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Rahul Gandhi is in the dock for tweeting a photograph of himself with the parents of a nine-year-old Dalit girl who was allegedly raped and killed by four men in Delhi earlier this month. The girl died under suspicious circumstances on August 1, even as her parents alleged that she was raped and forcibly cremated by a crematorium’s priest. Four people, including the priest, have been arrested. As the body of the child had been burned, no conclusive evidence has so far emerged from the forensic examination.
The National Commission for the Protection of Child Rights (NCPCR) asked Twitter to remove Rahul Gandhi’s tweet, on the ground that it indirectly disclosed the child’s identity in violation of two laws meant to protect children. Section 23(2) of the Protection of Children from Sexual Offences (POCSO) Act says
“No reports in any media shall disclose, the identity of a child including his name, address, photograph, family details, school, neighbourhood or any other particulars which may lead to disclosure of identity of the child”
In response, Twitter temporarily suspended Rahul Gandhi’s account “until he deletes the tweet” in question. Twitter also locked the accounts of five other Congress leaders, including Ajay Maken and Randeep Surjewala, apart from that of the Congress party itself for sharing Rahul Gandhi’s tweet.
Tweets by the National Commission for Scheduled Castes (NCSC) and its member, Anuj Bala, with images of the victim’s parents did not elicit a similar response from Twitter, probably because they were removed promptly by them, after they came to know of the legal consequences. Nor has the NCPCR or any complainant before a court made it an issue.
This is also the first time that a politician meeting the grieving family of a deceased rape victim finds himself or herself in the dock for sharing a photograph of the occasion.
The Wire examines the law on the restrictions on disclosure of identity of rape victims, to understand whether Rahul Gandhi and others would be criminally liable for their actions. The Delhi high court, which promptly admitted a plea seeking registration of an FIR against Rahul Gandhi, will now only hear the matter on September 27. A bench of Chief Justice D.N. Patel and Justice Jyoti Singh refused to issue notice on the PIL by Makarand Suresh Mhadlekhar on Wednesday. Twitter told the high court that it has removed Rahul Gandhi’s tweet as it is in violation of its own policy. Mhadlekar, a social activist, alleged that Rahul Gandhi violated Section 74(1) of Juvenile Justice (Care and Protection of Children) Act, 2015 and Section 23(2) of POCSO, which prohibit the disclosure of the identity of minor victims of sexual offences. Under the JJ Act, punishment for the offence is six months imprisonment or a fine of Rs 2 lakh or both. Under POCSO, the punishment includes imprisonment between six months to one year or a fine or both.
Meanwhile, special POCSO judge Ashutosh Kumar has ordered Rs 2.5 lakh interim compensation to the family of the minor victim, even while not allowing any claim on the ground of her alleged rape, citing absence of conclusion by the investigating agency so far. The interim compensation has been granted under the Delhi Victim Compensation Scheme, 2018, for providing relief to those dependents of a victim, who suffered loss or injury as a result of a crime.
What does the law say about disclosure of the identity of a rape victim?
In Nipun Saxena v Union of India, Justice Deepak Gupta, as part of the bench presided by Justice Madan B. Lokur, held on December 11, 2018, after examining sub-section (1) of Section 228A of IPC – the older, more narrowly framed but analogous bar to Section 23(2) of POCSO, but applicable to all victims of rape and not just minors – that not only publication of the name of the victim was prohibited but also disclosure of any other matter which might make known the identity of such victim. Punishment for the offence includes imprisonment for up to two years, and fine.
The apex court said that the phrase “matter which might make known identity of person” did not solely mean that only the name of the victim should not be disclosed but it also means that the identity of the victim should not be discernible from any matter published in media.
Why did the bench hold so?
The bench reasoned that a victim of rape would face hostile discrimination and social ostracisation in society. Such a victim would find it difficult to get a job, would find it difficult to get married and would also find it difficult to get integrated in society. India’s criminal jurisprudence did not provide for an adequate witness protection programme and, therefore, the need was much greater to protect the victim and hide her identity. The Supreme Court, therefore, held that, no person could print or publish the name of a victim or disclose any facts which could lead to the victim being identified and which could make her identity known to the public at large.
In Nipun Saxena, the Supreme Court referred to one case where the name of the victim was not given but news reports said that she had topped the State Board Examination and the name of the state was given. “It would not require rocket science to find out and establish her identity. In another instance, footage is shown on the electronic media where the face of the victim is blurred but the faces of her relatives, her neighbours, the name of the village etc. is clearly visible. This also amounts to disclosing the identity of the victim. We, therefore, hold that no person can print or publish the name of the victim or disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large,” the bench held.
