One of the most crucial conundrums within the ambit of crimes relating to
rape and trafficking is whether the name of the victim should be disclosed in
light of public interest or remain anonymous to ensure a fair trial. India, as
we know, is a patriarchal society and most conservative oblivious individuals
are all enablers of patriarchy. In India, the repercussions and aftermath are
not always in the favor of the victim. Most rape victims in India are looked
upon in a denigrating way and there is a tendency to boycott them.
This is perhaps one of the biggest reasons which prevents the rape victims and
relatives from raising their voice against this brutal crime. This is also the
primary reason as to why the victims end up committing suicide. Not to mention
this is rampant in conservative families that have rape victims because the
agenda is to get the woman married but once she has been raped or sexually
assaulted, it is viewed as an omen.
A few instances to cite would be the 24 - year - old woman who killed herself in
Muzaffarnagar after being gang-raped, the 16 - year - old victim who killed
herself in Chattisgarh's Korba district, two victims in Uttar Pradesh who hung
themselves from a mango tree out of fear and shame, two minor sisters who killed
themselves and countless more.
Courts' stance on disclosure of identity
This issue became most significant post December 11, 2018 when the Supreme Court
bench comprising Justice Madan B Lokur and Justice Deepak Gupta laid down
directions in Nipun Saxena v. Union of India.
They threw light on two
noteworthy issues - 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 ostracization and harassment and issues relating to
non-disclosure of the name and identity of a victim falling within the purview
of the POCSO (Protection of Children from Sexual Offences) Act, 2012. The Court
said, "victim of a sexual offence, especially a victim of rape, is treated worse
than the perpetrator of the crime."
The bench while stating that a victim of rape is treated like a "pariah" and
ostracised from society, observed that more often than not, rape instances do
not even get reported because of the false notions of so-called 'honour' which
the family of the victim wants to uphold. Court observed, "victims' 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."
Court made it clear that they did not want to curb the right of defence to cross
examine the prosecutrix but it should be done in a decent manner. Efforts have
been made to sensitise the courts, but history has shown that despite previous
rebukes, the first as far back in 1996 in State of Punjab v. Gurmit Singh
the Courts still continue to reveal the identity of the victim.
Further, the Court referred to Section 228A IPC (disclosure of identity of the
victim of certain offences etc.), Section 327 CrPC (Courts should be open and
public should have access to the Courts) and stated that as per the Amendment
Act of 1983, cases of rape, gang rape etc. were excluded from the category of
cases to be tried in open Court. Section 228A(i) states that any person who
makes known the name and identity of a person who is an alleged victim of an
offence falling under Sections 376, 376A, 376AB, 376B, 376C, 376DA, 376DB or
376E commits a criminal offence.
Section 228A(ii) says making known the identity of the victim by printing or
publication under certain circumstances described therein is an offense. The
bench made it clear that the phrase "matter which may make known the identity of
the person" does not 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 clarification also lead
to the bench stating that no person can print or publish the name of the victim
or disclose any facts which can lead to the victim being identified.
In Bhupinder Sharma vs State of H.P
, it was held that restriction under
228A IPC does not relate to printing or publication of judgment by the High
Court or the Supreme Court. Court observed in Aju Varghese vs State of Kerala
, "in State of Karnataka v. Puttaraja
, the Supreme Court reiterated
that the restriction under 228A IPC was intended to ensure that the disclosure
of identity of the victim involved in certain types of offences is punishable.
It was held that, keeping in view the social object of preventing social
victimization or ostracism of the victim of a sexual offence for which section
228A IPC has been enacted, it would be appropriate that, the Courts, in its
judgments should not indicate the name of the victim.
This view was reiterated in:
- State of H.P. v. Shree Kant Sekhari,
- Om Prakash v. State of U.P,
- Dinesh v. State of Rajasthan, and
- S. Ramakrishna v. State rep. by the Public Prosecutor, High Court of A.P,
Authorization for disclosure of identity
The subsequent issue on which the Court threw light was the procedure of
investigation undertaken by police officers. They should as far as possible
either use a pseudonym to describe the victim unless it is absolutely necessary
to write down her identity. FIR relating to the offence of rape against women or
offences against children falling within the purview of POCSO shall not be put
in the public domain. Memos or Correspondence exchanged or issued with the name
of the victim in it should not be disclosed to media and not be furnished to any
person under RTI Act, 2005.
Fortunately, the rules set out were followed with due diligence in the abhorrent
2012 Delhi gang rape case where the victim's name was not revealed until 3 years
after the incident and the victim was referred to as "Nirbhaya" , 'Damini", "Jagrugta"
and "Amanat" for the time being. Her name was finally revealed by her parents as
Jyoti Singh in 2015. Her father said, "We want the world to know her real name.
My daughter didn't do anything wrong, she died while protecting herself.
I am proud of her. Revealing her name will give courage to other women who have
survived these attacks. They will find strength from my daughter." He was
allowed to do so as per Section 228A(2)(c) IPC which talks about authorisation
in writing either by the victim, or in the case where the victim is dead or is a
minor or of unsound mind, by the next of kin of the victim. However, there was a
lot of mindless application of this exception.
One such casualty of such mindless application of this rule was the Delhi
Commission for Women chairperson Swati Maliwal, who had been booked for
allegedly revealing the identity of the Dalit girl who was raped in Burari, and
who succumbed to her injuries. Another AAP leader, Alka Lamba as booked for
sharing a photograph of a rape victim online. The victim was raped and murdered
with her body being found in the Mohanlalganj area. In light of this issue, the
Court stated that even after the authorization of the next of kin following the
death of the victim, without permission of the competent authority, the identity
should not be disclosed.
Confidentiality in POCSO cases
The second issue pertains to the non - disclosure of name and identity of a
victim falling within the sphere of POCSO. Section 24(5) and Section 33(7) exist
to ensure that the victim's identity is not disclosed during the course of the
investigation and protected from public media at all times. Section 37 makes it
clear that the identity must not be disclosed unless for reasons recorded in
writing the Court permits such disclosure in the interest of the child.
The Calcutta High Court stressed the importance of the aforesaid provisions in
Bijoy v. State of W.B
but sadly the identity of the victim had been
disclosed in the judgement given by the trial judge. Back to the primary case,
Indira Jaisingh, assisting the court as an amicus curiae, accused the police of
leaking important information to the public even before filing a charge sheet.
She referred to the Kathua gang rape case where an eight year old girl, Asifa,
was raped and murdered. In this instance, not only had the name been revealed
but also a decision was voiced by the media labelling some of the accused as
innocent of their crimes. She referred to the IPC and POCSO Act and asked the
apex court to interpret Section 228A of the former and Section 23 of the latter.
From the past cases and instances, we can concur that there are ample laws in
place with each one having enough latitude to protect the identity of the victim
but these laws need to be implemented with utmost adherence to the letter and
spirit of the law and in congruence with the sentiments of the victim, the
victim's family and the public at large.