Right Of Anonymity Of The Victims Of Sexual Offences

INTRODUCTION

Sexual harassment is regarded as more barbaric and flagrant offence than even homicide and murder. This brutal act of depraved nature not only hampers a victim physically, rather it leaves a very deep and pathetic impact on her psychology. It destroys the chastity of an innocent victim and devastates her privacy forever. However, the most regrettable era of her life starts when the society fails to accept her character as sacrosanct. It deepens the misery of the prosecutrix when she faces social ostracism and often an undeclared social boycott. Even being the sole sufferer of the entire happening, she is often forced to be victimized at secondary levels. The aftermath of this horrific incident doesn’t assuages her, rather it injures her wound even more. Her journey and fight for justice hardly ever comes to be smooth. The rigorous and torturous procedures of complaint filing, medical examination, record of statement and cross-examination make her prey to the authoritarian victimization. Here, it becomes essential to learn whether any act or omission of a victim of sexual offences is responsible for her aggravated and deep victimization or in other words, whether a victim may minimize her distress by resorting to some of the accepted jurisprudential and legal methods.

STATUTORY FRAMEWORKS MANDATING NON-DISCLOSURE OF IDENTITY OF VICTIMS

The major factor for secondary victimization of victims is lack of awareness. Women are not adequately conscious about their rights, constitutional as well as statutory. Plethora of legislations have been made and manifold policies are executed so as to provide a safe and inclusive environment to females. The absence of legal awareness is responsible for deception, exploitation and deprivation of rights. The Constitution, being the Supreme law of the land, provides effective measures for gender justice. Fundamental rights advocate for non-discrimination and equal opportunities for all. Above all, the State has shown responsible behavior by enacting various legislations to slight the sufferings of victims of sexual crimes.

I. RIGHTS UNDER THE INDIAN PENAL CODE, 1860

Section 228A of the Indian Penal Code has been incorporated in the statute with a specific objective of ensuring a dignified and purposeful life to a hapless victim of diabolic offences punishable under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB and 376E. It bars and makes it punishable to print or publish any matter which may lead to the identification of a prosecutrix. It is to be noted that such prohibition is not applicable to the printing or publication of the judgment of any High Court or the Supreme Court, still the Hon’ble Apex Court has, several times, shown the spirit of social activism and has directed all the Courts from using original identity or any other substance which tends to make the victim known to the public.

In one of the first cases where specific reference was made to Section 228A, the Supreme Court held that, “True it is, the restriction does not relate to printing or publication of judgment by the High Court or Supreme Court. But keeping in view the social object of preventing social victimization or ostracism of the victim of a sexual offence for which Section 228A has been enacted, it would be appropriate that in the judgments, the name of the victim should not be indicated.”¹ In State of Punjab v. Ramdev Singh,² the Supreme Court reaffirmed the previous observations. Again, in The Commissioner, Trade Tax, Uttar Pradesh v. M/S Malkhan S. Subhash Chandra,³ stressed the need to amend the cause titles disclosing names of sexual assault victims.

II. PROTECTION UNDER THE CODE OF CRIMINAL PROCEDURE, 1973

In State of Punjab v. Gurmit Singh,⁴ the Highest Court has highlighted the vital provision of Section 327(2) of the Criminal Procedure Code, 1973. It further issued a direction to not to ignore the mandate of aforesaid provision and to hold the trial of rape cases in camera. It was also figured out that such trial in camera would enable the victim to be little more comfortable and answer the questions with greater ease and thereby improve the quality of evidence of a prosecutrix because there she would not be so hesitant to depose translucently as she may be in an open Court, under the gaze of public. It was also dictated that as far as practicable and feasible, the trial of such cases would be held by a female judge, so that the victim would get adequate respite to freely produce her version and assist the Court to properly discharge its duties, without allowing the truth to be sacrificed at the cost of technical complexities.

In Nipun Saxena v. Union of India,⁵ it was held that anonymity of victim must be maintained as far as possible throughout investigation, trial and even after the pronouncement of judgment. Recently, the Apex Court has reiterated the need for compliance to Section 327(2), Cr.P.C.⁶

III. SAFEGUARD UNDER THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 (POCSO)

Section 23 of POCSO Act, 2012 deals with the procedures that media must follow while reporting any matter related to sexual offences against any child. Clause (1) of the Section forbids any person to prepare any report or present comments on any child from any form of media or studio or photographic facilities without having complete and authentic information, which may have the repercussion of lowering his reputation and infringing upon his privacy. Clause (2) bars reports in any media disclosing the name or any other specifications which may lead to the identity of the child. However, a disclosure can be effected with the prior permission of the Special Court competent to try the case, if such disclosure is in the interest of child. Further, Clause (3) and (4) make publisher and owner the media or studio or photographic facilities jointly and severally liable for the acts of his employee and prescribe a punishment for not less than six months which may extend to one year or with fine or with both for the contravention of mandates of Clauses (1) and (2), respectively.

Section 33(7) of the Act says the Special Court shall ensure that the identity of child is not disclosed at any time during the course of investigation or trial. In Sangitaben Shaileshbhai Datania v. The State of Gujarat,⁷ it was observed that “the concern of the legislature in protecting the identity of victim is further evident from the provisions of POCSO Act. Section 33(7) of the same casts a duty on the Special Court to ensure that identity of the victim is not disclosed at any time during investigation or trial”.

CONCLUSION

Sexual offences being grave in nature and having social ramifications, it becomes the duty of the State as well as individuals to adopt all the measures so as to guarantee a dignified life to an innocent victim after the grotesque incident. Further, prosecutrix should know the constitutional and statutory safeguards that she possesses. Any attempt of any person to intensify the agony of a victim must be legally condemned. Besides that, the system of justice delivery ought to be cooperative and victim-friendly.

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