Disclosure of Victim Identity and Publication of Court Proceedings under BNS: Sections 72 and 73

The protection of a sexual offence victim's dignity operates through two complementary provisions of the Bharatiya Nyaya Sanhita, 2023. The first, Section 72, prohibits the disclosure of the victim's identity - the name and any matter that may make the identity known. The second, Section 73, addresses a distinct but related concern: the printing or publishing of any matter in relation to court proceedings in sexual offence cases without the prior permission of the court. Together, these provisions ensure that neither the media nor any individual can expose the victim to the 'second injury' of public identification, and that court proceedings, which necessarily reveal intimate and sensitive details, are not published in a way that harms the victim or the integrity of the trial. Section 73 in particular addresses the tension between the principle of open justice - that court proceedings should be public and reportable - and the specific need to shield sexual offence victims from harmful publication. This module walks through both provisions, focusing on Section 73 (publication of proceedings), its relationship with Section 72 (identity disclosure), the requirement of prior court permission, the balancing of open justice against victim protection, and the framework laid down in Nipun Saxena and related cases.

1. Introduction

Two complementary provisions

The BNS protects sexual offence victims through two complementary provisions:

• Section 72: prohibits disclosure of the victim's identity.
• Section 73: prohibits publication of court proceedings without permission.

These provisions work together to shield the victim from harmful publicity, both by concealing their identity (Section 72) and by controlling the publication of proceedings that may reveal sensitive details (Section 73).

Identity disclosure vs proceedings publication

The distinction: Section 72 targets the revelation of WHO the victim is; Section 73 targets the publication of WHAT happened in the proceedings. A publication might not name the victim (satisfying Section 72) but still publish proceedings without permission (violating Section 73).

The dignity framework

Both provisions serve the victim's dignity:

• Dignity under Article 21.
• Privacy (Puttaswamy).
• Protection from the 'second injury' of harmful publicity.
• Encouraging victims to come forward without fear of exposure.

2. Section 72 BNS: Disclosure of Identity (Recap)

The prohibition

Section 72 prohibits printing or publishing the name or any identity-revealing matter of a victim of specified sexual offences. (Discussed in detail in the dedicated module on Section 72.)

The exceptions

Section 72(2) provides exceptions: disclosure by police for investigation (in good faith, in writing), by the victim's written authorisation, or by next of kin (where victim is dead, minor, or of unsound mind).

Covered offences

Both Sections 72 and 73 apply to the same set of offences: Sections 64 to 71 BNS (rape and related sexual offences).

3. Section 73 BNS: Publication of Proceedings

Text of Section 73

The scope of the prohibition

Section 73 prohibits:

• Printing or publishing.
• Any matter in relation to any proceeding before a court.
• With respect to the sexual offences referred to in Section 72 (Sections 64-71).
• Without the previous permission of the court.

The punishment

Punishment: imprisonment up to two years and fine - the same as Section 72. This parity reflects that both provisions protect the same underlying interest (victim dignity) through complementary mechanisms.

4. The Ingredients of Section 73

Detailed analysis:

• Ingredient 1: the act of printing or publishing (any medium - print, broadcast, online).
• Ingredient 2: the matter must relate to a court proceeding (not merely the incident, but the proceedings).
• Ingredient 3: the proceeding must concern a specified sexual offence.
• Ingredient 4: crucially, the publication is without the prior permission of the court. Publication WITH permission is not an offence.

5. The Requirement of Prior Court Permission

The distinctive feature of Section 73 is the requirement of prior court permission:

• Publication of proceedings is not absolutely prohibited.
• It is prohibited only WITHOUT the previous permission of the court.
• The court may grant permission for publication.
• This gives the court control over what is published about the proceedings.

The rationale for court control:

• The court is best placed to assess what publication would harm the victim or the trial.
• The court can permit publication that serves the public interest without harming the victim.
• The court can impose conditions (e.g., anonymisation) on permitted publication.
• This balances open justice against victim protection on a case-by-case basis.

The permission requirement is a mechanism for calibrated control - neither an absolute ban on reporting (which would undermine open justice) nor unrestricted publication (which would harm victims), but court-supervised publication.

6. The Judgment Exemption

The Explanation to Section 73 provides an important exemption:

The judgment exemption:

• Judgments of the High Courts and the Supreme Court may be published without court permission.
• This ensures that the important function of publishing and reporting appellate judgments is not impeded.
• Judgments form the body of precedent and legal knowledge.
• Their publication is essential for the development and dissemination of law.

However, an important caveat:

• Even in published judgments, the victim's identity must be anonymised (per Nipun Saxena and Section 72).
• The judgment exemption from Section 73 does not override the Section 72 identity protection.
• So a High Court or Supreme Court judgment may be published, but must not disclose the victim's identity.

This is why appellate judgments in sexual offence cases use anonymised references ('the prosecutrix', 'the victim', 'X') - the judgment may be published (Section 73 exemption), but the identity must be protected (Section 72).

