Today, i.e. on 11 th December 2018, the Hon’ble Supreme Court in the matter of Nipun Saxena and Anr. v. Union of India and Ors. while expressing its views and concerns on the matter of publication of name of the victims of sexual offences, issued certain guidelines in this regard. The court also emphasised on the utility of “one-stop centres”.
The Supreme Court, among other things, observed that:
Publication of the name of victims of sexual offences
It is obvious that not only the publication of the name of the victim is prohibited but also the disclosure of any other matter which may make known the identity of such victim. (Para 11)
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 intention of the law makers was that the victim of such offences should not be identifiable so that they do not face any hostile discrimination or harassment in the future. (Para 11)
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. (Para 12)
Although, the name of the victim in the first information report (for short ‘FIR’) is to be disclosed, however, this should not be made public and especially not to the media. (Para 13)
The police officers investigating such cases and offences should also as far as possible either use a pseudonym to describe the victim unless it is absolutely necessary to write down her identity. (Para 13)
The copy of an FIR relating to the offence of rape against women or offences against children falling within the purview of POCSO shall not be put in the public domain to prevent the name and identity of the victim from being disclosed. (Para 13)
The Sessions Judge/Magistrate/Special Court can for reasons to be recorded in writing and keeping in view the interest of the victim permit the copy of the FIR to be given to some person(s). (Para 13)
Some examples of matters where her identity will have to be disclosed are when samples are taken from her body, when medical examination is conducted, when DNA profiling is done, when the date of birth of the victim has to be established by getting records from school etc.. However, the authorities to which the name is disclosed when such samples are sent, 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.(Para 13)
There can be no hard and fast rule in this behalf but the police should definitely ensure that the correspondence or memos exchanged or issued wherein the name of the victim is disclosed are kept in a sealed cover and are not disclosed to the public at large. They should not be disclosed to the media and they shall also not be furnished to any person under the Right to Information Act, 2015. (Para 13)
The police officials should keep all the documents in which the name of the victim is disclosed 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 by a large number of people. The sealed cover can be filed in the court along with the report filed under Section 173 CrPC. (Para 13)
The name of the victim or her identity should not be disclosed even under the authorization of the next of the kin, without permission of the competent authority. (Para 18)
In certain cases, the interest of the next of kin may not be the same as the interest of the victim. In such circumstances, the applicant may not be the next of kin, but the “next friend” of the child, who may be entitled to move such an application. It will be for the Court or the competent authority to decide who is the “next friend”. (Para 19)
There may be cases where the identity of the victim, if not her name, may have to be disclosed. Even in such cases, while this may be done, the fact that such victim has been subjected to a sexual offence need not be disclosed. (Para 21)
As far as sub-section (3) of Section 228A IPC is concerned, the IPC clearly lays down that nobody can print or publish any matter in relation to any proceedings falling within the purview of Section 228A and in terms of Section 327(2) CrPC. These are in camera proceedings and nobody except the presiding officer, the court staff, the accused, his counsel, the public prosecutor, the victim, if at all she wants to be present or the witness shall be there. It is the bounden duty of all of them to ensure that what happens in court is not disclosed outside. This is not to say that there can be no reporting of such cases. The press can report that the case was fixed before Court and some witnesses were examined. It can report for what purpose the case was listed but it cannot report what transpired inside the court or what was the statement of the victim or the witnesses. The evidence cannot be disclosed. (Para 22)
What happens if the accused is acquitted and the victim of the offence wants to file an appeal under Section 372 CrPC? Is she bound to disclose her name in the memo of appeal? (Para 27)
- Such a victim can move an application to the Court praying that she may be permitted to file a petition under a pseudonymous name e.g. ‘X’ or ‘Y’ or any other such coded identity that she may choose.
- However, she may not be permitted to give some other name which may indirectly harm another person.
- There may be certain documents in which her name will have to be disclosed; e.g., the power of attorney and affidavit(s) which may have to be filed as per the Rules of the Court.
- The Court should normally allow such applicant to file the petition/appeal in a pseudonymous name.
- Where a victim files an appeal, such victim can file such an appeal by showing her name as ‘X’ or ‘Y’ along with an application for non-disclosure of the name of the victim.
- In a sealed envelope to be filed with the appeal she can enclose the document(s), in which she can reveal her identity as required by the Rules of the appellate court.
- The Court can verify the details but in the material which is placed in the public domain the name of the victim shall not be disclosed.
- Such an application should be heard by the Court in Chambers and the name should not be reflected even in the cause-list till such matter is decided.
- Any documents disclosing the name and identity of the victim should not be in the public domain.
