Time for a Seven-Judge Bench Reference to resolve the FIR conundrum?

On 12.08.2022, the Supreme Court in XYZ v. State of Madhya Pradesh & Ors. [Crl. Appeal No. 1184 of 2022] set aside an order of the Madhya Pradesh High Court, and directed that a First Information Report ["FIR"] ought to be registered under Section 154 of the Criminal Procedure Code, 1973 ["Cr.P.C.'] by the local police on the complaint of the Petitioner XYZ. The allegations were of sexual offences being committed by persons occupying positions of responsibility in the place of work of XYZ. 

In its order, the Court made important observations about the roles of both police and courts when dealing with such cases. In respect of the courts considering applications for directing police investigations, the Supreme Court accepted that there was an element of discretion here, but in respect of sexual offences the courts ought not to "further burden" victims and "press upon the police to investigate" cases [Para 25]. In respect of the police, it referred to the Constitution Bench judgment in Lalita Kumari [(2014) 2 SCC 1] and noted that:

"18. Whether or not the offence complaint of is made out is to be determined at the stage of investigation and / or trial. If, after conducting the investigation, the police find that no offence s made out, they may file a B Report under Section 173 CrPC. However, it is not open to them to decline to register an FIR. The law in this regard is clear - police officers cannot exercise any discretion when they receive a complaint which discloses the commission of a cognizable offence." [emphasis mine] 

Five days later, on 17.08.2022, a Single Judge Bench of the Delhi High Court passed an order in Syed Shahnawaz Hussain v. State & Anr. [Crl MC No. 3456/2018]. This, too, involved alleged sexual offences - rape, no less. The petition was filed in 2018 challenging orders of a magistrate directing that an FIR be registered (the High Court proceedings arose after a Sessions Court had rejected a revision petition against the magistrate order). 

By way of an interim order of 13.07.2018, the High Court had stayed registration of an FIR. Four years later though, the High Court dismissed the petition and directed police to register the FIR and proceed with a speedy investigation. While it did not cite XYZ v. Madhya Pradesh, the High Court also invoked Lalita Kumari to conclude that the decision as to whether or not an offence was made out was the result of an investigation after lodging an FIR, and could not be relied upon to forestall lodging an FIR itself.

Another five days after the order of the High Court, it was challenged [SLP (Crl.) 7653/2022] and came before a different bench of the Supreme Court than XYZ v. State of Madhya Pradesh. This bench on 22.08.2022 stayed operation of the High Court's and has, for now, returned the case to cold storage.

The contrast between the positions adopted in XYZ v. State of Madhya Pradesh—where the police had also conducted an inquiry and found no offence was made out—and the arguments of the Petitioner in Syed Shahnawaz Hussain could not be more striking. In the former, the Court emphatically rules out an element of discretion for the police in registering FIRs where complaints make out cognizable offences. Whereas in the latter, it is precisely the exercise of this discretion that the Petitioner submits is laudatory and ought to be considered by courts. Admittedly, only an interim order has been passed by the Supreme Court so far in the petition, but interim orders are only passed where the court thinks some merit exists in the case. As the order itself notes, the Court thinks that the issues "require consideration".

Both XYZ v. State of Madhya Pradesh and Syed Shahnawaz Hussain ultimately trace their roots back to the Constitution Bench judgment of the Supreme Court in Lalita Kumari, and I would argue that is where the problem lies. This very issue of whether police officers have any discretion to register FIRs was placed before the Constitution Bench, and in a remarkable judgment, the Court failed to resolve it with the level of clarity that it required [as explained at length in a different post]. Lalita Kumari failed to sufficiently decide what is an FIR — is it simply a ministerial act required to be done by the police once they receive a complaint, or is it something more? 

The text of the Cr.P.C. suggested it should be the former, but practice suggested that lodging of an FIR was a critical stage in the process, indicating that a formal accusation had been made by the state legitimising exercise of its coercive powers and imposing collateral consequences for persons (such as difficulties in obtaining passports or government jobs). If an FIR is such a critical stage, surely it cannot be reduced to the stage of a ministerial act, and must allow an element of discretion to ensure frivolous cases aren't lodged without requiring a full-blown investigation every time. 

