Even those who disagree with Rahul Gandhi’s politics or take a dim view of his intellectual abilities will find it difficult not to sympathise with his predicament in relation to the recent locking of his Twitter account.
The social media behemoth justified its action on the grounds that by posting a tweet which showed Gandhi expressing solidarity with the family of a child rape victim, he had broken Indian law which prohibits the identification of children who have been subjected to sexual offences. On being criticised for acting arbitrarily in enforcing the ban, Twitter argued that the publication of such material would have exposed the company to sanctions under India’s tough regulations concerning online media – regulations which were, controversially, introduced a few weeks ago in a ham-fisted and high-handed manner.
For once, Twitter had a point. The fault, clearly, lies with the sweeping – and, many would argue, irrational – nature of Indian law and practice on media identification of victims of sexual offences. And the entire episode points to a larger inequity that deserves urgent attention. That inequity has to do with a worrying trend which has seen, on the one hand, a divergence of Indian law – or at least its interpretation by the courts – from its time-tested common law moorings, and on the other, knee-jerk reactions by politicians and judges alike to situations which, while provoking public outrage, call for a more sensible and measured approach.
Few will dispute the need for curbs on the exposure of victims of sexual offences to the glare 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 undisputable matter of shame attached to sexual offences which cannot be lost sight of in any society. For that reason, victims of such offences are granted lifelong anonymity. It is worth noting that the law in England is worded very widely to include anyone bringing a complaint of a sexual offence, and the anonymity starts from the time the complaint is brought. And it continues even if the complaint is later withdrawn or the alleged perpetrator of the offence is acquitted. The law also defines sexual offences widely to include not only rape and sexual assault of any kind, but all offences having a sexual element, including ‘flashing’, voyeurism etc.
Crucially, however, the anonymity only lasts for the lifetime of the victim, not after his or her death. This point is important because it has a bearing on cases such as the one which led to Rahul Gandhi’s spat with Twitter. Indian law, by contrast, adopts the default position that the anonymity shall continue even after the victim’s death, 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 authorises publication. Curiously, and bizarrely, any authorisation under this Section can only be given to “the Chairman or the Secretary, by whatever name called, of any recognised welfare institution or organisation.” Such an organisation has been defined as one which is “recognised in this behalf by the Central or State Government.”
The basis of such a prescription is debatable. The Section was introduced as recently as 1983, with the worthy intention of preventing social victimisation or ostracism of those suffering sexual offences, but it can be criticised on a number of grounds. In the first place, it is mindlessly bureaucratic; 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, metamorphosed 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 chilling effect this provision has had on media freedom – and on public discourse – was seen in the aftermath of the gruesome gang-rape and subsequent death of Jyoti Singh, the 23-year-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 by the nom de plume ‘Nirbhaya’, which could, ironically, be seen as denying Jyoti the dignity of being known by her own name posthumously.
Against this background, there is a need for Indian 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 offences to be identified, not only when they die, but also if a court which is trying the case while the victim is alive orders, after considering all the relevant circumstances, that preserving anonymity would impose a substantial and unreasonable restriction on media reporting and that it is in the public interest to remove or relax the anonymity conditions. Anonymity can, furthermore, be lifted if the alleged victim of a sexual offence is subsequently charged with the offences of wasting police time, perjury, or perverting 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 pretences or pressure.
Identification of children
Another issue that deserves urgent attention in India concerns identification of children involved in sexual offences. Here, again, there appears to be muddled thinking on a worrying scale, not least on the part of some judges, to the detriment of the public’s right to be informed. A stark example is provided by the judgment handed down by the Delhi High Court on August 10, 2021 in a case involving the grisly 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 aftermath. 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 cavilled at. If anything, an even more compelling case can be made out to provide anonymity to children. Indian law rightly recognises 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 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.”
Even if that formulation is accepted at face value, there cannot be any justification for a blanket ban on the discussion of particular cases, as suggested by the Delhi High Court judgment authored by Justice Jayanth Nath. That decision ordered that the name of the school involved in the murder should not be mentioned at all in any media report without formal permission being obtained from it, which is as absurd as it is unreasonable. The reason proffered for the imposition of such a sweeping ban is that, by identifying the school, the identity of the student in question would become known.
This approach to the principle of proportionality – whose importance in freedom of expression cases cannot, in this day and age, be overstated – is at best shaky. To assume that the average reader, listener or viewer of media reports will be able to decipher the identity of a student – among a few hundred enrolled in a school as large as the one involved in the Delhi case – merely by knowing its name stretches credulity. The case against such sweeping censorship is buttressed by the fact that, in the instant case, the student in question was already dead.
Constraints of space prevent a more elaborate discussion of some of the other troublesome aspects of such cases, which have been proliferating in recent years. But the salient point that needs to be understood is that as Indian law tries to grapple with increasingly complex challenges such as how far nebulous concepts such as privacy can be carried, both statutes and judicial attitudes need to reflect a more nuanced 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 offences.
The author is a barrister and legal academic based in the United Kingdom.
Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.