Supreme Court Directs Protection of Identity for Victims of Sexual Offences: Nipun Saxena & Anr. vs. Union of India & Ors. (2018) INSC 974 (11 December 2018)

Date of the Judgment: 11 December 2018
Citation: (2018) INSC 974
Judges: Madan B. Lokur, J., Deepak Gupta, J.

How can the identity of victims of sexual assault, both adults and children, be protected from unnecessary public exposure? The Supreme Court of India addressed this critical question, emphasizing the need to shield victims from social ostracization and further trauma. The Court issued comprehensive guidelines to ensure the privacy of victims is maintained throughout the legal process and beyond. This judgment is authored by Justice Deepak Gupta.

Case Background

The case arose from a series of writ petitions concerning the protection of victims of sexual offenses. The petitioners sought directions to safeguard the identity of victims, arguing that the existing legal framework was insufficient to prevent their re-victimization by society. The Supreme Court took up the matter to address the systemic issues that lead to the public identification of victims, often causing them further harm.

Timeline

Legal Framework

The Supreme Court considered several key legal provisions:

• Section 228A of the Indian Penal Code, 1860 (IPC): This section penalizes the disclosure of the identity of victims of certain sexual offenses. It states, “Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E is alleged or found to have been committed…shall be punished with imprisonment…”
• Section 327 of the Code of Criminal Procedure, 1973 (CrPC): This section mandates that trials for rape and related offenses be conducted in camera. Sub-section (2) states, “Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code…shall be conducted in camera.”
• The Protection of Children from Sexual Offences Act, 2012 (POCSO): This Act provides a framework for protecting children from sexual abuse and exploitation.
  • Section 23 of POCSO: This section outlines procedures for media, prohibiting the disclosure of a child’s identity. Sub-section (2) states, “No reports in any media shall disclose, the identity of a child including his name, address, photograph, family details, school, neighbourhood or any other particulars which may lead to disclosure of identity of the child…”
  • Section 24(5) of POCSO: Mandates the police to protect the identity of the child. It states, “The police officer shall ensure that the identity of the child is protected from the public media, unless otherwise directed by the Special Court in the interest of the child.”
  • Section 33(7) of POCSO: Requires the Special Court to ensure the child’s identity is not disclosed during investigation or trial. It states, “The Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial…”
• Section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015: This section prohibits the disclosure of the identity of children in conflict with the law or who are victims of crime.

These provisions collectively aim to protect victims of sexual offenses from further harm by keeping their identities confidential.

Arguments

The petitioners argued that despite the existence of laws like Section 228A of the IPC and Section 23 of POCSO, the identity of victims was frequently revealed, leading to social stigma and further trauma. They contended that the term “identity” should not be limited to just the name of the victim but should include any information that could lead to their identification.

The Union of India submitted that the term “next of kin” in Section 228A of the IPC should be interpreted as per the Indian Succession Act, 1925. They also argued that in some cases, disclosing the identity of the victim might be necessary to raise public awareness and prevent similar offenses.

Submissions of the Petitioners:

• The existing laws are insufficient to protect the identity of victims of sexual offenses.
• The term “identity” should not be limited to just the name of the victim but should include any information that could lead to their identification.
• There is a need for stringent measures to prevent the disclosure of any information that could reveal the victim’s identity, including details about their family, school, or neighborhood.
• The media should be prohibited from publishing any information that could lead to the identification of the victim, including photographs, addresses, or other personal details.

Submissions of the Union of India:

• The term “next of kin” in Section 228A of the IPC should be interpreted as per the Indian Succession Act, 1925.
• In some cases, disclosing the identity of the victim might be necessary to raise public awareness and prevent similar offenses.
• There is a need to balance the rights of the victim with the need to ensure public awareness and prevent further crimes.

