The sexual harassment case against a suspended Special Director General of Police (DGP) in Tamil Nadu by a woman IPS officer took a peculiar turn when the Madras High Court, decreed that apart from the survivor, the accused should also not be named in media reports. The court had taken suo moto cognisance of the case, and in an order dated March 2, 2021, said, “The name of the victim officer, the accused person and the witnesses shall not be used or exchanged through any media, pending investigation in this case.”
The Madras High Court had especially expressed concern over the difficulties faced by the woman officer in reporting the matter. According to her complaint, she not only received several calls from the accused former DGP, dissuading her from filing an official complaint, but was also allegedly stopped by 10-15 police personnel in Chengalpattu – allegedly acting on the accused former DGP’s orders – while on the way to Chennai to give her complaint.
While stressing on the need for a thorough probe into the matter, the court added that it was worried about the high possibility of the issue being "politicised" given that Assembly elections are around the corner in Tamil Nadu. In that vein, it issued orders saying that a fair investigation must be ensured, political parties shouldn’t speak on the issue in the media, and the media should not name the accused, the witnesses, or the survivor. And any violation of these would be “viewed very seriously and this Court may be forced to initiate contempt proceedings.”
This is unusual, because, only withholding survivors’ names and identities in cases of sexual assault and/or harassment is the norm, reinforced by the Supreme Court in 2018. In the present case, there is an FIR as well, where the DGP has been booked under sections 354A (sexual harassment), 341 (punishment for wrongful restraint) and 506(1) (criminal intimidation) of the Indian Penal Code, and section 4 of the TN Prohibition of Harassment of Women Act, 2002.
Santhakumari, the President of the Tamil Nadu Federation of Women Lawyers, questions why the name of an accused should be omitted from public discourse if there is an FIR. “An FIR and the naming of such a person also act as deterrents for other persons against committing such acts on women. I don’t see why he should not be named here,” she says.
However, it should be noted that according to section 16 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) or the PoSH Act, 2013, the identity of the aggrieved woman, respondent, and witnesses as well as any information about the enquiry and proceedings happening in the Internal Committee or local committee should not be made known to the public, press or media. This is notwithstanding anything in the Right to Information Act, 2005. The accused former DGP has reportedly submitted to the court that given this provision, he should not be named in the media. The Tamil Nadu Home Department had, last week, set up a six-member inquiry committee to probe the complaint.
However, it is to be noted that in the case under question, the survivor has filed an FIR with the police and the case isn't under investigation under an Internal Committee alone. The concern is that such an order can be used in future cases too to withhold the name of the accused, even when the survivor has filed an FIR.
According to Sudha Ramalingam, a senior advocate, in saying that the accused should also not be named in the media, the court has interpreted an existing provision and perhaps applied it to this case. However, according to her, this provision in the PoSH Act is problematic, and should be amended. “The restriction should only be on publishing the victim-complainant's name. And pending enquiry, if the victim-complainant desires then, even the name of the accused should not be published, but it should be left at the discretion of the aggrieved woman.”
Nagasaila, a lawyer practising in the Madras High Court and a member of People’s Union for Civil Liberties (PUCL), says that while the court’s order is coming from a place of earnest concern to ensure fair investigation, directing the media to withhold the name of the accused in a sexual harassment case could set a dangerous precedent.
Indeed, the Madras High had acknowledged that it has taken a long time for women to be able to speak up about sexual harassment. “It took so much of struggle, for a police officer of that rank, even to give a complaint to the DGP, Chennai. This court shudders to think as to what would have happened if the victim was an officer belonging to a lower cadre […]. If that is the position in which lady officers are placed, it is hard to think as to what will happen if such a sexual harassment had taken place on an ordinary lady with no background,” the court said.
The state was also responding to the case by filing the FIR, suspending the accused, setting up an enquiry committee and so on, says Nagasaila, adding, “Still the High Court took suo moto cognisance because it was simply quite disturbed about the case, especially the alleged incident of the woman officer being stopped by police officers using Striking Force vehicles to block her car. It is also true that there is a provision in the PoSH Act that says the name of the accused should also not be publicised. However, it is important to remember that these issues often come to light because of the media, which compels public institutions to take action,” Nagasaila says.
“Often, survivors of sexual harassment in such cases get justice because of media support. When the accused is powerful, the state machinery could be motivated to support him unless there is political will or public opinion, which is shaped by media,” she adds.
On the other end of the spectrum though are trials by the media. And while she cautions against those, Nagasaila maintains that from a civil liberties point of view, precedents such as this where there is a selective gag could end up being counter-productive for survivors.