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NIPUN SAXENA V. UNION OF INDIA

INTRODUCTION

The term ‘rape’ has been defined under Section 375[1] of IPC, which involves all the technicalities of the crime. But, in general words, ‘Rape’ is the sexual assault committed on an individual against her will and without her consent. The crime itself is of such heinous nature, that it disrupts not only the physical stability of a woman but also her mental solidity. It is the immense willpower and strength of the women that after being the victim of such an unimaginable crime, still stand up and become the regular person that they used to be. Ironically, till today while living in the 21st century, people look down more upon the rape victim rather than looking down upon the criminal himself. The victim gets treatment equal to that of an untouchable person. Even her family abandons her, to maintain the so-called Social Honor. Even, in the early days of the Indian Legal System, the victim was questioned much more than the accused of such crime. The identity of the victim became a much precious thing to preserve or else her life would be made a mess by the society, relying upon the so-called superstitious Social Honor. Thus, every individual must protect the identity of the victim.

FACTS OF THE CASE

Every victim of Sexual Abuse, especially victims of rape is treated as ‘untouchable’ creatures, even by their near and dear ones. Due to this barbaric nature of society, the horrifying truth is that most of such sexual crimes are getting un-reported. The victims fear the treatment of being socially ostracized more than anything else. Even if a victim recovers from the mental and physical trauma that occurred due to such heinous crimes, then also the social banishment that she has to face traumatizes the victim more than anything else. It is an unfortunate reality of such victims, that while they come to seek justice – they are the ones who are made to feel that they are the sole reason behind such mishaps. Even after lodging of FIR, owing to the regular formalities the investigation starts with questioning the victim, in various ways, which often makes her feel uncomfortable. Even according to Section 228A[2] of IPC, the identity of the rape victim cannot be revealed to the public at large. But sadly, this legal provision is hardly maintained by the media.

LEGAL ISSUES

  1. What are the reasons behind the identity of any rape victim not being disclosed to the public at large?[3]
  2. What are the conditions based on which the identity of a rape victim can be disclosed?[4]
  3. Whether a child is protected from disclosure of her identity being a victim of rape, as similar to that of an adult female.[5]

OBSERVATION OF THE SUPREME COURT

The Hon’ble Supreme Court of India comprising the bench of Justice Madan B. Lokur and Justice Deepak Gupta observed that it was an unfortunate reality faced by the female society where if anyone becomes a victim of rape, then she is outcasted from the society by her near and dear ones. It is a fact that the victims face social ostracization even by their family who in the name of so-called false notions of ‘honour’ refuses to accept her back into their fold. It was also observed that most of the cases are going unreported even by the victims, for the sole reason of not getting outcasted from society. This is the harsh reality of our society but at the very same time, it is not at all acceptable in any sense. The court also observed that the victims had to deal with the ‘recriminations and insinuations’[6] made against them by the police authority. The victim is also subjected to a harsh cross-examination in the courtroom by the defence lawyer where she is asked various defamatory questions regarding her character and social life, but the unexpected reality in this matter is that even the judge does not interfere during this type of session. It must be cleared at the very beginning that the right to cross-examine the prosecutrix by the defence counsel is not in any way being curtailed but, it must be remembered that such sessions must be conducted maintaining a certain level of decency and morality towards the whole female community at large. While deciding on this matter, the Hon’ble Supreme Court also observed a recent case of rape, where the name of the victim was not revealed but the fact that she was a topper of a particular State Board Examination with the name of the State was published by the media. Also, during the interview of a certain victim, the media rightfully blurred her face but disclosed the faces of her relatives and the name of the village. No interstellar science is required to extract the identity of the victim from these publications.[7] Section 228A[8] of IPC and Section 327[9] of CrPC are enacted by the Amendment Act 43 of 1983, which aimed at non-disclosure of the victim’s identity under any circumstances.

In the case of Bhupinder Sharma v. State of Himachal Pradesh[10], the apex court analyzed Section 228A[11] of IPC and Section 327[12] of CrPC and gave a detailed view of the technicalities mentioned in those sections. This analysis was maintained by the Kerala High Court in the case of Aju Varghese v. the State of Kerala[13]. While dealing with the minor victims under the purview of POCSO, it was observed that the minors require more attention than the adults in this type of matter. As in the case of minors, it is mostly seen that the accused is one of the members of the family and thus, to maintain family stability, these cases are more likely to get refrained from filing. Also, a major can handle her mental and physical stability on her own but it is very difficult in cases of a minor, where she doesn’t know what to do.[14] Section 24(5)[15] of POCSO deals with the protection of the victim’s identity while she is questioned by the police authority. Also, Section 23[16] of POCSO deals with the procedure of media as to how they are to be restricted from revealing the identity of the victim. Under the Juvenile Justice Act of 2015, Section 74[17] proposes prohibitions on the disclosure of the victim’s identity.