Issues Framed by the Supreme Court

The Supreme Court framed the following key issues for consideration:

1. How and in what manner the 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.
2. Whether the term “identity” as used in Section 228A of the IPC and Section 23 of POCSO should be interpreted broadly to include any information that could lead to the identification of the victim.
3. What are the circumstances under which the identity of a victim can be disclosed, especially when the victim is dead or of unsound mind?
4. What are the guidelines that should be issued to ensure that the media does not disclose the identity of the victim, either directly or indirectly?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• State of Punjab v. Gurmit Singh, (1996) 2 SCC 384:* The Court reiterated the need for sensitivity towards victims of sexual assault and the importance of in-camera trials, aligning with the principles laid down in this case.
• Bhupinder Sharma v. State of Himachal Pradesh, (2003) 8 SCC 551:* The Court emphasized that the name of the victim should not be indicated in court judgments, following the precedent set in this case.
• Aju Varghese v. State of Kerala, Crl. MC No.5247 of 2017:* The Court concurred with the High Court’s view that the provision was intended to ensure that the victim is not exposed to further agony by the consequent social victimization or ostracism.
• Subash Chandra Rai v. State of Sikkim, 2018 CriLJ 3146:* The Court agreed with the High Court’s view that the mandate of the provision requires no further clarification and that the police, media, and judiciary need to be equally sensitive.
• Bijoy v. State of West Bengal, 2017 CriLJ 3893:* The Court agreed with the directions given by the Calcutta High Court on the implementation of POCSO.

The Court also considered the relevant provisions of the Indian Penal Code, 1860, Code of Criminal Procedure, 1973, Protection of Children from Sexual Offences Act, 2012, and Juvenile Justice (Care and Protection of Children) Act, 2015.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily driven by the need to protect the dignity and privacy of victims of sexual offenses. The Court recognized that the disclosure of a victim’s identity can lead to social ostracization, further trauma, and difficulty in reintegrating into society. The Court emphasized that the intent of the law is to ensure that victims are not identifiable, thereby preventing hostile discrimination and harassment.

The Court’s reasoning was heavily influenced by the legal framework and the need to ensure that the law is implemented effectively to protect the rights of victims.

Logical Reasoning

The Court also considered the argument that disclosing the victim’s identity could help raise public awareness. However, the Court rejected this argument, stating that such disclosure is not necessary to mobilize public opinion. The Court emphasized that the victim’s privacy and dignity should be prioritized over any other consideration.

The Court also noted that while the law permits the victim to voluntarily disclose their identity, such disclosure must be a conscious and voluntary act. The Court also addressed the issue of next of kin authorizing disclosure, stating that this should not be permitted without the permission of a competent authority, especially when the victim is deceased or of unsound mind.

The Court observed that, “A victim of rape will face hostile discrimination and social ostracisation in society. Such victim will find it difficult to get a job, will find it difficult to get married and will also find it difficult to get integrated in society like a normal human being.”

The Court also stated, “We, therefore, hold that no person can print or publish the name of the victim or disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.”

The Court further noted that, “The intention of the law makers was that the victim of such offences should not be identifiable so that they do not face any hostile discrimination or harassment in the future.”

The Court also addressed the issue of child victims, emphasizing the need for even greater protection. The Court noted that, “A minor who is subjected to sexual abuse needs to be protected even more than a major victim because a major victim being an adult may still be able to withstand the social ostracization and mental harassment meted out by society, but a minor victim will find it difficult to do so.”

The Court also highlighted the importance of child-friendly courts, stating, “It is, therefore, imperative that we should have courts which are child friendly.”

The Court gave the following reasons for its decision:

• To protect the dignity and privacy of victims of sexual offenses.
• To prevent social ostracization and further trauma to victims.
• To ensure that victims are not identifiable, thereby preventing hostile discrimination and harassment.
• To ensure that the legal framework is effectively implemented to protect the rights of victims.
• To emphasize the need for child-friendly courts and one-stop centers for victims.

Key Takeaways

• The identity of victims of sexual offenses, both adults and children, must be strictly protected.
• The term “identity” includes any information that could lead to the identification of the victim, not just their name.
• FIRs related to sexual offenses should not be made public.
• The media is prohibited from disclosing any information that could lead to the identification of the victim.
• The next of kin cannot authorize the disclosure of a victim’s identity without the permission of a competent authority, especially when the victim is deceased or of unsound mind.
• Child-friendly courts and one-stop centers should be established to provide support and protection to victims of sexual offenses.

