NipunSaxena v/s Union Of India

Facts:
The term rape has been defined in Section 375[1] of the Indian Penal Court where all the aspects of the rape have been explored. But, in laymen's terms, rape is a forceful sexual offense done against women against their will. It is so abominable that it shatters both: the physical as well as the mental collaboration of women. The victims of rape are treated as the untouchables.

To maintain so-called social prestige, the near and dear ones of the rape victims desert them. The victims are questioned many times more than the accused, so it becomes a necessity to protect their identity to immune them from social isolation. It is simply their willpower that they decide to fight against all those odds and live a life that they used to earlier.

Because of all the barbaric scenes cooked by our society toward the rape victims, the alarming crime is becoming under-reported. The feeling of social repudiation forces them to hide this heinous crime. Even after recovering from physical trauma, the victims have to face the mental trauma because of the ill-conservative thinking of society.

The trauma given to them because of society haunts them more than anything else. It is as if they are punished for a crime that they have not committed ever. Also, during the investigation process asking them various questions compromises their dignity.

All those questions trouble them beyond our imagination, which makes her feel uncomfortable. As per Section 288A of the Indian Penal Code, the identity of rape victims should not be vouchsafed to the public, but it is barely followed. So, in the landmark case of Nipun Saxena v/s Union of India, a question regarding the identity of the rape victims was raised.

Issues Raised:

1. What are the various reasons for hiding the identity of rape victims from society?
2. What are the various injunctions on which the identity of rape victims can be disclosed?
3. Whether the identity of the child should be preserved from being disclosed to society in the very way as that of adult females who are victims of rape?

Contentions:

1. Petitioner's Contention:
   The Court alluded to Section 288A of IPC, Section 327of Code of Criminal Procedure, 1973, expressed to consult The Amendment Act of 1983, instances of rape, gang-rape, and many such things should not be discussed in open court. Further, the focus was laid on sub-section (1) of Section 288A expressing that those individuals who disclose the name and identity of individuals who is a victim of offense fall under Section 376A, Section 376AB, Section 376B, Section376C, Section 376DA, Section DB, or Section 376 E have done a criminal offense.
    
2. Respondent's Contention:
   The representative said that they are also in favor of hiding the identity of the rape victims yet this should ensure that such actions should not diminish the quality of interrogation made to them by the police. Even many times The Honorable Court has revealed the identity of the victims, for instance in the case of State Of Punjab V. Gurmit Singh, 1996. Many times there is an overlap between The Freedom of Speech and Expression and Section 288A of the Indian Penal Code.

Rationale:
The Bench of The Supreme Court comprising the Justice Madan B. Lokur and Justice Deepak Gupta emphasized that it is untoward for the female community that they are out casted from the society, even by near and dear ones, when they become rape victims. It is the reality in our society that in the name of so-called social honor and prestige, the near and dear ones refuses to accept them back into their family.

For this sole reason only, nowadays, many cases of rape have begun not to be reported because of the trepidation of social rejection. This is an apparent tyrannical truth of our society but at the very time, this fact is not bearable. The Court also felt that the victims had to go through squabbling and undertone made against them by the police authority.

Many rape victims have to face the unbearable cross-questions of the defense lawyer, but the unfortunate fact is that the judge even does not interfere in that. Many Aspects of her social and personal life are discussed publicly. Derogatory statements against her character are passed. The Court observed that the cross-examination is not curtailed but lawyers should pay respect to the female community.

While passing the verdict the honorable court threw light on the neoteric case of the rape victim where her name was kept in dark but the media broadcasted that she is the topper of a particular state board with the name of the state. In another case, the media blurred the face of the rape victim but disclosed the identity of her relatives and the name of the village. The Court observed that in such injunctions the identity can easily be scanned.

The honorable court finally after reviewing the facts passed the verdict not to disclose the identity of rape victims. Those individuals who disclose the identity of the rape victims commit a criminal offense under Section 288A[2] of IPC. This may attract a punishment of imprisonment which may extend to two years and a fine also. In case any rape victim appeals before the court under Section 372[3] of the Code of Criminal Procedure, she may represent herself with an anonymous name say "X" or "Y".

The Court decided that in case of revelation of the identity of the victim who is of unsound mind or is dead, then the next kin of the victim have the legal power to apply an application to the nearest court for divulging the identity of the victim under Section 288A of IPC.

But, if the victim is minor then disclosing the identity is relying on the permission from Special Court. Here, the interest of the minor child is of paramount significance. Further, the court highlighted that the identity of victims under Sections 376, 376A, etc. should not be disclosed by public authority. Further, the court has to ensure that the identity of a rape victim is kept in dark during court proceedings. All the information should be restricted to the court.

Defects In Laws:
There was an overlap between Article 19A of the Indian Constitution and Section 288A of the IPC (Indian Penal Code). Article 19A says about freedom of speech and expression while Section 288A of IPC says some restrictions on freedom of speech and expression. Authorities usually forget that Article 19A has reasonable restrictions and even after the judgment we find that the identity of the victim is not kept secret.

The rape and murder of 6 years old girl in the Saidabad Area[4] is a recent instance where the identity of the rape victim was disclosed. This was a violation of the directives of the Supreme Court Of India. The incident took place somewhat near late 2021. Netizens in their anger revealed all the details of the minor child to punish the accused, for failing to abide by the guidelines of the Honorable Supreme Court. One should remember that Article 19 also carries reasonable restrictions which we usually forget.

Inference:
The Apex Court highlighted the fact that everyone has the right to live with dignity; even the dead also have the right to maintain the dignity of their name. The Court further heightened that to ensure quality justice it is necessary to conceal the identity of the rape victims. Protection of identity is the intrinsic part of delivering justice to the rape victims.

Even the Right to Privacy is a fundamental right of the citizens. In the Apex Court in the landmark judgment of Thappalam Service Cooperative Banks Limited V. State of Kerala, the court stated that the right to privacy is enshrined in the citizens under Article 21 of the Indian Constitution. So, it is the duty of the State, its agencies, and courts to protect the right of its citizens.

In the recent judgment of Patna High Court[5], the honorable court directed its sub-ordinate courts to make sure that the identity of the rape victim should not be mentioned in the orders and judgments of the Court unless disclosure of the identity is very imperative. The Bench of Chakradhari Sharan Singh passed this directive. It is even better to call these rape victims the rape survivors since they have bravely crossed the hell-like situations beyond the imagination of someone else.

Even in this 21st century, we proclaim that we are more learned people. All our ideas are rational. They are based on facts and inference even though our society looks at rape survivors as taboo. It is unfortunate to infer that the purity of the woman is still judged by her sexuality.

The role of the fourth pillar of democracy, the media, is confused by various learned people regarding this matter. They think that identity is disclosed only for the money-making purpose. Even many times judiciary has warned the media regarding its unfair media trial. But, at the eleventh hour, the thing that matters is humanity. It is high time to pay respect to the women's community.

End-Notes:

1. Sec. 375, IPC
2. Sec. 288A, IPC
3. Sec.472, CrPC
4. Preeti Biswas, Neitizens reveal six year-old Hyderabad rape victims identity, The Times Of India (Hyderabad,14 September 2021)
5. Sparsh Upadhyay, Rape Victim's Identity Shouldn't Be Indicated Unless Such Disclosure Becomes Imperative For Which Reasons Are To Be Given: Patna High Court ( Live Law, 1 March 2021), https://www.livelaw.in/news-updates/rape-victims-identity-disclosure-reasons-must-be-given-patna-high-court-170526
6. ( 11 December 2018)