In April 2018, reports of the brutal gangrape and murder of a little girl in Kathua sent shock waves across the nation. However, in the ensuing outrage, media houses failed to follow important due processes with respect to the reporting of sexual assault. These violations were blatant - not only was the victim’s name revealed, but also photos of her before and after the crime were published on print and electronic media.
The online portal of Dainik Bhaskar even uploaded a photo gallery with pictures of the victim’s corpse, only one of the countless breaches of journalistic norms this case saw.
The Delhi High Court took suo motu cognizance of such reports, stating that it was an absolute violation of the victim’s right to privacy under existing laws. Arguably, this was a special case in which it was necessary to create empathy for the victim who hailed from a nomadic background, given that the mainstream media did not even take cognizance of the incident for three full months.
But amidst the outrage we shared over the rape of a child, was the dignity of the dead trampled on?
We must first ask ourselves whether the question of stigmatization of a victim even arises when she is no more. The Supreme Court recently commented that even the dead have dignity; they cannot be "named or shamed". Under Section 228A of the Indian Penal Code, in cases where a victim of sexual assault is dead, minor or of unsound mind, there stands an exception to the bar on publication of the victim’s identity – the next of kin of the victim may provide written authorization to the chairman of a “recognised welfare institution”.
Arguably, a corporate media house is not a welfare institution. However, courts have held that if the publication is made at the instance of the social welfare organisation, the bar shall not apply. Evidently, the purpose of this provision is to allow such an organization to carry out work in the victim’s memory. Allowing the press to cover such a case for securing justice for the victim would be an extension of this.
Some writers have argued that it is the insistence on concealment which adds to the stigma surrounding sexual assault. However, disclosure of identity is premature in a society where sexual violence continues to be perceived as the victim’s fault. Forcing a victim to brave the stigma cannot be a reasonable step towards fighting it. In the cases of dead victims though, disclosure of identity may be necessary in order to mobilize public support - like we saw in the Nirbhaya case in Delhi - and hence, the next of kin must have the right to authorize disclosure of identity to the media under Section 228A.
But when it comes to the sexual abuse of a child, special legal protections exist due to the sensitive nature of the crime. Section 23 of the POCSO Act bars the media from disclosing any details which may lead to the victim’s identification. Such disclosure is only permitted if the POCSO Special Court believes that it is in the child’s best interests.
The Juvenile Justice Act, 2015, prohibits the disclosure of the identity of not only the child victim but also any minor accused or witness of a crime, as well as the publication of pictures. Similar to POCSO, the JJ Act permits disclosure if the JJ Board is of the opinion that it is in the child’s best interest, and both make persons who contravene this provision criminally liable.
Neither the POCSO nor the JJ Act draw any distinction between alive and dead victims - there is no exception authorizing the next of kin to reveal identity as under the IPC.
The reportage of the Kathua case violated not only the POCSO and the JJ Act, but the Press Council of India Norms and the National Human Rights Commission’s ‘Media Guidelines on Child Sexual Abuse’ as well.
The threat of sensationalism used by the media to attract readers to non-mainstream stories, which compromises the victims’ dignity, attracts stigma towards traumatized family members, and jeopardizes the investigation process, outweighs any benefits which the publication of these details may grant. Hence, in the case of child victims, the system of court approval should continue as an added layer of protection, though the next of kin should have the agency to authorize disclosure.
The tremendous role played by the media in constructing the narrative surrounding sexual violence is undeniable. It is thus imperative that the media becomes more sensitive in the reportage of it, and does away with the reckless sensationalism it seems so fond of. The existing legal framework must be amended if this goal is to be realised.
The writers are students at the National Law School of India University, Bangalore.
Views expressed are author's own.