NIPUN SAXENA & Anr. v. UNION OF INDIA & Ors.

1.3 Sub-section (2) of Section 228A IPC makes an exception for police officials who may have to record the true identity of the victim in the police station or in the investigation file. In the first information report (‘FIR’) the name of the victim will have to be disclosed. However, this should not be made public and especially not to the media. 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. 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. 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). The authorities to which the name is disclosed, 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. 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, 2005. 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. As far as clause (b) of sub-section (2) of Section 228A IPC is concerned, if an adult victim has no objection to her name being published or identity being disclosed, she can obviously authorize NIPUN SAXENA & ANR. v. UNION OF INDIA & ORS. 759 any person in writing to disclose her name. This has to be a voluntary and conscious act of the victim. [Paras 13, 14] [771-B-H; 772-A-C]

1.4 Where the victim is a minor, Section 228A(2)(c) will no longer apply because of the enactment of POCSO which deals specifically with minors. In fact, the words ‘or minor’ should for all intents and purposes be deemed to be deleted from clause (c) of sub-section (2) of Section 228A IPC. [Para 15] [772-D]

2.1 Till date neither the Central Government nor any State Government has recognized any such social welfare institutions or organizations to whom the next of kin should give the authorization. A person of unsound mind is as much a citizen of the country as a sane person. A person of unsound mind who is also subjected to such a heinous sexual offence suffers a trauma which is unimaginable. It is not at all necessary to disclose the identity of the victim to arouse public opinion and sentiment. This is a serious issue dealing with victims of heinous sexual offences and needs to be dealt with sensitivity. If a campaign has to be started to protect the rights of the victim and mobilise public opinion it can be done so without disclosing her identity. [Paras 16, 17][772-F-G; 773-B-C]

2.2 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. 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”. [Paras 18, 19][773-E-G]

2.3 There may be cases where the identity of the victim, if not her name, may have to be disclosed. There may be cases where a dead-body of a victim is found. It is established that the victim was subjected to rape. It may not be possible to identify the victim. Then, obviously her photograph will have to be published in the media. Even here, it is directed that while this may be done, the fact that such victim has been subjected to a A B C D E F G H 760 SUPREME COURT REPORTS [2018] 14 S.C.R. sexual offence need not be disclosed. There may be other situations where the next of kin may be justified in disclosing the identify of the victim. If any such need should arise, then it is directed that an application to authorise disclosure of identity should be made only to the Sessions Judge/magistrate concerned and the said Sessions Judge/magistrate shall decide the application on the basis of the law laid down. Power is exercised under Article 142 of the Constitution in this regard because the Government has not identified any social or welfare institution/ organisation and the law as laid down cannot be administered. If the Government wants to actually act under Section 228A (2) (c) IPC, it must before identifying such social welfare institution or organisation clearly lay down some rules or clear cut criteria in this regard. What should be the nature of the organisation? How should the application be made? In what manner that application should be dealt with? A clear cut procedure must be laid down. Till that is done, directions issued shall prevail. [Para 21] [774-B-E]

3.1 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][774-F-H; 775-A]

3.2 Keeping in view the social object of preventing ostracising of victims, it would be appropriate that in judgments of all the courts i.e. trial courts, High Courts and the Supreme Court the name of the victim should not be indicated. [Para 25][777-E] A B C D E F G H NIPUN SAXENA & ANR. v. UNION OF INDIA & ORS. 761

3.3 Where a victim files an appeal it is directed that 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. [Para 27][778-F-H]

4.1 The entire purpose of the Protection of Children from Sexual Offences Act, 2012 (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 name of the child to make the child a symbol of protest cannot normally be treated to be in the interest of the child. Sub-section (1) of Section 23 prohibits any person from filing any report or making any comments on any child in any form, be it written, photographic or graphic without first having complete and authentic information. 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 A B C D E F G H 762 SUPREME COURT REPORTS [2018] 14 S.C.R. that it does nothing and gives no information which could directly or indirectly lead to the identity of the child being disclosed. [Paras 30, 31][780-E-G; 781-G-H; 782-A-C]

4.2 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 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). [Paras 32, 33][782-D, G-H]

4.3 The same reasoning given above with respect to revealing the identity to garner support for victims will apply to dead victims also. Even the dead have their own dignity. They cannot be denied dignity only because they are dead. [Para 34][783-B-C]

4.4 In the case of Bijoy v. State of West Bengal the Calcutta High Court has given detailed judgment setting out the reasons while dealing with the provisions of POCSO and held that neither during investigation nor during trial the name of the victim should be disclosed. The Calcutta High Court has also given other directions to ensure that the provisions of the law are followed in letter and spirit, and the fundamental rights of a child victim and other basic human rights are protected. All these directions are agreed with. All the Chairpersons and Members of all the Juvenile Justice Committee of all the High Courts in the country are requested to go through the judgment of the Calcutta High Court and the directions issued therein and they may issue similar directions, keeping in view the particular needs of each High Court/State. [Para 38][784-D-G]

4.5 POCSO mandates setting up of child-friendly courts. Any litigant who enters the court feels intimidated by the atmosphere of the court. Children and women, especially those who have been subjected to sexual assault are virtually overwhelmed by the atmosphere in the courts. It is, therefore, A B C D E F G H NIPUN SAXENA & ANR. v. UNION OF INDIA & ORS. 763 imperative that there are 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. These courts need not only be used for trying cases under the POCSO but can also be used as trial courts for trying cases of rape against women. In fact, 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. One 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. [Paras 39-42][785-A-F; 786-B]

4.7 The following directions are issued:-

#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. A B C D E F G H 764 SUPREME COURT REPORTS [2018] 14 S.C.R.

#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 the directions given by this Court 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. [Para 43][786-C-H; 787-A-D] Bijoy v. State of West Bengal 2017 CriLJ 3893 – approved.