By Tanishka Tiwari
Published on: November 07, 2023 at 11:54 IST
One of the most important questions in the context of rape and trafficking offences is whether the victim’s name should be revealed in light of public interest or kept anonymous to enable a fair trial. As we all know, India is a patriarchal country, and the most orthodox oblivious people are all enablers of patriarchy. In India, the consequences and aftermath are not always in the victim’s favour. Most rape victims in India are seen negatively, and there is a tendency to shun them.
This is perhaps one of the most significant factors preventing rape victims and their families from speaking out against this heinous crime. This is also the most common reason for victims to commit suicide. Not to mention that this is common in conservative families with rape victims because the goal is to marry the lady, but if she has been raped or sexually attacked, it is considered as a bad omen.
As we all know, India is a patriarchal nation, and the bulk of traditional, ignorant people serve as patriarchy’s enablers. In India, the consequences and aftereffects are not always in favour of the victim. In India, most rape victims are perceived badly, and businesses avoid doing business with them. One of the most crucial problems in the scope of crimes related to rape and trafficking is whether the victim’s name should be made public owing to public interest or kept secret to allow for a fair trial.
Court’s Stance on Disclosure of Identity
This topic gained prominence after the Supreme Court bench of Justice Madan B Lokur and Justice Deepak Gupta issued directions in Nipun Saxena v. Union of India 2018.1 They shed light on two noteworthy issues: the identity of adult rape victims and children who are victims of sexual abuse should be protected so that they are not subjected to unnecessary ridicule, social ostracization, and harassment, as well as issues relating to non-disclosure of a victim’s name and identity that fall under the purview of the POCSO (Protection of Children from Sexual Offences) Act, 2012.
According to the Supreme Court, the “victim of a sexual offence, especially a victim of rape, is treated worse than the perpetrator of the crime.”
While adding that a rape victim is considered as a “pariah” and is shunned by society, the bench remarked that rape cases are frequently not reported due to misguided conceptions of so-called “honour” that the victim’s family want to protect. According to the court, “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.”
The court made it plain that it did not wish to limit the ability of the defence to cross-examine the prosecutrix, but that it should be done properly. Efforts have been made to sensitise the courts, however history has shown that despite earlier rebukes, the first of which came in 1996 in State of Punjab v. Gurmit Singh, the courts continue to expose the victim’s identity.2
Furthermore, the Court referred to Section 228A IPC3 (disclosure of the identity of the victim of certain offences, etc.), Section 327 CrPC4 (Courts should be open and the public should have access to the Courts), and stated that cases of rape, gang rape, etc. were excluded from the category of cases to be tried in open Court under the Amendment Act of 1983.
Section 228A(i) specifies that anyone who divulges the name and identity of a person who is an alleged victim of an offence covered by Sections 376, 376A, 376AB, 376B, 376C, 376DA, 376 DB, or 376E commits a criminal crime.
Making known the identity of the victim by printing or publication under certain circumstances stated in Section 228A(ii) is an offence.
The bench clarified that the wording “matter which may make known the identity of the person” does not mean that merely the victim’s name should not be divulged, but that the victim’s identity shall not be recognisable from any matter published in the media. The explanation also resulted in the bench ruling that no one may print or publish the victim’s name or disclose any data that could lead to the victim’s identification.
In Bhupinder Sharma vs. State of HP, it was determined that the prohibition under 228A IPC does not apply to the printing or dissemination of a High Court or Supreme Court judgement.
In State of Karnataka v. Puttaraja, the Supreme Court reiterated that the restriction under 228A IPC was intended to ensure that the disclosure of the identity of the victim involved in certain types of offences is punishable, the Court stated in Aju Varghese v. State of Kerala.
It was decided that, in order to prevent social victimisation or ostracism of the victim of a sexual offence for whom Section 228A IPC has been enacted, the Courts should refrain from mentioning the victim’s name in their judgements.
Authorisation for disclosure of identity
Following that, the Court shed light on the technique of investigation used by police personnel. They should use a pseudonym to describe the victim whenever feasible, unless it is absolutely necessary to put down her identity. FIRs relating to rape against women or offences against minors coming under the jurisdiction of POCSO shall not be made public. Memos any correspondence exchanged or issued with the victim’s name in it should not be released to the media and should not be supplied to anyone under the RTI Act, 2005.
Fortunately, the laws were followed with attention in the heinous 2012 Delhi gang rape case, when the victim’s name was not exposed until three years later, and the victim was referred to as “Nirbhaya,” “Damini,” “Jagrugta,” and “Amanat” for the time being.
In 2015, her parents officially announced her name as Jyoti Singh. “We want the world to know her real name,” her father stated. “My daughter did nothing wrong; she died protecting herself.
I am quite proud of her. Disclosing her identity will inspire other women who have survived these atrocities. My daughter will give them courage.” He was permitted to do so under Section 228A(2)(c) of the IPC, which requires written authorization from the victim or, if the victim is deceased, a minor, or of unsound mind, the victim’s next of kin. However, there was a lot of careless use of this exception.
In general, media outlets assert “media privilege” as a defence in cases of tortious liability deriving from defamation caused by inaccurate reporting. This defence focuses on the importance of timely reporting, which is frequently done without sufficient verification. However, these arguments are woefully inadequate to protect the media from prosecution under S.228A. There are only a few exceptions to criminal responsibility under this provision.
