We all are aware of the modifications in the Criminal Law System after the Nirbhaya Case. There are various protections given to victims of sexual assault through various legislations.
However are these practically implemented or just in books?
The most crucial right in case of a victim of sexual assault is her privacy. If it is a child, eventually she may grow up to be a lady by the time the case comes up for hearing. In such a case, revealing the name of the victim can lead to stigma and social shame. The victim may have already gone through a series of counselling and support sessions to move on with her life, at the time of the incident. Now when the case comes up, she has to face the trial within herself and the society first, and then again face the trial in the court. That is the reason many cases of sexual assault go unreported.
Many times the families don’t accept such victims, and many times, inspite of rehabilitation and support, they are exposed to vulnerabilities and further exploitation. A strong support system is required for such cases.
Protection Under the Constitution :
The Constitution of India includes the Right to Privacy as a Fundamental Right under Article 21.
Inspite of this we see that the media and the public in general are eager to share “news” about a recent incident with all the gory details. Such details get shared in newspaper and print and television media, and sometimes even in case papers in courts.
We see that in courts, the identity of the victim has to be revealed to court staff and the Advocates and Police.
In such a case, the victim prefers to keep quiet and either not report the incident or to withdraw the case on some reason or the other, to avoid further “trial by fire”.
Most victims of sexual assault avoid revealing the trauma due to the fear of public shame and disclosure.
Recently we have seen the Me Too movement going on. It is a great step towards liberation of women…. liberation from fear and unnecessary exploitation in future. This is because it is seen that unless the victim comes out in the open and shames the person, he continues to exploit her. Many victims end their life, and a few others gather the courage to report the incident and face the trial.
Victims of sexual assault often report of being subjected to indecent questions during trial. Moreover, they are often chided by their own relatives for being exposed and face public shame and desertion.
The victim who goes ahead and files a complaint, has already gone through a lot of effort to come to this stage and report the incident. She has suffered internally during the crime, and one more trial occurs within her as she tries to ready herself for the trial.
When the Court reveals her name in various proceedings it becomes all the more difficult for her to continue on with life.
In Delhi Domestic Working Women Vs. Union of India the Hon’ble Supreme Court has laid down broad guidelines in which anonymity of victims is also mentioned as an important requirement.
In a recent hearing related to the Kathua Rape Case, the Hon’ble Apex Court held that even the dead have dignity and the names of rape victims should not be disclosed. They cannot be named or shamed.
In Bijoy@Giddu Das versus State of West Bengal (CRA 663 of 2016) the Calcutta High Court held that any person, including a police officer, disclosing the identity of the victim, shall be prosecuted under Section 23(4) of the Act (POCSO).
[i] Hon’ble Justice Arijit Pasayat for the Supreme Court Bench with Hon’ble Justice Doraiswamy Raju in Bhupinder Sharma v. State of Himachal Pradesh, decided on 16.10.2003 wrote...
“But keeping in view the social object of preventing social victimisation or ostracism of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of this Court, High Court or Lower Court, the name of the Victim should not be indicated we have chosen to describe her as a victim in the judgment.”
Further, in 2017 the Rajasthan High Court has refused to quash proceedings against the petitioners who had published the name of the victim.
Universal Declaration of Human Rights
Article 12 of the Universal Declaration of Human Rights states that, "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks."
In such a case the people involved in the Administration of Justice have a heavy burden upon them to respect the privacy and anonymity of the Victim.
Protection of Children from Sexual Offences
Sec. 23 of the Protection of Children from Sexual Offences prevents Disclosure of any information which would identify the victim.
Protection under the Indian Penal Code
Further u/s 228 A (2) of the Indian Penal Code, there is a bar to disclosing the identity of such victims and the person disclosing shall be punishable by imprisonment upto 2 years and fine.
Thus we see that the Superior Courts have time and again spoken of protecting the identity of the Victim in such cases. However the lower courts and people directly interacting with the victim need to consider these guidelines seriously, and since the Judgments of the Superior Courts are binding on all, should act according to the same and avoid subjecting the victim and her family to a further trial.
It is time that the Courts and the Police Machinery are sensitized towards this issue. In recent times the practice of hiding the names of parties in the Family Court for protecting the privacy of such people has been started. This is a good practice. It is high time that the same is done in case of victims of sexual assault, and even in case of pre-trials and trials the names of such victims should be protected and their dignity respected.
The author is a Gold Medalist in Constitutional Law and currently practicing in Criminal Laws, Intellectual Property Rights Laws and Family Laws in Mumbai, and takes keen interest in the protection of rights of women under the Civil and Criminal laws.