After vacillating between the two views, the Court tried to adopt a middle path, which meant not deciding the issue one way or another, and without even considering the deeper issue of if there is no discretion in the police lodging an FIR, what about discretion in choosing the offences that it is invoking. Ultimately, it held that there is no discretion in lodging an FIR, but there is still some discretion in some cases, and did not say anything about deciding which offences are made out. 

The equanimity within Lalita Kumari has been reflective in practice ever since. It has meant that parties on both sides of the spectrum can invoke the same Constitution Bench judgment to make their case, which must be a unique distinction but certainly has left the practice of law poorer. The sharp contrasts between these two cases around alleged sexual offences highlighted in this post are only the most recent examples of the problems that this judgment has fostered. 

Would referring Lalita Kumari to seven judges help? I am not sure, because it is not possible for the courts to sufficiently resolve the complex problem of unravelling the significance of an FIR. Nevertheless, a clear judgment could help restore some clarity by looking closely at the scheme of the Cr.P.C. which does allow for some elements of discretion, albeit not at the registration of FIR itself. 

Perhaps it could even result in a de-linking of the registration of an FIR from collateral consequences, and allow a level of judicial oversight to come in between giving the process greater fairness and pre-emptively securing liberty interests. 

In that reference, a related and equally critical issue must be considered - the role of magistrates through the investigation process. Both XYZ v. State of Madhya Pradesh and Syed Shahnawaz Hussain concerned a magistrate's powers under Section 156(3) of the Code to direct the police to conduct investigations. This is one amongst many other clauses which bring the magistrate within the investigative process. 

Sitting along side this statutory involvement of magistrates in investigations, there exists a strong judicial view—stretching all the way back before independence—that courts and police operate in separate silos. A seven-judge reference would be an apt opportunity to reflect on the relative merits of this approach. 

Till that day comes, Lalita Kumari and its vacillation will continue to plague the system.        

Guest Post: On POCSO and Reducing the Age of Consent for Consensual Adolescent Relationships

(This is a guest post by Ishita Soni)

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) criminalises various forms of sexual offences against a ‘child’ who is defined as a ‘person below the age of eighteen years’, regardless of consent. In other words, 18 years is deemed as the ‘age of consent’ for sexual activities, and intercourse with any person below this age attracts criminal liability. As a result, the High Courts of Punjab and Haryana and Bombay have held that the consent of a ‘minor’ has no value in the eyes of law for the purposes of ascertaining an accused’s culpability under POCSO.

Notably, though the POCSO Act is gender-neutral, in 2020, more than 99% of the total cases involved female victims and out of these 50.2% of females were aged between 16 to 18 years. Whilst these numbers do not indicate the percentage of non-consensual sexual abuses that transpired (factually, since legally all of these are non-consensual), data suggests that 46.6% of cases pertained to "friends/online friends or live-in partners", thereby suggesting a likelihood of the existence of consent. 

In this way, the POCSO Act engenders a legal anomaly wherein adult female adolescents of 16 years or above are deemed wholly and absolutely incapable of furnishing consent, even though they may possess the mental competence and intelligence to grasp the consequences of their sexual acts. Concomitantly, the male sexual partners of such females are ipso facto privy to the rigours of the Act, irrespective of their age, as the statute does not encompass any exception for consensual or teenage relationships. This gives rise to a practical absurdity which was craftily illustrated by the Calcutta High Court as under – 

“even a person who is aged 17 years and 364 days would qualify as a child, but her maturity would not be much different from another person, who was just one day older than her, that is, 18 years old.” 

The non-recognition of consent tendered by such non-18-year-old-adolescents has invited disapproval from courts that have acknowledged this as a ‘legal grey area’. In this post, I underline the transitioning judicial thought and prevailing foreign jurisprudence to posit that the overarching, rigid Act should be amended to lower the age of consent from 18 years to 16 years. If implemented, this redefinition would permit a case-by-case analysis of adult-adolescent relationships wherein bodily autonomy could be exercised whilst being safeguarded under POCSO’s shield. 

