India, as we all know, is a patriarchal society, and the majority of traditional, ignorant people are all patriarchy’s facilitators. In India, the consequences and aftereffects are not always in the victim’s favor. In India, the majority of rape victims are viewed negatively and there is a propensity to avoid doing business with them. Whether the victim’s name should be made public due to public interest or kept secret to enable a fair trial is one of the most important questions in the scope of crimes related to rape and trafficking.
Recently, the investigating agencies and trial courts had been ordered by the Bombay High Court’s Aurangabad bench to make sure that the identity of a rape victim is not revealed, not even in the charge sheet.
Justices Vibha Kankanwadi and Abhay S. Waghwase, sitting on a divisional bench, noticed that the primary seat in Bombay had ordered the accused to provide images of the victim in a sealed envelope. It expanded these instructions to include the courts and the investigative agencies.
“We go a step further and instruct the relevant agencies working on the investigation of this crime that moving forward, the images of the victims shall be sent in sealed envelopes to the relevant Courts. We may also state that disregarding the instructions could result in prosecution for the offense listed in Section 228-A of the Indian Criminal Code. Also, the courts where the charge-sheet is approved are addressed by these instructions. They should also ensure that the images are presented to them in a sealed envelope and that the victim’s name is not revealed in any way”, the court said.
The IPC’s Section 228-A forbids the revelation of the victim’s identity in cases involving crimes under Section 376, the POCSO Act, etc.
The victim is depicted in several of the charge sheet’s images, according to the court, and such evidence shouldn’t be put to the charge sheet in plain view. The charge sheet is handled by numerous people as it travels from the office of the investigating agency to the court, and the identity of the victim is revealed, the court said.
The investigative agency must exercise tact in this situation. In order to prevent the victim’s name from being revealed in any way, the court ordered that if they wanted to provide such documents, they should do so in a sealed envelope together with copies of the charge-sheet.
The court remarked that despite numerous judgements from the Apex Court underlining that the victim’s identity should not be revealed in such circumstances, such occurrences continue to occur.
The appeal under Section 14-A(2) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (Atrocities Act) was before the court, and it contested the Special Judge’s decision to deny bail on the grounds that it is prohibited by Sections 18 and 18-A.
Another public incident that had caught the media attention regarding the identity of a rape victim was one of Rahul Gandhi’s tweets. On August 11, Twitter notified the Delhi High Court that Rahul Gandhi’s message had breached Sections 74 of the Juvenile Justice Act of 2005 and 23(2) of the Protection of Children from Sexual Offenses (POCSO) Act. These clauses expressly forbid disclosing the names of children who have been the victims of crimes.
In this article, we will be examining the legal framework around the disclosure of the names of rape victims, survivors, and their relatives. The identities of survivors and victims of crimes must be protected under a number of legal restrictions, some of which apply exclusively to crimes against minors and others to certain crimes against women.
Sections 23 of the POCSO Act and Section 74 of the Juvenile Justice Act, which deal with the identification of child victims, were referenced by Twitter during the hearing before the Delhi High Court.
The POCSO Act’s Section 23(2) forbids the disclosure of any information that could reveal the identity of a minor victim of sexual offenses, including that kid’s name, residence, portrait, family information, school, neighborhood, or other facts.
This restriction’s violation is a crime that carries a six-month to one-year prison sentence as well as a fine.
The publication of “name, residence, school, or any other detail” that could be used to identify a child who is a victim of any crime, or even a child who is accused of committing a crime, as well as children who are witnesses to a crime, is forbidden by Section 74 of the Juvenile Justice Act.
This restriction’s violation is a criminal offense that carries a fine and/or a jail sentence of up to six months. Both of these restrictions aim to prevent the publication of any facts that could be used to identify a child victim, such as pictures or information about their parents.
The most important thing to keep in mind about these legal requirements is that neither of these restrictions on disclosing a child victim’s identity may be waived, either by the child (if they are still alive) or by the child’s parents.
