Guidelines for Recording of Evidence of Vulnerable Witnesses, 2024-explainer

1. Statutory Foundation and Judicial Objectives

The administration of criminal justice in India has undergone a foundational metamorphosis with the enactment of the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA). This 2024 Revised Framework marks a strategic departure from the legacy procedures of the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872. This protocol is designed to realign judicial conduct with modern legislative mandates, ensuring that the testimony of vulnerable witnesses—the "best evidence"—is not compromised by the inherent rigors of the adversarial system.

Mission Statement for Presiding Officers

The primary mandate of the Presiding Officer is to facilitate a safe, secure, and non-intimidating environment where vulnerable witnesses may depose freely. Judges shall proactively mitigate secondary victimization while maintaining a rigorous balance between the accused’s right to a fair trial and the witness’s right to participate effectively without psychological re-traumatization.

Statutory Definition of "Vulnerable Witness"

Category	Statutory Reference
Minors	Any child victim or witness under 18 years of age.
POCSO Victims	Any victim of an offence under the POCSO Act, 2012.
Sexual Offense Victims	Victims of BNS Sections 64(1), 64(2), 65(2), 66, 67, 68, 70, 71, 74, 75, 76, 77, and 78.
Persons with Disabilities	Defined under Section 2(s) of the Rights of Persons with Disabilities Act, 2016.
Mentally Ill Witnesses	Defined under Section 2(s) of the Mental Healthcare Act, 2017, read with BSA Section 124. (Competency remains a prerequisite as per Guideline 7).
Threatened Witnesses	Witnesses with a threat perception under the Witness Protection Scheme, 2018.
Court-Deemed Vulnerable	Any witness deemed vulnerable by the Court (including Family, Civil, Criminal Courts, or Tribunals).

Mandate for Liberal Construction

These guidelines shall be liberally construed to promote maximum accommodation for the witness. Presiding officers must exercise judicial discretion to modify courtroom procedures—within the legal framework—to remove systemic barriers. This proactive stance is a prerequisite for identifying the environmental and procedural factors that cause testimony to falter.

2. Analytical Assessment of Stress-Causing Factors

In the adversarial system, the judge is the primary architect of a trauma-informed environment. The "robustness of testimony" is directly proportional to the judge’s success in mitigating the 23 stress factors identified in the 2024 Guidelines.

Thematic Clusters and Prescribed Judicial Interventions

1. Procedural Anxiety: Stemming from multiple depositions and repeated adjournments.
   • Judicial Intervention: The Court shall accord "high priority" to these cases, ensuring testimony is recorded on sequential days to minimize repeated appearances (Guideline 18(i)).
2. Environmental Intimidation: Resulting from the formality of the courtroom, judicial robes, and the proximity of the accused.
   • Judicial Intervention: The judge may dispense with judicial robes and shall allow the witness to testify from a location other than the witness chair to increase comfort (Guideline 17(iv)).
3. Communication Barriers: Caused by developmentally inappropriate language and aggressive questioning.
   • Judicial Intervention: The Court shall act as a "linguistic gatekeeper," ensuring questions are simple and utilizing interpreters or special educators where necessary.
4. Psychological Pressure: Including the fear of not being believed or the guilt of testifying against family.
   • Judicial Intervention: The Court shall allow the presence of a Support Person and ensure the witness is provided sufficient time and opportunity to refresh their memory (Guideline 18(vi)).
5. Inaccessibility: Infrastructural failures for witnesses with disabilities.
   • Judicial Intervention: The Court must mandate the use of amplification devices, document magnifiers, and wheelchair access to ensure non-discriminatory participation.

3. Pre-Trial Readiness and Competency Protocols

The pre-trial phase is a strategic necessity to establish a foundation of psychological safety. It serves to demystify the adjudicatory process before any evidence is recorded.

Court House Tour Checklist

The Support Person or para-legal volunteer shall conduct a tour for the witness, encompassing:

1. The Dock: Identification of the accused's location.
2. Official Roles: Explanation of the roles of the judge, lawyers, and court staff.
3. Public Seating: Clarification of who is permitted in the courtroom.
4. The Witness Box: Familiarization with the physical space of deposition.
5. Procedural Run-through: A walkthrough of the basic court sequence.
6. Support Facilities: Locations of waiting rooms, separate entry/exit passages, and toilets.
7. Fear Mitigation: Discussion of specific concerns or fears with the judge and Support Person to dispel anxiety (Guideline 10(g)).

Competence Assessment Procedure

The Presiding Judge alone shall conduct the assessment to determine if the witness understands questions and can provide rational answers under BSA Section 124.

• Permitted Attendees: Judge, essential court personnel, counsel for parties, Guardian ad litem, Support Person(s), and interpreters/special educators.
• Questioning Style Guide:
  • NEVER: Use "general knowledge" or "current affairs" questions to judge competence.
  • NEVER: Use philosophical questions (e.g., "What is truth?").
  • ALWAYS: Focus on the witness's ability to distinguish truth from falsehood and the duty to testify truthfully.

Meeting the Judge

The Judge may meet the witness suo motu (recording reasons) or upon application. The sole purpose of this meeting is to explain the court process to alleviate fear; it shall never involve a discussion on the merits of the case. Counsel for both parties shall be present to ensure transparency.

4. Strategic Management of Support Personnel and Auxiliary Experts

A multidisciplinary approach is required to safeguard the witness's well-being and the integrity of the evidence.

Support Person vs. Guardian ad litem (GAL)

Feature	Support Person	Guardian ad litem
Primary Duty	Provides emotional support and practical coordination (medical/police).	Protects the "best interests" of the child; makes court recommendations (Guideline 34).
Appointment	Via POCSO Rules 2020 or JJ Rules; usually a neutral person.	Appointed by the Court; preference given to qualified parents or members of the Bar.
Role in Deposition	Accompanies witness; alerts court if witness is triggered or needs a break.	Attends all proceedings; explains legal status and trial progress to the witness.

