Introduction
The Protection of Children from Sexual Offences Act, 2012 represents a legislative acknowledgment that children who have experienced sexual abuse require more than ordinary criminal law protections when they enter the justice system as witnesses. The psychological research on child witnesses is unambiguous: repeated examination, confrontation with the accused, exposure to adversarial courtroom environments, and the requirement to recount traumatic experiences in formal settings cause secondary traumatisation that can be as damaging as the original abuse. Parliament, informed by this understanding, designed a framework of procedural safeguards in POCSO that was, at the time of enactment, among the most progressive in Asia.
More than a decade after POCSO’s enactment, the gap between its legislative design and the reality of courtroom practice in most of India’s Special Courts is distressing. Purpose-built child-friendly courtrooms remain rare; support persons are routinely absent or untrained; child witnesses are often examined repeatedly in the same manner as adult witnesses; and the principle of minimising the child’s exposure to the adversarial process is frequently honoured more in judicial pronouncements than in daily practice. This article examines the statutory framework, its judicial interpretation, comparative models of child witness examination, and the reforms necessary to bridge the gap between legislative intent and operational reality.
Legal Framework
The POCSO Act’s procedural provisions for child witnesses are clustered around a coherent objective: minimise the child’s exposure to traumatic re-examination while preserving the evidentiary integrity necessary for a fair trial. Section 26 provides that the examination of the child shall be conducted at the child’s residence or a place familiar to the child and shall not be conducted more than once; in exceptional circumstances where re-examination becomes necessary, it shall be carried out in the presence of a translator or interpreter and in a child-friendly manner. Section 33(1) mandates that the Special Court shall create a child-friendly atmosphere and take measures to ensure that the child is not traumatised during proceedings. Section 33(2) provides that the Special Court may permit a child to give evidence through video-link or any other appropriate means if the Court is satisfied that the personal presence of the child in court would adversely affect the child. Section 36 is categorical: the child shall not be made to see the accused at the time of examination, and the Court shall ensure that the child is shielded from the accused throughout the testimony.
The POCSO Rules, 2020 (which replaced the 2012 Rules) significantly strengthened the procedural framework. Rule 4 provides that the Special Court shall provide a child-friendly atmosphere including separate waiting areas for child victims and witnesses, separate entry and exit points from the accused, and in-camera proceedings as a default rather than an exception. Rule 5 mandates the recording of the examination by audio-visual means to ensure that re-examination can refer to the prior statement without requiring the child to repeat the account entirely. Rule 7 governs the role of the support person, who is required to be a social worker trained in child protection, and provides that the support person shall accompany the child throughout all interactions with the justice system including police recording of statements, medical examination, and court appearance.
Section 33(7) of the POCSO Act contains a particularly important provision: the Special Court shall ensure that the identity of the child is protected at all stages of the investigation and trial, a mandate that extends to media reporting and any public disclosure of information that could lead to the child’s identification.
The relationship between POCSO’s procedures and the Indian Evidence Act, 1872 (now largely superseded by the Bharatiya Sakshya Adhiniyam, 2023 for new cases) creates some tension. Cross-examination of child witnesses under adversarial principles, including leading questions, impeachment of credibility, and detailed questioning about circumstances of the offence, can cause significant distress. The Special Court is empowered under Section 33(5) to disallow any question put to the child during examination that it considers harmful to the child’s interest, a provision that requires active judicial management of cross-examination in a manner that many courts have been reluctant to exercise for fear of appearing to favour the prosecution.
Judicial Developments
The Supreme Court’s suo motu writ petition concerning the functioning of Fast Track Special Courts for POCSO cases has generated significant judicial attention to the infrastructure of child examination. In a series of orders from 2019 onwards, the Supreme Court directed the establishment of Fast Track Special Courts (FTSCs) in districts with high numbers of pending POCSO cases, mandating the creation of designated spaces with child-friendly features. The Ministry of Finance and Ministry of Law and Justice responded with the Centrally Sponsored Scheme for Fast Track Special Courts, under which states receive central funding for FTSC establishment.
