2018 (12) TMI 2023 - SC - Indian Laws

Strict ban on publishing identities of adult rape and child sexual-abuse victims; FIRs barred from public domain; POCSO ss.33(4),36

SC directed strict protection of identities of adult rape victims and child sexual-abuse victims: names or identifying facts must not be published in any ... Protection to rape victims - How and in what manner the identity of adult victims of rape and children who are victims of sexual abuse should be protected so that they are not subjected to unnecessary ridicule, social ostracisation and harassment? - HELD THAT:- In the case of Bijoy v. State of West Bengal [2017 (3) TMI 1969 - CALCUTTA HIGH COURT], the Calcutta High Court has given a 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. 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. They are scared. They are so nervous that they, sometimes, are not even able to describe the nature of the crime accurately. When they are cross-examined in a hostile and intimidatory manner then the nervousness increases and the truth does not come out. 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. 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 - 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. 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. 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. Petition disposed off. ISSUES PRESENTED AND CONSIDERED 1. Whether and to what extent the identity of adult victims of offences under sections 376-376E IPC must be protected from publication, and the proper scope of Section 228A IPC and Section 327 CrPC in that regard. 2. The meaning and ambit of the phrase 'matter which may make known the identity of the person' in Section 228A IPC (i.e., whether identity includes indirect identifiers and not only the name). 3. Permissible exceptions to non-disclosure under Section 228A(2) IPC, including (a) disclosures by police in the course of investigation, (b) authorisation by the victim, and (c) authorisation by next of kin for victims who are dead or of unsound mind-and the procedures/limits for such exceptions. 4. Procedures for handling FIRs and other investigation documents to prevent public disclosure of victims' identities, and the duties of investigating authorities and recipient agencies when identity information must be shared. 5. Whether and how a victim whose identity is protected may pursue appellate remedies (e.g., filing an appeal) without public disclosure of identity. 6. Extent and content of protections under the Protection of Children from Sexual Offences Act, 2012 (POCSO): scope of Sections 23, 24(5), 33(7), 36, 37 and ancillary provisions; meaning of 'identity of the child' and permissible disclosures in the interest of the child. 7. Duties and limits on media reporting (print, electronic, social) in respect of adult and child victims; criminal liability for breaches (including Sections 228A IPC and Section 23(4) POCSO). 8. Need for institutional measures (child-friendly courts, one-stop centres) and directions to States/UNion Territories to protect victims and facilitate victim-friendly investigation and trial processes. ISSUE-WISE DETAILED ANALYSIS Issue 1 & 2 - Protection of identity of adult rape victims; scope of Section 228A IPC and Section 327 CrPC; meaning of 'matter which may make known the identity' Legal framework: Section 228A IPC (as amended) criminalises printing/publishing the name or 'any matter which may make known the identity' of victims of specified sexual offences; Section 327 CrPC (as amended) mandates in-camera trial for such offences and bars publication of proceedings without court permission (subject to limited exceptions and judicial discretion to permit access while maintaining confidentiality of names/addresses). Precedent treatment: Prior decisions (notably the court's earlier jurisprudence) emphasise the rule of in-camera trial and sensitivity in handling prosecutrix; High Court decisions have interpreted Section 228A as absolute in effect and urged non-disclosure even in judgments, despite the Explanation that judgments of High Courts/Supreme Court are not offences under Section 228A. Interpretation and reasoning: The Court holds that 'matter which may make known the identity' is wide and includes indirect identifiers (achievements, village/school, blurred-face footage showing relatives or locations). The legislative intent is protection against social ostracisation and hostile discrimination. Section 228A therefore prohibits not only names but any material enabling identification. Section 327 CrPC similarly requires in-camera trial and non-publication of what transpires in court; reporting can note procedural steps but not evidence or statements. The Court recognises defence cross-examination rights but requires conduct with decency to avoid harassment. Ratio vs. Obiter: Ratio - identity includes