Indian Judiciary’s Resurgence towards a lower Age of Consent

Before the POCSO Act, the Indian Penal Code, 1860 established the legal age of consent for sexual acts as 16 years for unmarried females and 15 years for married females. This changed with the advent of POCSO that raised the age to 18 years, threatening imposition of harsh punishments for partaking in adolescent sexual experimentation – something that represents perfectly normal behaviour. Resultantly, the past decade has witnessed a paradigm shift in the judicial outlook as courts have recurrently lent their support for a reduced age of consent. The avalanche of reasons cited by the courts in favour thereof can be categorised as follows: 

A. Adolescents engaged in romantic relationships consciously consent to sexual acts

The blanket protection tendered to every person under the POCSO Act has multiplied the number of elopement cases that are pursued by the family members of the females who volitionally elope with their male counterparts. The voluntary nature of such elopement is conveniently neglected by the kith and kin of such females whose primary aim is to regain the custody of their adolescent girl by any means necessary. 

In fact, in Sabari v. Inspector of Police (Madras High Court, 2019) [“Sabari”], the court declared that a majority of the POCSO cases involve minors between the age group of 16 to 18 years who are mired in ‘love affairs’. This observation came with a caveat that adolescent relationships could emanate from "mutual innocence and biological attraction" and thus cannot be construed as "an unnatural one or alien to a relationship of opposite sexes." It was recommended that the definition of ‘child’ be modified to solely include persons below the age of 16 years instead of 18 years. Underlying these observations was the belief that minor girls (and boys) were quite capable of meaningfully consenting to sexual relationships. 

Sabari was cited in Vijayalakshmi v. State (Madras High Court, 2021) [“Vijayalakshmi”] to take a lenient view of an accused who was in a serious affectionate relationship with a teenager. It was held that the Act did not aim to regulate cases involving adolescents / young adults who indulged in romantic relationships. Towards this end, courts have often placed emphasis on the ‘practical aspects’ and ‘ground realities’ to appreciate how environmental factors like social media, movies, web series, peers, familial upbringing, inter alia, play a profound role in augmenting an inquisitive adolescent’s fondness towards members of the opposite sex. 

Hence, Indian courts have tried to limit the periphery of the POCSO Act to keep consensual romantic-turned-sexual relationships out of its ambit, recognising mental and emotional maturity in female adolescents that enables them to furnish valid consent for sexual acts. 

B. Consent of adolescents is considered for bail and quashing of cases

Indian courts have time and again considered elements other than the female’s age in trials under the POCSO Act. For instance, in Sau Anjali v. State of Maharashtra (Bombay High Court, 2018) and Praduman v. State (Delhi High Court, 2021), the courts factored in the relevance of the minor’s consent and her age difference with the accused to enlarge the latter on bail. 

This trend was followed in Ephina Khonglah v. State of Meghalaya (Meghalaya High Court, 2021) where the court accepted the existence of a romantic relationship between two teenagers which had culminated into a ‘consensual’ sexual act. The court recognised that albeit consent had no legal validity, it was nevertheless relevant for adjudicating a bail application. In doing so, however, the order creates legal fissures wherein consent of the minor female carries no legal significance for determination of guilt but is nevertheless relevant for the grant of bail.

Let alone bail, courts have also quashed several cases where adolescents participated in consensual non-exploitative relationships. In Teiborlang Kurkalang v. State of Meghalaya (Meghalaya High Court, 2022) and Skhemborlang Suting v. State of Meghalaya (Meghalaya High Court, 2022), the females who were 17.5 years old voluntarily married accused persons and bore a child out of their wedlock. The courts opined that the parties were ‘in love’ and their sexual relationship did not entail physical coercion, harm or assault to quash proceedings. This approach was adopted by the High Courts of Delhi, Calcutta, and Madras when females above 16 years of age were caught up in similar circumstances. 

