Hardlook: Guidelines in place to make trial process less traumatic

In January this year, a PIL was also filed by NGO Bachpan Bachao Andolan seeking speedy disposal of cases filed under the POCSO Act.

Written by Aneesha Mathur | Delhi | Published: March 7, 2016 2:06 am
child victim, child crime, POCSO, Protection of Children from Sexual Offences court, DCW, Delhi Commission for Women ,delhi news, delhi hardlook, delhi news, AAP, AAP govt, kejriwal govt The protocol looks at providing “comfortable environment” for vulnerable witnesses, and has 39 sections, including provisions for recording evidence via video link.

Delhi High Court notified the Structured Protocol for Safety of Child Victims, Sexual Offence Victims and Disabled in 2013. It was formulated by a committee headed by Justice Gita Mittal of the Delhi High Court. The guidelines draw from the UN Model Law on Justice in Matters involving Child Victims and Witnesses of Crime published by the UN Office on Drugs and Crime, 2009 and also from orders passed by the Delhi High Court in 2008 for creation of crisis intervention centres and “support personnel.”

The preamble states, “To respond effectively to the needs of vulnerable witnesses, the criminal justice system needs to respond proactively with sensitivity in an enabling and age appropriate manner, so that the trial process is less traumatic for them.”

The protocol looks at providing “comfortable environment” for vulnerable witnesses, and has 39 sections, including provisions for recording evidence via video link, in-camera proceedings, and use screens and one-way mirrors to protect a child witness from the accused. Section 29 of the protocol says it is the “duty” of the court to provide a “comfortable environment” to the vulnerable witness.
The definitions section of the protocol includes provision for “Support Person which means and includes guardian ad litem (guardian appointed by court to represent interest of children in legal actions), legal aid lawyer, facilitators, interpreters, translators and any other person appointed by court or any other person appointed by the court to provide support, accompany and assist the vulnerable witness to testify or attend judicial proceedings”.

Section 20 of the protocol makes it mandatory for a special court hearing a case registered under The Protection of Children from Sexual Offences Act (POCSO Act) to appoint a “facilitator” to “assist the vulnerable witnesses in effectively communicating at various stages of trial and or to coordinate with the other stakeholders”.

According to the notification, “The facilitator may be an interpreter, a translator, child psychologist, psychiatrist, social worker, guidance counselor, teacher, parent, or relative of such witness who shall be under oath to pose questions, according to meaning intended by the counsel.”

Section 15 gives power to the special court to “appoint any person as guardian ad litem as per law to a witness who is a victim of, or a witness to a crime having regard to his best interests after considering the background of the guardian ad litem and his familiarity with the judicial process, social service programmes, and child development, giving preference to the parents of the child, if qualified. The guardian ad litem may be a member of bar/practicing advocate, except a person who is a witness in any proceeding involving the child.”
The special court is required to have a “waiting area for vulnerable witness” where the witness, as well as the support person, lawyer of the witness facilitation, if any, can wait “separate from waiting areas used by other persons. The waiting area for vulnerable witnesses should be furnished so as to make a vulnerable witness comfortable”.

In 2009, following a writ petition filed by the Delhi Commission for Women (DCW) over the lack of adequate support for rape victims, the Delhi High Court, after taking suggestions from all stakeholders, also asked the DCW to formulate draft guidelines to enable authorities to effectively tackle sexual offences including incest and child sexual abuse offences.

The guidelines, which were later distributed as a handbook on child sexual abuse by the DCW and Delhi State Legal Services Authority to the police, courts, hospitals, Child Welfare Committee (CWC) and other stakeholders, includes the provision that in cases of incest, the victim should be sent to a “foster home”. It also stated that while the victim stays in the foster home, the family members be allowed to meet the victim only in the presence of the support person and care be taken by the staff of the home that the meeting is not used to pressure/influence the victim to change statement.

The Rape Crisis Cell is also expected to have accredited support services for shelter, social workers, counsellors, mental health professionals, lawyers, and others. The standard operating procedures for the One-Stop Crisis Centres (OSCCs) were finalised in 2015, after intervention of the Delhi High Court which took up the issue as part of a PIL on women’s safety.

Such crisis centres have started functioning in some government hospitals. Work is on for creating OSCCs in the six district courts. Sources, however, say there are very few counsellors/clinical psychologists engaged full time at the hospitals, and persons are ‘on call’ as and when required. The work is being monitored by the DCW and the DLSA. Reports on the actual implementation of the policy are not yet available. Sources at the DLSA say that the OSCCs at the district courts may be made functional “by April”, but there is a shortage of trained counsellors.

In January this year, a PIL was also filed by NGO Bachpan Bachao Andolan seeking speedy disposal of cases filed under the POCSO Act. In its petition, the NGO sought directions to the state police to complete investigation in cases registered under this act within a period of three months. The NGO also sought that failing this time-bound investigation, the police be obliged to file a written report before the DLSA, which should then issue necessary directions. The matter is set to come up for hearing on March 9.

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