The Aurangabad bench of Bombay High Court issued specific guidelines on non-disclosure of identity of a survivor/victim of rape by news media such as not revealing name of kin, name of school, name of employer and so on, which tend to invariably disclose the victim’s identity. The Division bench of Justices MG Sewlikar and TV Nalawade observed that by revealing such information, it was easy to identify the victim and further directed that in court documents, while recording evidence and other procedures also, the name of the victim/survivor should not be disclosed.
The court was dealing with a Public Interest Litigation seeking direction to the Print and Electronic Media that the name or identity of the rape victim should not be disclosed. The petitioner’s daughter, a rape survivor, fell victim to news media invariably disclosing her identity by publishing such details of the crime. Section 228 A of Indian Penal Code penalises revealing of identity of victim of offence of rape (Section 376 and sub-sections) with imprisonment of up to 2 years and fine.
Various judgments were cited by the petitioner as well as the amicus curiae AD Ostwal to support the contention that a victim’s/survivor’s identity should not be disclosed in any manner.
In Nipun Saxena and anr Vs. Union of India and ors (2019) 2 SCC 703, the apex court clarified what “identity of victim” meant:
“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. We are clearly of the view that 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 harshness in the future.”
The court had also cited instances that amount to disclosing identity: saying that the victim topped her board exams, and mentioning name of the State Board; showing video footage while blurring the face of the survivor but showing faces of the relatives all amount to disclosing identity.
Even though section 228A of IPC states that it is not punishable to reveal identity of a victim who has deceased or of unsound mind or minor with written authorisation of the kin, the Supreme Court in its guidelines stated that “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 authorisation of the next of 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”.
It has been cited that Bijoy @ Guddu Das Vs. State of West Bengal (2017) 2 Cal LJ 224 certain guidelines were laid out which state that in no case, the name of the victim should either be disclosed, nor the details revealing her identity shall be published.
The court held that the question arises when the victim does not want the identity to be revealed ,and when no application has been made to the court authorising revelation of such identity.
The court observed, “Publishing news item in detail thereby disclosing identity of the victim itself indicates that the media does not observe self-restraint. We do not mean to say that the media does it deliberately. But in their zeal to publish the news item fast, appropriate care is not taken in some cases and the news is reported by which the victim’s identity becomes known to the readers/viewers.”
The court considered the news items whereby the identity of the petitioner’s daughter were revealed, “It is evident that without mentioning the name of the victim, the identity of the victim can be established by giving the details as regards the name of parents of the victim or other relations of the victim”.
The court deemed it necessary to issue guidelines in addition to the ones issued by the Supreme Court in Nipun Saxena Case, as follows:
“The print media, the electronic media, the people using social media such as WhatsApp, Facebook, Internet, Twitter etc. while giving information / circulating information relating to offences under section 376, 376-A, 376-B, 376-C, 376-D or 376-E of the Indian Penal Code and the offences under Protection of Children from Sexual Offences Act, shall not publish/disclose following information in such a manner that the victim will be identifed directly or indirectly :-
i) The names of the parents or relatives of the victim.
ii) Relation of the accused with the victim.
iii) Residential/occupational/work address of the accused and the victim and the village at which the victim and/ or accused live.
iv) Occupation of the parents or other relations of the victim and place of work of the victim and accused /their parents or any other relative in such a manner that the victim will be identifed.
v) If the victim is a student, name of the school or college or any other educational institution or private coaching class or classes which the victim has joined for pursuing her hobbies such as music, drawing, dance, stitching, cooking etc.
vi) Details of family background of the victim.”
The court also observed that while framing of charge, recording evidence, recording statement of accused under section 313 of the Code of Criminal Procedure, name of the victim is disclosed and thus directed that in such processed also mentioning name of the victim should be avoided and instead he/she should be referred to as ‘X’ or any other letter of the alphabet the Court deems fit and proper.
“While recording evidence if the witness mentions the name of the victim, the Court shall record that “the witness stated the name of the victim but to conceal her identity, her name is not recorded.” And the victim should be referred to in the same manner as is done during the framing of charge,” directed the court.
The court further held that if the witness is the victim, his/her name should not be disclosed while recording evidence and the name, place of residence, age, occupation shall be kept in a sealed cover and in the name column, she can be referred in the same manner described while framing charge keeping the address column, occupation column blank. While forwarding a remand report to the Magistrate or to the court dealing with remand, the same process of using a letter of the alphabet should be followed.
With regards to TV media conducting video interviews of the victim’s family, the court stated, “We hope that the electronic media will show restraint in holding interviews of the victims and/or their relatives and would take all precautions to avoid and prevent disclosure of the identity of the victim.”
The Court ordered that these directions be brought to the notice of all subordinate courts, the Principal Secretary, Home Department, Government of Maharashtra; the Principal Secretary & R.L.A., Law and Judiciary Department; the Secretary, Indian Broadcasting Foundation, New Delhi and, the Secretary, Press Council of India, New Delhi.
The complete judgment may be read here.