The right to privacy and confidentiality is a basic right recognized by the POCSO Act and the POCSO Rules. The obligation of confidentiality applies to all third persons, support persons, interpreter, translator, special educator, experts.
Section 23 of the POCSO Act, 2012 also recognizes this right, and prevents media persons from disclosing the identity of the child.
The right to confidentiality is also part of Form A to the POCSO Rules, 2020, which is a list of entitlements and services, which the Special Juvenile Police Unit or the local police officer, is obliged to inform the child or his guardian about.
Facts: In this case, the issue was what is the legality of recording a statement or version of the incident enumerated by a victim of sexual offence by an NGO or a private counsellor and filing of such statement or counselling report along with a chargesheet before the trial court under Section 173 of the Cr.P.C.?
Decision: The Court observed:
“(i) A statement under the POCSO Act can be made only to a police officer or a magistrate, and;
(ii) Provisions of the POCSO Act or the JJ Act do not contemplate any report to be made by a counsellor. It further makes it explicitly clear that counselling report/notes of the counsellor (as well as any person or expert recognized under the POCSO Act and Rules of 2012 and the JJ Act) are confidential in nature and the same cannot be made a part of the chargesheet or otherwise on the trial court record.”
Facts: In this case, one of the contentions raised by the prosecutrix was that the counselor had not been cited as a witness nor examined by the Investigating Agency,
Decision: The Court observed:
“(ii) Provisions of the POCSO Act or the JJ Act do not contemplate any report to be made by a counsellor. It further makes it explicitly clear that counselling report/notes of the counsellor (as well as any person or expert recognized under the POCSO Act and Rules of 2012 and the JJ Act) are confidential in nature and the same cannot be made a part of the chargesheet or otherwise on the trial court record.”, it is thus apparent that the counseling report/notes of the counselor are confidential in nature and cannot be made a part of the charge sheet or otherwise in the Trial Court Record and thus, in these circumstances, the non-production of the counselor as a prosecution witness does not detract from the veracity of the prosecution version.”
Nipun Saxena and Ors. v. Union of India (UOI) and Ors., MANU/SC/1459/2018 [Supreme Court of India, 2 Judge Bench]
Facts: In this case, the Court was dealing with issues which relate to non-disclosure of the name and identity of a victim falling within the purview of the POCSO.
Decision: The Court observed:
“43. In view of the aforesaid discussion, we issue the following directions:
1. No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.
2. In cases where the victim is dead or of unsound mind the name of the victim or her identity should not be disclosed even under the authorization of the next of the kin, unless circumstances justifying the disclosure of her identity exist, which shall be decided by the competent authority, which at present is the Sessions Judge.
3. FIRs relating to offences Under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of Indian Penal Code and offences under POCSO shall not be put in the public domain.
4. In case a victim files an appeal Under Section 372 Code of Criminal Procedure, it is not necessary for the victim to disclose his/her identity and the appeal shall be dealt with in the manner laid down by law.
5. The police officials should keep all the documents in which the name of the victim is disclosed, as far as possible, in a sealed cover and replace these documents by identical documents in which the name of the victim is removed in all records which may be scrutinised in the public domain.
6. All the authorities to which the name of the victim is disclosed by the investigating agency or the court are also duty bound to keep the name and identity of the victim secret and not disclose it in any manner except in the report which should only be sent in a sealed cover to the investigating agency or the court.
7. An application by the next of kin to authorise disclosure of identity of a dead victim or of a victim of unsound mind Under Section 228A(2)(c) of Indian Penal Code should be made only to the Sessions Judge concerned until the Government acts Under Section 228A(1)(c) and lays down a criteria as per our directions for identifying such social welfare institutions or organisations.
8. In case of minor victims under POCSO, disclosure of their identity can only be permitted by the Special Court, if such disclosure is in the interest of the child.
9. All the States/Union Territories are requested to set up at least one ‘one stop centre’ in every district within one year from today.”
Criminal Petition No. 7 of 2019
Facts: A petition was filed under Section 482, Cr.P.C. seeking direction to the JJB to expedite and conclude the trial/criminal case within a timeframe.
Decision: The Court, while examining the provisions of the POCSO, observed:
“18. The POCSO Act makes provisions for the medical examination of the child in a manner designed to cause as little distress as possible. The examination is to be carried out in the presence of the parent or other person whom the child trusts, and in the case of a female child, by a female doctor. The said Act provides for Special Courts that conduct the trial in-camera and without revealing the identity of the child, in a child-friendly manner. Hence, the child may have a parent or other trusted person present at the time of testifying and can call for assistance from an interpreter, special educator, or other professional while giving evidence; further, the child is not to be called repeatedly to testify in Court and may testify through video-link rather than in a courtroom. Above all, the said Act stipulates that a case of child sexual abuse must be disposed of within one year from the date the offence is reported.”
Facts: The Court expressed its anguish at the disclosure of the identity of the victim prosecutrix in the case at hand.
“123. In the context of child victim of sexual offences, the POCSO Act explicitly so directs, by the provision contained in Section 33(7), which reads as under:-
“33. Procedure and powers of Special Court-
(7). The Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial;
Provided that for reasons to be recorded in writing, the Special Court may permit such disclosure, if in its opinion such disclosure is in the interest of the child.
Explanation – For the purposes of this sub-section, the identity of the child shall include the identity of the child’s family, school, relatives, neighbourhood or any other information by which the identity of the child may be revealed.”
