Law Web: Supreme Court Guidelines for the recording evidence of child witnesses through Video conferencing

The draft SOP as suggested by the learned Amicus Curiae is as under:

“1. It is suggested that testimony of children, who are victims of inter-state/inter-district child trafficking, is recorded through video conferencing either at the video conferencing room of the court complex in the district or vulnerable witness room in the court complex of the district or the office of DLSA in the district where the child is residing.1

2. To facilitate the above, it is prayed that the Ld. District Judges of all districts may 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 Court may be requested to place the said information on its website on or before 30.04.2022. Further, it is prayed that efforts should be made to ensure that such video-conferencing infrastructure/facility is created in every district, especially in those states where the incidence of child trafficking cases is high.

3. The Secretary, DLSA of the district can be requested to be the Remote Point Coordinator (RPC) for recording of the testimony of child witnesses. However, if the Chairman of the DLSA considers necessary or desirable, he/she may appoint a Retired judicial Officer as a Remote Point Coordinator. It is prayed that the Hon'ble High Courts may place the aforesaid information i.e. the names and contact details of the RPC of each district on the website alongwith the information in para 2 above.

4. When an offence of inter-state/inter-district child trafficking is taken up for trial by a Court, and if the Court point and the remote point have video conferencing facilities, the Trial Court should ordinarily give preference to examination of the child witness through video conferencing.

5. The authorized officer at the Court Point may 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.

6. If video conferencing is feasible, a date and time be fixed by the trial court for examination of the witness(es). Summons may be issued to the child witness(es) to present himself/herself for evidence before the RPC. The summons may be served in addition through the local process server of the remote point. The witness would be required to come with identification documents. The summons would also have the name and contact details of the RPC at the Remote Point and would also mention that the witness can take help of legal aid or other assistance through the Secretary, District Legal Service Authority, if required.

7. The child witness shall be entitled to the presence of a support person as defined in the Protection of Children from Sexual Offences Rules, 2020 or any other applicable laws/guidelines or as allowed by the Trial Court. Further, best practices that are required to be followed in recording the evidence of child witnesses should continue to be followed even during the recording of the testimony through video conferencing. These include, ensuring that the child witness is provided diet money on the basis of the distance travelled by him or her to reach the remote point, the presence of a police officer at the remote point to ensure that the chid witness does not come in contact with the accused (if out on bail) or any relative of the accused, and any other best practice required by the law/relevant guidelines/being followed by the States.

8. Copy of documents, if any, required to be marked or shown to the witness may be transmitted by the Court electronically to the RPC. The RPC at the Remote Point would assist in examination of the witness and ensure that no tutoring takes place and no unauthorized person or recording device is present in the room.

9. The RPC may take all measures possible and shall seek the assistance of the support person to ensure that the child witness is comfortable. Questions posed by the Public Prosecutor/Defense Counsel may be put to the Ld. Trial Judge, who in turn will put them to the witness and the Trial Court would record the testimony of the witness. The RPC may help with translation or take the assistance of a translator/special educator if required or render any other assistance which the Learned Trial Court may require.

10. On completion of recording of evidence, the deposition will be sent by the Trial Court on email to the RPC at the Remote Point who shall take a print-out and 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.

11. 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. The Ld. Registrar may intimate the same to the Ld. Registrar of the High Court of the Remote Point with a request to render all assistance possible for recording of the testimony of the child.

12. This Standard Operating Procedure 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, which would be kept in mind while recording the testimony of the child witness. It should be kept in mind that the recording of the testimony should be done expeditiously, without undue delay.

1 It can also be done at Taluk level as in some cases, video conferencing room can be available in a court complex at Taluk level or Sub Divisional level.”

9. We have carefully examined the draft SOP which contains minute details about steps to be taken for recording the testimony of child witnesses at Remote Points. Responses have been filed by the High Courts. There is no objection taken by any High Court to the SOP being put in practice immediately. We direct that the SOP, as has been reproduced above, shall be followed in all criminal trials where child witnesses, not residing near Court Points, are examined and not physically in the courts where the trial is conducted. We direct the RPCs to ensure that child-friendly practices are adopted during the examination of the witnesses.

In the Supreme Court of India

(Before L. Nageswara Rao and B.R. Gavai, JJ.)