This widening interpretative gap between the strict implementation of the Act and its benevolent-cum-purposive application must be bridged by introducing specific parameters in the legislation that permits the consideration of adult-adolescents’ consent. 

C. Non-consideration of the accused person’s age results in unfair discrimination 

The blanket protection given to minors (primarily, female children) goes hand in hand with the blanket punishment provided to all accused persons irrespective of age. Section 19 of the Act mandates every person to report violations of the POCSO based on any ‘apprehension’ or ‘knowledge’. Therefore, males engaging in sexual intercourse with adult-adolescents are at a greater risk of facing the harsh punishment of minimum 10 years imprisonment. This stringent punishment is applicable notwithstanding the male person’s age, comparative age gap, or relationship with the female. This creates disparate standards for the accused persons who are of the same age as that of the females and thus less capable of exerting any form of influence, power, position or authority for sexual mistreatment or grooming. 

Admittedly, a sizeable age difference need not always reflect the true nature of the relationship between parties to warrant punishment; however, it can still be a relevant indicator of the probable power-dynamic and equation that existed at the time of the purported sexual abuse. In this regard, the Delhi High Court has held that the age difference between the female and the accused is directly proportional to the perversity of the offence. Yet, this finds no mention in the Act as a yardstick for ascribing blame. 

Further, in Sabari, the court opined that in an innocent relationship between a "boy and a girl of 16 or 17 years, who is either in school final or entering college, […] the boy is subjected to the rigours of POCSO Act." The court highlighted that gravity of rigorous imprisonment under the Act is incomprehensible by young teenagers who wilfully participate in consensual sexual activities. Thus, the nature of proscribed sexual conduct must merit the severity of the punitive sentences envisaged under the Act.

This view was buttressed in Vijayalakshmi where the court observed that imposition of such punishments on youth could cause "irreparable damage to their [sic] reputation and livelihood" on account of their otherwise innocuous actions. Even in Jayaprakash v. Inspector (2022), the Madras High Court held that the stringent nature of the Act brings the youthful life of an adolescent boy to a grinding halt, which was never the intent of the statute.

As mentioned above, since more than 99% of POCSO cases in 2020 involved female victims, presumably, majority of the accused persons were male. Such funnelled application of the Act’s severe provisions against male persons is inequitable, prejudicial and detrimental towards their natural justice rights. The POCSO Act warrants legislative sanitization for its fair and just application vis-à-vis the males who do not deserve to get automatically embroiled amid the contours of the Act, despite the existence of their female partner’s consent. 

Comparative Analysis with International Standards

In the United States of America, individual state laws govern sexual offences against minors. A fine comb reading of the state-wise statutes demonstrates that none of them extends blanket protection to minors under the age of 18 years. Albeit statutes use distinct terminologies to criminalise the act of sexual intercourse with minors—such as ‘sexual assault’, ‘gross sexual imposition’, ‘rape’, ‘sexual battery’, and ‘criminal sexual abuse’—a lower age of discretion is prescribed to legally admit adolescents’ consent for sexual intercourse. These states can be classified into 6 categories: 

1. States that criminalise intercourse with minors below 16 years of age – Alabama, Georgia, Idaho, Massachusetts, Oklahoma
2. States that criminalise intercourse with minors below 15 years of age – Arizona, Louisiana, North Dakota
3. States that criminalise intercourse with minors below 14 years of age – Hawaii, Iowa, Kansas, Maine, Nevada
4. States that criminalise intercourse with minors below 13 years of age – New Hampshire, Pennsylvania, South Dakota, Virginia, Wyoming
5. States that criminalise intercourse with minors below 12 years of age – Delaware, Florida, Oregon
6. State that criminalises intercourse with minors below 11 years of age – South Carolina