124. In view of the above, it is the statutory responsibility of the Special Court to ensure that the identity of the child is not disclosed at any time during the course of investigation or trial. The proviso carves out an exception for the court to permit such disclosure but the consideration there for being again “the interest of the child”. As clarified in the explanation, the identity of the child does not mean only the name but includes the identity of family, school, relatives, neighbourhood or any other information by which his/her identity may stand exposed.
125. All concerned, not merely the statutory authorities (which include the courts), would have to bear in mind that the legislative command against disclosure of identity of victims of sexual offences requires strict and scrupulous compliance. It has to be borne in mind that the relevant provisions including those referred to above are to be read, after coming into force of Criminal Law (Amendment) Act, 2013 with effect from 03.02.2013, with the provision contained in Section 228A IPC, where under improper disclosure of the identity of the victim of such offences entails sanction in penal law. Since the responsibility to enforce the criminal law rests with the criminal courts, breach of such propriety by the courts themselves cannot be brooked. Though directions on the subject have been given in the past, we reiterate and direct that all the trial courts shall ensure that the identity of the victim in cases involving sexual offences shall not be disclosed anywhere on judicial record and that names shall be referred by pseudonyms in accordance with law and they be so identified during the course of trial and in the judgment.”
Ibrahim Khaleel and Ors. v. The State of Karnataka and Ors., MANU/KA/1468/2020 [Karnataka High Court, Single Judge]
Criminal Petition No. 102081 of 2019
Facts: In this case, the issue was whether going to the public or media by a POCSO offence victim or her family members, violated Section 23 of the POCSO Act?
Decision: The Court observed as follows:
“9. The important question that would arise in the present matter is relating to privacy of the victim and family of the victim as regards the disclosure of the name of the victim and family members when the child is a victim under the POCSO Act. There is a bar under Section 23 of the act for disclosure of the name of either the victim or the parents (family members), their address, photographs, family details, school, neighbourhood or any information which is capable of identifying the victim child. Since such disclosure would have a tremendous sociological and psychological impact on such a victim/child. It is in order to prevent the same, Section 23 of the Act seeks to protect the child’s privacy due to such public disclosure.
10. The embargo which has been imposed under Section 23 is in order to protect the child, however, in the event of any proceedings having been filed by the child or the parents of the child, for offences under the POCSO Act and no action having been taken thereof and in the event of the child or her parents wanting to bring the same to the notice of the general public or authorities concerned, I am of the considered opinion that they should have access to the public media. However, it is only after the child attains majority and is able to make an informed voluntary decision in this regard. During the minority of the child, the parents cannot make a decision to report the incident with the name of the child or any identification factors. It is only the child who can make the decision voluntarily after attaining majority.
11. There are checks and balances which are required to be imposed as regards the above in order to be certain that there is no misuse of the same. It is for this reason that the Special Court, competent to try the case under the Act is empowered to permit such disclosure, if in its opinion such disclosure is in the interest of the child, thus an application could have been made by the media seeking for such permission before holding the press conference and or publishing the same in Newspapers.
12. Even though it is contended that the victim on attaining majority had voluntarily called for a press conference or participated in the interview or the like, it would be for the media to establish that there are no other means which have been used by the media and or any third party to prevail upon the child who has achieved majority to participate in such press conference or interviews. The burden of proof in this regard i.e., to say the burden as regards the child having voluntarily participated would be on the media and not merely on a statement that the child has voluntarily consented. The disclosure has not been permitted by the Special Court prior to such disclosure. Now that the disclosure is made and prima facie offence under the POCSO act has been committed, the Special court by recording reasons in writing would have to consider if the disclosure alleged to have been made voluntarily, is infact voluntarily made and that the disclosure is in the interest of the child.”
Criminal Appeal No. 781 of 2017
The Court interpreted the provisions of the POCSO Act as follows:
“24. Section 25 of the POCSO Act states that the statement of the child recorded under Section 164 of the Code which permits an advocate to be present will not be applicable in the case of children. Trials under the POCSO Act are conducted by the Special Court which is expected to be child friendly and specifically provides that the Special Court shall not permit aggressive questioning or character assassination of the child. Sub-section (7) of Section 33 which is relevant reads as follows:
“Section 33 – Procedure and powers of Special Court.-
xxx xxx xxx
(7) The Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial:
Provided that for reasons to be recorded in writing, the Special Court may permit such disclosure, if in its opinion such disclosure is in the interest of the child. Explanation.-For the purposes of this sub-section, the identity of the child shall include the identity of the child’s family, school, relatives, neighbourhood or any other information by which the identity of the child may be revealed.”
25. Section 37 provides that all trials under the POCSO Act are to be conducted in camera unless otherwise specifically decided for reasons to be recorded by the Special Court. A bare reading of Section 24(5) and Section 33(7) makes it amply clear that the name and identity of the child is not to be disclosed at any time during the course of investigation or trial and the identity of the child is protected from the public or media. Furthermore, Section 37 provides that the trial is to be conducted in camera which means that the media cannot be present. The entire purpose of the POCSO Act is to ensure that the identity of the child is not disclosed unless the Special Court for reasons to be recorded in writing permits such disclosure. This disclosure can only be made if it is in the interest of the child and not otherwise. One such case where disclosure of the identity of the child may be necessary can be where a child is found who has been subjected to a sexual offence and the identity of the child cannot be established even by the investigating team. In such a case, the Investigating Officer or the Special Court may allow the photograph of the child to be published to establish the identity. It is absolutely clear that the disclosure of the identity can be permitted by the Special Court only when the same is in the interest of the child and in no other circumstances. We are of the view that the disclosure of the name of the child to make the child a symbol of protest cannot normally be treated to be in the interest of the child.”