Does the law make any exceptions?
Sub-section (2) of Section 228A of the IPC makes an exception for police officials who might have to record the true identity of the victim in the police station or in the investigation file. In the FIR, the name of the victim would have to be disclosed. However, this should not be made public and especially not to media, the bench held in Nipun Saxena. A copy of an FIR relating to the offence of rape against a woman (or offences against children falling within the purview of POCSO) shall not be put in the public domain to prevent the name and identity of the victim from being disclosed, the bench clarified.
The bench also carved out an exception for a situation where an unidentified body is found:
“There may be cases where the identity of the victim, if not her name, may have to be disclosed. There may be cases where a dead-body of a victim is found. It is established that the victim was subjected to rape. It may not be possible to identify the victim. Then, obviously, her photograph will have to be published in the media. Even here, we would direct that while this may be done, the fact that such victim has been subjected to a sexual offence need not be disclosed. There may be other situations where the next of kin may be justified in disclosing the identity of the victim. If any such need should arise, then we direct that an application to authorise disclosure of identity should be made only to the sessions judge/magistrate concerned and the said sessions judge/magistrate shall decide the application on the basis of the law laid down by us.”
Under what conditions is disclosure allowed?
Under clause (b) of Sub-section (2) of Section 228A of the IPC, if an adult victim has no objection to her name being published or identity being disclosed, she can authorise any person in writing to disclose her name. This had to be a voluntary and conscious act of the victim, the bench underlined. Such was the case with the ‘Park Street’ survivor, Suzette Jordan.
“There were some victims who were strong enough and willing to face [the] society even after their names were disclosed. Some of them, in fact, help other victims of rape and they become a source of inspiration to other rape victims. Nobody could have any objection to victim disclosing her name as long as victim was a major,” the bench explained.
What other mandatory safeguards did the SC direct to ensure non-disclosure?
Section 228A of the IPC imposed a clear-cut bar on the name or identity of the victim from being disclosed. If an accused is acquitted and the victim of the offence wants to file an appeal under section 372 of the Code of Criminal Procedure, she can move an application in court praying that she may be permitted to file a petition under a pseudonymous name, e.g. x or y or any other such coded identity that she may choose. However, she might not be permitted to give some other name which might indirectly harm another person.
A minor who is subjected to sexual abuse needs to be protected even more than an adult victim, because the latter may still be able to withstand social ostracisation and mental harassment meted out by society, but a minor victim will find it difficult to do so, the bench held.
The Supreme Court, therefore, issued directions that no person could print or publish in print, electronic, social media, etc. the name of a victim or even in a remote manner disclose any facts which could lead to the victim being identified and which could make her identity known to the public at large.
What happens when the victim is dead?
The Supreme Court bench held that in cases where the victim is dead, the name of the victim or her identity should not be disclosed even after the authorisation of next of kin, unless there are valid circumstances justifying the disclosure of her identity – which shall be decided by a “competent authority”, which at present is a sessions judge. In the case of minor victims under POCSO, disclosure of her identity can only be permitted by the special court, if such disclosure is in the interest of the child, and not by the parents themselves.
What other safeguards has the Supreme Court directed?
Some examples of matters where the identity of a victim will have to be disclosed are when samples are taken from her body, when a medical examination is conducted, when DNA profiling is done, when the date of birth of the victim has to be established by getting records from the school, etc.
The bench said:
“However, in these cases also the police officers should move with circumspection and disclose as little of the identity of the victim as possible but enough to link the victim with the information sought. The authorities to which the name is disclosed when such samples are sent, are also duty bound to keep the name and identity of the victim secret and not disclose it in any manner except in the report which should only be sent in a sealed cover to the investigating agency or the court. There can be no hard and fast rule in this behalf but the police should definitely ensure that the correspondence or memos exchanged or issued wherein the name of the victim is disclosed are kept in a sealed cover and are not disclosed to the public at large. They should not be disclosed to the media and they shall also not be furnished to any person under the RTI Act, 2005. We direct that the police officials should keep all the documents in which the name of the victim is disclosed in a sealed cover and replace these documents by identical documents in which the name of the victim is removed in all records which may be scrutinised by a large number of people. The sealed cover can be filed in the court along with the report filed under section 173 code of criminal procedure.”
