Kerala HC Directs 'Indian Kanoon' To Anonymise Identity Of A Rape Accused, Says Details Of Victim & Accused Can't Be Published Sans Court's Permission

Justice Kauser Edappagath observed thus:

“Hence, the law as it stands now clearly provides that it shall not be lawful for a person to print and publish any matter in relation to the inquiry or trial of rape or an offence under Sections 376, 376A, 376B, 376C, 376D or 376E of IPC except with the previous permission of the Court, that too subject to maintaining confidentiality of name and address of the parties, both the victim and the accused.”

For context, Section 327 (2) pertains to in-camera proceedings for offences under Section 376 IPC etc. Section 373(3) prohibits printing or publishing court proceedings except with previous permission of the court but is subject to maintaining confidentiality of the name and address of the parties.

Section 228-A IPC relates to disclosing the identity of the victim of certain offences under Section 376 IPC etc. The Explanation provides that printing or publishing the judgment of the High Court or Supreme Court is not an offence.

Background

The petitioner who was accused of sexual assault was granted bail by the Court. The details in the bail order were used by The New Indian Express to write an article that revealed the identity of him and his family. The order granting bail was also published in Indian Kanoon.

The petitioner approached the Court for the removal of the article from The New Indian Express and an order from Indian Kanoon as it reveals his identity. He sought declaratory reliefs and framing guidelines to prevent the publication of any details regarding his identity for the protection of his dignity and reputation.

Court Findings

The Court observed Article 19 (1) (a) of the Constitution provides the right to free speech and to express opinions through various media which includes the freedom of the press, subject to reasonable restrictions. The Court stated that the public has a right to know the proceedings happening in Courts. It held that “reporting of the court proceedings increases transparency and faith of the public in the judiciary.”

The Court held press has legitimate rights to publish when a matter is based on public records, such as court records. It held that there is an exception given to victims of sexual offences that their names and details cannot be published.

The Court added that it cannot impose additional restrictions for media based on Article 19 (1) apart from the reasonable restrictions carved out in Article 19 (2).“While the right of a fair trial and the right to privacy of the accused have to be zealously guarded, equally important is the right of the press/media to keep the public informed of matters of public interest. These could include reporting of court proceedings.”, the Court stated. 

The Court observed that the 89^th Law Commission report suggested that it was necessary to preserve the anonymity of the victim and accused in rape and allied offences.

The Court observed that proviso to Section 327 (3) provides thus, “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.” It stated that the term used in the proviso was 'parties' and not 'victim'. Thus, the Court held that the name and address of 'parties' to litigation which includes the 'accused' should also be kept confidential. It held that the protection offered to proceedings in Section 327 extends to bail proceedings.

It noted that The New Indian Express does not have a case that they obtained prior permission from the Court before publishing the article. It noted that the article disclosed the name of the accused and was contrary to section 327 (3) CrPC.

The Court found that The New Indian Express has already removed the impugned article from their website based on an oral direction of the Court.

The Court held that Indian Kanoon has published the order granting bail to the petitioner and held that, “in today's hyper-connected world, court judgments and orders in electronic forms are almost perpetually available. In open court proceedings, nobody, much less the petitioner, can have a grievance in uploading and publishing the judgments online”.

Relying upon, K.S.Puttaswamy and Another v. Union of India and Others (2017) and Vysakh v. Union of India (2023), the Court stated that the identity of parties were permitted to be masked in orders relating to family, matrimonial cases and sexual offences. It also held that the publication of judgments in digital space cannot be termed as a violation of the right to privacy.

“In Vysakh (supra), the said protection is extended to all the parties of the litigation, making it clear that in cases where the law recognize the open court system, any form of publication containing the identity of the parties on the website or any other informative system maintained by the court shall not be allowed.”, the Court stated and held that Indian Kannon was not justified in publishing the name and address of petitioner.

Accordingly, the Court directed that The New Indian Express shall not publish any news relating to the petitioner without prior permission of the Court and that too after maintaining the confidentiality of parties. It also directed Indian Kannon to anonymize the name and details of the petitioner from their website.

Counsel for the petitioner: Advocates Geo Paul, C.R.Pramod, Radhika Rajasekharan P, Jacob George Pallath, Naveen T U, D Prem Kamath

Counsel for the respondents: Central Government Counsel Suvin R Menon, Public Prosecutor C N Prabhaaran, Advocates V Krishna Menon and J Surya

Citation: 2023 LiveLaw (Ker) 753

Case title: XXX v Union of India

Case number: WP(CRL.) NO. 318 OF 2022

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