Source: Supreme Court

Why in News?

A bench of Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra issued an injunctive order to restrain the circulation of the photographs and video clips of the rape victim.

• The Supreme Court held this in the case of Kinnori Ghosh v. Union of India.

What is the Background of Kinnori Ghosh v. Union of India Case?

• In the present case a writ was filed under Article 32 of the Constitution of India, 1950 (COI) by the members of the Bar following the rape and death of the lady doctor in a Hospital in West Bengal.
• It is to be noted that following the above gruesome incident the name of the deceased and related hashtags have been widely published on electronic and social media platforms including Meta (Instagram and Facebook), Google (YouTube) and X (formerly Twitter).
• Infact the photographs of the body of the deceased and the video clips of the deceased were circulating in the social media.
• Thus, a writ petition was filed in order to restrain the above.

What were the Court’s Observations?

• The Court held that the above acts were in violation of Nipun Saxena & Anr v. Union of India (2019).
• Further, it was observed that a directive was also issued by the Union Ministry of Home Affairs on 16^th January 2019 regarding the protection of privacy of rape victim.
• Accordingly, the Court issued an injunctive order to prevent the circulation of the name, images and videos of the deceased from circulating in the social media.

What is Right to Privacy of Victim of Rape?

• Right to Privacy under Article 21 of COI
  • Article 21 of the COI lays down that no person shall be deprived of his right to life or personal liberty except according to procedure established by law.
  • Right to privacy is nowhere defined expressly as a fundamental right. However, the Courts have overtime held that Right to Privacy flows primarily from Article 21 of the Constitution.
  • In the landmark judgment of Justice K.S. Puttaswamy & Anr v. Union of India & Others (2017), it was unanimously held by the Supreme Court that right to privacy is a fundamental right under Article 21.
  • However, it was also held in this case that right to privacy is not absolute and is subject to certain restrictions.
  • The Court held that the right may be restricted by State action that passes the following three tests:
    • Firstly, the State action must have a legislative mandate
    • Secondly, it must be pursuing a legitimate state purpose
    • Thirdly, it must be proportionate i.e. such state action must be the least intrusive of the available alternatives to achieve the ends.
• Need to Protect Right to Privacy of Rape Victim
  • Notion of Victim- Shaming in our Society
    • Unfortunately, in our society victim despite being innocent is treated as a ‘pariah’ and ostracized from the society.
    • The offence of rape is attached to the ‘honour’ of the family and many of such cases go unreported due to such notions existing in the society.
    • Even after the complaint is recorded there is a high possibility that the victim would be harassed by the police and might be questioned in intimidating terms.
    • Even during the trial in the Court room, the victim is subjected to harsh cross-examination that sometimes leads to character assassination of the victim.
  • Difficulty for the victim to reintegrate in Society
    • A victim of rape often finds it difficult to get married, find a job or get integrated in the society like a normal human being.
    • Our criminal justice system lacks an adequate witness protection programme and thus, there is a greater need to protect the victim and protect her identity.
• Directions in Nipun Saxena v. Union of India (2019)
  • A 2-judge bench of Supreme Court consisting of Justice Deepak Gupta and Justice Madan B. Lokur in this case laid down certain guidelines to be followed in order to protect the privacy of the victim of rape.
  • It is to be noted that these guidelines form the basis of directives issued by Union Ministry of Home Affairs issued on 16^th January 2019.

What are the Relevant Legal Provisions Regarding Right to Privacy of Victim of Rape?

• Provisions Under IPC and BNS
  • Section 228A of IPC: Disclosure of Identity of victim in certain offences
    • This was added in IPC vide Amendment Act No. 43 of 1983 with effect from 25th December 1983.
    • Clause 1 provides that
      • This Section applies to any person who prints or publishes
        • The name
        • Or any other matter which may make identity of any person known against whom the offences specified hereunder are committed.
    • The offences with regard to which this Section applies are:
      • Section 376
      • Section 376A
      • Section 376AB
      • Section 376 B
      • Section 376 C
      • Section 376 D
      • Section 376DA
      • Section 376DB
    • Such a person who commits the above shall be liable to punishment of two years and shall also be liable to fine.
    • Clause 1 above shall not apply where disclosure happens in following circumstances:
    • Printing or publication is by or under the order in writing of the officer in charge of police station or the police officer acting in good faith making investigation into the offence.
    • Printing or publication is by or with authorisation in writing of victim
    • 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:
    • Proviso provides that authorisation provided for here should be given to anybody other than chairman or the secretary of any recognized welfare institution or organization.
    • Clause 3 provides for punishment where the proceedings with respect to above offences are printed or published without prior authorisation of the Court.
      • The punishment provided for here is imprisonment of 2 years and also fine.
    • The Explanation added here provides that printing of judgment of High Court and Supreme Court does not amount to an offence under this Section.
  • Section 72 of Bharatiya Nyaya Sanhita, 2023 (BNS)
    • This Section of BNS is a word-by-word reproduction of Section 228A of IPC.
• Provisions Under Procedural Law
  • Section 327 of CrPC: Court to open
    • Clause 2 of Section 327 provides that trial of offences under Section 376, 376A, 376AB, 376B, 376C,376D,376DA,376DB of IPC shall be conducted in camera
    • There are two provisos attached to this provision:
      • Proviso 1: The presiding judge may on application made allow any particular person to have access to, to be or remain in the room or building used by the Court.
      • Provisio 2: The in camera trial shall be conducted as far as possible by a woman Judge or Magistrate.
    • Further, Clause 3 of Section 327 provides that it shall not be lawful to print or publish any matter relating to any such proceeding except with the previous permission of Court.
    • The proviso to this Section provides that the above ban can be raised subject to maintaining the confidentiality of name and address of the parties.
  • Section 366 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
    • Section 366 (2) is a reproduction of Section 327 (2) of CrPC.
    • The only difference is that in Section 366 (2) of BNSS the trial of the following offences shall be in camera:
      • Section 64 to Section 68 of BNS (related to rape)
      • Section 70, 71 of BNS (related to gang rape and repeat offenders)
      • Section 4,6,8,10 of Protection of Children from Sexual Offences Act, 2012 (POCSO).