The Hyderabad Police is reportedly mulling over taking action against BJP MLA Raghunandan Rao for sharing a video of the minor gang rape survivor at a press conference, revealing her identity.
"A lot of people assume that Section 228A applies to only media houses. This is misinterpretation. It applies to any private individual who chooses to 'publish' the identity or any identifier that could lead to the victim. When you send a tweet, you are 'publishing' something on the platform. So you are liable," a Delhi-based advocate who deals with cases related to crimes against women, clarified to The Quint.
While the law has been in place for almost four decades, it still continues to be compromised. We explain, with past examples.
Revealing Delhi Gang-Rape Survivor's Identity: What Law Says & Precedents Show
1. Understanding Section 228A
Section 228A was added to the IPC in 1983 by the Criminal Law Amendment Act in 1983, as part of a slew of reforms that were brought in following the shocking treatment of the Mathura rape case.
Manasi Chaudhary, founder of Pink Legal, a dedicated platform for awareness of laws relating to women in India, explained the rationale for this law as follows:
"The idea of bringing in this was to ensure that we protect the survivor from victimisation and ostracisation. Make it easier for her to heal and return to normalcy. More than anything, the law focuses on protecting her privacy. Because more than anything, a sexual assault is first and foremost an attack on her privacy."
Punishment for the offence includes imprisonment of up to two years, and fine. The IPC section reads:
"Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence [of rape, gang rape or rape by a person in position of trust/authority, or sexual assault by a separated husband] is alleged or found to have been committed shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine."
In 2020, a 19-year-old Dalit woman was brutally gangraped in Uttar Pradesh's Hathras. Amid the outrage across the country, a photo of a young woman went viral, claiming that she was the Hathras victim.
A fact check later revealed that the photo was of another girl, unrelated to the incident. This was obviously a gross violation of privacy of the girl whose photo was shared, but even if they had the correct photo, those sharing it should have known that they were breaking the law.
"Posting any identifier on social media can have a snowballing effect on the case. Revealing the identity of the person can also lead to inference in the case from those who have a personal interest in the larger scheme of things – like political or communal – which ends up affecting the case," Chaudhary added.
Expand2. What Makes an 'Identity'?
In the 2018 Nipun Saxena v Union of India case, a Supreme Court bench led by Justice Madan B Lokur, after examining sub-section (1) of the Section 228A, reiterated that not only the publication of the name is prohibited, but also any details that might "make known the identity of the victim".
In its judgment, the apex court referred to a case in which a news report said that a victim of sexual assault had topped the State Board Examination – while also providing the name of the state.
"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."
Supreme Court Bench in December 2018Speaking in particular about the Shahdara incident, a public prosecutor who did not want to be named said:
"There is a viral video of the uncle, and there is another video of the sister. There are also visuals of the street where the house is located. Now, all this does not state her name. But all this could lead people to the 21-year-old. And if either the police or the survivor wishes to take action, those sharing this can be thrown behind bars."
Expand3. When Is Disclosure Allowed?
According to Section 228A of the IPC, if an adult victim has no objection to her name being published or identity being disclosed, she should authorise it, in writing, to the person who is disclosing her details.
"This has to be voluntary and conscious decision of the victim," the Justice Lokur-led bench underlined.
Like Park Street rape survivor Suzette Jordon did. She was allegedly raped in a moving car in February 2012 in Kolkata's upscale neighbourhood. Fifteen months after the incident, in June 2013, she appeared on television and revealed her identity.
The apex court in 2018 held that if the victim is dead, then her identity should not be disclosed, even by the next of kin, unless there are valid grounds. Such a disclosure should also be authorised by a “competent authority".
Expand4. Additional Rules in Cases Where Survivor Or Victim is a Minor
When it comes to minor victims and survivors of sexual crimes, Section 23(2) of the POCSO Act includes an additional prohibition of the disclosure of their identities.
Section 23 of the POCSO says that no reports in any media can disclose the name, address, photograph, family details, school, neighbourhood or any other particulars which may lead to disclosure of identity of a victim of sexual offences.
Section 74 of the Juvenile Justice Act also says that no reports by print or electronic media can reveal the identity of any child victim of an offence – or even those of a witness or a perpetrator who is a child.
While the JJ Act offence is tailored to news media, the POCSO offence can apply to anyone posting on social media, and is punishable with imprisonment between six months to one year or a fine or both.
The Supreme Court bench in December 2018 held that a minor who is a survivor of sexual assault needs to be protected even more than an adult 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.
