The Supreme Court’s 2024 (August 24) judgment in Kinnori Ghosh v. Union of India, held that victims of sexual assault are afforded the right to anonymity and dignity-even posthumously-in response to a writ petition seeking the removal of online content (videos, hashtags, and images) identifying a female doctor who was raped and murdered in a West Bengal hospital.[1] Justices J.B Pardiwala and Manoj Mishra referencing Section 72 (1) of the Bharatiya Nyaya Sanhita,[2] (which prescribes punishment for disclosing the identity of a sexual assault victim without legal authorization), opined that even well-intentioned disclosures on rape victims violate their constitutional guarantee of dignity under Article 21 in the absence of consent which is impossible in posthumous situations. The judgment rejected any exemption based on “public interest” or “tribute”. The court reaffirmed the Nipun Saxena v. Union of India principles.[3] This ruling again brings home the point about the judiciary’s ongoing efforts against media insensitivity and systemic gaps in maintaining victim anonymity.
This article traces the journey of judicial protection offered to sexual assault victims on crucial issues involving anonymity, procedural sensitivity in the trial, media accountability, and ongoing challenges in preserving privacy. The judgments analysed showcase India’s slow transformation into a victim-oriented criminal justice system.
Judgments on victim anonymity and media accountability in cases of sexual violence
Nipun Saxena V. UOI
Kinnori Ghosh’s ruling built upon the Nipun Saxena V. UOI case. In Nipun Saxena, the Supreme Court, led by Justice Deepak Gupta, addressed the media violations that took place during the 2012 Nirbhaya case.[4] The court clarified that Section 228A of the Indian Penal Code,[5] prohibits revealing the identities of sexual assault victims even implicitly. Anonymising First Information Reports under Section 376 IPC (prescribes punishment for rape),[6] using pseudonyms in appeals under Section 372 of the Code of Criminal Procedure (right to appeal by the victim),[7] and sealing records containing victim details were mandated by the Court. The court also noted that neither the public interest nor symbolic protests justify the disclosure of the identities of rape victims.
State of Punjab v. Gurmit Singh
An earlier precedent, State of Punjab v. Gurmit Singh, laid the foundation for anonymity protections. In this case, three men abducted and sexually assaulted a minor girl.[8] The trial court acquitted the accused, citing major inconsistencies in her testimony. Justice AS Anand overturned this acquittal criticising aggressive cross-examinations that re-traumatized rape victims by relentlessly forcing them to relive brutal assault again. Court mandated in-camera proceedings under Section 327(2)CrPC (an exception to the open court rule and prescribes in-camera proceedings for rape trials),[9] and recommended deploying female judges for rape trials ensuring utmost sensitivity citing Section 228A IPC,[10] and Section 372 CrPC. Anonymity and procedural compassion were deemed essential for trials by this landmark ruling.
Sakshi v UOI
Judicial rulings have also prioritised crafting supportive trial environments for rape victims. In the case of Sakshi v UOI, an NGO challenged the narrow definition of rape under Section 375 IPC,[11] and sought reforms for rape trials in 2004.[12] Justice GP Mathur extended the ambit of Section 327 CrPC,[13] originally meant for rape cases to offenses under Section 354 (assault or criminal force to outrage modesty),[14] and Section 377(unnatural offenses) IPC.[15] The court introduced various measures, such as employing screens that shield rape victims from the accused and requiring the defense to submit questions in writing beforehand.
Vijay Singhal V. Government NCT of Delhi
In this case, the court addressed the balance between the victim’s privacy and open justice during the 2012 Delhi gang rape trial involving a minor accused.[16] Journalists sought unrestricted access to the court proceedings, citing freedom of speech under Article 19(1) (a).[17] Justice Rajiv Shakdher upheld in-camera proceedings under Section 327(2) CrPC,[18] preventing sensationalism and safeguarding victim anonymity under Article 21.[19] The court avoided a strict interpretation of “shall” in Section 327(2), which mandates private hearings, recognizing that a total media ban could unfairly limit public interest reporting, potentially conflicting with Articles 14 (equality) and 19 (freedom of speech). Media rights were balanced by allowing one accredited journalist per major newspaper to attend, provided they avoided disclosing the victim’s identity or sensationalizing reports. The court also held that violations risked punishment under Section 228A IPC and Section 7 of the Contempt of Courts Act 1971.[20] Judicial discretion was emphasized in this ruling for managing media access in rape trials effectively and stringently.
R. Lakshmipathi v. S. Ramalingam
Media accountability protects rape victim’s privacy vigorously. In R. Lakshmipathi v. S. Ramalingam, a Tamil newspaper revealed the identity of a rape victim, claiming that permission had been granted by a welfare institution under Section 228A IPC.[21] Court dismissed this case because the prosecution couldn’t prove any lack of permission, thereby focusing on technical evidence rather than the rape victim’s right to privacy.
Aju Varghese v. State of Kerala
In Aju Varghese v. State of Kerala, a Malayalam actor, Aju Varghese, unknowingly revealed a victim’s identity on Facebook in 2018 while professing support.[22] Justice Sunil Thomas ruled that Section 228A IPC applies stringently regardless of actual intent and requires prior written consent from the victim. Post-facto consent might somewhat mitigate harm, but won’t entirely undo the offense afterwards. Section 23 POCSO,[23] affords child victims absolute protection, barring disclosure of their identities except by a Special Court order. This judgment emphasizes the significance of victim consent even in cases of unintentional breaches.
