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CHILD PARTICIPATION IN LEGAL PROCEEDINGS IN INDIA AND ROLE OF JUDICIARY
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CHILD PARTICIPATION IN LEGAL
PROCEEDINGS IN INDIA AND ROLE OF JUDICIARY
AUTHORED
BY - SHAILY AGRAWAL,
Unitedworld
School of Law, Karnavati University
The involvement of minors in legal proceedings
in India is a complicated and diverse matter
that necessitates a sophisticated comprehension of diverse legal frameworks, policies, and guidelines. The Indian legal
system has come a long way in valuing children's protection and well-being, acknowledging their rights, and encouraging their involvement in court proceedings.[1]
The Indian Constitution, which is the ultimate law of
the land, offers a solid framework
for the defence of children's rights and their involvement in the legal
system. The Constitution lays
out a number of principles and provisions that serve as the cornerstone for guaranteeing children's rights and welfare,
including their representation and involvement in legal proceedings, even though it does not specifically mention
children's participation in court proceedings.
1. Fundamental Rights
a)
Article 14 - Right
to Equality:
·
Providing
children with equal protection under the law without discrimination
o
fostering
equal opportunities and a culture free from discrimination in court
b)
Article 15(3) - Special Provisions for Children:
·
Giving
the State the authority to create special provisions for kids
·
Permitting
the creation of laws and regulations to safeguard kids' interests
c)
Article 21 -
Right to Life and Personal
Liberty:
·
Maintaining
children's development and well-being throughout the legal system
·
Interpreting
the right to life with dignity and protecting childhood;
d)
Article 21A -
Right to Education:
·
Ensuring
that children, including child witnesses and victims, have access to education
·
Fostering
knowledge and comprehension of legal rights and procedures
e)
Article 23 – Prohibition of Traffic in Human Beings
and Forced Labour:
·
Enabling
legal mechanisms to address cases of child labor and trafficking
·
safeguarding
children from exploitation and trafficking;
f)
Article
24 –
Prohibition of Employment of Children in Hazardous Occupations:
·
Preserving
the rights of children and avoiding their exploitation
·
Offering
legal redress for those who break laws against child labor
2. Directive Principles of State Policy
a)
Article 39(e) - Protection
of Childhood and Youth:
·
Directing
the State to safeguard children from maltreatment and guarantee their healthy growth
·
Endorsing
child welfare policies and initiatives as well as legal protections
b)
Article 39(f)
- Ensuring Opportunities and Facilities
for Children:
·
Making
facilities for kids' healthy development a priority
·
Making
legal aid, support services, and kid-friendly processes accessible;
c)
Article 45 - Provision
for Early Childhood Care and Education:
·
Educating
and caring for young children in order to support their holistic development
·
facilitating
knowledge and comprehension of legal rights and procedures
d)
Article 47 - Raising
the Level of Nutrition and
Standard of Living:
·
Improving
children's diet and quality of life
·
Creating
an environment that supports healthy growth and development in children
3. Fundamental Duties:
a)
Article 51A(k) - Duty to Renounce
Practices Derogatory to Women and Children:
·
Encouraging
children to be treated with respect and dignity
in society
·
creating
an atmosphere that makes it possible for children to participate in court proceedings;
4. Constitutional Safeguards and Provisions:
a)
Article 15(3)
- Enabling Positive Discrimination for Children:
·
Permitting
the State to establish unique plans for the development of children
·
Encouraging
child-friendly legal procedures and systems of assistance
b)
Article 39(f)
- Ensuring Children's Opportunities and Facilities:
·
Encouraging
the provision of facilities for kids' healthy development
·
Facilitating
access to support services, legal representation, and kid- friendly practices
c)
Entry 44 in the Concurrent List - Legal Proceedings:
·
Allowing
laws and policies to be enacted that promote children's involvement in legal proceedings
·
empowering
the Union and State Governments to enact laws pertaining to legal proceedings
5. Institutional Mechanisms and Initiatives:
a)
National Commission for Protection of Child Rights
(NCPCR):
·
Keeping
an eye on how laws and child rights are being applied
·
Supporting
awareness campaigns and legal procedures that are kid- friendly
b)
State Commissions for Protection of Child
Rights (SCPCRs):
·
Ensuring
state-level implementation of child rights
·
addressing
local issues and encouraging child involvement in legal proceedings
c)
Legal Services
Authorities (LSAs):
·
Offering
children free legal aid and representation
·
Organizing
child-friendly courtroom
procedures and support services
A number of domestic laws have
been passed by the Indian legal system to support and protect children's rights, including the ability to participate in court proceedings. With the help of these laws,
it will be possible to guarantee children's best interests and facilitate their effective involvement and representation in the legal system. This lengthy response
will examine the main domestic laws that are pertinent to children's
involvement in Indian court proceedings.[2]
6. Juvenile Justice
(Care and Protection of Children) Act, 2015:
·
Consolidating
and reforming India's juvenile justice system
·
Ensuring
that children receive the proper care, protection, and treatment
·
Advocating for restorative justice and rehabilitation
·
Forming Child Welfare Committees (CWCs)
·
Forming Juvenile Justice Boards (JJBs)
·
Ensuring that children have the right to be heard and to express opinions
·
Appointing legal aid counsel and support personnel for
children
·
Encouraging child- friendly procedures and environments
·
Stressing rehabilitation and reintegration of children
·
Offering counselling, education, and vocational training
·
Promoting a restorative justice approach.
