Law on the Disclosure of the Identity of Rape Victims

copyright.lawmatters.in/2013/11/law-on-disclosure-of-identity-of-rape.html

(Note: This post comprises preliminary notes for a legal opinion drafted a while ago. I haven't rechecked it before posting it.)
Indian law does not prohibit just the disclosure of the names of rape victims but of information potentially leading
to the identification of rape victims. The protection of identity of rape victims could be considered to be
requirements both criminal law and civil law the identity of rape victims is protected under statutory law, case
law and (presumably) tort law relating to privacy (not to mention constitutional law).
This post focusses on statutory legal provisions to protect the identity of those who have been sexually
assaulted:
Section 228A of the Indian Penal Code, (i.e. IPC), which was first introduced in 1983 and subsequent
amended in 2013, prohibits the publication of the identity of rape victims (specifically, persons against whom
offences under Sections 376, 376A, 376B, 376C, 376D and 376E, IPC, are alleged or found to have been
committed). The prohibition under this Section has been worded to prohibit the publication of not only victims
names but also any matter which could make victims identities known. Those who violate the publication
prohibition under s. 228A, IPC, are liable to be punished with either simple or rigorous imprisonment for up to two
years and are be liable to be fined unless the publication is:

(a) by or under the order in writing of the officer-in-charge of the police station or the police officer
making the investigation into such offence acting in good faith for the purposes of such
investigation; or

(b) by, or with the authorisation in writing of, the victim; or

(c) where the victim is dead or minor or of unsound mind, by, or with the authorisation in writing of,
the next of kin of the victim:

Provided that no such authorisation shall be given by the next of kin to anybody other than the
chairman or the secretary, by whatever name called, of any recognised welfare institution or
organisation.

Explanation.--For the purposes of this sub-section, "recognised welfare institution or organisation"

means a social welfare institution or organisation recognised in this behalf by the Central or State
Government.

As a Supreme Court ruling (in the case of Satya Pal Anand v. State of M.P. : 2013(10)SCALE88) highlighted:
Section 228A of the Indian Penal Code makes disclosure of identity of the victim against whom offences under
Section 376, Section 376A, Section 376B,Section 376C or Section 376D is alleged or found to have been
committed an offence. Sub-section (2) of Section 228A Indian Penal Code exempts two categories of police
officers, namely, (i) officer in-charge of the police station and (ii) police officer making the investigation into such
offence.
Further, under Section 228A(3), IPC, whoever publishes any matter in relation to any proceeding before a court
with respect to an offence under Section 376, 376A, 376B, 376C, 376D or 376E, IPC, without the previous

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permission of such court may be punished with either simple or rigorous imprisonment for up to two years and
are be liable to be fined unless the publication is of a judgment of any High Court or the Supreme Court.
There is no statutory prohibition on courts themselves using victims names in their judgments although the
Supreme Court has addressed this concern (or looophole through which victims names could enter the public
domain) in a number of judgments: in State of Karnataka v. Puttaraja : AIR2004SC433, the Supreme Court had
held that the names of rape victims should not be mentioned in court cases:

We do not propose to mention name of the victim. Section 228-A of the Indian Penal Code, 1860
(in short the 'IPC') makes disclosure of identity of victim of certain offences punishable. Printing or
publishing name of any matter which may make known the identity of any person against whom
an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been
committed can be punished. True it is, the restriction does not relate to printing or publication of
judgment by High Court or Supreme Court. But keeping in view the social object of preventing
social victimisation or ostracism of the victim of a sexual offence for which Section 228-A has
been enacted, it would be appropriate that in the judgments, be it of this Court. High Court or
lower Court, the name of the victim should not be indicated we have chosen to describe her as
'victim' in the judgment.