SMW (C) No(s). 6/2021

In Re Children in Street Situations

Decided on February 1, 2022

Citation: 2022 SCC OnLine SC 189

W.P.(Crl.) No. 274/2020

1. This Writ Petition has been filed for the following reliefs:—

“(a) Issue a writ of mandamus or a writ/direction of a similar nature directing that during the COVID-19 pandemic, the recording of evidence of child victims/witnesses of human trafficking across Districts/States/Countries, including statements under Section 164 of the Cr.P.C., be ordinarily undertaken via video-conferencing from a government facility within the local jurisdiction of the residence of such children;

(b) Issue a writ of mandamus or a writ/direction of a similar nature directing that the recording of statements/evidence of child witnesses/victims of trafficking across Districts/States/Countries via video-conferencing, even after the COVID-19 pandemic abates, either take place via a Commission or in the Court complex/CWC nearest to the child's place of residence;

(c) Issue a writ of mandamus or a writ/direction of a similar nature directing the Respondents to ensure adequate infrastructure coverage in district courts across the country for the creation of a robust video-conferencing mechanism;

(d) Issue a writ of mandamus or a writ/direction of a similar nature directing the Respondent No. 3 (the National Commission for the Protection of Child Rights) to formulate guidelines for the recording of the testimonies and Section 164, Cr.P.C. statements of such child witnesses/victims via video-conferencing during and after the COVID-19 pandemic, in view of the principle of “the best interests of the child”.”

2. Mr. Gaurav Agarwal, learned Amicus Curiae, proposed a pilot project, after having detailed discussions with the counsel appearing for the Petitioners. For the purpose of the pilot project, the learned Amicus Curiae selected four cases. Out of these, trial had commenced in two cases with respect to which, it was requested that directions be given for examination of witnesses by video conferencing. SC No. 151 of 2019 (State v. Rahmatulla) arises out of FIR No. 612 of 2018 dated 05.12.2018, registered under Sections 75/79 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (“JJ Act”), Sections 3/3A/14 of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 (“CLA”), Sections 16/17/18 of the Bonded Labour System (Abolition) Act, 1976 (“BLA”) and Sections 370/374 of the Penal Code, 1860 (“IPC”). The brief facts of the said case are that on 05.12.2018, 11 children engaged in stitching work of suit/coat covers were rescued by a surprise rescue operation from premises in Kirawal Nagar, North East Delhi, PS Khajuri Khas. The rescued children were sent to their native places, i.e., Sitamarhi and East Champaran Districts of Bihar. The case was pending in the court of Additional District Judge, Karkadooma, New Delhi. The second case bearing Case No. 52 of 2019 (State v. Mohd. Sherjahan) relates to FIR No. 20 of 2019 registered in Jaipur under Sections 370(5)/344/374 of the IPC, Sections 3/14 of the CLA and Sections 75/79 of the JJ Act. The Anti-Human Trafficking Unit rescued four children on 08.01.2019, who were forced to make bangles in a confined room at Jaipur. They were not permitted to move outside, not given sufficient food and forced to work under threat. The rescued children were sent to their homes at Patna and Gaya in Bihar. The trial in the said case was due to be conducted in POCSO Court-2, Jaipur.

3. The learned Amicus Curiae submitted that the pilot project which would be in three stages, with the first stage focusing on assessment of state of infrastructure at the Court Point and the Remote Point. The Court Point is in the cities or places where the trial has to take place and the Remote Point is the district/Taluk court complex or the office of the District Legal Services Authority near the place of residence of the victims/witnesses. Availability of necessary equipment for video conferencing, along with other facilities integral to the process, was to be ascertained in the first stage. The second stage involved the Judge at the Court Point fixing a date for examination of the witnesses and thereafter, issuing summons to the witnesses. The suggestion made by the learned Amicus Curiae is that through the summons, the witnesses be intimated about (i) the address of the Remote Point and date and time of hearing; (ii) name, contact details and a brief explanation of the role of the Remote Point Coordinator (“RPC”); and (iii) the requirement to carry a proof of identification. The third stage pertained to the actual examination of the child witnesses at the Remote Point and the procedures to be followed to ensure that the witnesses are examined in camera and without any influence.

4. After being satisfied with the trial run of examination of child witnesses at remote points, the learned Amicus Curiae in consultation with Ms. Anitha Shenoy, learned Senior Counsel appearing for the Petitioners, submitted a draft Standard Operating Procedure (“SOP”), with five stages, on 12.04.2021. By order dated 26.10.2021, this Court directed the draft SOP to be served on all the State Governments/Union Territories as well as the High Courts for their comments. After receiving responses from the High Courts, the learned Amicus Curiae submitted a note with a modified draft SOP for recording evidence of children through video conferencing. The draft SOP as suggested by the learned Amicus Curiae is as under:

5. The authorized officer at the Court Point may 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.

1 It can also be done at Taluk level as in some cases, video conferencing room can be available in a court complex at Taluk level or Sub Divisional level.”