Earlier that year, the Delhi High Court imposed a fine of Rs 10 lakh each on 12 media organisations, including legacy media houses like The Times of India, The Indian Express, The Hindu and NDTV, for naming the eight-year-old victim of the Kathua gang-rape and murder case. The order also criticised the media reports for carrying the name and photographs of the minor girl victim.
“Unfortunately the nature and manner of reporting of the alleged offence is being effected in absolute violation of specific prohibition of law disrespecting the privacy of victim which is required to be maintained in respect of the identify of a victim” [sic], Justice Gita Mittal, then acting chief justice of the Delhi HC, wrote in her order.
Expand5. The Nirbhaya Case Dilemma
In December 2015, the 2012 Delhi gang-rape victim Nirbhaya's mother revealed her daughter's identity yet again, stating:
"I am not ashamed of taking my daughter’s name. Whoever has suffered should not hide their name. It is the offenders who should be ashamed and hide their name. I want to tell everyone that my daughter’s name was Jyoti Singh. From today, everyone should know her as Jyoti Singh."
Technically, according to the law, the media is still prohibited from revealing her identity as her parents had given the name to journalists and not to “the chairman or the secretary, by whatever name called, of any recognised welfare institution or organisation”, as stipulated by Section 228A of the IPC.
However, as these organisations have not been designated by the central and state governments over the last four decades, the multiple public stances taken by the family including in presence of the police, should satisfy the legal requirements.
Another issue that has been highlighted in high-profile cases is the care that must be taken with FIRs and judgments.
The police and the courts have to take note of the identity of the victim, but FIRs and judgments made available to the public have to be redacted to protect their identity – not just in terms of their name but any other identifying factors as well.
Expand6. Implementation in Times of Social Media
Supreme Court advocate Sonali Shelar said that before a private individual posts on social media, there should be a conscious effort to think about how this could impact the case.
"Reporting sexual offences for cases is already very low in India, and there are so many factors that discourage women from coming out. Fear of identity being revealed is one of the things that keep the survivors and their families from reporting the crime," said Shelar.
So, what is usually done if a survivor's identity is revealed on social media?
"First, the tweets are asked to be taken down. Or a notice can be sent on social media platforms to ask them to remove, as they have intermediary liability under the IT Act. The local police stations will also not have the means to contact these international platforms. So there needs to be a little clarity moving forward, as I said before, everything on social media can have a snowball effect. While the responsibility lies with the police to monitor, it needs to be corrected at an individual's level," Pink Legal's Chaudhary added.
(This article was first published on 6 February 2022. It has been republished from The Quint's archives in light of the Hyderabad gang rape.)
(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)
Expand
Understanding Section 228A
Section 228A was added to the IPC in 1983 by the Criminal Law Amendment Act in 1983, as part of a slew of reforms that were brought in following the shocking treatment of the Mathura rape case.
Manasi Chaudhary, founder of Pink Legal, a dedicated platform for awareness of laws relating to women in India, explained the rationale for this law as follows:
"The idea of bringing in this was to ensure that we protect the survivor from victimisation and ostracisation. Make it easier for her to heal and return to normalcy. More than anything, the law focuses on protecting her privacy. Because more than anything, a sexual assault is first and foremost an attack on her privacy."
Punishment for the offence includes imprisonment of up to two years, and fine. The IPC section reads:
"Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence [of rape, gang rape or rape by a person in position of trust/authority, or sexual assault by a separated husband] is alleged or found to have been committed shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine."
In 2020, a 19-year-old Dalit woman was brutally gangraped in Uttar Pradesh's Hathras. Amid the outrage across the country, a photo of a young woman went viral, claiming that she was the Hathras victim.
A fact check later revealed that the photo was of another girl, unrelated to the incident. This was obviously a gross violation of privacy of the girl whose photo was shared, but even if they had the correct photo, those sharing it should have known that they were breaking the law.
"Posting any identifier on social media can have a snowballing effect on the case. Revealing the identity of the person can also lead to inference in the case from those who have a personal interest in the larger scheme of things – like political or communal – which ends up affecting the case," Chaudhary added.
What Makes an 'Identity'?
In the 2018 Nipun Saxena v Union of India case, a Supreme Court bench led by Justice Madan B Lokur, after examining sub-section (1) of the Section 228A, reiterated that not only the publication of the name is prohibited, but also any details that might "make known the identity of the victim".
In its judgment, the apex court referred to a case in which a news report said that a victim of sexual assault had topped the State Board Examination – while also providing the name of the state.