7. The Rationale: Open Justice vs Victim Protection

Section 73 embodies the balance between two important values:

The tension:

• Open justice requires that court proceedings be public and reportable - this is a foundational principle of the rule of law.
• But sexual offence proceedings reveal intimate, sensitive, and traumatic details.
• Unrestricted publication would expose the victim to further trauma and stigma.
• An absolute ban on reporting would undermine open justice.

The Section 73 solution:

• Publication of proceedings requires prior court permission (calibrated control).
• Judgments of High Courts and Supreme Court are exempt (preserving precedent and legal knowledge).
• Even permitted publication must protect victim identity (Section 72).

This calibrated approach preserves open justice (through the judgment exemption and the possibility of permitted publication) while protecting victims (through the permission requirement and identity protection).

8. The Relationship Between Sections 72 and 73

Sections 72 and 73 are complementary but distinct:

• Section 72: prohibits identity disclosure (absolutely, subject to specific exceptions).
• Section 73: prohibits publication of proceedings (without court permission).

How they interact:

• A publication that names the victim violates Section 72 (and possibly Section 73 if it publishes proceedings without permission).
• A publication that reports proceedings without naming the victim does not violate Section 72, but violates Section 73 if published without court permission.
• A publication with court permission that still names the victim violates Section 72 (permission under Section 73 does not authorise identity disclosure).
• An anonymised judgment of the High Court/Supreme Court violates neither (Section 73 exemption + Section 72 compliance through anonymisation).

The two provisions thus create a layered protection: identity is always protected (Section 72); proceedings publication is court-controlled (Section 73); and the judgment exemption preserves the essential function of appellate precedent.

9. Nipun Saxena and the Publication Framework

The Nipun Saxena framework addresses publication:

• Identity disclosure prohibited in any form.
• FIRs not to be in public domain.
• Proceedings publication controlled.
• Judgments to anonymise victim identity.
• Sealed cover for identity documents.

The framework reinforces both Section 72 (identity) and Section 73 (proceedings), providing a comprehensive protection regime across investigation, trial, and judgment.

10. Media Reporting of Sexual Offence Cases

The framework for media reporting of sexual offence cases:

• The media MAY report the occurrence of the offence.
• The media MAY report the investigation and progress of the case (in general terms).
• The media MAY report the outcome and sentence.
• The media MAY publish anonymised High Court/Supreme Court judgments (Section 73 exemption).

The media MAY NOT:

• Disclose the victim's identity in any form (Section 72).
• Publish detailed proceedings without court permission (Section 73).
• Publish matter that may lead to identification of the victim.

Practical guidance for media:

• Report the case without naming or identifying the victim.
• Obtain court permission before publishing detailed proceedings.
• Use anonymised references.
• Avoid publishing photographs, addresses, or other identifying details.

The framework allows responsible reporting of sexual offence cases (preserving public awareness and open justice) while protecting the victim from harmful publicity.

11. The Contempt and Sub-Judice Dimensions

Beyond Sections 72 and 73, the publication of proceedings raises contempt and sub-judice concerns:

• Contempt of court: publication that interferes with the administration of justice may constitute contempt under the Contempt of Courts Act, 1971.
• Sub-judice: matters that are pending before a court should not be published in a way that prejudices the trial.
• Media trials: excessive or prejudicial media coverage of pending cases may prejudice the accused's right to a fair trial or the victim's interests.

The interaction:

• Sections 72 and 73 provide specific protections for sexual offence victims.
• The contempt and sub-judice framework provides general protection for the integrity of proceedings.
• Together, they regulate the publication of sexual offence proceedings comprehensively.

12. Landmark Cases and Consolidated Judgments

Consolidated Landmark Judgments

• Nipun Saxena v. Union of India, (2019) 2 SCC 703. Comprehensive framework.
• Sahara India Real Estate v. SEBI, (2012) 10 SCC 603. Postponement orders.
• State of Punjab v. Gurmit Singh, (1996) 2 SCC 384. In-camera proceedings.
• Bhupinder Sharma v. State of Himachal Pradesh, (2003) 8 SCC 551. Anonymisation in judgments.
• Sakshi v. Union of India, (2004) 5 SCC 518. Victim protection during trial.
• Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1. Inherent power to control publication.
• Kalpana Mehta v. Union of India, (2018) 7 SCC 1. Publication framework.
• Youth Bar Association of India v. Union of India, (2016) 9 SCC 473. FIR publication exemption.
• Mrs. X v. State (NCT of Delhi), (2021) SC. Reiteration of framework.
• Dinesh v. State of Rajasthan, (2006) 3 SCC 771. Consequences of disclosure.
• State of Karnataka v. Puttaraja, (2004) 1 SCC 475. Identity protection during trial.
• Om Prakash v. State of Uttar Pradesh, (2006) 9 SCC 787. Scope of prohibition.
• Nipun Saxena guidelines implementation cases. Ongoing framework.
• Sushil Ansal v. State (NCT of Delhi), (2014) 6 SCC 173. Media trial framework.
• R.K. Anand v. Registrar, Delhi High Court, (2009) 8 SCC 106. Framework for media and proceedings.

Frequently Asked Questions

What is Section 73 BNS?

