Nipun Saxena & anr vs. Union of India

Nipun Saxena & anr vs. Union of India
Before the Supreme Court of India
Writ Petition Civil no. 565 of 2012
Petitioner
Nipun Saxena & Anr.
Respondent
Union of India 
Date of Judgement
11 December 2018
Bench
Hon'ble Justice Deepak Gupta; Hon'ble Justice M. B. Lokur

Introduction

The identity of the unfortunate rape and sexual victims including child has to be protected under section 228 of the Indian Penal Code. As they face social stigma and ostracisation. So, how we can ensure the non-disclosure? What steps have to be taken? Is everyone bound by the rules? What and because of whom such sensitive disclosures were being made? This landmark case gives the answer to all these questions and also gives the rationale behind such non-disclosure.

Background-

Though there is provision for the non-disclosure of the identity of rape victims, the said provision was not implemented thoroughly. So, how we can ensure the non-disclosure? What steps have to be taken? Is everyone bound by the rules? What and because of whom such sensitive disclosures were being made? This landmark case gives the answer to all these questions and also gives the rationale behind such non-disclosure.

Statues and Provision Discussed – 

a. Section 376, Indian Penal Code, 1860

b. Section 376A, Indian Penal Code, 1860

c. Section 376AB, Indian Penal Code, 1860

d. Section 376C, Indian Penal Code, 1860

e. Section 376DA, Indian Penal Code, 1860

f. Section 376DB, Indian Penal Code, 1860

g. Section 376E, Indian Penal Code, 1860

h. Section 228A Indian Penal Code, 1860

i. Section 372, 373 of Criminal Procedure Code, 1973

j. Section 23(1), section 24(5), section 33(7) Prevention of Children from Sexual Offences (POSCO) Act

k. Section 74 of the Juvenile Justice Care and Protection Act.

Facts 

A victim of sexual assault such as rape is dealt with like an “untouchable” and shunned from society. Commonly, even her family will not acknowledge her go into their overlay. The unforgiving the truth is that multiple occasions instances of assault don’t get revealed due to the bogus thoughts of supposed ‘respect’ which the group of the unfortunate casualty needs to maintain. The issue doesn’t end here. Much after a case is held up an FIR recorded, the police, as a general rule, question the unfortunate victim like a denounced.

The unfortunate victim’s first brush with justice is an undesirable one where she is caused to feel that she is to blame; she is the reason for the wrongdoing; she is the one at fault.

Section 228 of IPC prohibits the disclosure of the identity of a rape victim. But certain media houses don’t follow what legal proposition suggests instead they publish the identity of victims. It was also laid down in the case of Bhupinder Sharma v. State of Himachal Pradesh,[1] that, in order to maintain the spirit of Section 228, disclose the identity of the rape victims ought not to be disclosed.   

Issues

Why the identity of rape victims should not be revealed?

In what case, in what circumstances it can be revealed?

Whether non-disclosure of the identity of the victim covers the preview of the POCSO Act?

Contentions –

Petitioner’s contention –

The Court alluded to Section 228A IPC (Disclosure of character of the casualty of specific offenses and so on.), Section 327 CrPC, 1973 (Courts ought to be open and regularly open ought to approach the Courts), expressed that vide the Amendment Act of 1983, instances of rape, gang rape and so forth were rejected from the class of cases to be attempted in open Court.

Sub-Section (1) of Section 228A states that any individual who makes known the name and identity of an individual who is a supposed victim of an offense falling under Sections 376, 376A, 376AB, 376B, 376C, 376DA, 376DB or 376E carries out a criminal offense. Sub-Section (2) of Section 228A is making known the identity of the unfortunate victim by printing or distribution in specific situations depicted in that. [2]

Respondent’s Contention –

The respondents clarified that they would prefer not to in any way diminish the privilege of the safeguard to interrogate the prosecutrix, yet the equivalent ought to be finished with a specific degree of goodness and regard on the loose. Endeavors have been made to sharpen the Courts; however, experience has demonstrated that despite the most punctual reprobation, the first as far in 1996, State of Punjab v. Gurmit Singh,[3] the Courts even today uncover the identity of the victim in question. The freedom of speech and expression takes a backseat because of the said provision. The disclosure of identity and names are impositions of truth only.

Judgment –

The issues which may make known the identity of the individual don’t exclusively imply that lone the name of the unfortunate victim ought not to be uncovered however it likewise implies that the identity of the injured individual ought not to be recognizable from any issue distributed in the media.