The paragraph reproduced above also finds its substance included in:
Dinesh @ Buddha Versus State of Rajasthan : AIR2006SC1267; Om Prakash v. State of U.P. : AIR2006SC2214;
Bhupinder Sharma v. State of Himachal Pradesh : AIR2003SC4684; State of Punjab v. Ramdev Singh :
AIR2004SC1290; S. Ramakrishna v. The State rep. by the Public Prosecutor, High Court of A.P. Hyderabad :
AIR2009SC885; Premiya @ Prem Prakash v. State of Rajasthan : AIR2009SC351.
Beyond this, Section 23 of the Protection of Children from Sexual Offences Act, 2012 , which defines a
child as any person below the age of eighteen years contains a procedure for the media:

(1) No person shall make 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 effect of lowering his reputation or infringing upon his privacy.

(2) No reports in any media shall disclose, the identity of a child including his name, address,
photograph, family details, school, neighbourhood or any other particulars which may lead to
disclosure of identity of the child:

Provided mat for reasons to be recorded in writing, the Special Court, competent to try the case
under the Act, may permit such disclosure, if in its opinion such disclosure is in the interest of the
child.

(3) The publisher or owner of the media or studio or photographic facilities shall be jointly and
severally liable for the acts and omissions of his employee.

(4) Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be liable
to be punished with imprisonment of either description for a period which shall not be less than
six months but which may extend to one year or with fine or with both.

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And, although not immediately relevant to the subject at hand, it is worth noting that Section 21 of the Juvenile
Justice (Care and Protection of Children) Act, 2000, also protects the identity of alleged rapists who are
juveniles:

21. Prohibition of publication of name, etc., of juvenile in conflict with law or child in need of care
and protection involved in any proceeding under the Act.

(1) No report in any newspaper, magazine, news-sheet or visual media of any inquiry regarding a
juvenile in conflict with law or a child in need of care and protection under this Act shall disclose
the name, address or school or any other particulars calculated to lead to the identification of the
juvenile or child nor shall any picture of any such juvenile or child be published:

Provided that for reasons to be recorded in writing, the authority holding the inquiry may permit
such disclosure, if in its opinion such disclosure is in the interest of the juvenile or the child.

(2)Any person who contravenes the provisions of sub-section (1), shall be liable to a penalty
which may extend to twenty-five thousand rupees.

And while the Code of Criminal Procedure generally requires trials to be open (under Section 327), there are
exceptions. Subject to a proviso, the trials of rape or an offence under section 376, section 376A, section 376 B,
section 376C, section 376D or section 376E of the Indian Penal Code which are to be conducted in camera, as
far as practicable by a woman Judge or Magistrate. Further, no person may print or publish any matter in
relation to any such proceedings, except with the previous permission of the Court provided that the ban on
printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining
confidentiality of name and address of the parties.
Apart from this, there are, of course, a number of guidelines and policies which are relevant when it comes to
reporting rape.
Addendum:
Personally, the letter of the law aside, I also believe that there are ethical questions involved in the reporting of
crimes involving violence against women, particularly sexual violence. While I do, very strongly believe that such
crimes should be reported, I have reservations about the detail in which they need to be reported to bring the
issue of VAW or a specific instance of VAW to light. In particular, I question the need to report in explicit (and
possibly lurid) detail on individual cases especially without the consent of the person against whom violence has
/ has allegedly been perpetrated I see no reason to do so other than to cater to the voyeurism of the reader
and perhaps even that of the writer.
In that context:

Find the argument abt balancing privacy of a person assaulted with public interest to highlight
crime by ors sharing details of it absurd. +
Nandita Saikia (@nsaikia) November 21, 2013

+ Appalled anyone would argue that it's acceptable to possibly further traumatise someone
already traumatised for any reason. +
Nandita Saikia (@nsaikia) November 21, 2013

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+ To defend possible retraumatisation of a person assaulted &/or the voyeuristic as being in the
public interest is beyond the pale, IMO. +
Nandita Saikia (@nsaikia) November 21, 2013

+ In precisely what sort of a world would the public interest lie in non-consensually making life
more difficult for a person assaulted? +
Nandita Saikia (@nsaikia) November 21, 2013

+ And if you think it's ok to non-consensually share info, doesn't that leave you in the same ilk as
the assaulter who ignored consent too?
Nandita Saikia (@nsaikia) November 21, 2013

(This post is by Nandita Saikia and was first published at Indian Copyright.)

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