DECISION

The Hon’ble Supreme Court of India, after reviewing all the facts and circumstances of the case, decided that the identity of rape victims cannot be disclosed at any instance, failing which will lead to the criminal offence as per Section 228A[18] of IPC leading to imprisonment which may extend to two years and also fine. If any rape victim appeals before any court under Section 372[19] of CrPC then she can do so while keeping her identity in check by representing herself by pseudonyms like ‘X’ or ‘Y’.[20]

Leading to the legal issue as to when the identity of a victim can be revealed, the court decided that in case, the victim is of unsound mind or dead, then the ‘next of kin’ of such victim shall be the legal authority to make an application to the court, which in this case is either the Session Judge or Magistrate, for the revelation of the identity of the victim under Section 228A of IPC.[21] While it was also decided that if the victim is minor then such revelation is subjected to the permission from Special Court which again must give priority to the interest of the child.[22] Any FIR registered under the sections of rape in IPC, like Section 376, 376A, 376AB, etc., and under POCSO, cases are not to be disclosed by the police authority in the public domain.[23] Also, the authorities including the court, who due to the work of investigation in the case, get to know about the name and identity of the victim should keep such information restricted to themselves.[24]

CONCLUSION AND ANALYSIS

The protection of the identity of the rape victims is an integral part of justice as the right to privacy is a fundamental right given to a citizen by the supreme law of the land i.e., the Constitution of India. In Thappalam Service Cooperative Bank Limited v. State. of Kerala[25], the court analyzed that the Right to privacy is enshrined upon the citizen by Article 21[26] of the Constitution along with the statutory provision as enacted under Section 8(j)[27] of the Right to Information Act of 2015. To maintain all these parameters of justice, Section 228A[28] of IPC provides for the non-disclosure of the victim’s identity not only through her name but through any fact which can somehow disclose her recognition. All though we are saying that with time we are moving ahead but the ancient mentality is still prevalent in our mind, by which we treat a rape victim with the same viciousness that she has already experienced, without her fault. This type of social evil committed towards the victims must be termed a criminal activity of the same nature as Rape itself.

Author(s) Name: Snehadeep Dalui (Techno India University, West Bengal)

References:

[1] Section 375, The Indian Penal Code 1860

[2] Section 228A, The Indian Penal Code 1860

[3] Adya Samal, ‘Nipun Saxena & anr v. Union of India’ (Law Times Journal, 12th July 2020) <https://lawtimesjournal.in/nipun-saxena-anr-vs-union-of-india/> accessed 15th March 2022

[4] Ibid

[5] Ibid

[6] Nipun Saxena v Union of India [2019] 2 SCC 703, [5]

[7] Nipun Saxena v Union of India [2019] 2 SCC 703, [12]

[8] Section 228A, The Indian Penal Code 1860

[9] Section 327, The Code of Criminal Procedure 1973

[10] Bhupinder Sharma v State of Himachal Pradesh [2003] 8 SCC 551

[11] Section 228A, The Indian Penal Code 1860

[12] Section 327, The Code of Criminal Procedure 1973

[13] Aju Varghese v State of Kerala [2017] Crl. MC No. 5247 of 2017

[14] Nipun Saxena (n 5), [29]

[15] Section 24(5), The Protection of Children from Sexual Offences Act 2012

[16] Section 23, The Protection of Children from Sexual Offences Act 2012

[17] Section 74, The Juvenile Justice (Care and Protection of Children) Act 2015

[18] Section 228A, The Indian Penal Code 1860

[19] Section 372, The Code of Criminal Procedure 1973

[20] Ibid, [43][4]

[21] Ibid, [43][7]

[22] Ibid, [43][8]

[23] Ibid, [43][3]

[24] Ibid, [43][6]

[25] Thappalam Service Cooperative Bank Limited v State of Kerala [2013] 16 SCC 82

[26] Article 21, The Constitution of India

[27] Section 8 (j), The Right to Information Act 2005

[28] Section 228A, The Indian Penal Code 1860