to do anything about the fact that defendants bring a battery of lawyers to badger minors.
While India has largely neglected the plight of children who suffer the torment of the courtroom, many countries have established highly sensitive norms. The use of closed-circuit television for child testimonies is common in the US and the UK. The children are thus spared face-to-face confrontation with the accused. In New Zealand, considerable research has been done on techniques that can help children. As a result, props and drawings are used during interviews. In some countries, child witnesses are shown the design of the courtroom as part of their preparation before the deposition, says Bajpai.
There has been some attempt in India to make the ordeal lighter for children. It is common in family courts for the magistrate to call children to his chamber â€” a minor consolation for children who have become the bone of contention in bitter custody battles.
Children, who are forced to appear in family courts and make statements that may not favour one of the parents, suffer severe trauma. During one such hearing, a five-year-old girl, in the middle of the interrogation, went to her father and whispered something in his ear and then she went to her mother and did the same. â€œIt was obvious that she was trying to please both her parents and was confused,â€ says a counsellor at the family court in Mumbai.
There have been cases where magistrates have tactfully chatted with the children, inquired them about their friends and asked them to draw things or even talk about what they liked before extracting relevant information from them. Children are extremely complex and it usually takes an experienced hand to get into their minds. For example, there was a case of a boy who told his mother that he would not testify in her favour until she got him an iPod and an Xbox. The truth came out when a psychiatrist was roped in.
In the Sakshi vs Union of India case of 2004, the Supreme Court ruled that a sexual abuse victim has to be protected by a screen or a similar arrangement. Also, the cross-examination by the defendantâ€™s lawyers can be given in writing to the presiding officer of the court, who may change the language of the questions. Also, the child, while giving testimony in court, should be allowed sufficient breaks.
According to Bajpai, the Supreme Court in the Gurmeet Singh vs Union of India case of 1996 directed that when the defence counsel adopts the strategy of persistent questioning of the victim or the witness about the details of the crime, the courts must not remain silent. The tough stand taken by the highest court in the country is slowly percolating down to lower courts. TNN