Assistance of Auxiliary Experts

The Court shall engage interpreters, translators, or special educators to ensure proceedings are comprehensible.

• Economic Mandate: Such assistance, including special measures for those with disabilities or in poverty, shall be provided free of cost (Guideline 12(v)).
• Neutrality: The Judge must strictly prohibit Support Persons and experts from prompting, swaying, or tutoring the witness.
• Continuity: The Court shall ensure the same Support Person remains with the witness throughout the deposition to maintain the established bond of trust.

5. Courtroom Conduct and the Deployment of Testimonial Aids

Judicial officers must balance the constitutional rights of the accused to a fair trial with the witness's right to a non-intimidating environment.

Testimonial Aids and Operational Readiness

Testimonial aids include screens, one-way mirrors, and live-links.

• Pre-Trial Verification: The judge must ensure all equipment is functional ahead of time. Checks shall not be performed in the witness’s presence.
• Technical Specification: Camera angles must be adjusted so the witness cannot see the defendant, yet the witness must be able to see the entirety of the questioner’s face (Guideline 22(iii)).

Judicial Decision-Making Framework for Live-Link Testimony

When evaluating an application for live-link testimony, the Court shall consider:

1. Age and developmental level. 2. Physical/mental disabilities. 3. Psychological trauma related to the case. 4. Nature of the offence. 5. Threats against the witness. 6. Relationship with the accused. 7. Reactions to prior encounters with the accused. 8. Stress symptoms exhibited prior to trial. 9. Expert or lay witness testimony. 10. Family attitudes. 11. Custodial situation of the child. 12. The witness's own wishes. 13. Court atmosphere/formalities.

In-Camera Proceedings

Under BNSS Section 366 and POCSO Section 37, in-camera trials are mandatory for specific offenses. The Judge is empowered to exclude the press and any person without a direct interest in the case to protect the witness's privacy and prevent psychological harm (Guideline 19(i)).

6. Rigorous Examination and Questioning Modalities

The Presiding Officer shall act as a "linguistic gatekeeper" to prevent cross-examination from devolving into harassment.

Prohibited Questioning Guide

The Court shall mandate the rephrasing of:

• Complex/Compound Sentences: Questions must be broken into single parts.
• Sentence Structure Prohibitions: Questions containing both past and present tense in one sentence or multiple questions in one breath are prohibited (Guideline 23(iii)).
• Double Negatives: Must be simplified into direct queries.
• Character Assassination: Any question intended to shame or ridicule is strictly disallowed.
• Narrative Clues: The Judge shall treat the reaction of a witness (confusion, silence, distress) as a sufficient clue that a question is unclear, necessitating immediate rephrasing.

The Narrative Form and Sexual Offense Protections

Witnesses should be permitted to testify in narrative form. In cases of sexual offenses against children, questions shall be put to the witness only through the Court (Guideline 23(i)(f)). In such cases, witnesses shall never demonstrate intimate touching on their own body; the use of body outline diagrams is mandatory.

Rules of Deposition

The Judge shall explain to the witness:

• The duty to tell the truth.
• The right to say "I don't remember" or "I don't know."
• The right to ask for a question to be rephrased.

7. Privacy, Protective Orders, and Information Security

The Court must resolve the "Privacy-Transparency Paradox" by maintaining anonymity without sacrificing judicial accountability.

Protective Orders and the Mandatory Cautionary Notice

Any video/audio recording of a deposition must be governed by a protective order. Sensitive media must bear this verbatim notice:

“This object or document and the contents thereof are subject to a protective order issued by the court in (case title), (case number). They shall not be examined, inspected, read, viewed, or copied by any person, or disclosed to any person, except as provided in the protective order. No additional copies of the tape or any of its portion shall be made, given, sold, or shown to any person without prior court order. Any person violating such protective order is subject to the contempt power of the court and other penalties prescribed by law.”

Information Redaction and Incest Cases

All public e-court records must have identifying information redacted. Mandatory Protocol: In cases of incest, where the accused is a relative, the identity of the accused must also be redacted, as naming the relative directly identifies the child victim (Guideline 37(ii)(a)).

Witness Protection Scheme, 2018

The Court may suo motu implement protective measures, including:

• Restraint Orders: Prohibiting all contact by the accused.
• Police Safeguarding: Protecting the witness's physical whereabouts.
• Bail Conditions: Extending protective conditions throughout the trial duration.

8. Supplementary Mandatory Directives

All child-specific protocols are governed by the "Best Interests of the Child" as the primary interpretative lens.

Child-Specific Operational SOP

1. Scheduling: Testimony shall be taken during "appropriate hours" when the child is well-rested, avoiding meal/sleep times and school exams.
2. Breaks: Frequent and reasonable periods of relief are mandatory.
3. Body Outline Diagrams: Mandatory use in sexual offense cases to avoid self-demonstration.
4. Comfort Items: Children are permitted to carry items such as stuffed toys or blankets during deposition.

Virtual Examination SOP

In accordance with the Supreme Court’s directive in In Re Children in Street Situations, the virtual examination SOP is mandatory when the child witness does not reside near the court where the trial is conducted. The Court must ensure a child-friendly and secure remote environment.

Annual Review and Monitoring

This protocol is a living document. The High Court shall engage in an Annual Review involving multi-disciplinary committees to update these guidelines based on legal developments and the evolving needs of vulnerable witnesses. Strict adherence is required by all Presiding Officers to ensure the integrity of the judicial process.

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