Child Rights versus Fair Trial: Interpreting Section 33(2) of the POCSO Act

Introduction

Child sexual abuse is on the rise all over the world, particularly in our own country, India, which is one of the top five countries in the world in terms of the number of sexual offences involving children. In many ways, Indian criminal law appears inadequate to deal with such a sensitive issue.

In this article, we will be specifically dealing with the Protection of Children from Sexual Offences Act 2012

Historical Background And Need For POCSO Act 2012

Before the enactment of the Protection of Children from sexual Offences Act 2012 in India, the scope of protecting children from sexual abuse was very limited . The Indian Penal Code 1860 dealt with child sexual abuse, but terms like modesty and unnatural offence were not clear through the provisions of IPC, and it also did not address the sexual abuse of boys or offer protection for the ‘Modesty’ of male children. At that time, the overall percentage of reports of boys experiencing sexual abuse was much higher than that of girls, which became a major concern and which is now dealt with as a key issue in the POCSO Act.

Notable Events Leading To POCSO Act

• In 1990 a child abuse racket was busted in goa watching this the state legislation felt the need of enacting an act which specially aims to protect the interest of children from these kinds of offences after which THE CHILDRENS CODE DRAFT(2000) was prepared by the goa state commission for women under the leadership of Ms. Shanta Durga Khalap with the help of the references from the international instruments like UN Convention on the Rights of Children(UNCRC) which ultimately led to the formation of The goa children act in 2003

The Goa Children Act 2003

The Goa Children Act 2003 was passed which is a progressive state legislation aimed at protecting the rights safety and welfare of children in the state of Goa. The act defines a person who was below the age of 18 years as a child and provided strict provisions against sexual offences, harmful substances, child pornography and employment of children in hazardous work. It also introduced child friendly procedures for investigation and trial.

Focus Areas of Goa Children Act 2003
Protection against sexual offences
Action against harmful substances
Ban on child pornography
Protection from hazardous child labour
Child-friendly trial procedures

It became the very first act of its kind and got great appreciation at the state as well as the central level but as it was a state legislation and was not dealing the offences across the Indian sub-continent the rest of the country was dealing with these kind of offences through the IPC specifically sections like (375,354,377) IPC and as the offences related to sexual abuse of child in India increased, we needed stronger child centric legislation

Therefore, it became important to pass an act which protects the children from sexual offences throughout the contrary as a whole.

The Offences Against Children (Prevention) Bill 2005

In 2005, The Offences Against Children (Prevention) Bill 2005 was drafted by the Department of Women and Child Development, which addressed different offences like sexual exploitation, economic exploitation, domestic violence, trafficking for prostitution, etc, against children. The bill was never passed into law, but the key provisions were carried forward and became part of the POCSO Act 2012

Enactment of POCSO Act

Hence, the POCSO Act was passed.

The Protection Of Children From Sexual Offences Act 2012

Let us understand the intention of the act from some part of the preamble of the act, which is also a widely used internal aid for the interpretation of a statute

The POCSO ACT 2012 is,

• An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for the establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto

[As we see the very 1st line of the preamble, there is a word mentioned “children” which surely signifies that the law is enacted for a person who is a child or who is a minor (below 18 years of age)]

• AND WHEREAS it is necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child;

The line which is highlighted here can be clearly interpreted as clearly that all the measures and procedural safeguards prescribed in this act are for a person below 18 years of age who is a child

• AND WHEREAS the law must operate in a manner that the best interest and well-being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child;

• AND WHEREAS the State parties to the Convention on the Rights of the Child are required to undertake all appropriate national, bilateral and multilateral measures to prevent:
  1. the inducement or coercion of a child to engage in any unlawful sexual activity
  2. the exploitative use of children in prostitution or other unlawful sexual practices;
  3. the exploitative use of children in pornographic performances and materials;

The clear interpretation which can be drawn from this point is that this act talks about the protection of rights of a minor person because it is clearly mentioned (Rights of the Child), so it is clear that the POCSO Act does not provide safeguards to the rights of a major person

• AND WHEREAS sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed.

A purposive reading of the preamble of the POCSO Act reveals its bifurcated intent. It consists of two different limbs, out of which one is the SUBSTANTIVE LIMB, which aims “to protect children from offences of sexual assault, sexual harassment, and pornography”. The second limb pertains to the PROCEDURAL DOMAIN, which deals with the establishment of Special Courts and their process of work and proceedings.