A common thread running through the majority of these laws is that in addition to consent of the minor, they infuse ‘Romeo-Juliet’ provisions or ‘close-in-age’ exemptions that reduce or eliminate the penalty for consensual acts when the age difference between the adolescents is negligible. For instance, in Idaho, statutory ‘rape’ in respect of minors is criminalised under Section 18-6101 when the ‘victim is sixteen (16) or seventeen (17) years of age, the perpetrator is three (3) years or more older than the victim’. Likewise, in Colorado, ‘sexual assault on child’ is penalised under Section 18-3-405 when the ‘victim is less than fifteen years of age and the actor is at least four years older than the victim.’ Cognate provisions have been embedded in the laws of Alaska, Illinois, Hawaii, Minnesota, Montana, and Texas, which recognize an age-gap of 3 to 5 years between adolescents to exonerate the accused. Such age-gap provisions permit two adolescents – for example, of 17 years each – to discover their sexual proclivities willfully and freely, so long as it is consensual. 

The support for a lower age of consent is also countenanced by Section 150 of the Canadian Criminal Code, 1985 and Section 66C of the Australian Crimes Act, 1900 which criminalize sexual intercourse with girls under 16 years of age. This age bracket is further decreased to 15 years under the French Criminal Code, 1992 for considering the adolescents’ consent. 

Moreover, Section 176 of the German Criminal Code, 1998, Article 236 of the Chinese Criminal Law, 1979, Section 131of the Russian Criminal Code, 1996, and Section 375 of the Singaporean Penal Code, 1971, stipulate 14 years as the age of consent for penalizing sexual assault of females below this age limit. 

A parallel can also be drawn with the Gillick test prevalent in the United Kingdom to seek minors’ consent for performing medical procedures on their bodies. Per this, minors under the age of 16 years are deemed capable of giving informed consent when they have sufficient maturity, understanding, and intelligence to make authoritative decisions about their body and health. This is akin to Section 164A of the Indian Code of Criminal Procedure, 1973 which mandates medical practitioners to seek the rape victim’s consent before their examination. Alternatively, even from a legislative lens, UK’s Sexual Offences Act, 2003 recognizes 13 years as the age of consent under Section 5. 

Lastly, the Constitutional Court of South Africa, in the Teddy Bear Clinic case (2013), struck down provisions that criminalized consensual sexual conduct between adolescents who are aged between 12 and 16 years. The concerned legislation was deemed to be unconstitutional by virtue of violating the children’s rights to dignity and privacy. Pursuant to this, the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 was amended to decriminalize adolescent sex and inject age-gap exceptions under Section 15. 

Clearly, unlike extant statutory rape laws of most developed nations, the POCSO Act fails to contemplate a situation where adolescents have the requisite psychological ability to take decisions endemic to their physical and biological well-being. When compared to foreign legislation, the Act espouses a regressive and disproportionate approach that cripples a mature individual’s agency over its bodily freedom. 

Conclusion

In a recent census conducted by the Indian Health Ministry, over 44% of total districts reported high female adolescent marriages and over 118 districts reported a high percentage of teenage pregnancies. Considering the burgeoning rate of teenage fertility, the Indian legislature must accept the contemporary reality of widespread youth sex. The protectionary objective of the POCSO Act should not propel overcriminalization by following an absolutist approach that completely ignores the sexual inclinations and decision-making power of female adolescents. This objective of furthering female (sexual) autonomy also mirrors the ideals of the recent Prohibition of Child Marriage Bill, 2021 that aims to expand female (reproductive) autonomy by raising the legal age of marriage for females from 18 years to 21 years. Contrary to the first glance opinion, this Bill does not propound that 18 to 21 year old women are incapable of consenting for marriage; instead, it aims to curb child marriages, raise the average age of motherhood, and reduce Maternal Mortality Rate, inter alia – none of which is indicative of adolescents’ inability to consent for sex. 

Given that a lower age of consent permeates through the sexual offence laws of other common law countries and its socio-contextual importance has been repeatedly reiterated by India’s judiciary, the POCSO Act should be amended to authorize females who are aged 16 years or above to explore their sexual dispositions, without having to expose their partners to sweeping penal punishments. The legislative logjam must be broken to ensure that the Act does not indiscriminately stifle and penalise genuine romantic relationships that ensue between consenting teenagers with the capacity to reason.

