On Saturday, the Economic Times published an editorial explaining why the media should name the eight-year-old girl who was raped and murdered in Kathua in January. The horrifying case has seen extensive coverage, with media houses naming the victim and displaying her photographs. This was heavily criticised on Friday by the Delhi High Court, and notices were sent to twelve organisations.
According to the order passed by the court, “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 identity of a victim.”
The Economic Times, however, argues that demanding her identity be kept secret “is not only pointless, but is an unwanted digression that takes the focus away from the real horror and the need to bring those responsible for it to justice.”
I strongly disagree with this view as it fails to address why the law prohibits revealing the identity of a victim, and advocates ignoring the law without exhausting alternative options.
The Law Against Disclosing the Identity of Sexual Offence Victims
The High Court refers to two provisions of law which prohibit disclosure of the identity of victims of sexual crimes.
- Section 23 of the Protection of Children from Sexual Offences Act 2012 (POCSO) prohibits the media specifically from disclosing 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. Committing this offence is punishable with imprisonment for 6 months to 1 year, and publishers/owners of media houses will be responsible along with whoever wrote the story.
- Section 228A of the Indian Penal Code 1860 (IPC) prohibits the printing or publishing of the name or any other detail which discloses the identity of a victim of rape (section 376, 376 A-E of the IPC). This can be waived by the victim, or, where the victim is dead, by the family of the victim, to the specified authorities. Committing this offence – termed an offence against public justice – is punishable with imprisonment for up to 2 years.
These prohibitions are very clear and don’t allow for any exceptions even in cases where the victim has been killed.
Not Disclosing the Name Doesn’t Affect Reportage or Delivery of Justice
In cases like Kathua, to publish the name of a child victim of a sexual offence would require some compelling public interest. If not, there is no justification to openly flout the law, no matter what discontentment we might have with it.
I can perhaps see the merit of the arguments to act against the prohibitions here – that doing so helps put a name, a face to the crime which helps drive home the weight of what has happened, instead of allowing apathy to set in. The Economic Times editorial reiterates this, stating that not telling the world that she was “a flesh and blood child with a name” will make the crime depersonalised and will leave it as just one case among many.
To justify defying the law, however, an extremely strong case needs to be made. It would have to be shown that making an exception would have desired consequences. Such a case, however, has not been made.
Indeed, the Nirbhaya case shows that sufficient public will and outrage can coalesce even around an unnamed victim, so it’s not as though sentiment – and even legal change – can only be driven through naming and showing the victim. In fact, it is arguable that a more generic term like the one used then, ‘Fearless’, could potentially have an even greater impact.
No matter what they thought, the media took care to follow the law, even after she had died. Eventually Nirbhaya’s name was made known, after her parents agreed to do so, and the appropriate procedures had been followed. There was a bit of confusion since the parents used her name for the first time in a media interview rather than first informing the police or the courts, sure, but it took nothing away from the reporting, or the outrage, or the powerful activism that helped usher in the criminal law amendments of 2013.
And, lest this be forgotten, there was no distraction from bringing those responsible to justice because her name and photograph weren’t made public. All the accused (except one who killed himself) were convicted and (apart from the juvenile), given the death sentence.
The Purpose Behind Non-Disclosure
I also take strong exception to the editorial’s claim that demanding that we keep her identity secret “serves no purpose – apart from theoretical self-righteousness”. This is a strong and contestable assertion, which completely ignores the concept of privacy – upheld as a fundamental right just last year by the Supreme Court.
There are a number of reasons that lie behind the legal prohibitions against disclosing the identity of victims of sexual offences. Social stigma continues to be an issue, but it’s no longer just about that. Once a person’s name and image are in the news for something like this, it becomes a matter of dignity that has nothing to do with traditional notions of honour.
That the victim is dead makes little difference to this, because this would mean ignoring the family, who have already gone through an extremely traumatic experience. If our children were victims of a crime, would we want their faces and names to be plastered all over TV, the newspapers and the internet for posterity, just so that some journalists can make their point better? Would we be happy if our child were to be gruesomely murdered and would forever become the face of brutality and sexual abuse of children in this country?
If we wouldn’t want it done for them, we can’t unilaterally decide to do that here.
Such an approach also ignores the victim. Do we truly believe that the right to privacy should not survive death? How many of us would want to be remembered forevermore after death as the victim who suffered some horrible fate?
Ignoring Agency, Again
The Economic Times editorial does nothing to rebut these points. It notes the Nirbhaya and Suzette Jordan cases to point out when names can be revealed, but at the end of the day, a positive decision was made to waive anonymity in those cases by those who had the power to do so in law – the family and Jordan herself.
The waiver of anonymity in those cases was, therefore, an act of agency, made deliberately. This is not so in the Kathua case. Her family did not say they want her name revealed. She was already stripped of enough of her agency by the rapists and murders – and the irresponsible media reporting in the aftermath has stripped away even the meagre dregs that were left.
Let’s also be clear, that the disclosure of her identity by many news organisations had nothing to do with any noble intentions, and was only a result of ignorance of the law and the ‘chalta hai’ attitude that is the default Indian setting towards inconvenient rules (or maybe even a desire for more clicks/views, if one wants to be more cynical). Her name and photograph had already been in circulation, long before any grand editorial decision was made in any newsroom.
Consequently, it would be disingenuous and an insult to her memory to try and claim that this is why this was done, and why the Delhi High Court’s orders should now be defied.
Unhappy With the Prohibition? Utilise Legal Options
If indeed any media house is so convinced that the victim’s name needs to be made public, there is a simple solution. Her next of kin can still authorize the waiver, provided this authorisation is communicated to the right authorities.
This can be attained in two ways. First, by directly approaching the next of kin, asking for their permission and presenting this to the courts. Alternatively, a representation can be made to the Delhi High Court which is hearing the matter on 18 April, to ask them to consider the public interest grounds and ask for the family’s views.
If there is such a compelling public interest which the law is pointlessly ignoring, surely the family or the court will agree. If yes, the victim’s name can be safely used, and her photograph made public. If they don’t, and they have failed to give the issue due consideration, one could also argue that defying the law is acceptable.
Otherwise, we are saying that the rule of law means nothing, and that it is ok to flout the law even though there are alternatives to get our point across.
The Kathua lawyers who tried to block the chargesheet in this case were similarly claiming that they had a right to protest, that there was a wrongful exercise of the law, and so ignored the option of filing a quashing petition against the chargesheet. Sure, you may say the media has a morally superior position here, but when alternatives have not been exhausted, the argument is still the same.
Is that really how we want to fight this fight?
(The Times Group, publisher of The Economic Times, competes with Quintillion Media Private Limited, publisher of The Quint, in some markets.)