In this Article, we will be particularly dealing with the procedural section of the POCSO Act, which mainly deals with the Trial Procedure and Cross-examination of Victims

Importance of Cross-Examination

The Cross-examination plays a very crucial role in legal proceedings as it allows for a more thorough and accurate presentation of evidence by enabling the opposing party to test the credibility of the witness and uncover inconsistencies or biases in their testimony

The accused has a fundamental right (under Article 21 , the right of fair trial) to cross-examine a witness under the BSA. Cross-examination is not just a mere formality but a juridical instrument of immense forensic significance. It is a crucial tool for the defence to test the truthfulness and credibility of a witness’s testimony. The BSA retains the core principles of the erstwhile Indian Evidence Act, 1872 , regarding the examination of witnesses. It permits leading questions to be asked during cross-examination and allows for the use of previous statements to contradict a witness.

It is through cross-examination that the defence seeks to probe into the surrounding circumstances of the incident, expose contradictions, omissions, or embellishments, and thereby test the reliability, veracity, and trustworthiness of the witness. It enables the accused to confront the witness with alternate narratives, subtly or directly, thereby introducing the defence theory without prematurely disclosing strategic contours

In the case of State of Rajasthan V. Kashi Ram (2006) 12 SCC 254 , the honourable Supreme Court held that- “Cross-Examination is an acid test of the truthfulness of the witness and the veracity of his Statement”

In Kartra Singh V. State of Punjab (1994) 3 SCC 360 , the Supreme Court held that- “Fair Trial include the right of the accused to cross-examine the Prosecution witnesses”

“PROCEDURAL LAW IS THE VEHICLE OF JUSTICE NOT ITS DESTINATION”

In this article, we will be particularly dealing with Section 33(2) of the POCSO Act

Section 2 – Definition of “Child”

For a better understanding of this section, you have to first understand that when a person is legally considered a “child”

Section 2 of the POCSO Act defines the term “child”, it states that- “CHILD’ means any person below the age of eighteen years.

Section 33(2)

Section 33(2) of the POCSO Act particularly states that

“The Special Public Prosecutor, or as the case may be, the counsel appearing for the accused shall, while recording the examination-in-chief, cross-examination or re-examination of the child, communicate the questions to the Special Court, which shall in turn put those questions to the child.”

Explanation:

Under Section 33(2) of the Protection of Children from Sexual Offences (POCSO) Act, 2012, both the prosecution and the defence lawyers are prohibited from directly questioning a child witness in court. This means that during any part of the child’s testimony—whether it’s the main examination, cross-examination, or re-examination—the lawyers cannot speak directly to the child. Instead, any questions that the lawyers wish to ask must be submitted to the Special Court, and it is the judge who then asks those questions to the child. The idea is to prevent the child from being subjected to intimidating or aggressive questioning that might cause further trauma . This method is a legal requirement—not an optional safeguard—and applies in all cases involving child victims under the POCSO Act.

The purpose behind Section 33 is to protect the child’s mental and emotional well-being. Going through a trial—especially for a child who has faced sexual abuse—can be terrifying. This law ensures that the child does not feel directly attacked or overwhelmed by lawyers asking complicated or inappropriate questions.

Contention

• The victim is no longer a “child” as defined by the POCSO Act.
• While the offence remains under the POCSO Act, the victim’s status changes (the victim turns 18 years of age or attains majority).

The legal question then becomes:
Whether the protective procedural mandate under Section 33(2) of the said Act continues to apply even after the child attains the age of majority during the pendency of the trial, or should the trial revert to the standard procedural rules of evidence?

The question assumes significance in light of the competing interests of safeguarding the dignity of a child witness on one hand, and upholding the fundamental right of the accused to a fair trial on the other.

To find out the relevant answer, we need to see the construction of the statute and the Intent of the Legislation

If we see the grammatical construction of the POCSO Act 2012 , we find that both the terms “CHILD” and “VICTIM” are used in the Act. Where the legislature intended to confer the protection irrespective of age, it used the term ‘VICTIM’, and where the protection was age specified, the term ‘CHILD’ has been used [as in section 33(2) of the act]. These choices of the terms are not accidental; rather, they show the specific intent of the legislature. [33]

“The legislature, while crafting the POCSO Act, made a conscious and deliberate choice to extend the exceptional procedural protection of Section 33(2) only to a “child” as defined in Section 2(d) and only in relation to proceedings governed under the Act”

In this case, the principle of Expressio Unis est exclusion alterius – the express mention of one thing implies the exclusion of others- applies