The Supreme Court’s 2021 circular on establishing child-friendly courts directed that all Special Courts designated for POCSO cases should have separate waiting rooms for child victims and witnesses, video-conferencing facilities for recording evidence, and trained support persons available for all proceedings involving child witnesses. The circular also directed State Legal Services Authorities to identify and train support persons and maintain a panel available to courts.
In Radhakrishna Nagesh v. State of Andhra Pradesh (2023), the Supreme Court emphasised that the protection of child witnesses from direct confrontation with the accused is not merely a procedural nicety but a constitutional imperative under Article 21, given that the purpose of ensuring bodily and psychological integrity of a child witness during trial is directly related to the right to life with dignity. The Court noted that in multiple instances, POCSO accused had been permitted to cross-examine child witnesses directly in open court, and directed that this practice must be brought to an immediate end.
The Bombay High Court in several decisions has addressed the use of video-conferencing for child witness examination, upholding the right of the Special Court to direct examination through video-link and rejecting defence arguments that such examination violates the accused’s right to confront witnesses face-to-face. The Court relied on comparative jurisprudence from the European Court of Human Rights, which has consistently held that measures to protect vulnerable witnesses, including screens and video-links, do not per se violate the right to a fair trial under Article 6 of the European Convention on Human Rights, provided that the accused retains the ability to observe the witness and instruct counsel in real time.
Contemporary Issues and Analysis
UNICEF India’s assessments of POCSO court infrastructure, conducted in partnership with the National Commission for Protection of Child Rights (NCPCR), have consistently found that the majority of designated Special Courts across India do not meet the minimum child-friendly standards prescribed in the POCSO Rules 2020. In many districts, the “Special Court” is simply an ordinary sessions court with POCSO jurisdiction assigned to it rather than a purpose-built or purpose-adapted courtroom. The lack of a separate entrance, a screened witness box, video-conferencing equipment, and a designated child-friendly waiting area means that child victims entering these courts experience precisely the adversarial, intimidating environment the legislation sought to prevent.
The support person provision is perhaps the most significant gap in practice. The POCSO Rules contemplate a trained social worker accompanying the child as a constant presence and communicative bridge between the child and the justice system. In reality, Child Welfare Committees, which are the primary bodies responsible for identifying and assigning support persons, are overwhelmed with cases and often unable to provide trained support persons for court appearances. Support persons who do appear are frequently untrained volunteers or child care institution staff with no specialised knowledge of trauma-informed communication or court procedures.
The video-conferencing provision in POCSO Section 33(2) has seen uneven utilisation. Courts in larger cities with adequate infrastructure have increasingly used video-conferencing for child witness examination, particularly since the COVID-19 pandemic normalised remote judicial proceedings. However, courts in rural and semi-urban districts continue to conduct in-person child witness examination in open court as the default, reserving video-conferencing for exceptional cases. The absence of functioning video-conferencing equipment in many district courts is both a financial and a governance failure.
The prohibition on repeated examination under Section 26 continues to be routinely violated in practice. Child victims are often examined by the police (under Section 161 CrPC), then again before the Child Welfare Committee, then under Section 164 CrPC before a magistrate, and finally during trial. Each of these examinations requires the child to narrate the incident again, and despite Section 26’s clear mandate, courts have not consistently treated prior recorded statements as substitutes for live testimony where the circumstances allow.
Comparative and International Perspective
The United Kingdom’s Achieving Best Evidence (ABE) model, developed jointly by the Home Office, Crown Prosecution Service, and Department of Health, provides the most instructive international comparison. Under ABE guidelines, a child witness who is a victim of sexual abuse is interviewed by a specially trained police officer (usually a detective constable with specialised child abuse investigation training) in a purpose-built, non-threatening environment as early as possible after the disclosure. The interview is recorded on video using a structured protocol that prioritises free narrative account before any specific questioning. This recorded ABE interview then serves as the child’s evidence-in-chief at trial, meaning the child does not have to retell the entire account in court.