While judicial prudence forbids media outlets from entering the perilous regions of victim protection legislation, the same requires constant vigilance. Once the disclosure has occurred, there is nothing that media outlets or the government can do to reverse the situation.
The publication of apologies by media outlets would be akin to putting a bandage on an organ failure. Though the Hon’ble Delhi High Court has begun damage control in the Kathua Rape Case, there is little that can be done because the identities of the victim and accused are well known.
While gag orders are powerful weapons for preventing news organisations from reporting on a specific problem, they must be used with caution and enforced. When gag orders become overly restrictive, the channel between the media and the public is distorted. And, without a doubt, this will raise concerns about violations of free speech and expression.
There is currently a mutually existing pair of rights that work between media outlets and viewers. In such instances, the right to free expression and the right to information are inextricably interwoven. Incomplete information does not encourage public participation and debate. Keeping the people in the dark, misinformed, or under-informed is a breach of the right to correct information.
In such circumstances, the scope and necessity of judicial action necessitate a cautious approach. As a result, the connectivity gap must be acceptable enough to safeguard the victim’s identity while yet being loosened enough for people to be aware of what is going on in society.
Because the broader public is sometimes capable of providing financial and emotional assistance to the victim, these factors can be weighed by courts when determining the severity of gag orders.
Confidentiality in POCSO cases
The second concern is the failure to disclose the name and identity of a victim who falls under the purview of POCSO. Sections 24(5)5 and 33(7)6 exist to ensure that the victim’s identity is not revealed during the investigation and that the victim is always safeguarded from the media.
Section 37 states unequivocally that the identification must not be disclosed unless the Court, for reasons stated in writing, allows such disclosure in the best interests of the child.
In Bijoy v. State of West Bengal, the Calcutta High Court emphasised the significance of the aforementioned restrictions, yet the identity of the victim was revealed in the trial judge’s decision. Back to the main case, Indira Jaisingh, writing as an amicus curiae, accused the police of leaking critical material to the public before submitting a charge sheet.
She mentioned the Kathua gang rape case, in which an eight-year-old girl named Asifa was raped and murdered. In this case, not only was the name released, but the media also declared that several of the accused were not guilty of their crimes. She alluded to the IPC and the POCSO Act, and requested the Supreme Court to interpret Sections 228A and 23 of the former.
Information Technology Act, 2000
It is important to mention the underutilised legal framework provided by the Information and Technology Act, 2000. As of now, the courts are concerned about the rising engagement of news reporting organisations, which has resulted in the revealing of victim identities and media trials of accused persons.
Innocent folks may also forward the news using social media platforms such as Facebook, WhatsApp, and Twitter. Criminal crimes of this sort are mostly committed by innocent people who are unaware that their acts will result in the identity of the victims being widely circulated. The virtual media dominates and shapes the life of the average person, and it is frequently used as a platform for mass violation. It is both the beauty and the duty of law to distinguish between purposeful and innocent transgressions.
A simple and mandatory disclaimer that the news reporting organisation should provide below the photograph of the victim stating that they have obtained permission from the victim or her next of kin allowing them bona fide disclosure of materials/photographs/documents that have the potential to reveal the victim’s name/address/family.
This type of mandatory requirement will put positive accountability on the media and persons in possession of information, requiring them to demonstrate that they have prior agreement from the concerned person before disclosing the victim’s identity. The proposed amendment should also safeguard persons against “innocent breach,” which occurs when information is distributed by someone who believes proper authority has been obtained.
While it cannot be denied that the media has the right to free expression and the general public has the right to receive such information, we nevertheless have a legal obligation that is subject to victim waiver. While we work to change society’s social stigma from “victimising and ridiculing” to “supportive and helpful,” it may be useful to protect the innocent public who may inadvertently commit criminal violations.
It will be interesting to see how the Hon’ble Delhi High Court rules on the issue of “Principal Perpetrator,” as there are several news organisations involved in the case, and all of them may argue that their publication was made after the identity of the victim became public knowledge due to an earlier publication by another news organisation. As a result, it might devolve into a blame game. Depending on the nature of the offence, the Hon’ble High Court may admit or reject such defences.
Conclusion
Based on previous cases and instances, we can agree that there are numerous laws in place, each with sufficient latitude to protect the identity of the victim; however, these laws must be implemented with strict adherence to the letter and spirit of the law, as well as in accordance with the sentiments of the victim, the victim’s family, and the general public.
References
- India Law Journal
- 24-yr-old rape victim commits suicide in Uttar Pradesh
- Teenaged rape victim commits suicide in Chhattisgarh
- Identity of rape victims should be protected so that they are not subjected to unnecessary ridicule, social ostracisation and harassment. (SC) |
- THE LEGALITY BEHIND DISCLOSING THE IDENTITY OF A RAPE VICTIM.
Endnotes
1. (2019) 2 SCC 703
2. 1996 AIR 1393
3. The Indian Penal Code, 1860, s.228A, No.45, Acts of Parliament, 1860 (India)
4. The Code of Criminal Procedure, 1973, s.327
5. The Prevention of Children from Sexual Offences Act, 2012, s.24(5)
6. The Prevention of Children from Sexual Offences Act, 2012, s.33(7)