7. Protection of Children from Sexual Offences
(POCSO) Act, 2012:
The Indian government enacted the
Protection of Children from Sexual Offences (POCSO) Act, 2012, which
established a legal framework to protect children from sexual assault, harassment,
and pornography, among other things, while also protecting their interests
throughout the legal system. This was achieved by incorporating child- friendly
mechanisms for reporting and recording evidence, investigating, and expeditiously
trying cases through designated Special Courts. The National Commission for
Protection of Child Rights (NCPCR) has been tasked with overseeing the POCSO Act,
2012's implementation.[3]
It
is the right of a child, regardless of age, gender, or maturity level,
to participate in proceedings before
the POCSO Special Courts. According to POCSO
Act, 2012, Section 32, the State must designate
a Special Public Prosecutor for each Act-mandated special court in order to handle
cases under the Act's provisions.
The POCSO recognizes the guardian or family of the child's right to retain legal counsel in Section 40. According to Section 40, the Legal Services
Authority is required to assign a
lawyer to the child's guardian or family if they are unable to pay for one. The designated legal representative will handle
all proceedings on behalf of the child and handle
any concerns pertaining to the child, such as matters of compensation and the child's particular needs. In addition to
the legal proceedings, he will be concerned with other legal rights
of the child, such as those pertaining to compensation and individual care plans.
8.
Indian Penal Code (IPC)
and Criminal Procedure Code (CrPC):
·
Provisions for the appointment of interpreters and special
educators for children
·
Age- appropriate communication and comprehension of legal proceedings
·
Provisions for recording statements and testimony of child
witnesses
·
Measures to ensure privacy, confidentiality, and protection
of child witnesses
·
Provisions for the recording of statements and testimony
of child witnesses
9.
Indian Evidence Act:
·
Child- friendly questioning and examination techniques
·
Provisions for support persons and trauma -minimization
measures
·
The competence of child witnesses to testify
·
The processes for recording and admissibility of child
testimony
·
The requirements for verification and evaluation of child
testimony
·
The promotion of children's effective participation in
legal proceedings
In court proceedings conducted in
camera under the POCSO Act, the child appears before the judge directly. In addition,
Section 40 of the POCSO Act guarantees a child's right to represent themselves
in court with the assistance of legal counsel, presumably to facilitate more
effective and efficient participation. According to Section 33(2), the child
may only be subjected to an examination-in-chief, cross-examination, or re- examination
by the Special Public Prosecutor or the accused's attorney through the Special Court,
which will pose the questions to the child. The child must thus testify in court,
but the court also has to make sure the child is not called in to testify more
than once. In accordance with Section 37, the Special Court must issue a
commission in accordance with Section 284 of the CrPC if it determines that the
child needs to be examined somewhere other than the court. In order to foster a
child-friendly environment during the examination process, the court should permit
a family member, guardian, friend, or relative who the child feels comfortable and
confident in to attend.[4] The child may testify via video link
rather than in person, and they are free to ask for help from an interpreter, special
educator, or other professional during their testimony.[5] The child is entitled to the services
of support personnel, in addition to the attorney and Special Public Prosecutor,
who are required to offer the child support and assistance during the pre-trial
and trial phases.
If the Court determines that further action is required, it may also
grant suo moto assistance in the form
of an interpreter, special educator, or psychological counsellor. As per Section 39 of the Guidelines, the
support person functions as a “guardian ad litem”[6]
for the child and can serve as a valuable mediator between the child and the authorities.
A support person may be designated by the Child Welfare Committee (CWC)[7] or
by the child and his or her family
members, according to Rule 4(8) of the Protection of Children from Sexual Offences Rules, 2020 (POCSO Rules). One or more professionals
working in the fields of child rights or child protection, officials in children's homes or shelters with custody
of the child, or staff members of the District
Child Protection Unit (DCPU) may be designated as such by the CWC. Notification of the
appointment and termination of support persons must be reported to the police
and the Special Court in accordance
with POCSO Rules, 2020, Rules 4(8) and (10).