Cross-examination of child witnesses in England and Wales is conducted through an intermediary, a trained professional who translates complex legal questions into child-appropriate language and ensures the child understands what is being asked. Registered Intermediaries have been used since 2004 and are now considered an essential component of justice for vulnerable witnesses. Scotland has piloted, and is implementing at scale, the pre-recorded cross-examination of child witnesses (known as Section 271I orders under the Criminal Procedure (Scotland) Act 1995 as amended), allowing cross-examination to be conducted and recorded before trial, typically within months of the incident rather than years later when the case eventually comes to court.
The United States’ use of Child Advocacy Centres (CACs), of which there are now over nine hundred across the country, provides another model. CACs co-locate investigative interviews, medical examinations, therapy, and victim advocacy services in a single child-friendly facility. The multi-disciplinary team model, in which police, prosecutors, child protection services, medical professionals, and therapists coordinate rather than conducting independent parallel investigations, significantly reduces the number of times a child must recount the incident.
UNICEF’s Child-Friendly Justice Guidelines recommend that all states adopt the principle of a single forensic interview for child victims, with that interview recorded and admissible as evidence, as the international standard. India’s legislative framework in Section 26 is directionally consistent with this recommendation but has not been operationally implemented.
Practical and Policy Implications
The infrastructure deficit in POCSO Special Courts is not merely an inconvenience; it directly affects the quality of evidence and the likelihood of conviction. Research from India and internationally consistently shows that child witnesses who are examined in intimidating environments, confronted with the accused, and required to narrate traumatic experiences repeatedly provide less coherent and less complete accounts than children examined in child-friendly conditions using trauma-informed techniques. This means the gap between legislative design and courtroom practice is not only harmful to child victims but also counterproductive to effective prosecution.
Training for judges designated to POCSO Special Courts is inconsistent and insufficiently specialised. The National Judicial Academy conducts training programmes that include POCSO modules, but attendance is voluntary in many cases, and there is no systematic refresher training or assessment of judges’ competence in applying child-friendly examination techniques. The result is significant variation in the quality of child witness examination across courts, with some judges demonstrating excellent trauma-informed practice and others conducting proceedings that differ little from ordinary criminal trials.
Public prosecutors in POCSO Special Courts similarly require specialised training in child witness examination, including how to frame questions for child-friendly direct examination and how to object appropriately to defence cross-examination that is harmful to the child within the meaning of Section 33(5). The current ad hoc approach to prosecutor training leaves many child victims without effective representation at the examination stage.
Suggestions and Reforms
A national Child Advocacy Centre model should be adopted and funded, beginning with pilot centres in one district in each state. These centres should provide multidisciplinary services including forensic interview facilities, medical examination rooms, and psychological support, co-located in a single child-friendly building. The forensic interview should be recorded and, following suitable legislative amendment, the recording should be admissible as evidence-in-chief at trial.
A registered intermediary scheme on the UK model should be established in India. The National Law School network and social work institutions should be engaged to develop a training and registration curriculum for intermediaries, who would be available in all POCSO Special Courts to facilitate communication between child witnesses and the court.
Mandatory specialised training for all POCSO Special Court judges and public prosecutors should be introduced through the State Judicial Academies and National Judicial Academy, with a competency-assessed certification requirement before a judge can be designated to a POCSO Special Court.
The POCSO Rules 2020 should be amended to specify minimum infrastructure standards for child-friendly courtrooms with mandatory compliance timelines and consequences for non-compliance, including the power of the High Court to transfer POCSO cases from a court that fails to meet minimum standards.
Conclusion
The POCSO Act’s framework for child witness examination reflects genuine parliamentary commitment to trauma-informed justice. Its provisions on limited examination, child-friendly environments, support persons, video-conferencing, and shielding from the accused are consistent with the best international practice of 2012. Over a decade later, the implementation record is, in most parts of India, a significant failure. The result is a justice system that re-traumatises the children it seeks to protect while simultaneously compromising the evidentiary quality necessary for effective prosecution.
The reforms needed are neither technically complex nor financially prohibitive; they require political will, institutional commitment, and sustained attention from High Courts and the Supreme Court in their supervisory roles. The standard should be simple: a child who enters India’s POCSO Special Courts should receive the protection that Parliament promised.