Section 73 BNS prohibits printing or publishing any matter in relation to any proceeding before a court with respect to the sexual offences referred to in Section 72 (Sections 64-71 BNS) WITHOUT the previous permission of the court. Punishment: imprisonment up to two years and fine. The Explanation provides that the printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence under this section. Section 73 is distinct from Section 72: Section 72 prohibits disclosure of the victim's IDENTITY; Section 73 prohibits publication of court PROCEEDINGS without permission. The distinctive feature of Section 73 is the requirement of PRIOR COURT PERMISSION - publication is not absolutely banned, but requires court authorisation, giving the court calibrated control over what is published about sensitive proceedings.

What is the difference between Section 72 and Section 73?

Both provisions protect sexual offence victims but through different mechanisms. SECTION 72 prohibits disclosure of the victim's IDENTITY - the name and any matter that may make the identity known - subject to specific exceptions (police, victim, or next-of-kin authorisation). It targets the revelation of WHO the victim is. SECTION 73 prohibits publication of court PROCEEDINGS with respect to the sexual offence WITHOUT the prior permission of the court. It targets the publication of WHAT happened in the proceedings. A publication might not name the victim (satisfying Section 72) but still publish proceedings without permission (violating Section 73). Both carry the same punishment (up to two years and fine). Together they create layered protection: identity is always protected (Section 72); proceedings publication is court-controlled (Section 73).

Why are High Court and Supreme Court judgments exempt under Section 73?

The Explanation to Section 73 exempts the printing or publication of the judgment of any High Court or the Supreme Court from the offence. The rationale: (i) judgments form the body of precedent and legal knowledge essential for the development and dissemination of law; (ii) the important function of publishing and reporting appellate judgments should not be impeded; (iii) legal research, education, and practice depend on access to judgments. However, an important caveat: even in published judgments, the victim's identity must be anonymised (per Nipun Saxena and Section 72). The judgment exemption from Section 73 does NOT override the Section 72 identity protection. This is why appellate judgments in sexual offence cases use anonymised references like 'the prosecutrix', 'the victim', or 'X' - the judgment may be published (Section 73 exemption), but the identity must be protected (Section 72). In Bhupinder Sharma v State of Himachal Pradesh (2003), the Supreme Court confirmed this anonymisation requirement even in its own judgments.

Can the media report on a sexual offence trial?

Yes, but with restrictions. The media MAY: report the occurrence of the offence; report the investigation and progress in general terms; report the outcome and sentence; publish anonymised High Court/Supreme Court judgments (Section 73 exemption). The media MAY NOT: disclose the victim's identity in any form (Section 72); publish detailed proceedings without prior court permission (Section 73); publish matter that may lead to identification of the victim. Practical guidance: report the case without naming or identifying the victim; obtain court permission before publishing detailed proceedings; use anonymised references; avoid publishing photographs, addresses, or other identifying details. The framework allows responsible reporting (preserving public awareness and open justice) while protecting the victim from harmful publicity. Violation attracts imprisonment up to two years and fine under either provision.

What is the requirement of prior court permission under Section 73?

The distinctive feature of Section 73 is that publication of court proceedings in sexual offence cases is prohibited only WITHOUT the previous permission of the court. This means publication is not absolutely banned - it requires prior court authorisation. The rationale for court control: (i) the court is best placed to assess what publication would harm the victim or the trial; (ii) the court can permit publication that serves the public interest without harming the victim; (iii) the court can impose conditions (like anonymisation) on permitted publication; (iv) this balances open justice against victim protection on a case-by-case basis. The permission requirement is a mechanism for calibrated control - neither an absolute ban on reporting (which would undermine open justice) nor unrestricted publication (which would harm victims), but court-supervised publication. Publication WITH permission is not an offence; publication WITHOUT permission attracts up to two years imprisonment and fine.

How does Section 73 balance open justice and victim protection?

Section 73 embodies a careful balance between two important values. OPEN JUSTICE requires that court proceedings be public and reportable - a foundational principle of the rule of law, connected to press freedom (Article 19(1)(a)) and the principle that justice must be seen to be done. VICTIM PROTECTION requires that sexual offence victims be shielded from harmful publicity - connected to dignity and privacy (Article 21). The tension: sexual offence proceedings reveal intimate, sensitive details; unrestricted publication would expose the victim to further trauma, while an absolute ban would undermine open justice. The Section 73 solution: (i) publication of proceedings requires prior court permission (calibrated control); (ii) judgments of High Courts and Supreme Court are exempt (preserving precedent and legal knowledge); (iii) even permitted publication must protect victim identity (Section 72). This calibrated approach preserves open justice while protecting victims, allowing the court to make context-specific decisions rather than applying a rigid rule.

Related Topics on The Legal Bridge

For a fuller picture, read these companion notes on adjacent doctrines and provisions:

• Disclosure of Identity of Victim under BNS: Section 72 that Section 73 complements (identity protection).
• Rape under BNS: Sections 63 to 71 that define the offences whose proceedings Section 73 protects.
• Contempt of Courts Act, 1971: the general framework for publication that interferes with justice, operating alongside Section 73.
• Nipun Saxena v Union of India: the leading case on victim identity and publication framework.