This
suggests that the support person should be present each time the child
is required to attend court
proceedings and that they have a role to play before the Special Court. The support person has an obligation to
inform the child, their guardians, or anyone
else they feel comfortable and confident in about the case's
developments. The child also
communicates to the appropriate authorities through the Support Person their concerns regarding their safety and how
they would like to testify. The
Section 39 Guidelines stipulate that
“the support person may be called upon by the Special Court to ascertain information about the child,
such as whether the child is in a safe and protective
environment, preferences of the child in a given situation.”[8]
Rule 4 of the POCSO Rules outlines the responsibilities of the
support persons. There is always a risk
of traumatization or re-victimization because the child must testify before the Special
Court. For this reason, support
personnel need to be trained
in basic communication skills and assistance with children of various ages and
backgrounds in order to reduce
the possibility of secondary victimization. In accordance with Section 39 of the Guidelines, the support person
is also required to possess knowledge of the
legal and procedural aspects of handling
a case under the POCSO Act, 2012.
It is not necessary for the child to
physically appear in front of the judge in order to participate in proceedings, though, if he is not very compliant.
In accordance with POCSO Act Section 37, the Special
Court must issue a commission in accordance with Section
284 of the CrPC if it determines that the child needs to be examined somewhere
other than the court. According to Section 284, a commission may be
established in order to examine a
witness if it is essential for the pursuit of justice but the witness's presence cannot be secured.
In
Virender v. State of the NCT of Delhi[9],
the Delhi High Court released more detailed rules that special
courts should abide by to facilitate the child's participation in court proceedings.
One of these is the potential for a child's testimony to be captured via closed-circuit television or video
conferencing in order to reduce trauma. The trial judge may also allow a social worker or any other amiable, impartial,
or independent adult that the child
feels comfortable with to accompany the child witnessing. These individuals could be a professional who is
encouraging to the survivor child witness, someone
the witness can grow to trust, and who is allowed to be present and available to the child at all times
during his or her testimony.
But
caution should be exercised to ensure that this person doesn't sway the
child's testimony. Additionally, as
was previously mentioned, the child's support person can inform the court of the way the child wishes to testify. A child may also be "unable or unwilling to express a view or in any way guide representation" in accordance with the Guidelines' Section 39, or "a child is: i) by virtue of
his/her age, maturity, or disability, unable to express a view; or ii) able to express a view but
his/her age, maturity, or disability are such
that any view should be treated with caution."
In
these situations, the child's attorney
should follow these
guidelines when defending
the client: i) the older the child, the greater importance should be
placed on the advice of the child.
The more representation that is given to a child, the more it should be in their best interests
and welfare. ii) The attorney
has an obligation to ensure
that the court is presented with all relevant
information regarding the welfare and best interests
of the child. iii) The lawyer must consider the idea that decisions
affecting the child should be made and carried out in a timeframe that is appropriate to the child's
sense of time when evaluating what best serves the child's welfare
and best interests. iv) Unless there are special circumstances that
prohibit it, the attorney appointed to represent the child must meet with the child. The lawyer should decide on the
time and location of this meeting as
well as any future ones. To ensure that the child's opinions are current for the hearing
and can be considered by the court,
the lawyer must meet with the child
at a time that is convenient for them. v) Generally speaking, the
attorney will follow the child's
instructions, bringing them before the court through
direct testimony if at all possible, calling
witnesses as needed to carry them out, questioning and cross- examining them, and making submissions on
the child's behalf. vi) The Act stipulates that
the Special Court may grant the child compensation under Section 33(8). In accordance with Rule [9] (of the POCSO Rules),
the attorney must make sure the child
and his or her family are aware of this and submit the proper
applications for interim and final compensation.
The POCSO Act's Model Guidelines under Section
39, entitled "Guidelines for the Use of
Professionals and Experts under the POCSO Act, 2012" (Guidelines under
Section 39)[10], have been prepared
in this regard by the Ministry of Women and Child Development. As per the aforementioned
guidelines, the responsibilities of the Legal
Aid Services lawyer or the private attorneys
designated by the child and/or their
family encompass "defending
the child, assisting in determining the type and degree of maltreatment, pinpointing accountable individuals, and obtaining
compensation to ease the
victim's recovery."
The
guidelines also state that even though the attorney is obligated by the
court to represent the child's
interests, the attorney may not force the child to voice an opinion if that is not what the child wishes to
say. The attorney is not obliged to present to the Court any opinions that were communicated to him in confidence. The child must be
represented on their own behalf, particularly if the accused offenders are
their parents, relatives, or caretakers.
