Not to record name of rape victim
The subordinate courts should not reveal the identity of a rape victim or a sexual offence victim in any court proceedings.
The direction was issued by the Supreme Court (SC) in a case (in Birbal Kumar Nishad v State of Chhattisgarh) in which a rape convict was punished with ten years of rigorous imprisonment for raping a minor girl under Section 376(1) and 342 of the IPC, by the trial court and affirmed by the Chhattisgarh High Court.
Section 228A of the IPC prohibits disclosure
The Section 228A of the Indian Penal Code, 1860 (IPC) prohibits disclosure of the identity of the victim of certain offenses.
It enlists the circumstances under which one can legally name and publish the identities of the rape survivors. Such a disclosure is a cognizable, bailable and non-compoundable offense triable by any magistrate with a punishment of up to two years and fine.
The Section 228(A)(1) of the IPC states:
“Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offense under section 376, section 376A, section 376B, section 376C or section 376D is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine“.
Identical provision in POCSO Act
An identical provision exists under Section 23 of the Protection of Children from Sexual Offences Act 2012 (POCSO). It prohibits the disclosure of name, address, photographs, family details, school, neighbourhood or any other particulars which may lead to the disclosure of the identity of a victim of sexual offences.
Court should refer her as victim in the judgement
The SC says that even though the restriction on printing and publishing the name of the victim under Section 228(A)(1) of the IPC does not relate to printing or publishing of judgments, it would be appropriate that in the judgment of every court should not disclose the name of the victim. Rather it is better to describe her as victim in the judgment.
Nine-point SC guideline in 2018
In 2018, the SC in Nipun Saxena v Union of India issued a 9-point guideline to protect the privacy and reputation of victims of rape crimes.
1. No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.
2. In cases where the victim is dead or of unsound mind the name of the victim or her identity should not be disclosed even under the authorization of the next of the kin, unless circumstances justifying the disclosure of her identity exist, which shall be decided by the competent authority, which at present is the Sessions Judge.
3. FIRs relating to offences under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of IPC and offences under POCSO shall not be put in the public domain.
4. In case a victim files an appeal under Section 372 CrPC, it is not necessary for the victim to disclose his/her identity and the appeal shall be dealt with in the manner laid down by law.
5. The police officials should keep all the documents in which the name of the victim is disclosed, as far as possible, in a sealed cover and replace these documents by identical documents in which the name of the victim is removed in all records which may be scrutinised in the public domain.
6. All the authorities to which the name of the victim is disclosed by the investigating agency or the court are also duty bound to keep the name and identity of the victim secret and not disclose it in any manner except in the report which should only be sent in a sealed cover to the investigating agency or the court.
7. An application by the next of kin to authorise disclosure of identity of a dead victim or of a victim of unsound mind under Section 228A(2)(c) of IPC should be made only to the Sessions Judge concerned until the Government acts under Section 228A(2)(c) and lays down a criteria as per our directions for identifying such social welfare institutions or organisations.
8. In case of minor victims under POCSO, disclosure of their identity can only be permitted by the Special Court, if such disclosure is in the interest of the child.
9. All the States/Union Territories are requested to set up at least one ‘one stop centre’ in every district within one year from today.
References for additional reading
- Nipun Saxena v Union of India, at https://indiankanoon.org/doc/143288964/
- Birbal Kumar Nishad v State of Chhattisgarh SLP Diary No 7772 of 2021, at https://www.livelaw.in/pdf_upload/77722021361328108order30-jun-2021-395894.pdf
- The Section 228 A of the IPC, at https://indiankanoon.org/doc/1696350/
- Section 23 of the Protection of Children from Sexual Offences Act
