Law

To Name the Rape Survivor or Not: How IPC's Section 228A Is Often Misread

The media, police and judiciary need to be educated about the nuances of this law in order to do justice to rape victims.

Does a rape survivor have the right to stand up and be counted, say her own name, take ownership of her past and show her face to the world? And expect that gesture to be reciprocated by the others?

In our country, naming a rape victim even when she wants to be identified is still taboo, even in ‘legal circles’. This is notwithstanding Section 228A, which clearly lists the circumstances under which one can legally name and publish the identities of these girls and women. The constitution and the rulebooks have actually left it to the victims and survivors to decide whether or not they want to be identified.

And that is because experts believe that a total ban on identity disclosure of the victim, ostensibly to protect her from stigma, is a retrogressive fallacy which directly feeds the societal power bias that causes the crime in the first place. Yet, though there have been several instances of rape victims reclaiming their identities in the fullest sense, such as Bhanwari Devi, Bilkis Bano, Sunitha Krishnan, Suzette Jordan, Soni Sori, Nadia Murad and Sohaila Abdulali, to name but a few of such individuals who all happen to be in the public domain, the media and judiciary continue to routinely ignore the nuances of this law; let alone the police who are only too happy to harass rape victims by issuing summons. The courts too, very often entertain and hear obviously frivolous petitions invoking this section.

Frivolous petitions

At the moment, there are two very interesting cases in the Delhi district courts pertaining to Section 228A. Someone with vested interests has filed two petitions against some young women for disclosing their identities to the media by invoking this very section.

The cases pertain to four young women, who are survivors of rape and gang rape. They were all rescued by Samadhan, a Dehradun-based non-governmental organisation.

The disclosure of their identities took place in two instances, in December 2010 and January 2013. In the first case, the young woman in question, who is now a law graduate, spoke about her journey – from a poverty-stricken Dalit home in a Dehradun village to university and betrothal to a fellow student – to women’s magazine Femina. Her story included her mother’s murder at the hands of her father, her cousin’s trickery which to her led attending a job interview where he got her gang-raped and finally, her fight for justice. She was supported by Renu D. Singh, head of Samadhan, in that fight and she won it in 2009 despite one of her rapists being a politician from the state. The young woman was being interviewed as a role model and she happily participated.

Cop-criminal nexus

The second incident occurred quite organically in the aftermath of the 2012 Delhi gang-rape. The three young women who were survivors of rape were part of a team performing a street play as a gesture of protest when they were interviewed by Network 10, a local television channel. They were then invited to take part in a primetime show on the subject of raising awareness on the issue of violence against women and they enthusiastically participated. All three were law students at that time. One of them has since graduated and is now a practising advocate. Singh, too, took part in the show as a human rights lawyer.

However, the next day, Singh got a summons from the police. A Dehradun resident, who was known to the politician convicted in 2009, had filed a complaint, invoking Section 228A, against Singh and the women. “He bore a grudge against us,” says Singh, “as his wife had earlier filed a case of cruelty under Section 498A against him following an alleged attempt by him to murder her. Samadhan had provided shelter and care to her post her rescue. This was way back in 2011 and that case is still being heard in the sessions court in Dehradun.”

The complainant had, at one point, worked as an inspector in Delhi Police but had to resign after complaints of alleged extortion of money, corruption and misappropriation of wealth. He then went on to file another complaint against the first young woman who had given the interview to Femina.

Both cases are now being heard by the Delhi district courts in Saket. Singh says the petitions are a vindictive bid to harass them, so that they have no time to fight court battles for other rape victims. Through an RTI application, the petitioner has procured the name of all accused in most of the court cases being fought by Samadhan and has accepted various sums of money from them in order to bribe the police to influence investigations at different stages, she alleges. It is a veritable racket thriving in police stations – Rs 50,000 being charged by the police for not arresting the accused, Rs one lakh for not filing chargesheet, Rs two lakh for getting a stay on the case by giving false testimony and so on – she avers.

Credit: Author provided

Lack of awareness

“We need to educate the police and the judiciary about Section 228A. If the law had been read fully and correctly, the complaints would not have been registered in the first place. The petitions, if filed, would have been dismissed,” Singh says.

Introduced no earlier than 1983, Section 228A’s Subsection 1 proscribes naming or publishing the photograph of a victim of a sexual offence. Subject to one of three conditions being fulfilled, Subsection 2 of Section 228A allows them. These conditions are: (a) if the police official conducting the investigation authorises it in good faith, (b) if the survivor allows it in writing, or (c) if the victim is dead, minor or of unsound mind and her next of kin authorises it in writing to any recognised organisation. Singh maintains that “in both cases, consent from the survivors was taken in writing before broadcast/publication, thus fulfilling the condition for disclosure stipulated in Subsection 2(b) of Section 228A and hence the petitions are de facto and de jure baseless”.

“Just because a girl is a rape survivor, her right to free speech and expression under Article 19 of the constitution cannot be snatched away. Remember, she is the victim of a crime, not a criminal. When a rapist can shout in front of cameras that he is innocent, why can’t the girl herself come forth and present her own story?” she adds.

