An offence that is considered not only brutal and barbaric, but also as an offence, the degree of whose impact caused is no lesser than that of homicide or murder. This offence not only affects the victim physically, but leaves an everlasting effect on her mental stature and psychology. In addition to this, it damages the privacy that she possess inalienably, forever following which the society does not accept the sacrosanct nature of her character, and this adversely affects her living after being victimised, as she faces social boycott, thus causing victimisation at secondary levels in the society. What makes it worse for the victim is the numerous obstacles that she faces on the path to seek justice, which include complex and rigorous and torturous processes of complaint filing, medical examination, recording statements and the torturous cross examination. These subject victims to distress, thus indirectly stopping many of them from either opting for or succeeding in attaining justice by undertaking legal or jurisprudential methods.
Legislative Provisions Governing The Non-Disclosure Of The Identity Of The Victims
Secondary victimization of victims of sexual harassment can be attributed to lack of awareness of women about their constitutional as well as statutory privileges. There exist numerous legislations and manifold policies in India, aimed at providing a safe and inclusive environment to females. As stated earlier, it is the prevailing lack of awareness that is responsible for flagrant violation of deprivation of rights. Measures for gender justice are provided in The Indian Constitutional Framework. The very inalienable and egalitarian privileges, i.e. the fundamental rights provide for non-discrimination.
Rights under The Indian Penal Code, 1860
The aim behind the inclusion of Section 228A of the Indian Penal Code is ensuring that victims of offences punishable under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB and 376E are able to lead a dignified life after being victimized. The section makes punishable, any printing or publication that leads or may lead to identification of the prosecutrix. However, such a restriction cannot be imposed on the printing or publication of a judgement of a High Court or the Supreme Court. The Supreme Court, in many instances, has upheld the spirit of social activism has itself refrained and directed other courts to refrain from using the original identity of the victim, which may have made the victim to be known to the public. One such example was the Nirbhaya Gang Rape Case.
The Apex Court, in one of the initial cases where Section 228A was brought to light, 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.”
Following this, there were two major judgments in this regard. One was the State of Punjab v. Ramdev Singh , in which the Apex Court upheld it’s decision in Bhupinder Sharma v State of Himachal Pradesh, while the Court, in The Commissioner, Trade Tax, Uttar Pradesh v. M/S Malkhan S. Subhash Chandra, brought out the need to amend the cause titles that put forward to the public, the names of the victims of sexual assault.
Protection And Privileges Granted Under The Code of Criminal Procedure, 1973
The provision under Section 327(2) of the Code of Criminal Procedure, which provides for the conduct of inquiry into and trial of rape or an offence under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code, was highlighted by the Supreme Court in the case of State of Punjab v Gurmit Singh. Further, an order for non-ignorance of the mandate of the provision, and hence hold the trial of rape cases in camera was also issued by the Court in this case. The court notably pointed out towards the feeling of comfort that a victim would experience in a trial conducted in camera, in furtherance of which questions could be answered with much greater ease by the victims, which would lead to the improvement in quality of evidence with the prosecutrix. Lastly, the Court stated that such trials on camera should be conducted by female and not male judges because the same would make the victim free and comfortable and thus enable her to completely put forward her side, and hence assist the Court to effectively pronounce and fair judgement.
Another landmark judgement in this regard is Nipun Saxena v Union of India, in the Supreme Court held that there is a need to maintain the anonymity of the victim during the course of investigation, trial and even after pronouncement of the judgement.
Off late, the Court has reiterated the need to comply with Section 327(2) of The Code of Criminal Procedure.
Provisions For Protection Under The POCSO Act , 2012
Section 23 of the Act puts forward the procedure to be followed by the media while reporting any matter pertaining to sexual offences committed against a child, i.e. any individual below 18 years of age. Clauses (1) and (2) of the Act prohibit the preparation and preparation of reports and comments on any child through any form of media without having complete and legitimate information and restrict the disclosure of the name and specifications of the child. However, it is to be noted that the disclosure may be made with prior permission of the Special Court, provided that the same is in the interest of the child victim. Clauses (3) and (4) bring out the concept of joint and several liability in which publishers and owners of media are made jointly and severally liable for the acts their employees. The punishment for offences of such nature are is imprisonment 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.
It is put forward by the Act in Section 33(7) that it should be ensured by the Special Court that the identity of a child victim should not be disclosed at any time during the course of investigation or trial.
It was observed in the case of Sangitaben Shaileshbhai Datania v The State of Gujarat 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”.
Sexual offenses being grave in nature and having social repercussions, it turns into the obligation of the State just as people to receive every one of the measures in order to ensure a noble life to an honest unfortunate casualty after the bizarre incident. Further, prosecutrix should know the sacred and statutory protections that she has. Any endeavor of any individual to strengthen the anguish of an unfortunate casualty must be legitimately denounced. Other than that, the arrangement of equity conveyance should be agreeable and injured individual well disposed.