Nipun Saxena vs Union of India - Supreme Court Landmark Judgment

 Nipun Saxena vs Union of India - Supreme Court Important Judgment 2018 - 

On 11th December, 2018, in the case of Nipun Saxena & Anr. v. Union of India & Ors. [[Writ Petition (Civil) No. 565 of 2012 etc.], amongst others, the issue for consideration, was how and in what manner the identity of 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.

In context to victims of rape, the Supreme Court held that their cross-examination “should be done with a certain level of decency and respect to women at large.” It was held that the phrase “matter which may make known the identity of the person” in Section 228A IPC “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 Court observed that “there may be cases where the identity of the victim, if not her name, may have to be disclosed” but “while this may be done, the fact that such victim has been subjected to a sexual offence need not be disclosed.”

Further, it was held that “there may be other situations where the next of kin may be justified in disclosing the identify of the victim” and in such a case, “an application to authorise disclosure of identity should be made only to the Sessions Judge/magistrate concerned and the said Sessions Judge/magistrate shall decide the application on the basis of the law” laid down by this Court. The Court said that it was “exercising power under Article 142 of the Constitution in this regard because the Government has not identified any social or welfare institution/organisation and the law as laid down cannot be administered” and that the said “directions shall prevail” till a clear cut criteria and procedure in this regard is laid down by the Government.

Another issue examined by the Supreme Court was “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?” It was held that where a victim files an appeal “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.”

With regard to victims subjected to offences under the Protection of Children from Sexual Offences Act, 2012 (POSCO) and their identity, the Supreme Court was of the view that “the entire purpose of the POCSO is to ensure that the identity of the child is not disclosed unless the Special Court for reasons to be recorded in writing permits such disclosure. This disclosure can only be made if it is in the interest of the child and not otherwise.” The Court was of the considered view, that “the media is not only bound not to disclose the identity of the child but by law is mandated not to disclose any material which can lead to the disclosure of the identity of the child.” It was observed that 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” and that “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”. It was observed that “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.” It was further observed that “these one stop centres can be used as a central police station where all crimes against women and children in the town/city are registered.”

 In the end, the Supreme Court issued various directions, as under:-

“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 IPC and offences under the Protection of Children from Sexual Offences Act, 2012 (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.”