Admirably, Network 10 owner Rajeev Garg and Rajiv Rawat, the journalist who anchored the show but has since left the channel, have stood up for the women. “We were doing our bit from inside the studio to spread awareness about the cause and bring to light such crimes and injustices. The young women were stakeholders and supported us willingly. This is unnecessary harassment,” said Rawat. “It is an impingement on press freedom,” Garg’s representative Jaipal said. Both Rawat and Jaipal confirmed that the consent of the women was taken in writing before airing of the show. Femina, however, declined to comment. Affidavits signed by the rape survivors vouching that the disclosure of their identities were of their own volition are also with this writer.

Paradoxical rationale

Section 228A exists to offer anonymity as a safeguard against further assault on the victim as well as to protect her from undue stigma. The stigma originates from the deeply entrenched “honour” construct in Indian society which associates a woman’s virtue with her chastity and does not take into account the issue of her consent in an act of intercourse, even when it is a forced one. It automatically attributes culpability for the crime, if committed and the resultant blame and shame, not to the criminal but to the victim, indiscriminately accusing her of seducing the perpetrator and/or somehow participating in the act. This invites ostracisation and more assault and gives power to the rapist. Routinely, it leads to job loss, disowning by the family and, not too infrequently, suicide by the victim. It is also behind the phenomenon of corrective rapes, more widespread than reported, wherein a rebel is subjected to assault in a bid to break her morale.

But one of the young women with Samadhan says, “Why should we be asked to hide our identities when we haven’t committed any crime? Shouldn’t those who are committing rapes be the ones covering their faces? By remaining anonymous, we are only letting the rapists gain strength.” Samadhan has trained 38 rape survivors in law so that they can argue their own cases.

Irresponsible media

However, what is commonly overlooked in this apparent confusion is the fact that the media, too, has played a less-than-stellar role, when it comes to reporting rapes. Most of the time, it has not been proactive in supporting such women, when it comes to arming them with the knowledge of this law and then seeking their consent for publishing their names and photos.

The practice of the sub-continental media publishing the identity of rape victims started with Mukhtaran Mai of Pakistan, victim of an “honour gang-rape” in 2002. Mukhtaran’s brother had had an affair with a woman of another tribe against her family’s wishes. Mukhtaran was attacked to avenge the so-called slight on the group’s “honour”.

Yet, the Indian media has been slow to follow. When the 2012 Delhi  gang-rape occurredhappened 10 years later, it was quick to bestow empty sobriquets on “Nirbhaya” and “Damini” and maintained an uncomfortable silence when the father of the victim told the Daily Mirror of the UK, “Let it be known that my daughter’s name was Jyoti Singh Pandey.” Mainstream publications still don’t publish Jyoti’s name.

But things changed when the doughty Park Street rape survivor, Jordan, in 2013 insisted that she be referred to at all times by her given name. Now, the media can be found erring on the other side. Once lazy when it came to taking the initiative, it is now reactionary – driven by a frenzy of copycat journalism, a rush to ‘break the news’ and an unhealthy fear of missing the chance to jump onto the bandwagon of easy, token activism all of which makes it ignore the requirements of the law and flout it as per its own convenience, all the while ostensibly making the big stand by shooting its gun off the shoulders of social media.

Cutting corners

For instance, in 2016, it took the name of a Dalit law student from Kerala without the permission of her mother when it reported her assault and murder. It has been noted by media-watchers that this is often and especially the case when the poor and marginalised sections of the society are victimised – the policy then is to usually underreport, or exploit the crime.

In April this year, the Delhi high court penalised media houses for naming and publishing the photograph of the minor Kathua rape victim. The lawyer, senior advocate Indira Jaising, had argued for press freedom in the apex court, given that ruling party leaders were actively campaigning on behalf of the accused. But why did the media not actively seek the written consent of the parents before going ahead?

Remember, it was Captain Madan Mohan Chopra, father of Geeta and Sanjay Chopra, who let the Indian Council of Child Welfare institute the Sanjay Chopra Award and the Geeta Chopra Award, given each year along with the National Bravery Award, for acts of exceptional valour performed by children in 1978, though notably, this took place five years before Section 228A was incorporated in the Indian Penal Code in 1983. Priyadarshini Mattoo’s case, though, occurred 13 years after the law came about and her father, Chaman Lal, had approached the media.

So, evidently, it is the media’s duty to offer the cloak of anonymity to the victim at all times, not hide behind it itself when they, themselves, or their kin, on their behalf, reject it and seek the respect that comes with living one’s life with courage and true honour.

Mere lip service to their cause by coining desultory descriptors like ‘rape survivor’ and making it editorial policy to use them (or else) just won’t do anymore. It is an insult to these social changemakers, many of whom are from the grassroots and are not armed with knowledge of the nitty-gritties of the law, by a self-serving media, if it frivolously casts aside their hardest freedom struggle in the name of an increasingly moribund ‘social reality’, even when it is they, not itself, that have actually and fully reckoned with it.

Therefore, while it is time to debate an amendment that will scrap this section of IPC and put an end to automatic confidentiality for victims of rape, and by extension, other sexual offences, bringing them, if need be, under the witness protection programme instead, as is the common practice with other cases of violent crime, the media needs to respect the law as it now stands, cast aside superficial protectionism and join the people of the land in making Section 228A redundant.

It is the only rational solution, but is anyone paying attention?

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