Open Access Research Article
case commentary: Nipun Saxena &Anr. v. Union of India & Ors.
Published Paper
Article Details
CASE COMMENTARY NIPUN SAXENA &ANR. V. UNION OF INDIA
& ORS.
AUTHORED BY - SANJANA MOSES
Citation: (2019) 2 SCC 703
MATERIAL FACTS OF THE CASE
This writ petition was filed in response to an
increase in the number of cases of sexual assault against adult rape victims as
well as minors who have been sexually assaulted. Victims of sexual assault,
such as rape, are treated as "untouchables" and treated as outcasts
by society. Her family, for the most part, will not recognize her going into
their home. The harsh reality is that countless cases of assault go unreported
owing to fictitious notions of purported "honor" that the group of
the unlucky casualty must preserve. The problem is not over yet. The police, in
general, interview the unfortunate victim like a criminal once a case is held
up and an FIR is filed. The unlucky victim's first encounter with justice is an
unpleasant one in which she is made to believe that she is to blame, that she
is the source of the transgression, that she is the one who is to blame[1].
The identity of a rape victim cannot be
revealed under section 228 of the IPC. However, several times this provision is
not implemented. Some news organizations, media houses, etc., do not respect
the law and instead disclose victims' identities. In Bhupinder Sharma v.
State of Himachal Pradesh[2],
it was also decided that to uphold the spirit of Section 228, the identities of
the rape victims should not be revealed. The petition was filed to hide their
identities so that they may be served with justice.
Issues
·
How and in what method
the identity of an adult rape victim and children of sexual abuse should be
protected so they do not have to face social ridicule and harassment?
·
Under what circumstances or conditions, if any, allow
it to be revealed?
·
Does the victim's non-disclosure of identity cover
the POCSO Act preview?
Judgement
In this case, the court stressed the need to protect
the identity of victims of sexual offences and held the following:
·
The court clarified that the first section of the judgment
dealt with victims of rape under the Indian Penal Code, 1860, while the second
portion dealt with victims of crimes under the Protection of Children from
Sexual Offenses Act, 2012.
Also, the term "media"
will be used throughout the current judgment to refer to all sorts of media,
including print, electronic, and social media.
"Unfortunately, in our
society, the victim of a sexual offence, especially a victim of rape, is
treated worse than the perpetrator of the crime. society, instead of
emphasizing with the victim, starts treating her as untouchable."[3]
·
The court discussed section 228 of IPC and
clarified that making known the victim's identity by printing or publication is
permissible under sub-section (2) of Section 228A IPC[4] in
specific situations stated therein. Without the Court's approval, anybody who
publishes any matter in reference to the proceedings before a Court with
respect to such an infraction commits a crime. On the other hand, the
Explanation states that printing or publishing a judgment of the High Courts or
the Supreme Court does not constitute a crime under the IPC.
·
The terms "identify of any person" are
not defined in the IPC or the CrPC. The printing or publication of "the
name or any matter which may make known the individual's identity" is
expressly prohibited by Section 228A IPC. It is illegal to publish the victim's
name and reveal any other information that might reveal its identity. For
this, the court held that "matter that may reveal the person's identity"
indicates that the victim's name should not be revealed and that the victim's
identity should not be detectable from any matter published in the media.[5]
·
In society, a rape survivor would endure hostile
prejudice and social exclusion. Such a victim will have a tough time finding
work, getting married, and integrating into society as a regular human being.
Because our criminal justice system lacks an appropriate witness protection
program, the necessity to shield the victim and conceal her identity is
considerably higher. This court ruled that no one can print or publish the
victim's identity or reveal any information that may lead to the victim's
identification.
·
Section 228A IPC, subsection (2) establishes an
exemption for police officers who may be required to report the victim's
genuine identity at the police station or in the inquiry file. The court further
added that the court is aware that the victim's name will have to be published
in the first information report (abbreviated as "FIR"). The court,
however, ruled that this information should not be made public, particularly to
the media.[6]
The court stressed
that police personnel investigating such situations and offences should, if at
all feasible, adopt a pseudonym when describing the victim unless it is
necessary to write down her identity.
The court
clarified that the authorities to whom the victim's name is revealed when such
samples are provided are likewise obligated to keep the victim's name and
identity private. It is not to disclose it in any way except in the report,
which should only be submitted in a sealed envelope to the investigating agency
or the court. There is no hard and fast rule in this regard. However, the
police should make certain that any communication or memoranda exchanged or
issued in which the victim's identity is divulged kept in a sealed cover and
not made public. They should not be made public, and they should not be made
available to anybody under the Right to Information Act.