However, the special POCSO courts or Juvenile Justice Boards can waive the prohibition if they believe disclosure of the identity is in the interests of the child – for instance, if they have gone missing. Applications can be made to them for permission to do so.
Given how these regulations are worded, it could be feasible to claim that the restrictions on disclosure only apply to media organizations and not to individual users of social media accounts. Since the definition of “media” has widened in light of the development of social media, it is unclear if a court would truly accept such a claim.
The Indian Penal Code 1860 (IPC), Section 228A, forbids printing or publishing the name or any other information that reveals the identify of a rape victim (section 376, 376 A-E of the IPC). Both adults and minors should be aware of this.
However, this restriction may be waived by the survivor or, in cases where the victim is deceased (or unable of giving consent), by the victim’s family, in writing to a designated welfare institution or other appropriate body.
When describing the victim, they should, whenever possible, either use a pseudonym unless it is absolutely important to record her identity. Any FIR pertaining to a crime of rape against a woman or an offence against a child that falls under the jurisdiction of POCSO must not be made public. Memos or correspondence that contain the victim’s name shall not be given to anyone or exposed to the media in accordance with the RTI Act of 2005.
The 2012 Delhi gang-rape case affected people’s consciences all over the nation and led to significant legislative reforms in how such horrible crimes are handled.
In this instance, the victim’s identity was first concealed under the alias “Nirbhaya,” but the family ultimately decided to reveal both her name and their own identities. Politicians and members of the media visited the family at their home in Southwest Delhi and spoke with them.
Later, in an interview, her father stated, “Her real name should be known to all. My child didn’t do anything wrong. She defended herself and died. I’m pleased with her. Her identity being revealed will inspire other women who have survived terrible assaults. They will draw courage from my daughter.”
Nirbhaya’s mother once more exposed her identity in December 2015, saying, “I’m not embarrassed to use my daughter’s name. Those who have suffered shouldn’t keep their names hidden. The culprits should feel humiliated and keep their names hidden. My daughter’s name was Jyoti Singh, and I want to let everyone know that. She should now be known to everyone as Jyoti Singh.”
As her parents gave the name to journalists rather than “the chairman or the secretary, by whatever name called, of any recognised welfare institution or organization,” as required by Section 228A of the IPC, technically the media is still not allowed to publish her identity. Yet, it might be claimed that the standards for a proper disclosure have been completed given the family’s public attitude and the potential for a waiver.
Justices Madan B. Lokur and Deepak Gupta’s bench issued a directive in December 2019 stating that FIRs filed for offences under the Protection of Children from Sexual Offenses (POCSO) Act and the Indian Penal Code (IPC) that constitute rape should not be made public. The top court further stated that names and identities of rape and sexual assault victims, including those who have passed away, cannot be revealed in any way. It further stated that as long as the victim is providing their identity voluntarily, nobody can object to it. The judges also cautioned the media against “sensationalizing” similar cases and urged caution.
The court further ordered the police authorities to keep all documents including the victim’s name in a sealed cover and replace them with identical documents omitting the victim’s name from any records that can be viewed or studied by the general public. The court has instructed reporters to refrain from speaking with such a victim or survivor for reporting and media coverage because the victim keeps telling the same story of suffering. It was further stated that sensitive reporting should be done in these circumstances.
The special court can only allow the identities of minor victims under POCSO to be revealed if doing so is in the child’s best interests, the bench said. Because the victim repeats recounting the same tale of pain, the court has ordered reporters to forgo engaging with such a victim or survivor for reporting and media coverage. It was further emphasized that in these situations, sensitive reporting should be done. According to the bench, the special court may only permit the identification of young POCSO victims if doing so is in the child’s best interests.
We can conclude from previous cases and instances that there are many laws in place, each of which has the authority to protect the identity of the victim. However, these laws must be implemented with the utmost adherence to the letter and spirit of the law, in harmony with the feelings of the victim, the victim’s family, and the general public.
