Disclosure of Identity of Victim under BNS: Section 72, Nipun Saxena and the Framework for Protecting Victim Identity

A newspaper publishes the name and photograph of a rape survivor, exposing her to social stigma and identifying her to the entire community. A television channel broadcasts an interview revealing the identity of a sexual assault victim. A social media user shares the name of a victim, which spreads virally. A judgment names the victim in a sexual offence case, and the judgment is published online. In each case, the disclosure of the victim's identity inflicts a second injury on a person already traumatised, exposing them to stigma, harassment, and social ostracism that can be as devastating as the original crime. The law recognises that protecting the identity of victims of sexual offences is essential to their dignity, recovery, and willingness to come forward. Section 72 of the Bharatiya Nyaya Sanhita, 2023 (formerly Section 228A IPC), criminalises the disclosure of the identity of victims of specified sexual offences. The Supreme Court, in Nipun Saxena v Union of India (2019), laid down comprehensive guidelines for protecting victim identity across investigation, trial, media, and judicial records. This module walks through Section 72, its ingredients and exceptions, the Nipun Saxena guidelines, the framework for judicial records, and the related jurisprudence.

1. Introduction

The second injury of disclosure

For victims of sexual offences, the disclosure of their identity inflicts a 'second injury' - a further harm compounding the trauma of the original crime. The consequences of identity disclosure include:

• Social stigma and ostracism.
• Harassment and further victimisation.
• Damage to marriage and employment prospects.
• Psychological trauma and re-traumatisation.
• Discouragement of the victim and others from reporting.
• In some cases, honour-based violence against the victim.

The rationale for identity protection

The rationale for protecting victim identity:

• Dignity: the victim's right to dignity under Article 21.
• Privacy: the victim's right to privacy (Puttaswamy).
• Recovery: protecting the victim's ability to recover and reintegrate.
• Encouraging reporting: victims are more likely to report if their identity is protected.
• Preventing re-victimisation: shielding the victim from further harm.

The legislative and judicial framework

The framework operates through:

• Section 72 BNS (formerly Section 228A IPC): criminal prohibition.
• Nipun Saxena guidelines: comprehensive protection framework.
• POCSO Act: specific framework for child victims.
• Judicial practice: anonymisation in judgments and records.

2. Section 72 BNS: The Statutory Provision

Text of Section 72

The scope of the offence

Section 72(1) prohibits:

• Printing or publishing.
• The name OR any matter which may make known the identity.
• Of a victim of specified sexual offences.

The prohibition is broad - it covers not only the name but 'any matter which may make known the identity', which includes photographs, addresses, family details, workplace, and any identifying information.

Covered offences

Section 72 applies to victims of the following BNS offences:

• Section 64: rape (punishment).
• Section 65: rape of woman under 16/12.
• Section 66: rape causing death or PVS.
• Section 67: rape by husband during separation.
• Section 68: sexual intercourse by person in authority.
• Section 69: sexual intercourse by deceitful means.
• Section 70: gang rape.
• Section 71: repeat offenders.

3. Section 72(1): The Basic Offence

The ingredients of Section 72(1):

• Printing or publishing.
• The name or any identity-revealing matter.
• Of a victim of specified sexual offences (Sections 64-71).
• Where the offence is alleged or found to have been committed.

Punishment: imprisonment up to two years and fine.

Key features:

• Applies whether the offence is merely alleged or has been proven.
• Applies to any person - journalists, publishers, social media users, individuals.
• Covers any medium - print, broadcast, online, social media.
• The prohibition is on making the identity known, not merely on naming.

4. The Exceptions to Section 72(1)

Police authorisation

Exception (a): disclosure by or under written order of the officer-in-charge of the police station or investigating officer, acting in good faith for investigation purposes.

• Only for legitimate investigation purposes.
• Must be in writing.
• Must be in good faith.
• E.g., circulating victim's photograph to identify her, or to trace witnesses.

Victim authorisation

Exception (b): disclosure by or with the written authorisation of the victim herself.

• The victim may choose to disclose her own identity.
• The authorisation must be in writing.
• This respects the victim's autonomy - some victims choose to go public.
• E.g., survivors who become public advocates (like Nirbhaya's later identification with family consent, or survivors who write about their experience).

Next of kin authorisation

Exception (c): where the victim is dead, a child, or of unsound mind, disclosure by or with the written authorisation of the next of kin.

• Applies only where the victim cannot authorise themselves.
• Important limitation: even the next of kin may authorise disclosure only to the chairman or secretary of a recognised welfare institution or organisation (as per the original Section 228A framework).
• This prevents next of kin from causing indiscriminate disclosure.

The Nipun Saxena judgment clarified these exceptions, particularly regarding the authorisation for deceased victims and the specific channels for disclosure.

5. Section 72(2): Court Proceedings

The original Section 228A(3) IPC (whose framework continues) prohibited printing or publishing any matter in relation to court proceedings in these cases without the prior permission of the court:

• Court proceedings in sexual offence cases often reveal identifying details.
• Publication of such proceedings may reveal the victim's identity.
• Prior court permission is required for such publication.
• The court balances the need for open justice against the victim's identity protection.

