This article is authored by Pratyush Kumar Jena, a second year law student at WBNUJS and Sanket Das, a third year law student at NLUO
The reputation of an individual plays a significant role in the fabrication of his social capital. The right to enjoyment of private reputation, unaffected by spiteful derogation, is of ancient origin and forms an essential part of personal security. In the contemporary context, the concept of the right to reputation possesses legal backing and is guaranteed by Article 21 of the Indian Constitution. It basically holds that the reputation of an individual forms an inseparable facet of his right to life.
However, in matters of sexual offenses, this right of an accused goes for a toss and is shackled into fragments. His reputation is completely dismantled as soon as any contention is raised against him. He is subjected to enormous social stigmatization and vociferous slandering, even before the matter reaches the doorstep of a court. Such exertions not only violate the fundamental rights guaranteed by the constitution, but also act against the doctrine of "presumption of innocence." This paper will mainly focus on such practices and will establish how they act against the provisions entailed in the Indian constitution. It will highlight the ineptitude of the current framework of the criminal justice system in India and suggest some apposite measures.
Obsolescence of status-quo
The desire to amend a 'perceived imbalance' may result in creating others. The drastic increase in the cases of sexual violence, accompanied by victim-blaming and derogation, cajoled the lawmakers of our country into bringing in stringent regulations, which would prohibit such behaviour. However, in doing so, they did not consider all the ancillary implications. Sexual offenses are highly sensitive in nature and generate a lot of public attention. While it is true that the social stigma attached to the victim is massive, the accused is subjected to similar levels of smirches as well. It is imperative that the reputation of the victim as well as the accused is protected before the courts reach a definitive conclusion. However, the Indian legal framework exerts a disparity in this context, as it contains provisions to protect the reputation of the victim, but has no stipulations to do the same, in case of an accused.
Violation of Article 14 of The Indian Constitution
The aforementioned exertion of the Indian justice system is not only unscrupulous but also violates the principles laid down in the Indian constitution. One such principle is entailed in Art.14 of the Constitution, which states that the "states shall not deny any person equality before law or equal protection of law."
As discussed earlier, the reputation of both the victim and the accused, in cases of sexual offenses, is vulnerable to gargantuan social stigmatization. Hence, it is vitally important that the reputation of both parties is treated equally and is effectively kept from harm. The lawmakers have curated specific legislations to safeguard the reputation of the victim, but have remained oblivious towards the plight of the accused. There are laws in place to protect the rights of the victim. However, there are no provisions available for the accused, using which he could protect his image from being tarnished. These kinds of irregularities enable the violation of Art.14 of the constitution.
One such provision is Section 228-A of the Indian Penal Code (IPC). The primary legislative objective of this section is to prohibit all the actions, which have the potential to disclose the identity of "any person against whom a sexual offense is alleged or found to have been committed." It also envisages punishment to impose a deterrent effect on such actions. This expedient provision helps in protecting the victims from social ostracism and vilification. However, neither 228-A IPC nor any other equivalent provision of the Penal Code lays down any stipulations to keep safe the similar interests of the accused.
Another legislative framework that violates the principles of equality is Section 23 of the 'Protection of Children from Sexual Offenses (POCSO) Act.' Like the above-mentioned section 228-A IPC, it also prohibits the disclosure of any information, which would hamper the privacy of the victim or generate social derogation. Even this particular section does not have any provisions that deal with the quandaries faced by the accused and does not put forward any methodology to protect his reputation.
A careful perusal of such examples clearly indicates that the legal framework, dealing with the reputation of the stakeholders in a sexual offense, is only victim-oriented. It has emancipating measures to protect the rights of the victim, but completely disregards the interests of the accused. It blatantly ignores the possibility of false and malicious claims made against the accused and turns its back on the agony projected upon him. There is no reason as to why the victim and accused, in a sexual offense, can't be treated equally before a conclusive judicial pronouncement is done. Hence, modifications should be made to the current legal framework in order to incorporate apposite specifications, which would help in catering to the rights and interests of the accused as well. Because the absence of such preconditions manifests a clear violation of 'right to equality' enshrined in the Art.14 of the Constitution and such scenarios are highly undesirable.
Violation of Article 21 of The Indian Constitution
The reputation of an individual forms an integral part of his/her "right to life and personal liberty," which is guaranteed by the Art.21 of the Indian Constitution. This proposition was appreciated in the landmark case of D.F. Marion v Minnie Davis, where the court said that "the right to enjoyment of a private reputation is of great value to the human society and is protected by the constitution with the right to enjoyment of life and liberty." A similar judgment was pronounced by The Supreme Court of India, in the case of State of Bihar v. Lal Krishna Advani, where the court held that the "right to reputation is a facet of right to life and is well protected under the realm of Art.21 of the Constitution."
It is safe to conclude that the incompetency of the legal framework to protect the reputation of the accused acts as a violation of the Art.21 of the Constitution. It contravenes two basic tenets of the said provision. One of them is the concept of "right to live with dignity," which has been included under the realm of 'right to life,' guaranteed by the Art.21 of the Constitution. As mentioned earlier, whenever any information regarding the accused is divulged, he is subjected to social stigmatization, disintegration, and ostracism. This significantly hampers the social prestige of such an individual and obliterates his right to live with dignity. Another aspect of Art.21 of the Constitution, which is considerably tainted, is the "right to privacy." The right to privacy of an individual is an integral part of his right to life. This particular right is adversely affected whenever someone is accused of a sexual offense. The contentions of sexual offenses are always accompanied by a 'parallel trial,' exerted by the general populace, especially the media. Whenever the identity of an accused, in a sub-judice matter, is disclosed, the general public, including the media professionals, actively undertakes the process of slandering and character assassination. This does not only hamper the privacy of the accused, but also affects his kith and kin. All these factors discussed above, culminate to establish that the absence of provisions to protect the reputation of the accused, violates Art.21 of the Constitution.
Conclusions & Suggestions
The accused, just like the victim, enjoys certain fundamental rights, which are guaranteed to him by the constitution. Those rights should not be taken away from him, just because he has been blamed for an offense. The principles of the constitution put an obligation on the legal framework to protect the 'hard-earned repute and social goodwill" of the accused. However, the current legal framework fails to exert the same, which is a sheer violation of the constitutional values. Hence, certain suitable modifications must be made to incorporate apposite regulations, which would ensure the protection of the 'reputation and integrity' of an accused in cases of sexual offenses. This propitious step will not only safeguard the ethos of the constitution, but will also ensure the prevalence of natural justice.