ROLE OF JUDICIARY
Arjun Kishanrao Maglev vs. State of Maharashtra[11]
The court stated that: “We are thus
of the clear opinion that the POCSO Act read with Rules 4(13) and 4(15) of the POCSO Rules recognizes a statutory
entitlement to the assistance of and
representation by legal counsel for the family or the guardian of the child and entitlement to be present
and to participate in proceedings in accordance with
the said provision. As a necessary corollary, there is also an entitlement of such persons
to be made aware of the filing of applications and the hearings
scheduled on such applications at the various stages of the proceedings.” This case concerns
the guidelines to ensure the effective participation of
the child witness and his or her family, parent, or guardian in all proceedings (including bail).
The child's participation is guided
by two fundamental rights: the right to information and the right to express opinions and concerns as well as to be
heard. These principles are
outlined in the guidelines as follows:
“The right to information: There are
two parts to the right to information for witnesses and child victims. The first, and more general, aspect involves educating child witnesses and victims about their rights to
support, the structure of the legal system, and their potential involvement in the proceedings, should they choose to
do so. The second aspect pertains to
specific details about the specific case that the child is involved in. This includes being informed about the
case's progress, the proceedings' schedule, the expectations placed on the child, the decisions made, the
offender's status, and other relevant information.
The right to voice opinions and
concerns and to be heard: Every child has the right to have their voices heard when it comes to issues that directly
affect them. A child has the right to participate in all aspects
of the process, including being informed,
expressing an opinion, having that
opinion taken into consideration, and making decisions
alone or in concert with others. When a child's
needs and expectations are not met for any legitimate reason, the child
must be given a child-friendly explanation of
the reasons behind decisions made, the inclusion or exclusion of
particular facts or elements from court
proceedings, and the disregard
for particular points of view.
Respect should be shown for details
that a child feels are significant to their story, even if they are not necessary
as proof.”
Rohit v. State Of U.P[12]
The
court handling this case explains
to the child's family or guardian the significance of keeping them informed and offering them legal
support when needed for all proceedings, including
the accused's bail requests. The court decided
that the complainant must be implicated, and if the
complainant is not the child's guardian or family member,
the child's guardian
or family member
must be included as an opposing party in the bail applications submitted to this court with the complainant. After reading the POCSO Act and Rules of 2020, one can
see that everyone connected to the case, even
the courts, has an obligation to create an environment and conditions that make the victim child and his family feel safe
and comfortable. Giving the victim child and
his family full access to the court proceedings and the chance to
participate in them would be a positive step toward helping
them feel safe and secure
and maintaining their
faith in the social justice system.
Nipun Saxena v Union of India[13]
In
this instance, the court addresses a child's right to file without
revealing their identity. In order to
prevent further humiliation for the victim of the crime, the court is required to refrain from revealing the prosecutrix's name in court orders and judgments. The victim's anonymity and other details, such as her place of residence, parents'
names, and her school, must be preserved.
And
according to the proviso of Section 372 of the CrPC, a child has the right
to file an appeal against a decision that clears
the offender, finds them guilty of a lesser crime,
or orders them to pay insufficient compensation. Additionally, the Delhi High has stipulated that the minor does not have to reveal their
identity in order to file an appeal.
[1] Kunal Ambasta, 'Constitutional Protection of Children's Rights in India'
(2020) 4 IJLMH 1.
[3] Tindwani M, ‘POCSO 2012: A Critical Analysis |
LawFoyer’ (LawFoyer | A daily doze for inquisitors)
[5] Guidelines for the Use of Professionals and Experts under the POCSO Act, 2012
[6] Defined in the UN Office
on Drugs and Crime, Justice
in Matters involving Child Victims and Witnesses
of Crime: Model Law and Related Commentary(2009)
[7] Juvenil Justice (Care and Protection of Children) Act, 2015, s 27(1)
[8] Guidelines for the Use of Professionals and Experts under the POCSO Act, 2012
[10] Ministry of Women and Child Development,
Model Guidelines under Section 39 of The Protection of Children from Sexual Offences Act,
2012: Guidelines for the Use of Professionals and Experts under the POCSO Act,
2012
[11] Arjun Kishanrao Malge vs The State Of Maharashtra And Ors, AIRONLINE 2021 BOM 624
[13] Nipun Saxena v Union of India,
2018 SCC OnLine SC 2439
Article Information
CHILD PARTICIPATION IN LEGAL PROCEEDINGS IN INDIA AND ROLE OF JUDICIARY
Authors: SHAILY AGRAWAL
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/15
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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