“Victms of sexual assault are treated with lack of senstivity”
|Case name:||NIPUN SAXENA v. UNION OF INDIA MINISTRY OF HOME AFFAIRS|
|Case number/Citation:||Writ Petition (Civil) No. 000565-000565 / 2012|
|Court:||Supreme Court of India|
|Bench:||HON’BLE MR. JUSTICE MADAN B. LOKUR HON’BLE MR. JUSTICE DEEPAK GUPTA|
|Decided on:||December 11. 2018|
|Relevant Act/Sections:||Sec.228A of I.P.C, P.O.C.S.O Act|
- BRIEF FACTS AND PROCEDURAL HISTORY:
- This writ petition was filed in the backdrop of increasing cases of sexual assault against adult victims of rape as well as children who suffer sexual assault. The petition was filed concerning the protection of their identities in order to serve them justice.
- ISSUE BEFORE THE COURT:
- How and in what manner the 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, is one of the issues which arises in these cases?
- RATIO OF THE COURT
- The learned amicus curiae urged that child for purposes of publication should only mean a living child. Her contention appears to be that when the child is dead then the name and identity of child can be disclosed. Her submission is based on the assumption that if the name and identity of the child is disclosed, public sentiment can be generated and a movement can be started to get justice for the child. According to her, it is difficult to garner such support if the name of the deceased child victim is not disclosed.
- It was urged on behalf of the Union of India that the words “next of kin” will have to be given the same definition as is contemplated under the Indian Succession Act, 1925. We do not want to enter into this dispute.
- It is permitted under sub-section (2) of Section 228A IPC is making known the identity of the victim by printing or publication under certain circumstances described therein. Any person, who publishes any matter in relation to the proceedings before a Court with respect to such an offence, without the permission of the Court, commits an offence. The Explanation however provides that printing or publication of the judgment of the High Courts or the Supreme Court will not amount to any offence within the meaning of the IPC.
- 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
- 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. This court held 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 IPC 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 (for short ‘FIR’) the name of the victim will have to be disclosed. However, the court held that this should not be made public and especially not to the media.
- Court was 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. The court made it clear that the copy of an 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.
- The court made it clear that the authorities to which the name is disclosed when such samples are sent, are also duty bound to keep the name and identity of the victim secret and not disclose it in any manner except in the report which should only be sent in a sealed cover to the investigating agency or the court. There can be no hard and fast rule in this behalf but the police should definitely ensure that the correspondence or memos exchanged or issued wherein the name of the victim is disclosed are kept in a sealed cover and are not disclosed to the public at large. They should not be disclosed to the media and they shall also not be furnished to any person under the Right to Information Act, 2015.
- 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. Coming to clause (c) of sub-section (2) of Section 228A IPC, we are of the opinion that where the victim is a minor, Section 228A will no longer apply because of the enactment of POCSO which deals specifically with minors. In fact, the words ‘or minor’ should for all intents and purposes be deemed to be deleted from clause (c) of sub-section (2) of Section 228A IPC.
- The court also held that it is not at all necessary to disclose the identity of the victim to arouse public opinion and sentiment. 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.
- The court also directed that if the Government wants to actually act under Section 228A (2) (c) IPC, it must before identifying such social welfare institution or organisation clearly lay down some rules or clear cut criteria in this regard. A clear cut procedure must be laid down.
- Regarding sub-section (3) of Section 228A IPC, the court held 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. This is not to say that there can be no reporting of such cases. The press can report that the case was fixed before Court and some witnesses were examined.
- It can report for what purpose the case was listed but it cannot report what transpired inside the court or what was the statement of the victim or the witnesses. The evidence cannot be disclosed. The court relied upon Nivedita Jha’s case Nivedita Jha v. State of Bihar, SLP(C) No. 24978 of 2018 wherein it was held that nobody can be permitted to violate Section 327(3) CrPC, the language of which is very clear and unambiguous.
- The court concluded that name, address, school or other particulars which may lead to the identification of the child in conflict with law cannot be disclosed in the media. No picture of such child can be published. A child who is not in conflict with law but is a victim of an offence especially a sexual offence needs this protection even more.
DECISION HELD BY COURT:
The court gave following directions:
- No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.
- In cases where the victim is dead or of unsound mind the name of the victim or her identity should not be disclosed even under the authorization of the next of the kin, unless circumstances justifying the disclosure of her identity exist, which shall be decided by the competent authority, which at present is the Sessions Judge.
- FIRs relating to offences under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of IPC and offences under POCSO shall not be put in the public domain.
- In case a victim files an appeal under Section 372 CrPC, it is not necessary for the victim to disclose his/her identity and the appeal shall be dealt with in the manner laid down by law.
- The police officials should keep all the documents in which the name of the victim is disclosed, as far as possible, in a sealed cover and replace these documents by identical documents in which the name of the victim is removed in all records which may be scrutinised in the public domain.
- All the authorities to which the name of the victim is disclosed by the investigating agency or the court are also duty bound to keep the name and identity of the victim secret and not disclose it in any manner except in the report which should only be sent in a sealed cover to the investigating agency or the court.
- An application by the next of kin to authorise disclosure of identity of a dead victim or of a victim of unsound mind under Section 228A(2)(c) of IPC should be made only to the Sessions Judge concerned until the Government acts under Section 228A(1)(c) and lays down a criteria as per our directions for identifying such social welfare institutions or organisations.
- In case of minor victims under POCSO, disclosure of their identity can only be permitted by the Special Court, if such disclosure is in the interest of the child.
- All the States/Union Territories are requested to set up at least one ‘one stop centre’ in every district within one year from today.
- A copy of this judgment be sent to the Registrar General of all the High Courts so that the same can be placed before the Chairpersons of the Juvenile Justice Committee of all the High Courts for issuance of appropriate orders and directions and also to ensure that sincere efforts are made to set up one stop centres in every district.
- In view of the above, we dispose of these petitions as far as issues dealt with hereinabove are concerned.