Identity of child sexual assault victims can't be printed or publish in print, electronic, social media etc.
Nipun Saxena Vs Union of India Ministry of Home Affairs
WRIT PETITION (CIVIL) NO. 565 OF 2012
About/from the judgment:
Penal Code, 1860 - Protection of Children from Sexual Offences Act, 2012 - 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.
Penal Code, 1860 - Section 228A IPC imposes a clear cut bar on the name or identity of the victim being disclosed.
Protection of Children from Sexual Offences Act, 2012 - the need to have child friendly courts. POCSO mandates setting up of childfriendly courts. Though some progress has been made in this regard, a lot still requires to be done.
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 39 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.
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(1)(c) and lays down a criteria as per our directions 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.
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 ?
Acts & Sections
Penal Code, 1860 - Ss. 228A, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E - Criminal P.C. 1973 - S. 327 - Court to be open - Disclosure of identity of the victim of certain offences etc. - Victims of the Offence of Rape.
Protection of Children from Sexual Offences Act, 2012 - Ss. 23, 24, 33, 74 - Recording of statement of a child - Victims who are subjected to offences under the Act - Procedure and powers of Special Court - Procedure for media - Prohibition on disclosure of identity of children - The name, address, school or other particulars which may lead to the identification of the child in conflict with law cannot be disclosed in the media. No picture of such child can be published. A child who is not in conflict with law but is a victim of an offence especially a sexual offence needs this protection even more.
Question of Law
Penal Code, 1860 - S.228A - Disclosure of identity of the victim of certain offences - What happens if the accused is acquitted and the victim of the offence wants to file an appeal under Section 372 CrPC? Is she bound to disclose her name in the memo of appeal?
Such a victim can move an application to the Court praying that she may be permitted to file a petition under a pseudonymous name e.g. ‘X’ or ‘Y’ or any other such coded identity that she may choose. However, she may not be permitted to give some other name which may indirectly harm another person. There may be certain documents in which her name will have to be disclosed; e.g., the power of attorney and affidavit(s) which may have to be filed as per the Rules of the Court. The Court should normally allow such applicant to file the petition/appeal in a pseudonymous name. Where a victim files an appeal we direct 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.
Read the Judgment
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