·
Court when on to explain that suppose an adult
victim has no problem with her name being published, or her identity is
revealed. In that case, she can plainly authorize anybody in writing to
disclose her name under clause (b) of sub-section (2) of Section 228A IPC. When
it comes to clause (c) of sub-section (2) of Section 228A IPC, we believe that
because of the implementation of POCSO, which deals mainly with children,
Section 228A will no longer apply if the victim is a kid. In reality, the words
"or minor" should be omitted from clause (c) of sub-section (2) of
Section 228A IPC.[7]
·
The court also ruled that disclosing the victim's
identity is not required to raise public opinion and sympathy. This is a
serious matter involving victims of horrible sexual offences, and it must be
handled delicately. Furthermore, we are all well aware that, without revealing
her genuine name, 'Nirbhaya' became the most potent symbol of resistance the
country has ever seen. If a campaign to safeguard the victim's rights and mobilize
public opinion has to be launched, it can be done without revealing her
identity[8].
·
The court further stated that if the government
wishes to act under Section 228A(2)(c)[9]
IPC, it must first establish some clear guidelines or criteria in this respect
before naming any social welfare institution or organization. A precise method
must be established.
·
The court concluded that subsection (3) of Section
228A IPC plainly states that no content regarding any proceedings coming within
the ambit of Section 228A and in terms of Section 327(2) CrPC can be printed or
published. Nobody saves the presiding officer, the court personnel, the
accused, his attorney, the public prosecutor, the victim, or if she wishes to
be there. The witness shall be present during these in-camera sessions. All of
them have a legal obligation to guarantee that what happens in court is not
made public. This is not to suggest that such incidents cannot be reported.
It can
report why the case was listed, but it cannot report what happened within the
courtroom or what the victim or witnesses said. The evidence will not be made
public. The court cited Nivedita Jha v. State of Bihar, SLP(C) No. 24978 of
2018[10],
in which it was stated that no one could be allowed to violate Section 327(3)
CrPC, which has exceptionally plain and explicit wording[11].
·
The Supreme Court ruled that cross-examination of
rape victims "shall be done with a certain amount of civility and respect
to women in general." The wording "matter which may make known the
identity of the person" in Section 228A IPC "does not merely indicate
that just the victim's name should not be divulged, but it also indicates that
the victim's identity should not be identifiable from any matter published in
the media," it was held the Court stated that "there may be
circumstances when the victims identify, if not her name, maybe given,"
but that "the fact that such victim has been subjected to a sexual offence
must not be divulged."
·
Furthermore, it was decided that "there may be
additional scenarios where the next of kin may be justified in exposing the
victim's identity," and that in such cases, "an application to
authorize revelation of identity should be submitted solely to the Sessions
Judge/magistrate involved, and the said Sessions Judge/magistrate shall
consider the application based on the law" established by this Court.
·
The POCSO Act was the subject of the second portion
of the ruling. The court clarified that the first part of the ruling, which
dealt with adult victims, applies much more forcefully to child victims. It was
acknowledged that a minor who is the victim of sexual abuse needs further
protection than an adult victim. The Special Court has the responsibility
under Section 33 of POCSO to guarantee that the child's identity is not
revealed at any point throughout the inquiry or trial.[12]
Section 23[13]
of the POCSO provides requirements relating to the media process. The court
also cited Section 74[14]
of the Juvenile Justice (Care and Protection of
Children) Act 2015, which prohibits children's identities from being
revealed.
"India
is a signatory to the United Nations Convention on the Rights of Child, 1989
and Parliament thought it fit to enact POCSO in the year 2012, which
specifically deals with sexual offences against all children."
The Court held that it is neither
practical nor appropriate to explicitly set out the meaning of the phrase
"interest of the child" since each case must be dealt with in its
unique factual setting.
·
The Bench went on to say that the media must not
only be cautious but that it also has a responsibility to guarantee that it
does nothing and discloses no information that may lead to the child's name
being revealed, either directly or indirectly. "Media should be cautious not to sensationalize the same."
Sensationalizing such situations
may gain television Rating Points (TRPs). However, it does not reflect well on
the media's reputation.[15]
·
The court decided that the child's name, address,
school, or any other information that may lead to his or her identity violate
the law could not be released to the media. It is forbidden to publish a
photograph of such a minor. A minor who is not in violation of the law but
is the victim of an offence, particularly a sexual offence, needs even more
excellent protection[16].
·
The Court stated that it was "exercising
power under Article 142 of the Constitution in this respect because the
Government has not selected any social or welfare institution/organization and
the legislation as put down cannot be administered," and that the
"directions shall prevail" until the Government establishes clear
criteria and procedures in this respect.
·
The Supreme court also held that "the
entire aim of the Protection of Children from Sexual Offenses Act, 2012 (POSCO)[17] is
to guarantee that the identity of the child is not divulged unless the Special
Court for reasons to be stated in writing approves such disclosure."
Section 74 of the
act prohibits on disclosure of the identity of children.
The Court held - This
information can only be shared if it is in the best interests of the child."
The Court reasoned that "the media is not only compelled not to reveal the
identity of the kid but is also required by law not to divulge any material
that may lead to the exposure of the kid's identity."