Definition of “Child” – Supported by Case Law

Let’s explain the term ” child’’ with the help of a Landmark Judgement of the Supreme Court, Ms.Eera through Dr. Manjula Krippendorf V. State (2017) 15 SCC 133

Aspect	Details
Facts	The prosecutrix (“Eera”) was a woman with intellectual disability / mental retardation, who was alleged to be a victim of sexual assault. The prosecution invoked the provisions of the POCSO Act, arguing that since her mental age was below 18, she should be treated as a “child” under the Act. The core question was: Does the term “child” under Section 2(d) of the POCSO Act, 2012, include a person whose mental age is less than 18 years, though their biological age is above 18?
Judgement	The Supreme Court held that the word “CHILD” as defined under section 2(d) of the POCSO Act must be construed strictly to denote the biological or chronological age. And not the mental or intellectual age. By a majority (2:1), the Court held that POCSO applies only to those below 18 years in biological age. The Court held that while the POCSO Act is indeed a benevolent legislation, designed to safeguard children from sexual offences, the protective mechanisms embedded therein cannot be extended to adults—irrespective of any putative psychological incapacity—since such an approach would subvert the legislative intent and distort the statutory scheme.

The principle laid down in Eera mandates that “child” must be understood in its precise, biological sense, both for determining the applicability of the Act and for invoking its special procedural protections, including those under Section 33(2).

Therefore, when a victim, who was biologically under eighteen at the time of the offence, attains majority during trial, he or she ceases to be a “child” for purposes of procedural application under the Act

Thus from this judgement we can conclude that biological age is the sole determinative criterion for invoking protections under the POCSO framework

Applicability of Section 33(2) After Attaining Majority

the procedural safeguards under Section 33(2) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), are exclusively intended for a “child” as defined under Section 2(d) and cannot be extended to a witness who attains majority during the course of trial. Section 33(2) mandates that questions during examination-in-chief, cross-examination, or re-examination be routed through the Special Court only while the witness continues to be a child. Once the child crosses the age of 18 years, the protective procedure ceases to apply, and the ordinary rules of criminal trial and evidence law must govern further proceedings.

Here, the Latin legal maxim “CESSANTE RATIONE LEGIS, CESSAT LEX IPSA” comes into play, which says, “when the reason for a law ceases, the law itself ceases.”

In other words “if the underlying rationale or purpose for a law no longer exists, the law should be interpreted or applied in a way that aligns with that change in circumstance, or potentially even considered void if the reason is no longer applicable”, here in this case it is significant to consider this aspect also because the provision u/s 33 POCSO are designed to limit the trauma to the child that results from giving evidence, This is particularly important in matters where the child is the victim, but where a child becomes adult the purpose of law providing advantage to limit the trauma to a child will no longer exists and in that situation the law should be interpreted or applied in a way that aligns with that change in circumstance, or potentially even considered void if the reason is no longer applicable & the child witness who turned adult should be treated according to standard rule of law provided for regular witnesses.

Can Any Statute Go Beyond the Constitution?

Extending Section 33(2)’s procedural mechanism post-majority would disrupt legislative balance and infringe upon the accused’s Fundamental Rights — the Right to Life and Liberty (right to free and Fair Trial) under Article 21, and the principle of audi alteram partem.

India follows the principle of “Rule Of Law” which means that law is supreme and no one is above the law and India as a country is governed by the constitution and hence the constitution is the supreme law of the country, every law which is enacted is to be seen that it is not becoming “ultra viers” to the constitution i.e. not going beyond the powers of the constitution or not violating the Constitution in any manner and if a particular law is ultra viers in nature it is should become void.

Article 21 – Fair Trial Concerns

Art 21- extending section 33(2) post majority hinders fair cross-examination by preventing direct questioning from the victim, which gives strategic advantages to the prosecution which violates the Fundamental Right of the accused Article 21, that is right to life and personal liberty which incorporates the right to fair trial. The rationale behind this is that the person is no longer a child and is legally considered an adult, with a presumed capacity to withstand the rigours of a court proceeding.

“To perpetuate the curtailment of the accused’s right to direct cross-examination merely because the incident occurred during the witness’s childhood would amount to procedural overprotection bordering on unconstitutionality. Such an approach would infringe the principle of audi alteram partem”

Audi Alteram Partem – Fundamental Rule of Natural Justice

• It is a Latin maxim meaning “no man shall be condemned unheard”.
• It incorporates the right of cross-examination.
• It applies to both the accused and the victim.