5. Article 24 of the Constitution of India prohibits employment of a child below the age of 14 years in any factory or mine. Article 39(f) of the Constitution obligates the State to provide opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity and to ensure that childhood and youth are protected against exploitation and against moral and material abandonment. The United Nations Convention on the Rights of Child stresses the need for protection of children from violence and exploitation. The CLA was introduced with the intention to ban the employment of children, i.e., those who have not completed their fourteenth year, in specified occupations and processes and to lay down enhanced penalties for employment of children in violation of the provisions of the said Act. Section 3 thereof, as amended with effect from 01.09.2016, imposes a bar on employment of a child in any occupation or process, except where children help their families or family enterprises or work as artists in the audio-visual entertainment industry and where such work does not affect their school education. The Government of India, by a resolution dated 26.04.2013, adopted the National Policy for Children, 2013 (“2013 Policy”). The 2013 Policy was made to guide and inform all laws, policies, plans and programmes affecting children. According to the 2013 Policy, the best interest of the children is a primary concern in all decisions and actions affecting the child, whether taken by legislative bodies, courts of law, administrative authorities, public, private, social, religious or cultural institutions. Further, the State committed to ensure that all out-of-school children such as child labourers, migrant children, trafficked children, children of migrant labour, street children, child victims of alcohol and substance abuse, children in areas in civil unrest, orphans, children with disability (mental and physical), children with chronic ailments, married children, children of manual scavengers, children of sex workers, children of prisoners, etc. are tracked, rescued, rehabilitated and have access to their right to education.

6. Taking note of employment of children in fire-cracker factories of Sivakasi, Tamilnadu, this Court in M.C. Mehta v. State of Tamil Nadu1 issued the following directions to the State Governments:

“33. To give shape to the aforesaid directions, we require the States concerned to do the following:

(1) A survey would be made of the aforesaid type of child labour which would be completed within six months from today.

(2) To start with, work could be taken up regarding those employments which have been mentioned in Article 24, which may be regarded as core sector, to determine which hazardous aspect of the employment would be taken as criterion. The most hazardous employment may rank first in priority, to be followed by comparatively less hazardous and so on. It may be mentioned here that the National Child Labour Policy as announced by the Government of India has already identified some industries for priority action and the industries identified are as below:

The match industry in Sivakasi, Tamil Nadu.

The diamond polishing industry in Surat, Gujarat.

The precious stone polishing industry in Jaipur, Rajasthan.

The glass industry in Firozabad, Uttar Pradesh.

The brass-ware industry in Moradabad, Uttar Pradesh.

The handmade carpet industry in Mirzapur-Bhadohi, Uttar Pradesh.

The lock-making industry in Aligarh, Uttar Pradesh.

The slate industry in Markapur, Andhra Pradesh.

The slate industry in Mandsaur, Madhya Pradesh.

(3) The employment to be given as per our direction could be dovetailed to other assured employment. On this being done, it is apparent that our direction would not require generation of much additional employment.

(4) The employment so given could as well be the industry where the child is employed, a public undertaking and would be manual in nature inasmuch as the child in question must be engaged in doing manual work. The undertaking chosen for employment shall be one which is nearest to the place of residence of the family.

(5) In those cases where alternative employment would not be made available as aforesaid, the parent/guardian of the child concerned would be paid the income which would be earned on the corpus, which would be a sum of Rs. 25,000 for each child, every month. The employment given or payment made would cease to be operative if the child would not be sent by the parent/guardian for education.

(6) On discontinuation of the employment of the child, his education would be assured in suitable institution with a view to make him a better citizen. It may be pointed out that Article 45 mandates compulsory education for all children until they complete the age of 14 years; it is also required to be free. It would be the duty of the Inspectors to see that this call of the Constitution is carried out.

(7) A district could be the unit of collection so that the executive head of the district keeps a watchful eye on the work of the Inspectors. Further, in view of the magnitude of the task, a separate cell in the Labour Department of the appropriate Government would be created. Monitoring of the scheme would also be necessary and the Secretary of the Department could perhaps do this work. Overall monitoring by the Ministry of Labour, Government of India, would be beneficial and worthwhile.

(8) The Secretary to the Ministry of Labour, Government of India would apprise this Court within one year from today about the compliance of aforesaid directions. If the petitioner would need any further or other order in the light of the compliance report, it would be open to him to do so.

(9) We should also like to observe that on the directions given being carried out, penal provision contained in the aforenoted 1986 Act would be used where employment of child labour, prohibited by the Act, would be found.

(10) Insofar as the non-hazardous jobs are concerned, the Inspector shall have to see that the working hours of the child are not more than four to six hours a day and it receives education at least for two hours each day. It would also be seen that the entire cost of education is borne by the employer.”