This provision addresses the tension between the principle of open justice (proceedings should be public) and the need to protect victim identity. The solution: proceedings may be reported, but not in a way that reveals the victim's identity, and specific publication requires court permission.

6. The Meaning of Identity Disclosure

The prohibition covers not only the direct naming of the victim but any matter that may make the identity known. This includes:

• The victim's name.
• Photographs or video of the victim.
• The victim's address.
• The names of the victim's family members.
• The victim's workplace or school.
• Any combination of details that could identify the victim.

The Supreme Court in Nipun Saxena emphasised that even indirect disclosure - through a combination of details that collectively identify the victim - is prohibited. The test is whether the published matter 'may make known' the identity, not whether it directly names the victim.

7. Nipun Saxena v Union of India (2019)

Facts and background

Nipun Saxena, an advocate, filed a public interest litigation concerning the disclosure of the identity of rape victims. The petition arose from concerns about media and other disclosures of victim identity, and sought comprehensive guidelines. The Supreme Court used the case to lay down a detailed framework for protecting victim identity across all stages.

The comprehensive guidelines

The framework across stages

The Nipun Saxena guidelines protect victim identity across all stages:

• Investigation: FIRs not to be in public domain; victim details in sealed cover.
• Trial: in-camera proceedings; victim identity not to be revealed.
• Judgment: victim not to be named; anonymisation.
• Media: prohibition on disclosure in any form.
• Social media: equally prohibited.
• Records: victim identity documents in sealed cover.

8. Identity Protection in Judicial Records

The Nipun Saxena framework addresses judicial records specifically:

• Judgments should not disclose the victim's name.
• Judgments should use anonymised references (e.g., 'the prosecutrix', 'the victim', or initials in a manner that does not identify).
• FIRs relating to sexual offences should not be uploaded to public online portals.
• Documents revealing victim identity should be kept in sealed cover.
• Access to such documents to be restricted.

Modern judicial practice follows these guidelines:

• Supreme Court and High Court judgments anonymise victim identity in sexual offence cases.
• The victim is referred to as 'the prosecutrix', 'victim', 'X', or similar.
• Case titles may be modified to protect identity.
• Online judgment databases follow anonymisation protocols.

9. Framework for Minor Victims: POCSO Act

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) provides enhanced identity protection for child victims:

• Section 23 POCSO Act: prohibits disclosure of the identity of a child victim.
• Media prohibited from disclosing child victim identity.
• Enhanced penalties for disclosure.
• Special courts to ensure identity protection.
• The Juvenile Justice Act, 2015 also protects the identity of children in conflict with law and child victims.

10. Social Media and Digital Disclosure

The digital age has created new challenges for victim identity protection:

• Social media enables rapid, viral disclosure of victim identity.
• A single post naming a victim may spread beyond control.
• Anonymity of social media users complicates enforcement.
• The Nipun Saxena guidelines specifically extend to social media.

The framework for digital disclosure:

• Section 72 BNS applies to online and social media disclosure.
• Publishing victim identity on social media is a criminal offence.
• Platforms may be directed to remove such content.
• The Information Technology Act framework may also apply.

Notably, disclosure of the Nirbhaya victim's identity by some persons (and the naming controversy) highlighted the challenges of identity protection in the digital age, even where the family later chose to reveal the name.

11. Balancing Press Freedom and Victim Dignity

Section 72 involves a balance between competing values:

The balance struck by the law:

• The press may report on sexual offences and proceedings.
• But the press may NOT disclose the victim's identity.
• Open justice is preserved (proceedings may be reported).
• Victim dignity is protected (identity concealed).
• This is a reasonable restriction on press freedom under Article 19(2).

The Supreme Court has consistently held that the restriction on disclosing victim identity is a reasonable restriction on press freedom, justified by the compelling interest in protecting victim dignity and encouraging reporting of sexual offences.

12. Landmark Cases and Consolidated Judgments

Consolidated Landmark Judgments

• Nipun Saxena v. Union of India, (2019) 2 SCC 703. Comprehensive framework.
• Alakh Alok Srivastava v. Union of India, (2018) 15 SCC 745. Child victims.
• State of Punjab v. Gurmit Singh, (1996) 2 SCC 384. Early framework.
• Bhupinder Sharma v. State of Himachal Pradesh, (2003) 8 SCC 551. Anonymisation in judgments.
• 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.
• Youth Bar Association of India v. Union of India, (2016) 9 SCC 473. FIR upload exemption.
• Bijoy v. State of West Bengal, (2017) Cal HC. Child victim records.
• Sakshi v. Union of India, (2004) 5 SCC 518. In-camera proceedings framework.
• Delhi Domestic Working Women's Forum v. Union of India, (1995) 1 SCC 14. Victim protection framework.
• K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. Privacy framework.
• Mrs. X v. Union of India, (2018) SC. Framework for victim anonymity.
• Kalpana Mehta v. Union of India, (2018) 7 SCC 1. Framework for proceedings publication.
• State of Himachal Pradesh v. Shree Kant Shekari, (2004) 8 SCC 153. Framework for victim dignity.