The lucidity additionally prompts the seat expressing that no individual can print or distribute the name of the person in question or uncover any realities which can prompt the injured individual being distinguished and which should make her character known to people in general on the loose.

Next pointer on which the Court tossed light was on the examination taken by cops, they ought to likewise quite far either utilize a nom de plume portray the unfortunate victim except if it is completely important to record her identity.

FIR relating the offense of rape against ladies or offenses against children falling inside the domain of POCSO will not be placed in the open space. Updates or Correspondence traded or gave with the name of the unfortunate victim in it ought not to be revealed to media and not be outfitted to any individual under the RTI Act, 2015.

Another vexatious issue is concerning the “following kinfolk of the person in question” giving power to the administrator or secretary of perceived welfare establishments to pronounce the name of the person in question—For the expressed issue, Court was of the feeling that, it isn’t important to unveil the identity of the unfortunate victim to stir general assessment and supposition, If a crusade must be begun to ensure the privileges of the person in question, it very well may be done as such without uncovering her personality. In this way, the Court expressed of without authorization of the authority, the identity ought not to be revealed.

Section 24(5) and Section 33(7) of the POSCO Act, makes it sufficiently evident that the name and identity of the child are not to be revealed whenever throughout examination or preliminary and the identity of the kid is shielded from people in general or media.

Section 37 of POSCO Act, states that preliminary is to be led in the camera which would imply that the media can’t be available; the reason for POCSO is to guarantee that the identity of the child isn’t uncovered except if the Special Court recorded as a hard copy allows such divulgence and exposure must be made in the event that it is in light of a legitimate concern for the child, for instance, the identity of the child can’t be built up even by the researching group, at that point the authorization of photo to be distributed can be given by the Special Court of Investigative Team.

Ratio Decidendi –

The statutory arrangement as clarified by the Supreme Court unmistakably shows that the arrangement was explicitly expected to guarantee that the unfortunate victim isn’t presented to promote desolation by the ensuing social exploitation or segregation in accordance with divulgence of her identity. It is proposed to shield her from mental and sociological torment or mental misery that may follow the deplorable occurrence of sexual viciousness.

Society has an obligation to help the victims of sexual brutality and to guarantee that they return to regularity and begin having a typical existence. Victims of such viciousness are not stripped of their essential right to security and are at risk to be protected against pointless open remarks.

Unquestionably, it fills an affirmed social need and has a component of open intrigue engaged with it. The area is so clear, unambiguous and the result of it is inevitable and the inquiry whether the exposure was expected, bonafide or without information on the law has no significance. Subsequently, the arrangement of section 228A IPC restricting the exposure of the name by a denounced is total and can’t be weakened.

Conclusion –

Though we claim we are moving ahead with time but still our society looks down upon the victims and they are still subject to social taboos and humiliation. It is a social stigma and unfortunate incident that in our society a woman’s dignity is linked with sexuality.

Section 228 lays down the rule that the protection of disclosure of the identity of rape victims. But certain media houses don’t follow what legal proposition suggests instead they publish the identity of victims.  Law has to be followed in its totality. The right of media or the freedom of speech and expression can’t simply abridge the rights of victims. Everyone should strictly follow the guidelines and heavy compensation has to be imposed on the defaulters.     

Edited by Parul Soni

Approved & Published – Sakshi Raje

Reference

[1] Bhupinder Sharma v. State of Himachal Pradesh, Appeal (Crl.) 1265 of 2002.

[2] Devika, December 12, 2018, SC issues directions for protection of the identity of victims of rape and sexual offenses; the need for victim-friendly trail stressed upon, Case Briefs, (26 January 2020, 2:30 am) https://www.scconline.com/blog/post/2018/12/12/sc-issues-directions-for-protection-of-identity-of-victims-of-rape-and-sexual-offences-need-for-victim-friendly-trial-stressed-upon/.

[3] State of Punjab v. Gurmit Singh, (1996) 2 SCC 384.

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I’m Adya Aditi Samal, pursuing B.A. LL.B in Xavier Law School. I’m a self-motivated law student who believes in the idea that “there is always someone better than you”, and this makes me keep going. I love to learn new things because I feel learning refine you, redefines you. I’ve been an ardent admirer of world history, psychology and mythology all through my life. Finally, my heart found solace when I fell in love with criminal law and human rights law. The intrinsically intimate thread between society and law mesmerizes me every time. In my leisure, I write poems and short stories in Odia. And finally; I don’t eat to live but rather live to eat.