If the court restricts or disallows meaningful cross-examination of the victim, then the accused loses their chance to test the truthfulness and credibility of a witness’s testimony, which is clearly a violation of the principle of audi alteram partem.

Lawyer’s Views on the Issue

Adv. Umesh Kant Vyas & Adv. Devkinandan Vyas – Rajasthan High Court, Jodhpur

The age has a close correlation with, wisdom, sense, foresight, care, caution, sagacity, sanity, intelligence, which can be defined in one word- as prudence & no discrimination should be allowed regarding this correlation while dealing a human, whether it is an accused or a victim or a witness, because the status of a human as an accused or a witness shall have no effect on the correlation between the age of a person and his prudence.

Section 118 of the Indian Evidence Act, 1872

Section.118 of the Indian Evidence Act,1872 clearly provides as “All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.” thus it is clear that the age of a person has’ a clear correlation with his prudence

Continuing Protection Post-Majority

If the protection provided under sec 33 of POCSO Act, which are designed to limit the trauma to the child that results from giving evidence, are allowed to be continue after that child become adult then it will certainly put an accused to disadvantage as his prior discloser of questions to a witness, who is actually no longer a child but has requisite mental capability, will understand the line of defence and modulate the answers accordingly, as the age and prudence are significantly correlated, where there is reverse burden theory applicable, impeding the right of cross examination in a particular way itself will be against the principle of natural justice, because the Cross-examination plays very crucial role in legal proceedings as it allows for a more thorough and accurate presentation of evidence by enabling the opposing party to test the credibility of the witness and uncover inconsistencies or biases in their testimony.

When a child becomes adult the purpose of law [sec33(2)] providing advantage to limit the trauma to a child will no longer exists and in that situation the law should be interpreted or applied in a way that aligns with that change in circumstance, or potentially even considered void if the reason is no longer applicable & the child witness who turned adult should be treated according to standard rule of law provided for regular witnesses. (written submissions by the advocate in the case)

Case Laws And Judgments

Let us now understand the contention of this article from the landmark judgment of the Rajasthan HC, Jassaram Pander v. State of Rajasthan

1. Jassaram Pander v. State of Rajasthan

Facts of the case

The petitioner in this case is an accused under the POCSO Act. Over the period, the victim has attained the age of majority and no longer falls within the definition of a “child” as provided under Section 2(d) of the POCSO Act. Consequently, a prayer has been made that now adherence to the procedure outlined under Section 33(2) of the POCSO Act should not be deemed mandatory.

Question of law raised

“Whether the protective procedure prescribed under Section 33(2) of the POCSO Act, 2012, requiring that questions during examination-in-chief, cross-examination, or re-examination of a child be routed through the Special Court, continues to apply once the victim attains the age of majority during the pendency of trial?”

Court’s Observation

• POCSO is a sui generis child-rights law, but the strict construction of penal statutes applies.
• The term “child” in section 33(2) is unambiguous; it means a person below the age of 18 years.
• Once the person attains majority, the rationale behind judicial intermediation in the cross-examination of the victim ceases (“when the reason for a law ceases, the law itself ceases.”)
• The object of Section 33(2) is not to create an impenetrable procedural wall around the witness but to prevent the re-traumatisation of a child during trial
• Procedural safeguards under the POCSO Act are age-contingent, not perpetual

Order/Judgment

• The court held that the procedural safeguard embodied in Section 33(2) of the Protection of Children from Sexual Offences Act, 2012, is intrinsically age-contingent and must be confined to those witnesses who fall within the statutory definition of “child” as per Section 2(d) of the Act.
• That while the spirit of the POCSO Act mandates a child-friendly process, the Court cannot extend procedural protections in a manner that contravenes the express legislative scheme or dilutes the rights of the accused enshrined under Article 21 of the Constitution (right to fair trial)
• That the procedural safeguard given under Section 33 (2) POCSO ceases to apply once the witness turns a major, i.e. a person who is 18 years or above.

There are a few more judgments of different HCs, but
This is the only judgment in which the Rajasthan High Court gave a detailed observation on the issue involved.

2. Anujith v. State of Kerela

In this case, the same issue was raised that the mode of examination prescribed under Section 33(2) POCSO still applies

The Court ruled that – mode of examination via sec 33(2) continues even after the victim attains majority because the determinant is the date of commission of offence, not the date of examination (live law, manupatra)

3. Mahammad Ali Akbar v. State of Karnataka

This case does not particularly deal with the procedure under Section 33(2) POCSO, but is related to the subject matter of the article, as it deals with another procedural section of POCSO, which is Section 33 (5)( for a normal understanding, this section bars repeatedly calling of child witness in court).

