Recently, on December 11, the Supreme Court issued a slew of directions to protect the identity of victims of rape.In Nipun Saxena vs Union of India, the SC bench of Justice M B Lokur and Deepak Gupta ordered, among other things, that "In cases where the victim is dead or of unsound mind the name of the victim or her identity should not be disclosed even under the authorization of the next...
Recently, on December 11, the Supreme Court issued a slew of directions to protect the identity of victims of rape.
In Nipun Saxena vs Union of India, the SC bench of Justice M B Lokur and Deepak Gupta ordered, among other things, that "In cases where the victim is dead or of unsound mind the name of the victim or her identity should not be disclosed even under the authorization of the next of the kin, unless circumstances justifying the disclosure of her identity exist, which shall be decided by the competent authority, which at present is the Sessions Judge".
The Court observed that "the dead too are entitled to their dignity".
https://www.livelaw.in/identity-of-even-dead-rape-victims-should-be-protected-sc-imposes-absolute-bar-on-identity-disclosure/
Barely ten days passed after this judgment, before the media violated the apex court directions, exhibiting a casual, negligent and insensitive mindset in reporting rape cases.
On December 20, the Bombay HC passed a judgment, upholding death penalty awarded to a man who raped and killed a twenty three year old woman in 2014.
While reporting the judgment in this horrific case, most main stream media published the name and photograph of the victim. The Times of India revealed the name of the victim in the headline itself. It also carried the image of the victim, which was captured in a CCTV few hours before the crime, in the report. The Mumbai Mirror too revealed the name of the victim in the headline and published her image. Same thing was repeated by The New Indian Express in its report. The Hindustan Times, The Hindu and First Post too committed similar violation. In the non-English media, Lok Satta and the Maharashtra Times were also found committing similar violation.
Section 228A of the Indian Penal Code prohibits disclosure of identity of rape victim. In cases where the victim is dead or minor or of unsound mind, the publication of identity can be done only by a "recognized welfare institution or organization", that too on authorization in writing given by the next of kin of the victim. The media is not authorized to publish the identity even in such cases, irrespective of authorization by next of kin. This was made clear by the Supreme Court in Nipun Saxena case.
Once bitten; twice not shy
The media cannot plead ignorance of this legal prohibition against posthumous publication of identity. Last April, the Delhi HC had pulled up several main stream media houses for publishing the identity of minor victim in Kathua case. The media houses apologized and undertook to pay a penalty of Rs.10 lakhs each towards victim compensation fund, as directed by the Court. But lessons not learned, it seems!
Violation by Courts
The constitutional courts have also shown negligence is maintaining victim anonymity in judgments. It is true that there is no explicit statutory bar in publishing identity in judgement.
But the SC in a 2003 judgment observed that it would be appropriate for Courts to refrain from publishing identity of rape victims in judgments, having regard to the spirit of Section 228A IPC
"But keeping in view the social object of preventing social victimisation or ostracism of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of this Court, High Court or lower Court, the name of the victim should not be indicated we have chosen to describe her as ‘victim’ in the judgment”, observed the judgment by SC bench of Justices Doraiswamy Raju and Arijit Pasayat.
Ironically, the Courts, including the Supreme Court, have neglected these observations in several instances. Live Law had earlier pointed out the instances where higher courts have disclosed victim identity.
Even the judgment of the Bombay High Court last week discloses the identity of the victim, including her birth place, profession and age, and mentions her name as many as 44 times in various places in judgment.
There are instances of Court hiding the names of persons in high profile sensational cases. Last week, the Delhi High Court suppressed the names of parties in a case involving two famous politicians. It is regrettable that similar diligence is not shown in rape cases.
https://www.livelaw.in/breaking-sc-violates-privacy-rape-victim-mentions-name-age-ironically-voices-concern-violence-women/
It is suggested that in judgments of rape cases, the Court give directions to media to resist from revealing identity, reminding of the statutory prohibition.
Should there be victim anonymity?
There is a counter-argument that the insistence on victim anonymity perpetuates the notion of shame or blame attached to rape victim. Many comment that the stigma of rape victim is a social construct, having its roots in patriarchal concepts of 'honour' and 'chastity', which associate a woman's dignity with sexuality.
Writer-poet Kamal Das had proclaimed in a short-story decades ago that the 'impurity' of rape will be washed off after a 'dettol bath'. Rape should be viewed as a crime against body, the impact of which does not extend to defiling the personhood of the victim - this is the counter-perspective.
The argument is aspirational and it is hard to miss the merit in it. However, one cannot also miss the existing social realities, which inflict shame and humiliation on a rape victim. It is taking note of this reality of community sensibilities that the law has constrained to preserve victim anonymity. Law operates in the 'here and now', within the status quo. It is not always transformative. So long as the letter of law proscribes disclosure of identity, it should be followed strictly, without exceptions.
The rights of the media cannot abridge the protection given by law to a rape victim.