Why did the SC refuse to relax the law on disclosing the identity of dead victims?
It was urged before the court that in certain matters, the name of the victim should be permitted to be disclosed or published because the name and the face of the victim can then become a rallying point to prevent other such sexual offences. The victim becomes a symbol of protest or is treated as an iconic figure. The court was not impressed with this argument. Should the person who is dead or who is of unsound mind be permitted to become a symbol if such a person herself might not want to be a rallying point, the bench asked. “It is not at all necessary to disclose the identity of the victim to arouse public opinion and sentiment. This is a serious issue dealing with victims of heinous sexual offences and needs to be dealt with sensitivity,” the bench answered the question it posed to itself.
“Nirbhaya became the most effective symbol of protest the country has ever known without disclosing her true identity. If a campaign has to be started to protect the rights of the victim and mobilise public opinion it can be done so without disclosing her identity,” the bench clarified.
“We cannot permit even one case of this type and in the larger interest, we feel that as a matter of course, the name of the victim or her identity should not be disclosed even under the authorisation of the next of the kin, without permission of the competent authority. It is not unimaginable that the so called next of kin may for extraneous reasons including taking money from a media house or a publishing firm which wants to publish a book, disclose the name of the victim.”
“In certain cases, the interest of the next of kin may not be the same as the interest of the victim. In such circumstances, the applicant may not be the next of kin, but the next friend of the child, who may be entitled to move such an application. It will be for the court or the competent authority to decide who is the next friend,” the bench added.
“We are exercising power under Article 142 of the constitution in this regard because the government has not identified any social or welfare institution/organisation and the law as laid down cannot be administered. We direct that if the government wants to actually act under section 228A (2) (c) [of the] IPC, it must before identifying such social welfare institution or organisation clearly lay down some rules or clear cut criteria in this regard. What should be the nature of the organisation? How should the application be made? In what manner the application should be dealt with? A clear cut procedure must be laid down. Till that is done, our directions shall prevail,” the bench made it clear in Nipun Saxena.
The amicus curiae urged in this case that a child for purposes of publication should only mean a living child. Her contention was that when the child is dead, then the name and identity of the child could be disclosed. According to her, it is difficult to garner support for a movement against rape if the name of the deceased child victim is not disclosed. The court, expressing disagreement with this view, said that the same reasoning which it had given for victims would apply to dead victims also. “In the case of dead victims, we have to deal with another factor. We have to deal with the important issue that even the dead have their own dignity,” the bench explained.
This ruling of the Supreme Court also means the real name of Nirbhaya cannot be published even though her parents use it and and have said they want her daughter to be known by her actual name. Under the terms of Nipun Saxena, they would need to apply to the high court (since the case in the sessions court, deemed to be the ‘competent authority’) for permission to reveal her name. It is also not clear if the politicians who have appeared in public events with Nirbhaya’s parents or shared photos of them are also liable for prosecution.
What could Rahul Gandhi’s defence be?
In narrow legal terms, he could claim that as the investigating authorities have not found evidence of rape even 10 days after the incident, he cannot be alleged to have violated the law on non-disclosure of the identity of the victim. However, that argument may not be available if the investigation does indeed suggest that rape occurred.
In all likelihood, therefore, the Congress will seek to make a wider point.
Nikhil Alva, an aide to Rahul Gandhi has argued in a Facebook post that the POCSO law “wasn’t intended to prevent parents of victims from seeking justice for their children” and by “twisting the law to do precisely that,” the Bharatiya Janata Party is is essentially saying: “the media must not cover these stories and certainly never allow the parents of a victim to appear on camera.”
Alva then draws a parallel between the current case and the Nirbhaya and Hathras cases, where it was the parents who came forward to demand justice for their daughters and the media helped amplify their voices.
“This proved crucial in generating public awareness and getting the government machinery to act speedily in both cases. They are many other examples, including the rape of young girl by a BJP MLA in UP who even tried to organise a “hit and run”accident to eliminate her. The story came to light when the media reported her parents plight after the local police refused to file a FIR against the powerful MLA.
Even as identifying a victim is illegal, there is nothing in the law that prevents parents from speaking to the media or anyone they choose to speak to – on or off camera – to share their story or to ask for help.”
Alva sees the controversy and the “lock” placed on Rahul Gandhi’s account as “an act of political vendetta with Twitter succumbing to Government pressure, and throttling voices of dissent”.