The National Commission of Women (NCW) issued separate notices to Bharatiya Janata Party (BJP) IT cell chief Amit Malviya, Congress leader Digvijaya Singh and Bollywood actor Swara Bhasker for allegedly publicly revealing the identity of the deceased 18-year-old Dalit girl from Hathras, Uttar Pradesh who was allegedly gang-raped.
"In view of the above, you are hereby required to provide a satisfactory explanation to the Commission on receipt of this notice and shall remove and refrain from transmission of such pictures/ videos on the social media as they are widely circulated by your follower which is prohibited by the existing law," the NCW notice read. The apex women's commission also directed the three to delete the posts on Twitter and refrain themselves from repeating this in future.
The NCW notice highlights a key point: Can the identity of a sexual assault victim be made public? The answer is no.
Provisions of the Indian Penal Code prevent the revelation of the identity of an individual who is or may be a victim of sexual assault. The penalty for flouting this law is jail term up to two years or a fine or both. In 2018, the Delhi High Court took suo motu cognisance of the 'nature and manner of reporting' in the Kathua rape case and fined 12 media houses ₹10 Lakh each.
Guidelines issued by the Supreme Court
In a scathing indictment of the society, the police and the judiciary at large, the Supreme Court in its 2018 Nipun Saxena verdict observed that "Unfortunately, in our society, the victim of a sexual offence, especially a victim of rape, is treated worse than the perpetrator of the crime."
The division bench comprising Justices Madan Lokur and Deepak Gupta observed that a rape victim "will face hostile discrimination and social ostracisation in society".
Such victims find it difficult to get jobs; get married and also find it difficult to get integrated in society like a normal human being. "Our criminal jurisprudence does not provide for an adequate witness protection programme and, therefore, the need is much greater to protect the victim and hide her identity," the top court said before issuing guidelines as follows:
1) No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.
2) 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.
3) FIRs relating to offences of all provisions of rape and offences under POCSO (Protection of Children from Sexual Offences Act, 2012) cannot be made public.
4) In case a victim files an appeal under challenging the acquittal of the accused; the conviction of the accused under a lesser offence; or inadequate compensation, it is not necessary for the victim to disclose his/her identity and the appeal shall be dealt with in the manner laid down by law.
5) The police must keep all documents naming the victims in a sealed cover and replace the same by identical documents in which the name of the victim is removed in all records which may be scrutinised in the public domain.
6) All the authorities who know the identity of a victim of sexual assault is also duty bound to protect the same.
7) Until the government passes legislation, a sessions judge will decide on applications filed by the next of kin to authorize the disclosure of the identity of a dead victim or of a victim of unsound mind.
8) In the case of minor victims under POCSO, special courts may permit the disclosure of the victim's identity only if it is in the interest of the child.
9) All the States/Union Territories are requested to set up at least one 'one-stop centre' in every district within one year from today.
Victim of sexual assault treated as pariah and untouchable
The top court's verdict observed that our society instead of empathizing with the victim—who is innocent—for no fault of her own, treat them as 'untouchable'.
"A victim of rape is treated like a "pariah" and ostracized from society. Many times, even her family refuses to accept her back into their fold. The harsh reality is that many times cases of rape do not even get reported because of the false notions of so-called 'honour' which the family of the victim wants to uphold," the verdict penned by Justice Deepak Gupta read.
Justice Gupta observed that the matter does not end there. The police—after the FIR is recorded—"more often than not question the victim like an accused". "The victim's first brush with justice is an unpleasant one where she is made to feel that she is at fault; she is the cause of the crime," the verdict read.
Presiding judges sometimes mute spectators
The ordeal doesn't end there. "In Court the victim is subjected to a harsh crossexamination wherein a lot of questions are raised about the victim's morals and character. The Presiding Judges sometimes sit like mute spectators and normally do not prevent the defence from asking such defamatory and unnecessary questions," the verdict continued to read going on to add that cross-examination need not be curtailed, but a decorum of decency and respect must be maintained.