Gangadhar Narayan Nayak v. State of Karnataka
In Gangadhar Narayan Nayak v. State of Karnataka, a minor rape victim’s identity was disclosed by a newspaper editor leading to prosecution under Section 23 POCSO. Justice Indira Banerjee upheld an absolute ban on identifying child victims.[24] This ruling emphasized that even seemingly benign indirect identifiers starkly violate privacy rights under various international and domestic frameworks like Article 16 of the Convention on the Rights of Child (Protects a child’s right to privacy, honour, and reputation),[25] Section 74 of Juvenile Justice Act 2015 (Prohibits disclosure of identity of children in conflict with law or in need of care and protection).[26]
People’s Union for Civil Liberties v. State of Maharashtra (2023)
In People’s Union for Civil Liberties v. State of Maharashtra, the Supreme Court, building on its 2014 ruling Court tackled police-media dynamics in sensitive cases.[27] Justice Pamidighantam Sri Narasimha ordered the setting up of Media Briefing Cells districtwide and restricted press briefings largely to senior officers only. Details of victims in rape cases of stalking or domestic violence were excluded from such briefings and recorded briefings were mandated for utmost transparency. The Ministry of Home Affairs was instructed to develop a Standard Operating Procedure for police media interactions, but as of now, no such implementation has occurred, highlighting a lack of enforcement by the government.
Conclusion
Despite judicial developments, systemic gaps persist in protecting rape victim’s privacy under Article 21.[28] The constitutional right to privacy encompasses informational privacy, but its application to sexual assault victims is often limited to anonymity and in-camera trials, neglecting broader concerns like protecting medical or educational records. Under Section 51 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS),[29] police can request medical examinations, and hospitals must share medical data. However, unclear guidelines on what constitutes relevant medical data tend to risk exposing unrelated personal information of the rape victims, violating their privacy. In POCSO cases, school records may be accessed under Section 193 BNSS,[30] to verify the victim’s age, potentially exposing personal details. The lack of explicit protocols for handling third-party materials leads to victim-blaming and shaming, undermining dignity.
The Kinnori Ghosh ruling of 2024,[31] reflects a strong judicial commitment to preventing the naming and shaming of rape victims. Kinnori Ghosh and other judgments mentioned in this article have strengthened safeguards under the Indian Penal Code, the Protection of Children from Sexual Offences Act, and the Bharatiya Nyaya Sanhita by reinforcing anonymity, procedural compassion, and media accountability. Gaps persist in handling personal records, and inconsistent enforcement of media guidelines remains problematic, this necessitates India’s criminal justice system to form new procedures for handling various third-party materials and enhance specialized training for police and the judiciary while dealing with rape trials.
(The legal research team of CJP consists of lawyers and interns; this factsheet has been worked on by Akhila Pujari)
[1] Kinnori Ghosh v. Union of India, 2024 SCC OnLine SC 1837 (India).
[2] Bharatiya Nyaya Sanhita, No. 45 of 2023, § 72(1) (India).
[3] Nipun Saxena v. Union of India, (2019) 2 SCC 703 (India)
[4] Ibid.
[5] Indian Penal Code, Act No. 45 of 1860, § 228A (India); Section 72, 73 of the BNS, 2023.
[6] Indian Penal Code, Act No. 45 of 1860, § 376 (India); (Sections 66,67,68 of the BNS, 2023)
[7] Code of Criminal Procedure, Act No. 2 of 1974, § 372 (India); (413 of BNSS, 2023).
[8] State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 (India).
[9] Code of Criminal Procedure, Act No. 2 of 1974, § 327(2) (India).
[10] Supra note 5
[11] Indian Penal Code, Act No. 45 of 1860, § 375 (India); (Section 63 of BNS, 2023-only change being that the age of Consent: 5 years is replaced by 18 years in BNS. Exception 2 of Section 63 states that “sexual intercourse or acts by a man with his wife, the wife not being under 18 years of age, is not rape”).
[12] Sakshi v. Union of India, (2004) 5 SCC 518 (India).
[13] Supra note 9; Section 366 of the BNSS
[14] Indian Penal Code, Act No. 45 of 1860, § 354 (India); Section 74 of the BNS
[15] Indian Penal Code, Act No. 45 of 1860, § 377 (India); Section 377 has been excluded in BNS altogether
[16] Vijay Singhal v. Gov’t of NCT of Delhi, 2013 SCC OnLine Del 4986 (India).
[17] India Const. art. 19, cl. 1(a).
[18] Supra note 9
[19] India Const. art. 21.
[20] Contempt of Courts Act, Act No. 70 of 1971, § 7 (India).
[21] R. Lakshmipathi v. S. Ramalingam, 1998 SCC OnLine Mad 150 (India).
[22] Aju Varghese v. State of Kerala, 2018 SCC OnLine Ker 3478 (India).
[23] Protection of Children from Sexual Offences Act, Act No. 32 of 2012, § 23 (India).
[24] Gangadhar Narayan Nayak v. State of Karnataka, (2022) 3 SCC 693 (India).
[25] Convention on the Rights of the Child art. 16, opened for signature Nov. 20, 1989, 1577 U.N.T.S. 3.
[26] Juvenile Justice (Care and Protection of Children) Act, Act No. 2 of 2016, § 74 (India).
[27] People’s Union for Civil Liberties v. State of Maharashtra, 2023 SCC OnLine SC 1166 (India).
[28] India Const. art. 21.
[29] Bharatiya Nagarik Suraksha Sanhita, Act No. 46 of 2023, § 51 (India).
[30] Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, § 193 (India).
[31] Supra note 1
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