indirect identifiers; publication of any material enabling identification of victims of specified sexual offences is prohibited; in-camera trials and non-publication of evidence are mandatory subject to narrow exceptions. Obiter - observations on social attitudes and need for court sensitivity augment the statutory direction but do not expand criminal liability beyond statutory text. Conclusions: Strict non-disclosure rule applies; media and all persons must refrain from publishing direct or indirect identifiers; courts must endeavour to avoid using names in orders; in-camera proceedings' confidentiality is enforceable. Issue 3 - Exceptions under Section 228A(2): police, victim authorisation, next of kin authorisation for dead/unsound mind victims Legal framework: Section 228A(2)(a)-(c) provides exceptions for publication by police in writing in good faith, authorisation by the victim, and, where victim is dead/minor/unsound mind, authorisation by next of kin with proviso restricting next-kin authorisation to chair/secretary of a 'recognised welfare institution or organisation'. Precedent treatment: Courts have recognised the statutory exceptions but highlighted their narrow operation and the social objective against disclosure. Interpretation and reasoning: The Court interprets exceptions narrowly. (a) Police may record true identity for investigation but must not place FIRs or identifying information in the public domain; use of pseudonyms is recommended except where essential. (b) An adult victim may voluntarily authorise disclosure in writing; that is a conscious, voluntary exception. (c) For dead or unsound mind victims, POCSO (for minors) supersedes Section 228A(2)(c) as to minors; further, the statutory concept of 'recognised welfare institution' has not been operationalised by Governments. Given potential conflicts of interest and possibilities of exploitation by next of kin, the Court requires judicial oversight: until Governments prescribe criteria, applications for disclosure by next of kin must be made to the Sessions Judge, who will decide with reasons recorded. Ratio vs. Obiter: Ratio - police disclosures must be limited and not public; adult victim authorisation is valid; next-of-kin authorisation for dead/unsound mind victims requires judicial permission until competent authorities fix criteria. Obiter - policy remarks on potential misuse by next of kin and public interest symbolism are cautionary but inform scope. Conclusions: Exceptions are tightly circumscribed; procedural safeguards (sealed covers, minimal disclosure, judicial permission) are mandated when identity must be shared; Sessions Judge is competent authority pending governmental rules under Section 228A(2)(c). Issue 4 - Handling of FIRs, investigatory records, duties of police and recipient agencies Legal framework: No statutory definition of 'identity'; Section 228A(2)(a) allows police disclosures for investigation; CrPC Section 173 reports and FIRs are part of records; Right to Information Act is addressed indirectly by protective direction. Interpretation and reasoning: The Court directs that FIRs in sexual offence/POCSO matters shall not be put in the public domain. Investigating officers should use pseudonyms where feasible; documents containing victim names should be kept in sealed covers; identical redacted documents should be used for records accessible to public scrutiny. When samples/reports are sent to external agencies, those agencies are duty-bound to maintain confidentiality and send reports in sealed covers to investigating agency/court. Such records should not be furnished under Right to Information. Courts may keep sealed identity documents with reports under Section 173 CrPC. Ratio vs. Obiter: Ratio - procedural obligations on police to preserve victim anonymity by sealed covers/redaction and not placing FIRs in public domain. Obiter - practical guidance on circumspection in disclosure during collection of medical/DNA evidence. Conclusions: Specific operational steps required of police and recipient agencies to prevent disclosure; sealed cover procedure and minimal necessary disclosure rule adopted. Issue 5 - Filing appeals by protected victims without disclosure of identity Legal framework: Appellate procedure (e.g., filing memoirs/appeals) usually requires identification; no specific statutory mechanism for pseudonymous filings in this context. Interpretation and reasoning: The Court allows victims to file appeals/petitions under pseudonymous names (e.g., 'X' or 'Y') and to submit identity documents in sealed envelopes for judicial verification. Applications for non-disclosure should be heard in chambers and the name should not appear on cause lists. Routine court rules requiring identity may be accommodated by sealed-cover practice to preserve anonymity while permitting necessary verification. Ratio vs. Obiter: