Kerala High Court orders TNIE to take down article revealing identity of rape accused

The Kerala High Court on Thursday directed the The New Indian Express (TNIE) to take down an article from its website which revealed the identity of a rape accused. .Interestingly, Justice Kauser Edappagath made the decision to issue the direction not on the ground that the article violated the accused man's right to reputation, dignity or privacy.Instead, the Court held that the publication was in violation of Section 327(3) of the Code of Criminal Procedure (CrPC) which states that proceedings in rape cases are to be held in-camera and details of the same cannot be printed or published except with the previous permission of the court.A proviso to the section says that the 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. The use of the term "parties" and not "victim" was noted by the Court."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," the Court said in its judgment. Upon further analysis of the phrasing of the section, the Court also stated that the provisions would apply even at the stage when bail applications are considered by Magistrates or courts. Since TNIE had not obtained any prior permission from the Court, it was directed to remove the articles. .Rape accused moves Kerala High Court to protect his right to privacy; seeks take down of articles on Indian Kanoon, TNIE.The judgment was passed on a petition moved by a man in 2022 who was accused in a rape case. After spending over a month in custody, he was released on bail by the Kerala High Court.Meanwhile, some articles about the case were published on TNIE which included the petitioner's name, some general details about his wife and children and excessive details of the alleged acts.The petitioner also took issue with the fact that the Kerala High Court order granting him bail was published in its entirety on the website of Indian Kanoon.Asserting that even an accused facing trial is entitled to the right to dignity and privacy under Articles 14, 19 and 21 of the Constitution of India, he moved the High Court seeking directions to take down the articles.It was argued that the protection of identity available to victims/survivors of sexual offences should be extended to those accused of committing such crimes as well. The petitioner also sought a direction to the Central government to frame guidelines to protect the privacy of the petitioner..The Court at the outset observed that freedom of press is a fundamental tenet of the constitutional democracy in India, albeit one that is not absolute. After going through relevant precedents on the matter, the Court directed TNIE to completely remove its article.However, it ordered Indian Kanoon to merely mask details of the petitioner. This decision was primarily made on the basis of the December 2022 judgment rendered by a division bench of the High Court in Vysakh v. Union of India. It was held in that judgment that a claim for the protection of personal information based on the right to privacy cannot co-exist in an open court justice system. However, the bench had also made it clear that in any family and matrimonial cases and in other cases where the law does not recognize the open court system (such as in-camera rape cases), the registry of the Court shall not publish or shall not allow any form of publication containing the identity of the parties.On this basis, Justice Edappagath directed Indian Kanoon to mask the identity of the petitioner in the court orders uploaded by it..However, the Court refrained from framing any general guidelines for publication in such cases and rejected all declaratory reliefs that the petitioner sought for. .The petitioner was represented by advocates Geo Paul, Prem Kammath, CR Pramod, Radhika Rajasekharan, Jacob George Pallath, and Naveen TU.Central Government Counsel Suvin R Menon appeared for the Central government, Public Prosecutor CN Prabhakaran for the State and advocate V Krishna Menon for TNIE. .Disclosure: The reporter's spouse is a lawyer for the petitioner..[Read Judgment]