"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."Supreme Court Bench in December 2018
Speaking in particular about the Shahdara incident, a public prosecutor who did not want to be named said:
"There is a viral video of the uncle, and there is another video of the sister. There are also visuals of the street where the house is located. Now, all this does not state her name. But all this could lead people to the 21-year-old. And if either the police or the survivor wishes to take action, those sharing this can be thrown behind bars."
When Is Disclosure Allowed?
According to Section 228A of the IPC, if an adult victim has no objection to her name being published or identity being disclosed, she should authorise it, in writing, to the person who is disclosing her details.
"This has to be voluntary and conscious decision of the victim," the Justice Lokur-led bench underlined.
Like Park Street rape survivor Suzette Jordon did. She was allegedly raped in a moving car in February 2012 in Kolkata's upscale neighbourhood. Fifteen months after the incident, in June 2013, she appeared on television and revealed her identity.
The apex court in 2018 held that if the victim is dead, then her identity should not be disclosed, even by the next of kin, unless there are valid grounds. Such a disclosure should also be authorised by a “competent authority".
Additional Rules in Cases Where Survivor Or Victim is a Minor
When it comes to minor victims and survivors of sexual crimes, Section 23(2) of the POCSO Act includes an additional prohibition of the disclosure of their identities.
Section 23 of the POCSO says that no reports in any media can disclose the name, address, photograph, family details, school, neighbourhood or any other particulars which may lead to disclosure of identity of a victim of sexual offences.
Section 74 of the Juvenile Justice Act also says that no reports by print or electronic media can reveal the identity of any child victim of an offence – or even those of a witness or a perpetrator who is a child.
While the JJ Act offence is tailored to news media, the POCSO offence can apply to anyone posting on social media, and is punishable with imprisonment between six months to one year or a fine or both.
The Supreme Court bench in December 2018 held that a minor who is a survivor of sexual assault needs to be protected even more than an adult 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.
Earlier that year, the Delhi High Court imposed a fine of Rs 10 lakh each on 12 media organisations, including legacy media houses like The Times of India, The Indian Express, The Hindu and NDTV, for naming the eight-year-old victim of the Kathua gang-rape and murder case. The order also criticised the media reports for carrying the name and photographs of the minor girl victim.
“Unfortunately the nature and manner of reporting of the alleged offence is being effected in absolute violation of specific prohibition of law disrespecting the privacy of victim which is required to be maintained in respect of the identify of a victim” [sic], Justice Gita Mittal, then acting chief justice of the Delhi HC, wrote in her order.
The Nirbhaya Case Dilemma
In December 2015, the 2012 Delhi gang-rape victim Nirbhaya's mother revealed her daughter's identity yet again, stating:
"I am not ashamed of taking my daughter’s name. Whoever has suffered should not hide their name. It is the offenders who should be ashamed and hide their name. I want to tell everyone that my daughter’s name was Jyoti Singh. From today, everyone should know her as Jyoti Singh."
Technically, according to the law, the media is still prohibited from revealing her identity as her parents had given the name to journalists and not to “the chairman or the secretary, by whatever name called, of any recognised welfare institution or organisation”, as stipulated by Section 228A of the IPC.
However, as these organisations have not been designated by the central and state governments over the last four decades, the multiple public stances taken by the family including in presence of the police, should satisfy the legal requirements.
Another issue that has been highlighted in high-profile cases is the care that must be taken with FIRs and judgments.
The police and the courts have to take note of the identity of the victim, but FIRs and judgments made available to the public have to be redacted to protect their identity – not just in terms of their name but any other identifying factors as well.
Implementation in Times of Social Media
Supreme Court advocate Sonali Shelar said that before a private individual posts on social media, there should be a conscious effort to think about how this could impact the case.
"Reporting sexual offences for cases is already very low in India, and there are so many factors that discourage women from coming out. Fear of identity being revealed is one of the things that keep the survivors and their families from reporting the crime," said Shelar.
So, what is usually done if a survivor's identity is revealed on social media?
"First, the tweets are asked to be taken down. Or a notice can be sent on social media platforms to ask them to remove, as they have intermediary liability under the IT Act. The local police stations will also not have the means to contact these international platforms. So there needs to be a little clarity moving forward, as I said before, everything on social media can have a snowball effect. While the responsibility lies with the police to monitor, it needs to be corrected at an individual's level," Pink Legal's Chaudhary added.
(This article was first published on 6 February 2022. It has been republished from The Quint's archives in light of the Hyderabad gang rape.)
(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)