Ratio - victims may prosecute appeals under pseudonyms with sealed disclosure to courts; courts must permit non-disclosure in public records. Obiter - guidance on permissible pseudonyms and sealed envelope practice. Conclusions: Appellate remedies are available without public disclosure of identity; courts must adopt sealed procedures to verify identity privately. Issue 6 & 7 - Protections and procedural duties under POCSO; media obligations and liability Legal framework: POCSO Sections 23 (procedure for media), 24(5) (police to protect identity), 25 (statement recording), 33(7) (Special Court to ensure non-disclosure), 36 (screening child from accused), 37 (in-camera trial), and penal consequences under Section 23(4). Precedent treatment: High Courts have directed strict compliance with POCSO protections; statutory scheme is protective and child-centric. Interpretation and reasoning: The Court emphasises that POCSO protections are broader and mandatory: 'identity of the child' includes family, school, neighbourhood or any particulars leading to identification. Media cannot publish name, address, photograph, family details, school, neighbourhood or any particulars that lead to identification unless Special Court for reasons to be recorded permits disclosure in the interest of the child. The phrase 'any other particulars' is to be given wide amplitude, not to be read ejusdem generis. Dead children retain dignity; disclosure to generate public sentiment is generally not 'in the interest of the child.' Media must not sensationalise; press may report procedural facts but must avoid any material leading to identification. Breaches attract criminal liability under Section 23(4) POCSO and under Section 228A IPC where applicable. Ratio vs. Obiter: Ratio - strict non-disclosure under POCSO with narrow judicial exception; wide interpretation of 'identity' and media prohibition enforceable by penal sanction. Obiter - policy remarks on dignity of dead children and criticisms of sensationalism. Conclusions: POCSO affords stronger non-disclosure protections; media and authorities must comply strictly; Special Courts decide any permitted disclosure in the child's interest with reasons recorded. Issue 8 - Institutional measures: child-friendly courts and one-stop centres Legal framework: POCSO Sections 33(4), 36, 37 mandate child-friendly measures and screening from accused; other statutes (Juvenile Justice Act) contain non-disclosure provisions. Interpretation and reasoning: The Court identifies the need for child-friendly courts, trained staff, counselling, medical facilities, video-link recording under Section 164 CrPC, and one-stop centres (model: 'Bharosa') to centralise registration, investigation, medical care, counselling and court-facing facilities. Such infrastructure reduces re-traumatisation, aids expeditious trials, and helps preserve anonymity. Ratio vs. Obiter: Ratio - directions issued to States/UTs to set up at least one one-stop centre in every district within one year and to institutionalise child-friendly court practices are judicial directions under Article 142 to effectuate statutory protections. Obiter - detailed operational recommendations serve as guidance for implementation. Conclusions: States/UTs must establish one-stop centres, and courts must ensure child-friendly trials and timely recording of evidence; Registrar Generals of High Courts to circulate directions to Juvenile Justice Committees. Cross-references and final operative directions (summary of conclusions applicable across issues) 1. Identity protection is substantive and wide: prohibition extends to any direct or indirect identifiers (Sections 228A IPC; POCSO Sections 23, 24(5), 33(7), 37). 2. FIRs and investigation material in sexual offence/POCSO cases must not be placed in the public domain; police to use pseudonyms and keep identifying records in sealed covers with redacted public records. 3. Adult victims may authorise disclosure in writing; victims and applicants may proceed pseudonymously in appeals with sealed-cover disclosures to courts. 4. Next-of-kin authorisation for dead or unsound-mind victims requires Sessions Judge permission until Governments identify recognised welfare institutions and lay down criteria under Section 228A(2)(c). 5. Media obligations are mandatory: no name/address/photo/family/school/neighbourhood or particulars leading to identification; criminal sanctions apply for breaches (Section 228A IPC; Section 23(4) POCSO). 6. Special Courts have exclusive competence under POCSO to permit any disclosure in the interest of the child; 'interest of the child' is case-specific and to be determined with recorded reasons. 7. States/UTs to establish at least one one-stop centre per district within one year; High Court Registrars to circulate judgment to Juvenile Justice Committees for appropriate directions and implementation.