Guest Post: Competence of Child Witness - A Tale of Judicial Discretion

(This is a guest post by Kaustubh Garg)

S. 118 of Indian Evidence Act 1872 [“IEA”] provides powers to the court to render a witness incompetent if she is unable to comprehend questions or give logical answers by reason of “tender years, extreme old age, disease (body or mind), or any other cause of same kind”. However, this provision and its interpretation by courts is not without problem. This post seeks to explore the position of competence of witnesses under IEA. It argues that S. 118 confers wide discretion in courts to conduct competency examination of witnesses, which results in rendering incompetent child witness’ testimony admissible. The first part argues that courts have merged competency with credibility while interpreting S. 118. The second part highlights that reliance on cross-examination and witness demeanour is an ineffective standard to judge competency of a witness. The third, and last, part suggests an amendment to S. 118, to make the examination of competence of witness mandatory. The scope of the paper is limited to analysing the competency of tender-age children (at most, 11-12 year olds).

Conflating Competency And Credibility 

The purpose of competency requirements is to determine child witness' intelligence, memory power, and capacity to observe events [see R. Selvaraja v. S. Latha ¶10 (Madras HC, 2013)]. The child must possess cognitive skills to decipher the event she witnessed, and recount memories accurately before court during trial. Moreover, the child must comprehend, and give intelligent answers to questions about the occurrence of events, for which she is called to testify. The competency hearing also reflects a child’s understanding of difference between right and wrong.

As opposed to adult witnesses, child witnesses pose inherent reliability risks in their testimony because of their susceptibility to tutoring, inability to distinguish between real and imagined events, and weakening or twisting of memory over time. In India, where the legal system is ridden with delays, there is a greater risk of a child's memory being prone to self-distortion or manipulation. In addition to the above reasons, examining competency of a child witness becomes even more necessary in child sexual abuse cases, where the sole testimony of victims can determine the guilt of an accused.

S. 118 of IEA confers wide discretion to courts in terms of examining the competency of a witness through voir dire examination. In Rameshwar Singh v. State of Rajasthan (SC, 1951), it was held that trial courts possess powers to decide whether a voir dire examination is necessary. However, the failure to conduct this examination is regarded as a mere procedural irregularity and does not make testimony of a child witness inadmissible. The power to determine competency entirely lies within the discretion of a trial court judge, which inevitably has a considerable influence on the outcome of the case. Furthermore, the court have tended to ignore their responsibility to examine the capacity and intelligence of child witness through preliminary examination.

In exercise of this wide discretion, courts have muddled the distinction between competency and credibility / reliability stage (with some exceptions). For instance, in Himmat Sukhadeo Wahurwagh v. State of Maharashtra (SC, 2009), the Court held that “Sanjay (the witness) was aware of what had happened in the answers given by him in the course of his evidence which clearly proved that he was a competent witness”. This judgment is not an aberration, rather it is reflective of a general trend of courts have consistently examined the competency during witness testimony, relying upon evidence, demeanour, and response to cross-examination [see, Janardhan Tewary v. State of Bihar ¶5 (SC, 1970); S. Anbazhagan v. State ¶24 (Madras HC, 2017); Kabiraj Tudu v. State of Assam ¶10 (Gauhati HC, 1992); Sanjay Kumar v. State (SC, 2014)].

It must be highlighted that competency is a pre-requisite to admissibility and reliability of evidence. Competency determines the probative value of a witness, which ensures that incompetent witnesses are not allowed to testify in court. Determining competence is not an assessment of truth or accuracy of testimony, rather it involves ascertaining the capability of a witness in form of observation, recollection, communication, etc. which is a pre-cursor to giving reliable testimony. Issues of credibility and reliability only affect the weight ascribed (probative value) to the evidence of a witness by court on the basis of accuracy or inconsistencies. The above approach of Indian courts aligns with Wigmore’s requirement of competent child witnesses. Wigmore suggests that the fact-finder must evaluate credibility of a child’s testimony just as any other witness, thereby arguing for exclusion of competency requirements. Moreover, he states that a logical way is to “put the child upon the stand and let the story come out for what it may be worth” because of a child's tendency to speak her mind straightforwardly.

