Rape Hearings In India: What Courts Can Do To Protect Survivors' Identities

In a society where rape is stigmatised, shouldn’t the identity of rape survivors be protected during hearings?

Rape Case Hearings In India: What Courts Can Do To Protect Survivors' Identity

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While moving from one courtroom to another as an intern amidst the hustle and bustle and unsettled chaos of the Delhi High Court last week, we stumbled upon a proceeding in connection with a rape case in one such courtroom.

It was jam-packed with lawyers, media persons and several others. The counsel representing the accused was reading the FIR, lodged by the survivor, rife with personal details of her life as well as a detailed narration of how the heinous crime was perpetrated against her.

The entire courtroom scene became so intense that the father of the survivor had an emotional breakdown. But this begs a question: in a society where rape is still stigmatised, shouldn’t the identity of rape survivors be protected during judicial proceedings? 

Section 327 of the Code of Criminal Procedure, 1973 (CRPC) says that as a matter of general rule, the inquiry or trial of criminal matters should be done in an open court. However, sub-section 2 of the provision provides an exception to the general rule in matters pertaining to rape and sexual assault. 

In Nipun Saxena vs. Union of India, the court observed that the “continual questioning” by the defence counsel in a bid to bring out inconsistencies in the allegations can cause unnecessary harassment to the victim. At the same time, the stigma a rape survivor has to face can haunt them for the rest of their lives.

Thus, though the general rule is to hold criminal trials and inquiries in an open court to ensure transparency, fairness and justice, an exception has been carved out for sexual violence cases to make the criminal justice system more victim-centric.

This exception becomes more prudent when seen in light of the recent judgement of the apex court in KS Puttaswamy v. Union of India, wherein the right to privacy has been elevated to the status of a fundamental right under Article 21 of the Constitution of India. 

So, What Is the Issue?

In Tarunjit Tejpal v. State of Goa, the issue was whether the provision of in-camera proceedings would also cover appeals to the appellate court.

The court, in this case, rejected the application and upheld that appeals to high courts or the Supreme Court would not come within the ambit of ‘inquiry’ and ‘trial’ as mentioned under section 327(2). 

However, the most prominent ground behind introducing the exception of in-camera proceedings was to respect the privacy and anonymity of the victim, so that the intricate details of the victim’s personal life are not in public domain. Thus, the circumstances which necessitated in-camera proceedings in lower courts are also present in the appellate courts.  

Besides, it is the cardinal canon of interpretation that the role of the judiciary is to give effect to such interpretation of any legal statute which is in line with the intent of the legislature.

Since the amendment to section 327 to insert the exception pertaining to in-camera proceedings culminated in the aftermath of the suggestions by the 84th Law Commission Report and even the inspiration behind the language and content of section 327(2) had been drawn from its report, the report can very well be used to cull out the intent of the legislature. 

The Intent of the Legislature

A bare perusal of the report makes it evident that the purpose of the amendment as envisioned by the commission was to give primacy to the survivor’s privacy and anonymity. This will, however, be furthered only by the application of section 327(2) to the appellate courts. 

The rule of beneficial construction provides that in cases where a legislation has been enacted for the purpose of providing some benefit to any particular class of people, such an enactment should be interpreted in a manner that is favourable to those for whose benefit it has been enacted. 

The motive behind the introduction of in-camera proceedings for sexual violence cases was to make the criminal prosecutorial system conducive for the survivors of sexual assault and rape. 

When the court in Tarunjit Tejpal v. State of Goa reasoned that the word ‘trial’ and ‘inquiry’ would not include proceedings of the high court or the supreme court, it adhered to the literal interpretation of the provision.

However, time and again, the apex court has held that when the literal interpretation of any provision is leading to a doubt regarding its meaning, the courts can move away from the strict rule of literal interpretation in furtherance of the object and purpose of the act.  

Additionally, since section 228A was added to the Indian Penal Code by way of the 1983 amendment, there has been an absolute restraint on the publication of details pertaining to the survivors/victims of sexual violence. This is not only in context of trials or inquiries in the lower courts, but also encompasses proceedings of appellate courts.

Section 228 A provides punishment for disclosure of the identity of the ‘victim (sic)’ of offences under sections 376 (punishment for rape), 376A (intercourse by a man with his wife during separation), 376B (intercourse by public servant with woman in his custody), 376C (intercourse by superintendent of jail, remand home, etc) or 376D (intercourse by any member of the management or staff of a hospital with any woman in that hospital) of the IPC.

This again reflects the intention of the legislature to give primacy to the victim's privacy regardless of the nature of the proceeding.  

And What About the Right of an Accused?

Another aspect pertaining to Section 327 is with regard to the right of the accused to request for conducting an in-camera proceeding.

When a plea was made in the apex court to allow in-camera proceedings in the same Tarunjit Tejpal case, the court dismissed the application and held that in-camera proceedings cannot be guaranteed to the accused as a matter of right.

However, the court ignored the fact that even in those cases where the accused is proven innocent at a later stage, he still has to bear the brunt of social stigma and ostracisation by the community. 

Inconsistent Practice in Trial Courts

Though the provision of section 327 has not been extended to the appellate courts, the said section makes it obligatory for the lower courts to conduct in-camera trials for sexual assault cases.

However, in spite of the statutory mandate, there is no strict adherence to it in most of the trial courts across the country.

In State of Punjab vs. Gurmit Singh, the apex court expressed concern over the lack of awareness and ignorance of the trial courts with respect to the above-mentioned provision and at the same time. The top court also opined that the courts should adopt a liberal approach while taking recourse to section 327(2).

Ensuring Compliance

One of the reasons behind the non-compliance of the statutory mandate might be the immense overload of pending cases, which reinforces the need for more infrastructural and logistical development, in terms of court buildings and appointment of judges.

Also, courts can come forward with special arrangements, such as reserving a specified day for listing matters only pertaining to sexual assault.

Further, section 327(2) also provides that the courts should try to make arrangements for conducting the proceedings in matters of sexual violence cases by women judges as far as possible. However, its implementation is constrained by the inadequate representation of women in the Indian judiciary.

A Much Needed Shield

As per the reports of the Fourth National Family Health Survey, 99.1 percent of the cases of sexual violence against women are not reported in India.

The subsequent social vilification faced by the survivor might be one of the reasons behind it. In Nivedita Jha v. State of Bihar, the court remarked, “A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless victim. (sic)."

Extending the provision of in-camera proceeding to the appellate courts will thus, provide survivors the much-needed shield to maintain their anonymity and uphold their privacy. 

(Pooja Rajawat and Jayam Jha are third year students at National Law University, Jodhpur. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)