The media serves as society’s gatekeeper and watchdog. The media is a multidimensional institution that engages in a variety of activities. The media had the ability to impact how a rape incidence is seen through the way stories are crafted. It has a responsibility to make good use of its power. The current trend in media reporting cases, called “Trial by Media” has seen the sensation of self-created stories, half-baked reality, and individual rights violations, resulting in media reporting changing into a media circus. It is a very shameful fact that not only does India remain unsafe for women, but Indian media organizations also need a crash course in how to report rape, sexual assault, and other forms of gender-based violence. And the entire things marks to a larger unfairness stems from a troubling trend that has seen, on the one hand, a distinction of Indian law or at least its interpretation by the courts from its time tested common law moorings, and on the other hand, the predictable reaction by politicians and judges similar to situations which, while giving rise to public outrage, call for a more sensible and measured perspective. Few will debate the need for restrictions on the exposure of victims of sexual offenses to the blaze of publicity. The reasons for restrictions in this area are as obvious as they are sound. As the Heilbron Committee in the United Kingdom explained in 1975, “ the potential harm and distress caused by publicity could discourage complainants from reporting rape and anonymity could help ensure (that) perpetrators did not escape prosecution”. There is also the indisputable matter of shame attached to sexual offenses which cannot be lost sight of in any society. For that reason, victims of such offenses are afforded lifelong obscurity. It is worth noting that the law in England is worded very widely to include anyone bringing a complaint of a sexual offense, and the obscurity starts from the time the complaint is filed. And it continues even if the complaint is later withdrawn or the alleged commission of the offense is vindicated. The law also defines sexual offenses widely to include not only rape and sexual assault of any kind but all the offenses having sexual elements, including flashing, voyeurism, etc. Pivotally, although, the obscurity only lasts for the lifetime of the victim, not after his or her death. But in India, the law adopts the default position that the obscurity shall continue even after the death of victims, although provision has been made for exceptions to that rule. According to section 228A of the Indian penal code, the identity of a victim who dies subsequently can be published where the next of kin of such victims authorizes publication. The section was introduced as recently as 1983, with the worthy intention of preventing social victimization or ostracism of those suffering sexual offenses, but it can be criticized on a number of grounds. In the first place, it is brainless administration; it is also needlessly restrictive of the freedom of the mass media to report on a matter of manifest public interest. In practice, it has wrongly but stubbornly transfigured into a general prohibition against the naming of rape victims, especially those who subsequently die as a result of the horrific nature of the sexual assault. The discouragement in this provision has had on media freedom and public disclosure was seen in the outcome of the ghastly gang- rape and subsequent death of Jyoti Singh, the 23 years old physiotherapy intern, in December 2012. Despite the reported desire of Jyoti’s parents for her identity to be revealed, most of the media insisted on referring to her ‘Nirbhaya’ which could ironically be seen as denying Jyoti the dignity of being known by her name posthumously. Against this background, there is a need for legislators to revisit the law on anonymity. They would do well to look at English law on the subject which, sensibly, allows for the victims of sexual offenses to be identified, not only when they die, but also if a court hearing the matter while the victim is still alive and decided that maintaining anonymity would impose a significant and unreasonable limitation on medical reporting and that removing or relaxing the anonymity conditions is in the public interest. Moreover, anonymity can be lifted if the alleged victim of a sexual offense is eventually charged with the offenses of wasting police time, perjury, or preventing the course of justice. English law also allows for the victim to consent to be identified, as long as he or she is over the age of 16 and the consent is in writing and not procured under false claims or pressure. Another issue that needs urgent attention concerns the identification of children involved in sexual offenses. Here, too, there appears to be a great deal of muddled thinking, not least among certain judges, to the harm of the public’s right to know. A gloomy example is provided by the judgment handed down by the Delhi High Court on August 10, 2021, in a case involving the ghastly murder, in September 2017, of a 7-year-old student on school premises which, understandably excited widespread passions. The case arose in the context of a documentary film titled A Big Little Murder, which sought to discuss the murder and its outcome. The school involved resented being named or shown in the film and moved Court to restrain certain media entities, including Netflix and Channel News Asia, from exhibiting the documentary. As with adult victims of sexual offences, the imposition of restrictions on the identification of child victims cannot, in principle, be complained at. If anything, an even more compelling case can be made out to provide anonymity to children. Indian law rightly recognizes this through statute. The relevant legislation, the Juvenile Justice ( care and protection of children) Act, 2015, uses broad language in allowing for the imposition of reporting restrictions. Under section 74 of the act, no child “in conflict with the law, in need of care and protection or a victim or witness of a crime” can be identified, “unless a Board or a committee, specially constituted for the purpose allows that such a disclosure can be made”. The supreme court would examine the provisions of law that provide restrictions and balances for media in reporting incidents of sexual assault, including that of minors after it complained that there have regular violations of such provisions. The Apex court was told that in today’s world, parallel media trials were going on even when proceedings of cases were pending before a court of law, like in the recent Kathua gang-rape murder case. Disclosing the identity of a victim of sexual assault infringes the privacy of that person and it should not be allowed. The main point that needs to be understood is that as how far indistinct concepts such as privacy can be carried, both statutes and judicial attitudes need to reflect a more clear approach to the balancing of competing interests in society. The need for a careful rethink and a reset of the law is urgently called for in relation to the reporting of sensitive cases involving sexual offenses.
Author’s Name: Shweta Kumari (Manikchand Pahade Law College, Aurangabad)