Frequently Asked Questions

What is Section 72 BNS on disclosure of victim identity?

Section 72 BNS (formerly Section 228A IPC) criminalises the printing or publishing of the name or any matter which may make known the identity of a victim of specified sexual offences (Sections 64, 65, 66, 67, 68, 69, 70, or 71 BNS). Punishment: imprisonment up to two years and fine. The prohibition is broad - it covers not only the name but 'any matter which may make known the identity', including photographs, addresses, family details, workplace, and any identifying information. It applies whether the offence is merely alleged or has been proven, to any person (journalists, publishers, social media users), and across any medium (print, broadcast, online). Section 72(2) provides exceptions: disclosure by police for investigation, by the victim's own written authorisation, or by next of kin (where victim is dead, minor, or of unsound mind, and only to a recognised welfare institution).

What are the exceptions to the prohibition on disclosing victim identity?

Section 72 provides three exceptions where disclosure is permitted: (a) POLICE AUTHORISATION - disclosure by or under written order of the officer-in-charge of the police station or investigating officer, acting in good faith for investigation purposes (e.g., circulating a photograph to identify the victim or trace witnesses); (b) VICTIM AUTHORISATION - disclosure by or with the written authorisation of the victim herself, respecting her autonomy (some survivors choose to go public); (c) NEXT OF KIN AUTHORISATION - where the victim is dead, a child, or of unsound mind, disclosure by or with the written authorisation of the next of kin, but only to the chairman or secretary of a recognised welfare institution. These exceptions balance the general prohibition against legitimate needs, while preventing indiscriminate disclosure even by family members.

What did Nipun Saxena v Union of India (2019) decide?

In Nipun Saxena v Union of India, (2019) 2 SCC 703, the Supreme Court laid down comprehensive guidelines for protecting victim identity in sexual offence cases: (i) no person can print or publish the victim's name or disclose any facts leading to identification, even in a remote or indirect manner; (ii) where the victim is dead or of unsound mind, the name may be disclosed only with next-of-kin authorisation and only to a recognised welfare institution; (iii) FIRs relating to sexual offences shall NOT be put in the public domain; (iv) victim identity shall not be disclosed in judgments; (v) authorities must keep victim identity documents in sealed cover; (vi) social media disclosure is equally prohibited. The Court emphasised that the prohibition extends to indirect disclosure through a combination of details. The guidelines protect victim identity across investigation, trial, judgment, media, and social media.

Can the media report on a rape case?

Yes, the media can report on a rape case, but NOT in a way that discloses the victim's identity. Section 72 BNS strikes a balance between press freedom (Article 19(1)(a)) and victim dignity/privacy (Article 21). The media may: report the occurrence of the crime; report on the investigation and trial; report the outcome and sentence; discuss the legal and social issues. But the media may NOT: name the victim; publish the victim's photograph; reveal the victim's address, family details, or workplace; publish any matter that may make the victim's identity known, directly or indirectly. Additionally, publication of court proceedings in such cases requires prior court permission (Section 72(2) framework). This preserves open justice (proceedings may be reported) while protecting victim dignity (identity concealed). The restriction is a reasonable restriction on press freedom under Article 19(2).

Does identity protection apply to child victims?

Yes, with enhanced protection. Child victims are protected both under Section 72 BNS (where the sexual offence falls within the specified sections) and, more comprehensively, under Section 23 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). Section 23 POCSO Act specifically prohibits disclosure of the identity of a child victim, prohibits media from disclosing child victim identity, and provides enhanced penalties. The Juvenile Justice Act, 2015 also protects the identity of children. In Alakh Alok Srivastava v Union of India (2018), the Supreme Court gave comprehensive directions for protection of child victims under POCSO, including strict enforcement of identity protection at all stages. The enhanced framework for children recognises their particular vulnerability and the especially severe consequences of identity disclosure for child victims.

Are judges required to anonymise victim identity in judgments?

Yes. Following Nipun Saxena v Union of India (2019) and earlier cases like Bhupinder Sharma v State of Himachal Pradesh (2003), courts are required to anonymise the victim's identity in judgments in sexual offence cases. Modern judicial practice: (i) judgments do not disclose the victim's name; (ii) judgments use anonymised references such as 'the prosecutrix', 'the victim', 'X', or initials that do not identify; (iii) case titles may be modified to protect identity; (iv) online judgment databases follow anonymisation protocols; (v) documents revealing victim identity are kept in sealed cover. In Bhupinder Sharma, the Supreme Court held that even in its own judgments, the court should not disclose the identity of the victim of a sexual offence. This ensures that the very records of the justice system do not become a vehicle for the re-victimisation that identity disclosure causes.

Related Topics on The Legal Bridge

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

• Rape under BNS: Sections 63 to 71 that define the offences whose victims Section 72 protects.
• Rape Victim Compensation: the parallel framework under Section 396 BNSS and NALSA Scheme.
• POCSO Act: Section 23 that provides enhanced identity protection for child victims.
• K.S. Puttaswamy v Union of India: the privacy judgment reinforcing the victim's right to identity protection.