Nipun Saxena
V. Union Of India
(
11 December 2018)
FACTS:
The term rape has been
defined in Section 375[1] of
the Indian Penal Court where all the aspects of the rape have been explored.
But, in laymen's terms, rape is a forceful sexual offense done against women
against their will. It is so abominable that it shatters both: the physical as
well as the mental collaboration of women. The victims of rape are treated as
the untouchables. To maintain so-called social prestige, the near and dear ones
of the rape victims desert them. The victims are questioned many times more
than the accused, so it becomes a necessity to protect their identity to immune
them from social isolation. It is simply their willpower that they decide to
fight against all those odds and live a life that they used to earlier.
Because of all the
barbaric scenes cooked by our society toward the rape victims, the alarming
crime is becoming under-reported. The feeling of social repudiation forces them
to hide this heinous crime. Even after recovering from physical trauma, the
victims have to face the mental trauma because of the ill-conservative thinking
of society. The trauma given to them because of society haunts them more than
anything else. It is as if they are punished for a crime that they have not
committed ever. Also, during the investigation process asking them various
questions compromises their dignity. All those questions trouble them beyond
our imagination, which makes her feel uncomfortable. As per Section 288A of the
Indian Penal Code, the identity of rape victims should not be vouchsafed to the
public, but it is barely followed. So, in the landmark case of Nipun Saxena V.
Union of India, a question regarding the identity of the rape victims was
raised.
ISSUES RAISED:
1) What are the various
reasons for hiding the identity of rape victims from society?
2) What are the various
injunctions on which the identity of rape victims can be disclosed?
3) Whether the identity
of the child should be preserved from being disclosed to society in the very
way as that of adult females who are victims of rape?
CONTENTIONS:
1)
Petitioner’s Contention: The Court alluded to Section 288A of IPC,
Section 327of Code of Criminal Procedure, 1973, expressed to consult The
Amendment Act of 1983, instances of rape, gang-rape, and many such things
should not be discussed in open court.
Further, the focus was laid on sub-section (1) of Section 288A
expressing that those individuals who disclose the name and identity of individuals who is a victim
of offense fall under Section 376A, Section 376AB, Section 376B, Section376C, Section
376DA, Section DB, or Section 376 E have done a criminal offense.
2)
Respondent’s Contention: The
representative said that they are also in favor of hiding the identity of the
rape victims yet this should ensure that such actions should not diminish the
quality of interrogation made to them by the police. Even many times The
Honorable Court has revealed the identity of the victims, for instance in the
case of State Of Punjab V. Gurmit Singh, 1996.
Many times there is an overlap between The Freedom of Speech and
Expression and Section 288A of the Indian Penal Code.
RATIONALE:
The
Bench of The Supreme Court comprising the Justice Madan B. Lokur and Justice
Deepak Gupta emphasized that it is untoward for the female community that they
are out casted from the society, even by near and dear ones, when they become
rape victims. It is the reality in our society that in the name of so-called
social honor and prestige, the near and dear ones refuses to accept them back
into their family. For this sole reason only, nowadays, many cases of rape have
begun not to be reported because of the trepidation of social rejection. This
is an apparent tyrannical truth of our society but at the very time, this fact
is not bearable. The Court also felt that the victims had to go through
squabbling and undertone made against them by the police authority. Many rape
victims have to face the unbearable cross-questions of the defense lawyer, but
the unfortunate fact is that the judge even does not interfere in that. Many
Aspects of her social and personal life are discussed publicly. Derogatory
statements against her character are passed. The Court observed that the
cross-examination is not curtailed but lawyers should pay respect to the female
community. While passing the verdict the honorable court threw light on the neoteric
case of the rape victim where her name was kept in dark but the media
broadcasted that she is the topper of a particular state board with the name of
the state. In another case, the media blurred the face of the rape victim but
disclosed the identity of her relatives and the name of the village. The Court
observed that in such injunctions the identity can easily be scanned.
