Victim Or Witness? Protecting Child Witnesses In Criminal Trials: A Critical Analysis Of Indian Law
Indian criminal law has gradually developed a strong framework for protecting children who are victims of crime, particularly through the POCSO Act, 2012, and the provisions now contained in the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA). However, children who witness a crime without being direct victims, remain ignored. This paper argues that the distinction between child victims and child witnesses has often been blurred in legal and policy discussions. As a result, child witnesses may still have to face repeated summons, aggressive cross-examination and the presence of the accused without protections specifically designed to address their needs.
The paper traces the development of Indian law in this area and examines the contribution of the Law Commission of India, with particular attention to the 14th Report (1958), which addressed facilities for witnesses; the 154th Report (1996), which focused on building witness confidence and protecting witnesses from intimidation; and the 172nd Report (2000), which recommended measures such as recording the testimony of children through video links, providing a support person, and allowing judges to regulate the manner of cross-examination. Although these suggestions influenced safeguards for child victims of sexual offences, but that similar protections were not extended to child witnesses.
To assess India’s position in this regard, the paper also undertakes a comparative analysis of the United Kingdom and South Africa. The United Kingdom’s Youth Justice and Criminal Evidence Act, 1999, provides special measures for child witnesses without limiting them to categories of offences. South Africa, by contrast, has developed an intermediary system under Section 170A of the Criminal Procedure Act. While this mechanism was an important development, its use remains largely concentrated in sexual offence cases, reflecting a limitation that is also evident in the Indian framework.
Drawing on these comparative experiences, the paper proposes a more consistent and inclusive approach to the examination of child witnesses in India. It argues for a uniform procedure that recognizes the vulnerabilities of children, as a witnesses, rather than making access to protective measures dependent on whether the child is classified as a victim or merely a witness.