Introduction

The Indian Penal Code’s Section 228A, which makes it illegal to print, publish, or otherwise disclose a rape victim’s identity, is the subject of this study. The precise question that the article will attempt to answer is what remedies, namely constitutional remedies, are available to a rape victim whose name has been published without their consent.

In Rajagopal v. State of Tamil Nadu, the court examined the right to privacy and the constraints of these rights as laid down  in Art 19(1)(a) of the constitution and reiterated by the court in Gian Kaur v. State of Punjab which acknowledged that the right not to have one’s identity disclosed exists with the victim of a sexual assault as part of their right to privacy while ruling on the unconstitutionality of these constraints.

This was reaffirmed in the case of Justice K.S. Puttaswamy v. Union of India, allowing us to examine remedies against the most likely violators of this right: the police, the media and the courts. The paper examines both remedies since the Rajagopal verdict recognised constitutional privacy rights. According to Article 12, the police are deemed state entities, and constitutional remedies have frequently been sought against them. Due to the idea of sovereign immunity, the concept of a tortious remedy is somewhat more challenging. The idea of a constitutional tort is covered to navigate this issue.

Since the media are not the government, enforcing fundamental rights against them requires either proving that they serve a public purpose defined by Article 226 or indirectly applying horizontality. Due to the media’s status as private actors, malicious action against them is simple to obtain. Rights for internet intermediaries and the critical function of social media as a platform are also covered.

The courts that print the victim’s name in their rulings are examined last. The best course of action would be to seek a remedy where the court issues an administrative order directing lower courts or establishes regulations whereby the courts can no longer publish the name of the victims due to their tortious immunity and their position under Article 12 that only recognises their administrative side as State.

However, this merely offers the victim whose name was published without their permission a criminal recourse. The victim will only act as a complainant, and the state will bring charges against the offender for disclosing the complainant’s identity.  They only apply to the State unless a jurisdiction enforces direct horizontality, though indirect horizontality may allow enforcement against private parties. The police, the media, and the courts are three of the most likely offenders, so this paper will look at the constitutional remedies available against them.

Locating the right

To enforce constitutional remedies, it is first necessary to establish a right.  In Indian Constitutional law, the right to privacy has always been a highly contested issue. The right to privacy was not recognised in the early years of the constitution because judges refused to read rights collectively and labelled them as silos. Successive benches after this ruling held that upon a literal understanding of the constitution, there does not exist a right to privacy in Indian constitutional law. But post the Bank Nationalisation case the courts declared that a cohesive reading of fundamental rights was the duty of the court, and the same was reiterated in the Maneka Gandhi case, where rights confined under Art 14, Art 19 and Art 21 were accepted by the court, which flowed together and were not confined to the narrow reading of the constitutional values of  individual fundamental rights as adopted by the earlier benches of the Court in landmark cases like that of A.K Gopalan vs State of Madras.

This understanding of the court allowed future benches, like in the case of MP Sharma,  to recognise the right to privacy, but with restraints of the case. These judgements propounded the ideas of Justice Subba Rao in Kharak Singh where he dissented and recognised that the right to privacy exists within the constitution. The Supreme Court also recognised bodily autonomy and the right to privacy of one’s thoughts in Selvi v State of Karnataka

This inconsistency by the apex court required a nine-judge bench to adjudicate and indicate that Part III of the constitution’s fundamental values includes the right to privacy. The court’s decision traces the aforementioned history in great detail, but what is most intriguing is how they treated the rights to privacy and dignity as interdependent. The court also addressed the issue of privacy, according to Justice Chandrachud’s opinion, and determined that anything in the public record cannot be said to be protected under the right to privacy, except sexual assault victims who should suffer the humiliation of having their name dragged through the media.

Given that the right was identified as a component of dignity, the court should treat any breach seriously, especially given how closely the concepts of dignity and privacy were equated. Even though they are not the same, there are many places where the two intersect. Once this right has been established, looking at the sanctions for violations is necessary.

Remedies and Actors

A right is of no use without a remedy. According to Article 32 of the Constitution, parties may immediately approach the Supreme Court. Article 226 of the Constitution, when parties may approach the High Court. The right to constitutional remedies is a fundamental right,      enforceable against the State. State, in turn, has been defined under Article 12. Therefore, if we were to prove that, State actors acting as the hand of the State would fall under the ambit of constitutional remedies available to the victims.

In addition to recognising the constitutional right to privacy, Justice Jeevan Reddy, the judge who wrote the Rajagopal decision, also acknowledged the right to privacy under tort law. As a result, victims may pursue legal action through tort law or constitutional remedies. The three actors most likely to break the aforementioned right will each be discussed in this essay separately. The trio of actors is not all-inclusive. The solutions mentioned for the actors can also be applied to similar actors. As a result, the remedies suggested for police misconduct also apply to other state agencies, and actions taken against the media may also be used against other similarly situated private actors. The third actor is the courts, which will be distinct because of the courts’ unique status as a State under Article 12 of the constitution.

The Indian Penal Code Section 228A prohibits disclosing rape victims’ identities, with the police allowed exceptions in ‘good faith’, for investigative purposes. However, this can still infringe on victims’ privacy rights, challenging the balance between aiding investigations and protecting privacy under Article 21. Constitutional and tort remedies against police actions are explored, recognising police as state actors under Article 12. Meanwhile, the media, a significant player in potentially violating Section 228A, cannot claim exemptions to disclose victims’ identities post-Puttaswamy. Victims can seek tort remedies against media outlets for direct compensation, highlighting the complexity of addressing privacy breaches within legal frameworks.

Conclusion

The last issue that has to be addressed is why these alternative therapies are required. Why not let the legal sanction stand? These remedies are crucial because they give victims the freedom to choose the one they feel they need since the criminal justice system primarily targets the police or other private players.  Still, we can only hope that the courts will continue to uphold this fundamental right and refrain from further pitting rights against one another, which might force them to prioritize one over the other. Instead, the wisest course of action would be to figure out how to interpret them harmoniously.

Furthermore, since it does not provide the victims with real relief, a criminal statute cannot be the only means of redress for a constitutional right. There is no mechanism for the victim to make amends or seek compensation, even if the criminal is punished. The US Supreme Court comprehensively addressed this question in Wilson v. Libby, where it held that a penal statute could not be the remedy to a constitutional right, especially if it were not intended.

This paper looked at the options open to a rape victim or other sexual offence victim whose identity has been made public without their consent. Most rights have both positive and harmful effects. Along with the right to speak comes the right to remain silent. Similarly, the right to privacy should include the freedom from keeping anything private. The right to identify oneself should be granted to a victim of a sexual offence.

Since the right to privacy was only formally recognised in 2017, there hasn’t been much time for a privacy law to advance in this direction. Still, we can only hope that the courts will continue to uphold this right as essential and refrain from further pitting rights against one another, which might force them to prioritise one over the other. Instead, the wisest course of action would be to figure out how to interpret them harmoniously.