Identity of rape victims should be protected so that they are not subjected to unnecessary ridicule, social ostracisation and harassment. (SC)
Identity of rape victims should be protected so that they are not subjected to unnecessary ridicule, social ostracisation and harassment. (SC)
- By Dr. Kalpeshkumar L Gupta*
Indian Judicial System and Administration face many difficulties in dealing with the case of sexual offences esp. when it comes to protect the identity of victims. Inspite of legal provisions, guidelines which are mentioned below, identity of victims is revealed and life of the victims becomes more miserable after the incident.
IPC Section 228A. Disclosure of identity of the victim of certain offences etc.
(1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under section 376, section 376A, section 376B, section 376C or section 376D is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
(2) Nothing in sub-section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is-
(a) by or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; or
(b) by, or with the authorization in writing of, the victim; or
(c) where the victim is dead or minor or of unsound mind, by, or with the authorization in writing of, the next of kin of the victim:
Provided that no such authorization shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognized welfare institution or organization.
Explanation- For the purposes of this sub-section, "recognized welfare institution or organization" means a social welfare institution or organization recognized in this behalf by the Central or State Government.
(3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect to an offence referred to in sub-section (1) without the previous permission of such court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
Explanation- The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.]
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Section 327 of The Code of Criminal Procedure Act, 1973, Court to be open
(1) The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain them:
Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.
(2) Notwithstanding anything contained in sub- section (1), the inquiry into and trial of rape or an offence under section 376, section 376A, section 376B, section 376C, 142 section 376D or section 376E of the Indian Penal Code (45 of 1860) shall be conducted in camera :
Provided that the presiding Judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the Court:
Provided further that in camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.
(3) Where any proceedings are held under sub-section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings except with the previous permission of the Court:
Provided that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.
Let’s discuss recent case of Nipun Saxena & Anr. v/s. Union of India & Ors. (SC, Decided on December 11, 2018, Justice Madan Lokur & Justice Deepak Gupta, JJ) regarding Identity of adult victims of rape and children who are victims of sexual abuse should be protected so that they are not subjected to unnecessary ridicule, social ostracisation and harassment.
Unfortunately, in our society, the victim of a sexual offence, especially a victim of rape is treated worse than perpetrator of the crime. The victim is innocent. She has been subjected to forcible sexual abuse. However, for no fault of the victim, society instead of empathizing with the victim, starts treating her as an ‘untouchable’. A victim of rape is treated like a “pariah” and ostracized from society. Many times, even her family refuses to accept her back into their fold. The harsh reality is that many times cases of rape do not even get reported because of the false notions of so called ‘honour’ which the family of the victim wants to upload. The matter does not end here. Even after a case is lodged and FIR recorded, the police, more often than not, question the victim like an accused. If the victim is a young girl who has been dating and going around with a boy, she is asked in intimidating terms as to why she was dating a boy. The victim’s first brush with justice is an unpleasant one where she is made to feel that she is at fault; she is the cause of the crime.
If the victim is strong enough to deal with the recriminations and insinuations made against her by police, she normally does not find much succor even in court. In court, the victim is subjected to a harsh cross-examination wherein a lot of questions are raised about the victim’s morals and character. The presiding judges sometimes sit like mute spectators and normally do not prevent the defence from asking such defamatory and unnecessary questions. We want to make it clear that we do not, in any manner, want to curtail the right of the defence to cross-examine the prosecutrix, but the same should be done with a certain level of decency and respect to women at large. Over a period of time, lot of efforts has been made to sensitize the courts, but experience has shown that despite the earliest admonitions, the first as far back as in 1996 (State of Punjab v. Gurmit Singh, (1996) 2 SCC 384), the courts even today reveal the identity of the victim.
Neither the IPC nor the CrPC define the phrase ‘identity of any person’. Section 228A IPC clearly prohibits the printing or publishing “the name or any matter which may make known the identity of the person”. It is obvious that not only the publication of the name of the victim is prohibited but also the disclosure of any other matter which may make known the identity of such victim. We are clearly of the view that the phrase “matter which may make known the identity of the person” does not solely mean that only the name of the victim should not be disclosed but it also means that the identity of the victim should not be discernible from any matter published in the media. The intention of the law makers was that the victim of such offences should not be identifiable so that they do not face any hostile discrimination or harassment in the future.