7. The International Labour Organization proposed 2021 as the International Year for the elimination of Child Labour. The International Year was adopted by the UN General Assembly. All the member states were asked to take effective measures to eradicate forced labour and human trafficking. The number of children labourers has risen in the last four years globally. According to data released by agencies the problem of Child Labour in India is persisting inspite of the best efforts of the Government. Covid-19 had a devastating effect on children from the lower strata of society who have been suffering due to the loss of employment of their parents & closure of schools which has forced them into labour for survival. We have highlighted the problem for the purpose of reiterating the importance of protection of children and rescuing and rehabilitating them.

8. At present, we are concerned with obviating difficulties to victims of trafficking with respect to travelling long distances for the purpose of giving evidence in trial courts. Though, the public-spirited Petitioners were concerned with the safety of the trafficked children being forced to travel long distances for giving evidence during the COVID-19 pandemic, we are of the opinion that the suggestions made by the learned Amicus Curiae, in consultation with Ms. Shenoy, relating to the SOP should be put in practice as a regular feature. The said procedure need not be restricted only to the period affected by the COVID-19 pandemic. The permissibility of recording evidence through video conferencing has been considered by this Court in State of Maharashtra v. Dr. Praful B. Desai2, Sakshi v. Union of India3 as well as Eera v. State (NCT of Delhi)4. In Sampurna Behura v. Union of India5, this Court encouraged the use of technologies in court proceedings by stating as under:

“77. The use of technology, both by the JJBs as well as by the CWCs is extremely important and we are disheartened to note from the affidavits and submissions made by MWCD that there is an acute shortage of computers and peripherals with the JJBs and CWCs. Technology is important not only for the effective functioning of the JJBs and CWCs, but also to deal with issues that would arise from time to time concerning the tracing and tracking of missing children, the rescue of children working in hazardous industries, trafficked children, children who leave the Child Care Institutions, victims of child sexual abuse and follow-up action, among several other requirements. It is well known that our country is a technological powerhouse and if we are unable to take advantage of the resources available with us and fully utilise the benefits of technology through computers and the internet for the benefit of children, our status as a technological powerhouse would be in jeopardy and would remain only on paper. Data, particularly of the magnitude of the kind that we are concerned with, can be easily collected through the use of computers and the internet. This would be of great assistance in planning and management of resources and MWCD and others concerned with child rights must take full advantage of this.

78. That apart, there can be no doubt that the use of computers and peripherals would make an immense contribution to the administrative functioning of the JJBs and CWCs. Both the Government of India and the State Governments need to look into this and provide necessary software and hardware to the JJBs and the CWCs for obvious reasons. We were informed by the learned counsel that the police authorities in Telangana and Andhra Pradesh in consultation with the Juvenile Justice Committee of the High Court have made considerable use of information and communication technology and we are of the view that innovative steps must be encouraged. Similarly, the use of videoconferencing could also be considered in appropriate cases where some inconvenience to the juvenile in conflict with law necessitates the use of videoconferencing facilities.”

10. A direction was sought by the learned Amicus Curiae regarding the source of payment of honorarium to the RPCs. We are informed by the learned Amicus Curiae that a daily honorarium of Rs. 1500/- was paid to the RPCs who were appointed as such during the pilot project. For the present, we are of the opinion that the RPCs shall be paid Rs. 1500/- per day as honorarium. We are in agreement with Ms. Shenoy that Section 312 of Code of Criminal Procedure empowers the Criminal Court to direct the Government to pay the expenses of the witnesses attending any inquiry, trial or other proceedings.

11. We requested learned Amicus Curiae who also appeared on behalf of NALSA, to get instructions regarding the willingness of NALSA to bear the expenditure relating to the payment to be made to the Remote Point Coordinator. Learned Amicus Curiae on instructions from NALSA suggested the following:

(1) NALSA would pay Rs. 1,500/- per day to the Remote Point Coordinator (RPC) whenever the RPC is required for the purposes of examination of the child witness(es) through video conferencing.

(2) NALSA would provide legal assistance to the child on the days when he/she comes from his/her examination, if the child is otherwise not represented by a counsel.

12. We appreciate the stand taken by NALSA to strengthen the video conferencing facilities in DLSA offices in the States of Uttar Pradesh, Bihar, West Bengal, Odisha and Assam, to begin with to ensure that in case video conferencing facility in the court complex is not available, video conferencing facility in DLSA office can be utilized for recording of the evidence of the child witness.

13. NALSA has also come forward to place the details regarding the availability of video conferencing facility for recording of statement of child witnesses in the offices of DLSA and court complex and the name and contact number of the RPC on its website and the website of State Legal Services Authority (SLSA) by 30.04.2022.

14. The concerned judicial officer at the Remote Point and the trial Court shall ensure that the recording of evidence shall be in camera wherever necessary.

15. List this matter on 2nd May, 2022 at the end of the Board.

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