The issue involved in this case was whether the bar on repeated examination of child witnesses under section 33(5) POCSO remains absolute once the victim has become an adult

Judgment

The court held that the restriction under section 33(5) ceases to operate after the victim has become an adult.
(This case shows that the centric approach given under the POCSO Act should not be applied post majority)

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Suggestion For Changes

1. Statutory rule when the victim turns 18 – there should be certain amendments in the procedural sections of the POCSO Act, like section 33 and 37 and a clause must be added which particularly mentions that the procedural safeguards provided under the section are only for the victim who is a child and are not available for the people who have attained majority.
2. A support system should be built, though the victim has now become a major. Still, we should not forget that when the offence was committed, he/she was a minor; now, even the victim has to go through a direct cross-examination. Still, there should be a mandatory presence of counsellors and psychologists so during cross-examination so that at the time of the procedure the victim should feel safe and would be free from the re-traumatisation, stress and fear and the mental well being of the witness can be assured , so that the main essence of the POCSO law(i.e. to protect the best interest of the child) can be preserved.
3. Balance between fair trial rights and victim protection
   As we have discussed in this article, the POCSO Act consists of two limbs, one is substantive in character, aiming “to protect children from offences of sexual assault, sexual harassment and pornography.” And the second limb is the procedural limb which deals with the manner in which the proceedings will be done.

   If we need to balance the fair trial rights of the accused and the protection of the victim then we need to safeguard the substantive limb and make the provisions even stronger to protect the interest of the child but on the other hand we need to keep a liberal view for procedural limb and need to interpretate the provisions in a manner that frustrates the ends of substantive justice or impinges upon the foundational rights of the accused

   In this manner, we provide a fair trial and opportunity to secure justice to both the victim and the accused.

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Conclusion

This brings us to the conclusion of this article; this article was all about the question that does the safeguards present in the POCSO act mainly in section 33(2) which prohibits direct cross examination of the victim asserting that direct cross can lead to re-traumatisation of the CHILD should continue even after the victim has crossed the age of majority (18 years of age).

I am of the view that as the ACT [particularly sec33(2)] itself mention the term CHID and the act also defined the term CHILD in section 2(d) means that the act has been made to protect the interest of a minor person, when a person becomes a major he/she does not fall under the category of a child and hence he/she is presumed to have the competence and maturity to participate in standard adversarial proceedings, the special procedure under Section 33(2) should no longer survive because extending the safeguard to a now adult witness would be arbitrary to the foundational rights of the accused and also to the principles of natural justice .

Thus, the right to effective cross-examination must be given to the accused, and the procedural safeguards under Section 33(2) cease to apply once the victim becomes a major.

“Special Law Must Protect The Best Interest Of The People, But Cannot Stand Against The Principles Of Natural Justice”

Bibliography

Statutes:

• Protection of Children from Sexual Offences Act, 2012.
• Indian Penal Code, 1860.
• Indian Evidence Act, 1872.
• Constitution of India, 1950.

Cases:

• State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254.
• Kartar Singh v. State of Punjab, (1994) 3 SCC 360.
• Eera v. State, (2017) 15 SCC 133.
• Jassaram Pander v. State of Rajasthan (Rajasthan HC, 2024).
• Mohammad Ali Akbar v. State of Karnataka, (2022) SCC OnLine KAR 1048.
• Anujith v. State of Kerala (Kerala HC, 2024).

Books & Articles:

• D.D. Basu, Commentary on the Constitution of India (9th ed.).
• Ratanlal & Dhirajlal, The Law of Evidence (26th ed.).
• S.N. Mishra, “Indian Penal Code (With the Criminal Law (Amendment) Act, 2018)”.
• Ratanlal & Dhirajlal, The Code of Criminal Procedure.

Online Sources:

• SCC Online (2024) – scconline.com
• Manupatra Database (2023) – manupatra.com
• LiveLaw (2024) – livelaw.in
• UNICEF, WHO, and NCPCR Reports – unicef.org / who.int / ncpcr.gov.in
• PIB, Government of India – pib.gov.in

Written By:

• M.Noman Sheikh (Law Student UCL, MLSU)
• Sunil Kataria (Law Student UCL, MLSU