A victim of rape will face hostile discrimination and social ostracisation in society. Such victim will find it difficult to get a job, will find it difficult to get married and will also find it difficult to get integrated in society like a normal human being. Our criminal jurisprudence does not provide for an adequate witness protection programme and, therefore, the need is much greater to protect the victim and hide her identity. In this regard, we may make reference to some ways and means where the identity is disclosed without naming the victim. In one case, which made the headline recently, though the name of the victim was not given, it was stated that she had topped the State Board Examination and the name of the state was given. It would not require rocket science to find out and establish her identity. In another instance, footage is shown on the electronic media where the face of the victim is blurred but the faces of her relatives, her neighbours, the name of village etc. is clearly visible. This also amounts to disclosing the identity of the victim. We, therefore, hold that no person can print or publish the name of the victim or disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.
Sub-section (2) of Section 228A makes an exception for police officials who may have to record the true identity of the victim in the police station or in the investigation file. We are not oblivious to the fact that in the first information report, the name of the victim will have to be disclosed. However, this should not be made public and especially not to the media. We are of the opinion that the police officers investigating such cases and offences should also as far as possible either use a pseudonym to describe the victim unless it is absolutely necessary to write down her identity. We make it clear that the copy of FIR relating to the offence of rape against a women or offences against children falling within the purview of POCSO shall not be put in the public domain to prevent the name and identity of the victim from being disclosed.
As far as clause (b) of sub-section (2) of Section 228A IPC is concerned, if an adult victim has no objection to her name being published or identity being disclosed, she can obviously authorize any person in writing to disclose her name. This has to be a voluntary and conscious act of the victim. There are some victims who are strong enough and willing to face society even after their names are disclosed. Some of them, in fact, help other victims of rape and they become a source of inspiration to other rape victims. Nobody can have any objection to the victim disclosing her name as long as the victim is a major.
This is a serious issue dealing with victims of heinous sexual offences and needs to be dealt with sensitivity. Furthermore, all of us are fully aware that without disclosing her true identity ‘Nirbhaya’ became the most effective symbol of protest the country has ever known. If a campaign has to be started to protect the rights of the victim and mobilise public opinion it can be done so without disclosing her identity.
As far as sub-section (3) of Section 228A IPC is concerned, we would like to make it clear that the IPC clearly lays down that nobody can print or publish any matter in relation to any proceedings falling within the purview of Section 228A and in terms of Section 327(2) CrPC. These are in camera proceedings and nobody except the presiding officer, the court staff, the accused, his counsel, the public prosecutor, the victim, if at all she wants to be present or the witness shall be there. It is the bounden duty of all of them to ensure that what happens in court is not disclosed outside.
Before parting with this aspects, we would like to deal with a situation not envisaged by the law makers. As we have held above, Section 228A IPC imposes a clear cut bar on the name or identity of the victim being disclosed. What happens if the accused is acquitted and the victim of the offence wants to file an appeal under Section 372 CrPC?. Is she bound to disclose her name in the memo of appeal?. We are clearly of the view that such a victim can move an application to the Court praying that she may be permitted to file a petition under a pseudonymous name e.g. ‘X’ or ‘Y’ or any other such coded identity that she may choose. However, she may not be permitted to give some other name which may indirectly harm another person. There may be certain documents in which her name will have to be disclosed; e.g. the power of attorney and affidavit which may have to be filled as per the rules of the court. The court should normally allow such applicant to file the petition/appeal in a pseudonymous name. Where a victim files an appeal we direct that such victim can files an appeal by showing her name as ‘X’ or ‘Y’ along with an application for nondisclosure of the name of the victim. In a sealed envelope to be filed with the appeal she can enclose the document(s), in which she can reveal her identity as required by the Rules of the appellate court. The Court can verify the details but in the materials which is placed in the public domain the name of the victim shall not be disclosed. Such an application should be heard by the Court in Chambers and the name should not be reflected even in the causelist till such matter is decided. Any documents disclosing the name and identity of the victim should not be in the public domain.
On April 25, 2019, PIL has been filed in SC by Youth Bar Association of India for issuing direction for framing guidelines to protect the identity, reputation and integrity of individual/s allegedly accused of sexual offences, till completion of the investigation with regard to the truthfulness of such allegations.
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By-
Dr. Kalpeshkumar L Gupta
Founder of ProBono India
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