Victim's Right To Anonymity Prevails Over Public's Right To Information, Punjab & Haryana High Court Upholds "Restricted Category" Orders

Observing that "the right of victim to remain anonymous cannot be allowed to be sacrificed at the altar of right to information," the Punjab & Haryana High Court dismissed a plea challenging its Executive Committee's decision to restrict uploading of orders or case details (on the High Court website) of sensitive matters relating to crime against woman, Juvenile Justice Act, matrimonial disputes.

The PIL had also challenged Section 73 of the Bharatiya Nyaya Sanhita (BNS) and Section 366(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which prohibit publication of proceedings relating to cases involving sexual offences pending in trial court, without court's permission.

Division bench of Chief Justice Sheel Nagu and Justice Anil Kshetarpal said,

"The right to information as sought to be invoked by the petitioner... can thus be subject to various restrictions. Disclosure of identity and information about a victim is against morality and decency, since any such disclosure prevents the victim from enjoving a life of dignity."

The division bench added that the victims in crimes relating to women and juveniles belong to a special class of citizens who are the most vulnerable stakeholder in the entire transaction of crime and prosecution, and deserve "special treatment by making available certain protections and immunities in shape of imposing prohibition for disclosure of identity of the victim, to prevent the victim from suffering any harm to body, mind or reputation."

The plea filed by Rohit Mehta, a lawyer by profession, stated that executive orders passed by the High Court are like "gag orders", implementing the principle of complete privacy.

He contended that right to information is a "concomitant" of right to freedom of speech and expression under Article 19(1)(a) of the Constitution and has over-riding effect over right to privacy of a victim.

All Fundamental Rights Are Dwarfed By Article 21

The division bench said that the right of a victim to remain incognito or anonymous is directly relatable to the very existence of the person and dignity of the victim. "If identity of the victim is disclosed especially in crimes against women/juveniles, then harm to the person and dignity of the victim/juvenile that may ensue would outweigh the injury caused to a stranger, whose right to know the identity of the victim is denied." It thus opined that the right to information is subservient to right to life.

Speaking for the bench, Chief Justice Nagu said the importance of Article 21 of the Constitution is visible from the very terminology used as the Article commences with negative expression that "'no person shall be deprived of his life/personal liberty except in accordance with the procedure established by law', with no further fetters on its exercise."

"Whereas Article 19 (1) (a) of the Constitution, which relates to freedom of speech and expression being the fountainhead of right to information is not couched in negative terminology, which is evident from use of expression 'all citizens shall have the right to freedom of speech and expression etc," the Court added.

The bench further noted that the right to information is subject to reasonable restrictions imposed by law relating to sovereignty and integrity of India, the security of the State, public order, decency or morality or contempt of court, defamation or incitement to an offence. Thus, restrictions over right to information are much more pronounced than over the right to life under Article 21.

In light of the above, the Court held that a victim in crime relating to women/juveniles is entitled to special protection, as provided by different laws, including Section 33 of the Special Marriage Act and Section 22 of the Hindu Marriage Act.

The bench also opined that the administrative instructions issued by the High Court from time to time, as challenged by the petitioner, are manifestations of such protections which victims of sexual offences/juveniles "are entitled to enjoy."

Adding that, "protections available to victims cannot be subjugated to the right to information of the petitioner", the Court dismissed the plea.

Mr. Krishan Kanha, Advocate, Mr. Kshitiz Goel, Advocate, for the petitioner.

 Mr. Amit Jhanji, Senior Advocate, with Mr. Shobit Phutela, Advocate, Ms. Zaheen Kaur, Advocate,

Mr. Nandita Verma, Advocate, for the respondents.

Title: Rohit Mehta @ Rohit Mehta Advocate v. Punjab and Haryana High Court, Chandigarh and others

Citation: Citation: 2024 LiveLaw (PH) 266

Click here to read/download the order