Directions

The Supreme Court issued the following directions:

1. No person can print or publish the name of the victim or disclose any facts that can lead to their identification.
2. In cases where the victim is dead or of unsound mind, the name or identity should not be disclosed even with the authorization of the next of kin, unless circumstances justify it, as decided by the Sessions Judge.
3. FIRs relating to offenses under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, or 376E of the IPC and offenses under POCSO shall not be put in the public domain.
4. If a victim files an appeal under Section 372 of the CrPC, they do not need to disclose their identity.
5. Police officials should keep documents disclosing the victim’s name in a sealed cover and replace them with identical documents without the victim’s name in public records.
6. All authorities to which the victim’s name is disclosed must keep the name and identity secret.
7. An application by the next of kin to authorize the disclosure of a deceased or unsound victim’s identity should be made to the Sessions Judge.
8. In cases of minor victims under POCSO, disclosure of identity can only be permitted by the Special Court if it is in the child’s interest.
9. All States/Union Territories are requested to set up at least one ‘one-stop center’ in every district within one year.

Development of Law

The judgment clarifies and expands the scope of protection for victims of sexual offenses. It emphasizes that the term “identity” should be interpreted broadly and that the privacy of victims must be prioritized over other considerations. The judgment also provides specific guidelines for the media and the police to ensure that the identity of victims is not disclosed. This judgment reinforces the principles laid down in previous judgments and provides a comprehensive framework for protecting the rights of victims of sexual offenses.

Conclusion

The Supreme Court’s judgment in this case is a significant step towards protecting the rights and dignity of victims of sexual offenses. By emphasizing the need for strict confidentiality and issuing comprehensive guidelines, the Court has sought to create a legal and social environment that is more sensitive to the needs of victims and ensures that they are not subjected to further trauma. The directions issued by the Court aim to ensure that the identity of victims is not disclosed, and that they are treated with the respect and dignity that they deserve.

Category

Parent Category: Indian Penal Code, 1860
Child Category: Section 228A, Indian Penal Code, 1860

Parent Category: Code of Criminal Procedure, 1973
Child Category: Section 327, Code of Criminal Procedure, 1973

Parent Category: Protection of Children from Sexual Offences Act, 2012
Child Category: Section 23, Protection of Children from Sexual Offences Act, 2012

Parent Category: Protection of Children from Sexual Offences Act, 2012
Child Category: Section 24, Protection of Children from Sexual Offences Act, 2012

Parent Category: Protection of Children from Sexual Offences Act, 2012
Child Category: Section 33, Protection of Children from Sexual Offences Act, 2012

Parent Category: Juvenile Justice (Care and Protection of Children) Act, 2015
Child Category: Section 74, Juvenile Justice (Care and Protection of Children) Act, 2015

Parent Category: Sexual Offences
Child Category: Victim Protection

Parent Category: Media Law
Child Category: Reporting Restrictions

Parent Category: Child Rights
Child Category: Protection of Children

Parent Category: Criminal Law
Child Category: In-Camera Trials

Parent Category: Criminal Law
Child Category: Victim Compensation

FAQ

Q: What does this judgment mean for victims of sexual assault?
A: This judgment ensures that the identity of victims of sexual assault is protected, preventing further social stigma and trauma. It mandates that their names and any identifying information should not be made public.

Q: Can the media report on sexual assault cases?
A: Yes, the media can report on such cases, but they are prohibited from disclosing any information that could lead to the identification of the victim, including their name, address, or other personal details.

Q: What is the role of the police in protecting the identity of victims?
A: The police are required to keep all documents in which the victim’s name is disclosed in a sealed cover and replace them with identical documents without the victim’s name in public records. They must also not disclose the victim’s identity to the media.

Q: What is the role of the court in protecting the identity of victims?
A: The court must conduct trials in camera and ensure that the victim’s identity is not disclosed during the proceedings. The court also has the power to permit disclosure of a child’s identity only if it is in the best interest of the child.

Q: What are one-stop centers and why are they important?
A: One-stop centers are facilities that provide comprehensive support to victims of sexual assault, including medical aid, counseling, and legal assistance. These centers are essential for ensuring that victims have access to all the resources they need in a safe and supportive environment.

Q: What if a victim wants to file an appeal?
A: If a victim wants to file an appeal, they are not required to disclose their identity. They can file the appeal using a pseudonym, and the court will handle the case with the same level of confidentiality.

Q: What if the victim is deceased or of unsound mind?
A: In such cases, the identity of the victim cannot be disclosed even with the authorization of the next of kin, unless a competent authority, such as a Sessions Judge, determines that there are compelling reasons to do so.