Magnitude of Victim Confidentiality
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.
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:
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.
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.
Conclusion
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.
End-Notes:
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, Hyderabad
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.
Conclusion
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.
End-Notes:
- https://www.hindustantimes.com/india-news/24-yr-old-rape-victim-commits-suicide-in-uttar-pradesh/story-0YSwBkoKcq3CSRkEnEZSLO.html
- https://www.indiatoday.in/crime/story/teenaged-rape-victim-commits-suicide-in-chhattisgarh-1594129-2019-09-01
- https://indiankanoon.org/doc/143288964/
- https://www.indiacode.nic.in/handle/123456789/2079?locale=en
- https://indiankanoon.org/doc/1046545/
- https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555§ionId=22736§ionno=327&orderno=370
- https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688§ionId=45987§ionno=228A&orderno=260
- http://goaprintingpress.gov.in/downloads/8384/8384-51-SI-OG.pdf
- https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688§ionId=45987§ionno=228A&orderno=260
- https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688§ionId=46152§ionno=376&orderno=425
- https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688§ionId=46152§ionno=376&orderno=426
- https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688§ionId=46152§ionno=376&orderno=427
- https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688§ionId=46152§ionno=376&orderno=428
- https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688§ionId=46152§ionno=376&orderno=429
- https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688§ionId=46152§ionno=376&orderno=430
- https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688§ionId=46152§ionno=376&orderno=431
- https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688§ionId=46152§ionno=376&orderno=432
- https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688§ionId=45987§ionno=228A&orderno=260
- https://indiankanoon.org/doc/732828/
- https://indiankanoon.org/doc/117010869/
- https://indiankanoon.org/doc/732828/
- https://indiankanoon.org/doc/46627/
https://indiankanoon.org/doc/722945/ - https://indiankanoon.org/doc/1813332/
- https://indiankanoon.org/doc/1086322/
- https://indiankanoon.org/doc/1194615/
- https://www.indiacode.nic.in/handle/123456789/2065?sam_handle=123456789/1362
- https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688§ionId=45987§ionno=228A&orderno=260
- https://www.tribuneindia.com/news/archive/nation/dcw-chief-booked-for-naming-dalit-rape-victim-271540
- https://www.indiatoday.in/india/north/story/alka-lamba-aap-leader-rape-victim-picture-online-201084-2014-07-20
- https://indiankanoon.org/doc/143288964/
- https://www.indiacode.nic.in/show-data?actid=AC_CEN_13_14_00005_201232_1517807323686§ionId=12873§ionno=24&orderno=24
- https://www.indiacode.nic.in/show-data?actid=AC_CEN_13_14_00005_201232_1517807323686§ionId=12882§ionno=33&orderno=33
- https://www.indiacode.nic.in/show-data?actid=AC_CEN_13_14_00005_201232_1517807323686§ionId=12886§ionno=37&orderno=37
- https://indiankanoon.org/doc/22883435/
- https://indiankanoon.org/doc/143288964/
- https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688§ionId=45987§ionno=228A&orderno=260
- https://www.indiacode.nic.in/show-data?actid=AC_CEN_13_14_00005_201232_1517807323686§ionId=12872§ionno=23&orderno=23
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