Supreme Court: The Bench comprising of Madan B. Lokur and Deepak Gupta, JJ. laid down directions and threw light in a very precise and analytical manner on two very important and pertinent 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 ostracisation and harassment;
- Issues relating to non-disclosure of the name and identity of a victim falling within the purview of the POCSO.
The present judgment has been in a detailed manner written down in two parts dealing with the above-stated issues separately.
“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, stated that many times cases of rape do not even get reported because of the false notions of so-called ‘honour’ which the family of the victim wants to uphold.
“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 do not want to in any manner curtail the right of the defence to cross-examine the prosecutrix, but the same should be done with a certain level of decency and respect at large. Efforts have been made to sensitise the courts, but experience has shown that despite the earliest admonitions, the first as far back in 1996, State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, the Courts even today 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, 1973 (Courts should be open and normally public should have access to the Courts) , stated that vide the Amendment Act of 1983, cases of rape, gang rape etc. were excluded from the category of cases to be tried in open Court. Sub-Section (1) of Section 228A 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. Sub-Section (2) of Section 228A is making known the identity of the victim by printing or publication under certain circumstances described therein. Bench making it clear that the phrase “matter which may make known the identity of the person” does not solely 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 clarity 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 and which should make her identity known to the public at large.
Next pointer on which the Court threw light was on the investigation taken by police officers, they should also as far as possible either use a pseudonym to describe the victim unless it is absolutely necessary to write down her identity. FIR relating 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, 2015.
Another vexatious issue is in regard to the “next kin of the victim” giving an authority to the chairman or secretary of recognized welfare institutions to declare the name of the victim—For the stated issue, Court was of the opinion that, it is not necessary to disclose the identity of the victim to arouse public opinion and sentiment, If a campaign has to be started to protect the rights of the victim, it can be done so without disclosing her identity. Therefore, the Court stated that even under the authorization of the next of the kin, without permission of the competent authority, the identity should not be disclosed.
Sub-Section (3) of Section 228A IPC, lays down that nobody can print or publish any matter in relation to any proceedings within the purview of Section 228A IPC and Section 327 (2) CrPC.
If the accused is acquitted and the victim of the offence wants to file an appeal under Section 372 CrPC, the victim can pray to the Court that she may be permitted to file a petition for the same under a pseudonymous name.
Issue 2- Issues which relate to non-disclosure of the name and identity of a victim falling within the purview of the POCSO.
“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.”
Section 24(5) and Section 33(7) makes it amply clear that the name and identity of the child is not to be disclosed at any time during the course of investigation or trial and the identity of the child is protected from the public or media.
Section 37 states that trial is to be conducted in camera which would mean that the media cannot be present; the purpose of POCSO is to ensure that the identity of the child is not disclosed unless the Special Court in writing permits such disclosure and disclosure can only be made if it is in the interest of the child, for instance,e the identity of the child cannot be established even by the investigating team, then the permission of photograph to be published can be given by the Special Court of Investigative Team.
Learned amicus curiae placed that the definition of ‘interest of child’ has not been given anywhere to which the Court stated that it is neither feasible nor would it be advisable to clearly lay down what is the meaning of the phrase “interest of the child”, as each case will have to be dealt within its own factual scenario.
The bench further detailed out that media has to be not only circumspect but a duty has been cast upon the media to ensure that it does nothing and gives no information which could directly or indirectly lead to the identity of the child being disclosed.
“Media should be cautious not to sensationalise the same.”
Sensationalising such cases may garner Television Rating Points (TRPs) but does no credit to the credibility of the media.
A child belonging to a small village, the disclosure of the name of the village may contravene the provisions of Section 23(2) POCSO because it will just require a person to go to the village and find out who the child is—Media is not only bound to not disclose the identity of the child but by law is mandated not to disclose any material which can lead to the disclosure of the identity of the child and such violation would amount to an offence under Section 23(4). Another point raised by the amicus curiae was that the publication should only mean a living child to which the Supreme Court was in total disagreement, as in the case of dead victims, the factor which was to be kept in mind was the dignity of the dead which they cannot be denied of.
The decision of Calcutta High Court in, Bijoy v. State of W.B.,2017 SCC OnLine Cal 417, detailed out the reasons while dealing with the provisions of POCSO and held that neither during investigation nor during the trial name of the victim should be disclosed. The judgment also laid down directions to ensure that the provisions of the law are followed in letter and spirit, and the fundamental rights of child victims are protected, to which the Supreme Court bench in the present case is in agreement.
The Bench requested the Chairpersons and Members of all the Juvenile Justice Committee of all the High Courts to go through the judgment of the Calcutta High Court stated above and issue directions keeping in view the needs of each High Court/State. The Court also detailed out the establishments of “One Stop Centres”, by taking inspiration from “BHAROSA” in Hyderabad which can be used as a model for other one-stop centres in the country.
Thus, the Court disposed of the petitions and based on the above-stated discussion laid down 9-directions which can be referred to in the judgment. [Nipun Saxena v. Union of India,2018 SCC OnLine SC 2772, decided on 11-12-2018]