As a result of Wigmore’s influence, the interpretation of courts has been to exclude the barriers to admissibility of testimonial evidence of child witness. The credibility risks can be effectively examined during trial because they only become apparent in the course of testimony. Moreover, any minor inconsistencies will not affect the reliability of other aspects of witness’s testimony. In contrast, the risk relating to witness’ memory distortion, lack of capacity to observe, recollect etc. can be examined before trial and failure to satisfy the requirements would exclude testimony entirely from the trial. 

By examining competency and credibility together, courts have conflated two entirely different aspects, which is incorrect from the procedural aspect of the law.

Increasing Reliance on Cross-Examination – Not A Sufficient Alternative

The courts have laid reliance on the cross-examination and demeanour of the witness to test the competency of child witness. Firstly, cross-examination is an ineffective exercise in absence of a voir dire examination of child witnesses. Research studies analysing testimony of child witnesses highlight that repeating the mere details of a non-event (i.e. fingers were caught in a mousetrap) repeatedly (7-8 times) in front of children would actually lead to a situation where children started believing in the happening of that non-event even if the children had never suffered any harm from the mousetrap. Even though the event did not occur, the “memory” of the event was produced by researchers. As observed earlier, a child witness is prone to suggestibility, and by repeating the same story to the children the researchers created a “real event” in their mind. 

The purpose of cross-examination is to create a distinction between truth tellers and liars and its effectiveness to discredit a false witness cannot be doubted. However, cross-examination is unlikely to be effective where a witness believes her version to be true. In cases where the child witness has been thoroughly tutored, or where the memory is 'produced', a child actually believes her memory of the event as demonstrated by the above research. More importantly, if the child hears the story same repeatedly, she becomes “will commit it to memory and will be able to retell it upon request”. Since she believes the story to be true, the witness is unlikely to falter in direct as well as cross-examination. Moreover, child witness’ demeanour will reveal no indication of falsehood because of the sole reason that the witness does not know that story is false. The same rationale was adopted in relaxing oath requirements for children because of their tendency to speak what they believe irrespective of whether it is true or false. Perhaps Wigmore’s understanding of the child competency requirement overlooks the possibility of tutoring, which is unlikely to be discovered during cross-examination. Therefore, pre-trial examination becomes necessary to assess the memory, intelligence of the child witness. 

Even if a court highlights some inconsistencies in the tutored part of testimony, the court does not exclude the whole evidence from trial. For instance, in Gagan Kanojia v. State of Punjab (SC, 2006), the Court severed materially inconsistent portions of the testimony from the rest. Although a part of testimony was unreliable, the Court held that the remaining part can be taken into consideration for corroborative purposes [see, Jharna Debnath v. State of Tripura ¶24 (Gauhati HC, 1999); Damber Singh Chhetri v. State of Sikkim ¶132 (Sikkim HC, 2018)]. The testimony will still have persuasive value, which along with other available evidence, will influence the result of the trial. The competency examination would have ensured that testimony of an incompetent child witness is inadmissible in court. As observed earlier, admissibility of evidence of an incompetent witness can result in prejudice to the accused in the trial.

Secondly, courts have provided special exemptions to the children while giving testimony, which hinders the effective cross-examination of a witness. Various measures have been provided to safeguard the child witness from being traumatised by needing to look at the accused, such as screens, videotaped testimony, and closed-circuit television [see Sakshi v. Union of India ¶27 (SC, 2004)]. Moreover, with the onset of COVID-19, virtual hearings are extended to all cases and not just restricted to cases involving child victims. Since the past two years, the testimony of witnesses (including children) are being recorded through video-teleconference (‘VTC’). While the use of VTC does provide an opportunity for cross-examination, the medium significantly reduces the effectiveness of this aspect of a trial.