It was noted that courts are expressly built
to be Child-friendly, and those that suit minor victims' needs and are needed.
Also, "these tribunals need not just be utilized for considering cases
under the POCSO but may also be utilized as trial courts for hearing cases of
rape against women."
·
The cpurt further held that it is NALSA should
constitute a committee of 4-5 members who would have the duty to prpper model
rules for victim compensation for vitcims of sexual crimes.. assistance by thr
learned solicitior Gneral and the Amiscus can be sought as and when required.
Also the chairperson of national commission for women should also be involved
in the process.
IN THE END, THE SUPREME COURT ISSUED VARIOUS DIRECTIONS TO PROTECT THE
PRIVACY AND REPUTATION OF VICTIMS OF SEXUAL CRIMES AS FOLLOWS:
I. No one may
print or broadcast the victim's name in print, electronic, or social media, or
even in a distant manner divulge any details that might lead to the victim's
identification and make her identity known to the general public.
II. In situations
where the victim is deceased or mentally ill, the victim's name or identity
should not be revealed, even with the consent of the next of kin, unless
conditions justifying the publication of her identity exist, as determined by
the competent authority, which is now the Sessions Judge.
III. FIRs related to offences under
Sections 376, 376A, 376AB, 376B, 376C, 376D of the Indian Penal Code, and
crimes under the Protection of Children from Sexual Offences Act, 2012 (POCSO),
would not be made public.
IV. If a victim files an appeal under
Section 372 CrPC, the victim must not reveal his or her identity, and the
appeal will be handled according to the law.
V. Police officers
should maintain any papers in which the victim's identity is revealed in a
sealed cover as much as feasible and replace these documents with similar
documents in which the victim's identity is erased from all records that may be
scrutinized in the public domain.
VI. All authorities to whom the investigating
agency or the court provides the victim's name are likewise obligated to keep
the victim's name and identity secret and not to divulge it in any way except
in the report, which should be delivered to the investigating agency or the
court in a sealed envelope.
VII. In the instance of minor victims under
POCSO, the Special Court can only allow their identity to be revealed if it is
in the child's best interests.
VIII. Within one year from today, all states
and union territories must establish at least one "one-stop center"
in each district.
IX. "Until the Government acts under
Section 228A (1)(c) and puts down a criterion as per our directions for
identifying such social welfare institutions or organizations, an application
by the next of kin to permit the revelation of the name of a deceased victim or
a victim of unsound mind under Section 228A(2)(c) of the IPC shall be submitted
exclusively to the Sessions Judge concerned."[18]
FUTURE PROSPECTS & CONCLUSION
Under the Indian Criminal justice system, the
identity of victims of sexual crimes, especially the children, must be
preserved as they are often subjected to societal shame and ostracism without
having any fault of their own. Though it
is claimed that we are moving ahead and progressing, our society looks down
upon the victim of such crimes even in today's time. There is a social stigma
present as A women's dignity is linked with her sexuality. Victims of sexual
assault, such as rape, are treated as "untouchables" and are treated
as marginalized by society. Her family, for the most part, will not recognize
her going into their home. The harsh reality is that countless cases of assault
go unreported owing to fictitious notions of purported "respect" that
the group of the unlucky casualty must preserve. The problem is not over yet.
The police, in general, interrogate the victim like a criminal once an FIR is
filed. All this leads to the victim's first encounter with justice, being an
unpleasant one in which she is made to believe that she is to blame, that the
victim is the source of the transgression, that she is the one who is to blame.
The identity of a rape victim cannot be revealed under section 228 of the IPC. Despite
the fact that legal provisions prohibit the revelation of rape victims'
identities, this prohibition has not been fully applied further. Some news
organizations and media houses do not respect the law and instead disclose the
identities of victims.
Further, there is no institutional framework in
place in India to give psychological counseling to rape victims. The majority
of Indian statutes, such as the Indian Penal Code, the POCSO Act, the
Protection of Women from Domestic Violence Act, the Sexual Harassment of Women
at Workplace Act, and others, only provide monetary compensation to victim's
criminal offenses. If the state fails to defend its people's basic rights, it
is obligated to compensate them. In order to fulfill this obligation, the state
must provide survivors with institutional assistance and counselling in order
to assure real recovery. The Criminal justice system should strive to give maximum
protection to an individual’s human rights.
[3] Supra Note 1, Para 4.
[5] Supra Note 1, Para 11.
[6] Id. Para13.
[7] Id. Para14.
[9] Section 228A(2)(c), The Indian
Penal code 1860.
[10] Nivedita Jha v. State of Bihar, 2019 (6) SCJ 605.
[11] Supra Note 1, Para 22.
[12] Id. Para 29.
[13] Section 33, The Protection of
Children from Sexual Offences Act, 2012.
[15] Supra Note 1, Para 31.
[16] Id Para 36.
Article Information
case commentary: Nipun Saxena &Anr. v. Union of India & Ors.
Authors: Sanjana Moses
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/17
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.