“We direct that an application to authorise disclosure of identity should be made only to the Sessions Judge/magistrate concerned.”
The Supreme Court on Tuesday issued important directives to protect privacy and reputation of victims of rape crimes.
The bench comprising Justice Madan B. Lokur and Justice Deepak Gupta issued the following 9 important directives.
Justice Deepak Gupta authored the Judgment for the bench, disposing of the Public Interest Litigation filed by Nipun Saxena.
Justice Gupta dealt with the issue in two parts. First part is regarding the victims of the offence of rape under the Indian Penal Code, 1860 and the second part deals with victims who are subjected to offences under the Protection of Children from Sexual Offences Act, 2012.
Victims being made to feel that they are at fault
The judge explains how the society treats a ‘rape victim’ as an ‘untouchable’ and a ‘pariah’. He makes a significant note of common trend in many rape cases. The Court said: “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.”
Taking note of the unpleasant court environment often faced by the rape victims, the court observed that defence should cross-examine the prosecutrix with a certain level of decency and respect to women at large.
Identity of the victim should not be discernible from any matter published in the media
Referring to 228A IPC, the bench said that the expression “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 court took note of a media report in which, though the name of the victim was not given, it was reported that she had topped the State Board Examination. The bench remarked: “It would not require rocket science to find out and establish her identity.”
The court also observed that, in another media report, footage was shown on the electronic media where the face of the victim is blurred but the faces of her relatives, her neighbours, the name of the village etc. was clearly visible. The court held that this also amounts to disclosing the identity of the victim and 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.
Name of victim not to be disclosed without permission of competent authority
The court also discussed the circumstances the next of kin should be permitted to authorize the naming and identification of the victim. The bench said that it is not at all necessary to disclose the identity of the victim to arouse public opinion and sentiment and that 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 noted that, till date, neither the Central Government nor any State Government has recognized any such social welfare institutions or organizations to whom the next of kin should give the authorization.
The bench said that the name of the victim or her identity should not be disclosed even under the authorization of the next of the kin, without permission of the competent authority.
In cases where the identity of the victim, if not her name, may have to be disclosed (like when unidentified dead body is found, the court issued this direction, invoking Article 142 of the constitution. It said: “We direct that an application to authorise disclosure of identity should be made only to the Sessions Judge/magistrate concerned and the said Sessions Judge/magistrate shall decide the application on the basis of the law laid down by us. We are exercising power under Article 142 of the Constitution in this regard because the Government has not identified any social or welfare institution/organisation and the law as laid down cannot be administered.”
The court added 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.
Do’s and Don’ts in In-Camera cases reporting
As regards reporting by media about in-camera case, the bench said: “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.”
Victim-Appellant Can File Petition Under Pseudonymous name
Another important issue the bench dealt is whether a victim is bound to disclose her name in the memo of appeal, in cases of acquittal of the accused? It said 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(s) which may have to be filed 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 file such an appeal by showing her name as ‘X’ or ‘Y’ along with an application for non-disclosure 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 material 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 cause-list till such matter is decided. Any documents disclosing the name and identity of the victim should not be in the public domain.”, the court added.