The
honorable court finally after reviewing the facts passed the verdict not to
disclose the identity of rape victims. Those individuals who disclose the
identity of the rape victims commit a criminal offense under Section 288A[2] of
IPC. This may attract a punishment of imprisonment which may extend to two
years and a fine also. In case any rape victim appeals before the court under Section
372[3] of
the Code of Criminal Procedure, she may represent herself with an anonymous
name say “X” or “Y”.
The
Court decided that in case of revelation of the identity of the victim who is
of unsound mind or is dead, then the next kin of the victim have the legal
power to apply an application to the nearest court for divulging the identity
of the victim under Section 288A of IPC. But, if the victim is minor then
disclosing the identity is relying on the permission from Special Court. Here,
the interest of the minor child is of paramount significance. Further, the
court highlighted that the identity of victims under Sections 376, 376A, etc.
should not be disclosed by public authority. Further, the court has to ensure
that the identity of a rape victim is kept in dark during court proceedings.
All the information should be restricted to the court.
DEFECTS
IN LAWS:
There
was an overlap between Article 19A of the Indian Constitution and Section 288A
of the IPC (Indian Penal Code). Article 19A says about freedom of speech and
expression while Section 288A of IPC says some restrictions on freedom of
speech and expression. Authorities usually forget that Article 19A has
reasonable restrictions and even after the judgment we find that the identity
of the victim is not kept secret. The rape and murder of 6 years old girl in
the Saidabad Area[4]
is a recent instance where the identity of the rape victim was disclosed. This
was a violation of the directives of the Supreme Court Of India. The incident
took place somewhat near late 2021. Netizens in their anger revealed all the
details of the minor child to punish the accused, for failing to abide by the
guidelines of the Honorable Supreme Court. One should remember that Article 19
also carries reasonable restrictions which we usually forget.
INFERENCE:
The
Apex Court highlighted the fact that everyone has the right to live with
dignity; even the dead also have the right to maintain the dignity of their
name. The Court further heightened that to ensure quality justice it is
necessary to conceal the identity of the rape victims. Protection of identity
is the intrinsic part of delivering justice to the rape victims. Even the Right
to Privacy is a fundamental right of the citizens. In the Apex Court in the
landmark judgment of Thappalam Service Cooperative Banks Limited V. State of
Kerala, the court stated that the right to privacy is enshrined in the citizens
under Article 21 of the Indian Constitution. So, it is the duty of the State,
its agencies, and courts to protect the right of its citizens. In the recent
judgment of Patna High Court[5], the
honorable court directed its sub-ordinate courts to make sure that the identity
of the rape victim should not be mentioned in the orders and judgments of the
Court unless disclosure of the identity is very imperative. The Bench of
Chakradhari Sharan Singh passed this directive. It is even better to call these
rape victims the rape survivors since they have bravely crossed the hell-like
situations beyond the imagination of someone else.
Even
in this 21st century, we proclaim that we are more learned people. All our
ideas are rational. They are based on facts and inference even though our
society looks at rape survivors as taboo. It is unfortunate to infer that the
purity of the woman is still judged by her sexuality. The role of the fourth
pillar of democracy, the media, is confused by various learned people regarding
this matter. They think that identity is disclosed only for the money-making
purpose. Even many times judiciary has warned the media regarding its unfair
media trial. But, at the eleventh hour, the thing that matters is humanity. It
is high time to pay respect to the women's community.
.
[1]Sec. 375, IPC
[2]Sec.
288A, IPC
[3]Sec.472,
CrPC
[4]Preeti Biswas, Neitizens reveal six year-old Hyderabad
rape victims identity, The Times Of India
(Hyderabad,14 September 2021)
[5]Sparsh Upadhyay, Rape
Victim's Identity Shouldn't Be Indicated Unless Such Disclosure Becomes
Imperative For Which Reasons Are To Be Given: Patna High Court ( Live Law, 1 March
2021), https://www.livelaw.in/news-updates/rape-victims-identity-disclosure-reasons-must-be-given-patna-high-court-170526#:~:text=News%20Letters-,The%20Patna%20High%20Court%20recently%20directed%20all%20courts%20subordinate%20to,writing%20by%20the%20special%20courts
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