Disclosure of identity of a child victim
The entire purpose of the POCSO is to ensure that the identity of the child is not disclosed unless the Special Court for reasons to be recorded in writing permits such disclosure. This disclosure can only be made if it is in the interest of the child and not otherwise. The disclosure of the identity can be permitted by the Special Court only when the same is in the interest of the child and in no other circumstances. (Para 30)
The disclosure of the name of the child to make the child a symbol of protest cannot normally be treated to be in the interest of the child. (Para 30)
No person or media can make any comments which may have the effect of lowering the reputation of the child or infringing upon the privacy of the child. Sub-section (2) of Section 23 clearly lays down that no report in any media shall disclose identity of a child including name, address, photograph, family details, school, neighbourhood or any other particulars which may lead to the disclosure of the identity of the child. This clearly shows that the intention of the legislature was that the identity of the child should not be disclosed directly or indirectly. The phrase ‘any other particulars’ will have to be given the widest amplitude and cannot be read only ejusdem generis. The intention of the legislature is that the privacy and reputation of the child is not harmed. Therefore, any information which may lead to the disclosure of the identity of the child cannot be revealed by the media. The 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. (Para 31)
No doubt, it is the duty of the media to report every crime which is committed. The media can do this without disclosing the name and identity of the victim in case of rape and sexual offences against children. The media not only has the right but an obligation to report all such cases. However, media should be cautious not to sensationalise the same. The media should refrain from talking to the victim because every time the victim repeats the tale of misery, the victim again undergoes the trauma which he/she has gone through. Reportage of such cases should be done sensitively keeping the best interest of the victims, both adult and children, in mind. Sensationalising such cases may garner Television Rating Points (TRPs) but does no credit to the credibility of the media. (Para 32)
Where a child belongs to a small village, even 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. In larger cities and metropolis like Delhi the disclosure of the name of the city by itself may not lead to the disclosure of the identity of the child but any further details with regard to the colony and the area in which the child is living or the school in which the child is studying are enough (even though the house number may not be given) to easily discover the identity of the child. (Para 33)
The media is not only bound not to 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. Any violation of this will be an offence under Section 23(4). (Para 33)
The name, address, school or other particulars which may lead to the identification of the child in conflict with law cannot be disclosed in the media. No picture of such child can be published. A child who is not in conflict with law but is a victim of an offence especially a sexual offence needs this protection even more. (Para 36)
It is, therefore, imperative that we should have courts which are child friendly. Section 33(4) POCSO enjoins on the Special Court to ensure that there is child friendly atmosphere in court. Section 36 lays down that the child should not see the accused at the time of testifying. This is to ensure that the child does not get scared on seeing the alleged perpetrator of the crime. As noted above, trials are to be conducted in camera. Therefore, there is a need to have courts which are specially designed to be child friendly and meet the needs of child victims and the law. (Para 41)
One Stop Centres (Para 42)
- It would be in the interest of children and women, and in the interest of justice if one stop centres are also set up in all the districts of the country as early as possible.
- These one stop centres can be used as a central police station where all crimes against women and children in the town/city are registered.
- They should have well trained staff who are sensitive to the needs of children and women who have undergone sexual abuse.
- This staff should be given adequate training to ensure that they talk to the victims in a compassionate and sensitive manner.
- Counsellors and psychiatrists should also be available on call at these centres so that if necessary the victims are counselled and in some cases it would be appropriate if the counsellors question the victims in a manner in which they have been trained to handle the victims of such offences.
- These one stop centres should also have adequate medical facilities to provide immediate medical aid to the victims and the medical examination of the victims can be conducted at the centre itself.
- These one stop centres should also have video conferencing facility available where the statement of the victims to be mandatorily recorded under Section 164 CrPC can be recorded using video conferencing facilities and the victims need not be produced in the court of the magistrate.
- There should be court room(s) in these one stop centres which can be used for trial of such cases.
- As far as possible these centres should not be situated within the court complex but should be situated near the court complex so that the lawyers are also not inconvenienced. Resultantly, the victims of such offences will never have to go to a court complex which would result in a victim friendly trial.
- Once such centre which has already been set up is “BHAROSA” in Hyderabad. This can be used as a model for other one stop centres in the country.
Supreme Court’s guidelines (Para 43)
The following directions have been issued:-
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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(1)(c) and lays down a criteria as per our directions for identifying such social welfare institutions or organisations.
- 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.
- All the States/Union Territories are requested to set up at least one ‘one stop centre’ in every district within one year from today.
Copy of the judgement: Judgement 11-Dec-2018