(This was first published on 14 August. It has been republished from The Quint's archives in light of celebrities revealing the identity of Hyderabad minor rape victim on social media.)
Days after Congress leader Rahul Gandhi's Twitter account was 'temporarily blocked' over his tweet revealing the faces of a Dalit minor rape victim's family, it was restored on 14 August. However, it wasn't without much political vitriol.
On Wednesday, 11 August, Twitter had told the Delhi High Court that Rahul Gandhi's tweet had violated Section 23(2) of the Protection of Children from Sexual Offences (POCSO) Act and Section 74 of the Juvenile Justice Act, 2005, reported Bar and Bench.
These provisions specifically prohibit the disclosure of the identities of children who are victims of crimes.
In this article, we unpack where the law stands on disclosing the identity of the rape survivors and victims and their families.
What Does the Law Say About Disclosing the Identity of a Child Victim?
There are several legal provisions that require protection of the identity of survivors and victims of crimes – some specifically for children, and others for certain crimes against women.
As mentioned by Twitter in the hearing in the Delhi High Court, the ones dealing with identities of child victims are Section 23 of the POCSO Act, and Section 74 of the Juvenile Justice Act.
Section 23(2) of the POCSO Act prohibits the disclosure of the identity of a child victim of sexual offences "including his name, address, photograph, family details, school, neighbourhood or any other particulars which may lead to disclosure of identity of the child."
Violation of this prohibition is a criminal offence, punishable with six months to one year in jail as well as a fine.
Section 74 of the Juvenile Justice Act prohibits the disclosure of the "name, address or school or any other particular," which can be used to identify a child who is a victim of any crime, or even a child who is accused of committing a crime, as well as children who are witnesses to a crime.
Violating this prohibition is also a criminal offence, punishable with up to six months' imprisonment, and/or a fine.
Both these prohibitions seek to prevent the disclosure of any information which would reveal the identity of a child victim, which includes photos or details about their parents.
The key thing to note about these legal provisions is that neither of these prohibitions on revealing the identity of a child victim can be waived, whether by the child (if they are alive) or the parents of the child.
However, the special POCSO courts or Juvenile Justice Boards can waive the prohibition if they believe disclosure of the identity is in the interests of the child – for instance, if they have gone missing. Applications can be made to them for permission to do so.
NOTE: Given the wording used in these provisions, it might be possible to argue that the prohibitions against disclosure apply to media houses only, rather than private citizens on social media accounts. However, it is not clear if such an argument would actually be accepted by a court, as the concept of 'media' has increasingly become wider in light of the rise of social media.
Crimes Against Women
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 applies to both adults and minors.
This prohibition can be waived by the survivor, or – where the victim is deceased (or of unsound mind) – by the family of the victim, in a communication to a designated welfare institution or other authority.
If a person prints or publishes any information which violates this provision, this amounts to a criminal offence – termed an offence against public justice – which is punishable with imprisonment for up to two years.
The key point to note here is the possibility of a waiver – but given the protections in the POCSO Act and the Juvenile Justice Act, the waiver under Section 228A can only apply in cases where the survivor/victim is an adult.
Nirbhaya's Parents Identity Revealed
The 2012 Delhi gang-rape case touched the consciences of people across the country and brought about fundamental legislative changes in the handling of such heinous crimes.
In this case, although the victim's identity was originally kept secret using the moniker 'Nirbhaya', the family chose to eventually reveal her name and disclose their own identities. The media and politicians spoke to the family and went to their residence in Southwest Delhi.
Later, her father in an interview said, "We want everyone to know her real name. My daughter did nothing wrong. She died while protecting herself. I am proud of her. Disclosing her name will bring courage to other women who have survived these attacks. They will find strength in my daughter."
In December 2015, Nirbhaya's mother revealed her identity once 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, given the public stance of the family and the possibility of a waiver, it could argued that the requirements for a proper disclosure have been met.
The Dead Cannot Be Denied Dignity: Supreme Court Clarifies Stance When Victim is Deceased
In December 2019, a bench of justices Madan B Lokur and Deepak Gupta directed that FIRs lodged for the offence of rape under the Indian Penal Code (IPC) and offences under the Protection of Children from Sexual Offences (POCSO) Act shall not be put in public domain.
The apex court further added that names and identity of victims of rape and sexual assault, including those who have died, cannot be disclosed "even in a remote manner".
It further added that nobody can have any objection to the victim disclosing their name as long as they are doing it voluntarily. The judges also mentioned that the media must be careful and should not "sensationalise" such cases.
The court also asked the police officials to keep all the documents in which the name of the victim is disclosed, as far as possible, in a sealed cover and replace these documents by identical documents in which the name of the victim is removed in all records which can be examined or inspected in the public domain.
For reporting and media coverage, the court has asked reporters to avoid talking to such victim/survivor because every time the victim repeats the tale of misery. It further added that these cases should be reported with sensitivity.
"In case of minor victims under POCSO, disclosure of their identity can only be permitted by the special court, if such disclosure is in the interest of the child," the bench said.
The bench denied the submissions that name and identity of minor victims of sexual assault could be disclosed after they have died.
"In the case of dead victims, we have to deal with another factor. We have to deal with the important issue that even the dead have their own dignity. They cannot be denied dignity only because they are dead," the judges clarified.
(With inputs from Business Standard and The Wire)
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