Effective cross-examination requires not only the chance to ask questions of witnesses, but also the ability to communicate with them and perceive their answers. VTC technology falls short in this aspect of engagement because it does not allow parties to efficaciously observe oscillations and inconsistencies in the course of giving testimony. The reduction of a courtroom testimony to television image does not provide an equal opportunity for observation of non-verbal cues such as facial expression, body postures, and eye contact etc., which are quintessential for examining witness’ demeanour. Moreover, courts have to face technological issues which interferes with the recording of testimony and observing demeanour. Virtual trials even provide an opportunity for child witnesses to give evidence or answer questions using material placed before them, which can frustrate the entire purpose of cross-examination.

Courts have put further limitations by allowing cross-examination only on the basis of written questions submitted to a judge for child witnesses on occasion. Even though it is necessary to guard child witnesses from potential traumatisation, these guidelines can influence proceedings in ways that may be helpful to child witnesses in the form of exercising control over questioning and cross-examination, examining the difficulty of questions, etc.

Apart from the best interests of witness, courts also need to ensure that an accused gets a fair trial and prevent false convictions. Adopting a no-enquiry approach to examine competency of child witnesses or by conflating it with credibility, courts have relaxed preliminary requirements for child witness testimony. As observed above, cross-examination is ineffective in determining competency or possibility of such witnesses being tutored, and so the excessive reliance on this testimony for determining convictions can lead to devastating outcomes. 

Courts have returned convictions on the sole testimony of child witnesses (even 6 year olds) [see, State of UP v. Krishna Master ¶6 (SC, 2010); Ratansinh Dalsukhbhai Nayak v. State of Gujarat (SC, 2003); Hari Om v. State of UP ¶22 (SC, 2021)]. It cannot be doubted that child sexual abuse presents unique legal concerns. Unlike other crimes, there will be little or no evidence apart from the victim's testimony. The current system of determining guilt on the sole testimony of the child without examining its competency is seriously flawed, and consequences of not conducting voir dire examinations are dangerous. It becomes necessary that the pre-trial examination must be mandatory, which will make a realistic assessment of witness’ development maturity and ability to provide reliable information in a trial. 

Reviving the Voir Dire Examination

Earlier parts of the post show how not conducting voir dire examination of child witnesses can led to dangerous outcomes at trial. Indian courts have seldom conducted preliminary examination to examine competency of a witness [see, P. Ramesh v. State ¶12 (SC, 2019); Dinesh Chand v. State (Govt. of NCT of Delhi) ¶6 (Delhi HC, 2019). However, those examinations were only limited to questions related to name, parents’ name, class, day, date etc. These type of questions makes little or no attempt to accurately examine the developmental maturity or ability to observe, memorize or recollect series of events. Most courts have a set template of questions which are not a true assessment of a child's ability and competence, thereby affecting the quality of the testimony. 

Before conducting preliminary examinations, the court must obtain information about the child, by conversing with family members (if they are not engaged in the incident), other caretakers, or educators. Also, information can be obtained from the school, pre-school, neighbours of children which might give potential areas for inquiry of the child witness. Based on the research of Dr. Sherrie Bourg Carter, child witness ought to be asked to explain specific events of life such as vacations, birthdays, or about any specific school events. The timeline of events must be similar as events alleged in the criminal case. The child’s answers can be compared with the description by an adult to determine accuracy of events. These questions would test the child’s observation of that particular incident, and its recollection before court. Since criminal trials are generally delayed, it also helps in testing the memory of a child and account for any distortion that takes place. Because questions are not known to the child and are of a general nature, the question of tutoring or preparing about these questions is ruled out. Although these questions will be easy to answer, this will provide information about competency of a child witness. More importantly, asking informal questions of general nature would likely result in establishing truth and rapport and familiarising witness with the courtroom environment. 

The above tests cannot be made mandatory because of S. 118 of IEA, which allows discretion to the judges to conduct the competency tests. Which is why I suggest an amendment be made to S. 118 of IEA which makes voir dire examination mandatory for tender years’ children. For child witnesses, incompetency must be the rule and competency is the exception.