Sexual assault is a devastating social problem around the globe. The numbers suggest that India encounters many child sexual abuse cases owing to her population and socio-economic background. India has a great appetite of sensational news. The news media is highly competitive in India due to many competitors operating in a very narrow space. Therefore, many a times media in its reporting, crosses legally drawn lines. One of the same is to disclose the identity of the victims in cases of Child Sexual Abuses. Most of the developed countries have laws prohibiting the media to disclose the identity of victim/survivor of sexual offences. The restrictions are based on scientific empirical research which indicates that the victim may suffer with fear, anxiety, depression, anger and hostility, aggression, and sexually inappropriate behaviour. It has also reported long-term effects which includes depression and self-destructive behaviour, anxiety, feelings of isolation and stigma, poor self-esteem, difficulty in trusting others, a tendency toward re-victimization, substance abuse, and sexual maladjustment[1]. There is hardly any dispute regarding ill effect of naming and shaming of the victim of such crime. Through this article we will discuss the legal provisions in India vis a vis Child Sexual Abuse and Media reporting.
In
the year 2012, the Government of India has passed the Protection of Children
from Sexual offences Act, 2012. The act most commonly known as POSCO Act. The
stated objectives of the Act are, to protect children from offences of
sexual assault, sexual harassment and pornography, to establish special courts
for trial of such offences and to give affects the Convention on the Rights of
the Child. Apart from these usual objectives, one of the underdog objective
is to protect the identity and privacy of the victim. The object clause reads, it
is necessary for the proper development of the child that his or her right to
privacy and confidentiality be protected and respected by every person by all
means and through all stages of a judicial process involving the child. The Act further makes provisions for
avoiding the re-victimisation of the child at the hands of the judicial system.
It provides for special courts that conduct the trial in-camera and without
revealing the identity of the child, in a manner that is as child-friendly as
possible. Hence, the child may have a parent or other trusted person present at
the time of testifying and can call for assistance from an interpreter, special
educator, or other professional while giving evidence. Above all, the Act
stipulates that a case of child sexual abuse must be disposed of within one
year from the date the offence is reported. The Act also provides for mandatory
reporting of sexual offences. This casts a legal duty upon a person who has
knowledge that a child has been sexually abused to report the offence; if he
fails to do so, he may be punished with six months’ imprisonment and/ or a
fine.
In the same year, India has
witnessed one of the worst gang rape infamously known as Nirbhaya Case[2].
The striking thing of the said brutal rape case was the restrain exercised by
the media in not disclosing the identity of the victim/survivor. It seems till
then, the Indian Media houses are unaware
about the laws which mandate them to report certain crimes in a manner so that identity
of the victims must be protected. Section 228A[3]
of the Indian Penal Code clearly prohibits the news media to disclose the
identity of the survivors of rape cases. The offence under the same is
punishable with 2 years of imprisonment with or without fine. Where Sub-section
2 of 228A of IPC permits the media house or any person authorized to make
known the identity of the victim with prior permission of the next kin
of the victim, whereas Section 23 of POSCO Act puts blanket ban on
disclosing the identity of the victim in cases of Child sexual abuses. The
provision reads:
23. Procedure for media:
(1) No person shall make
any report or present comments on any child from any form of media or studio or
photographic facilities without having complete and authentic information,
which may have the effect of lowering his reputation or infringing upon his
privacy.
(2) No reports in any media
shall disclose, the identity of a child including his name, address,
photograph, family details, school, neighbourhood or any other particulars
which may lead to disclosure of identity of the child:
Provided
that for reasons to be recorded in writing, the Special Court, competent to try
the case under the Act, may permit such disclosure, if in its opinion such disclosure
is in the interest of the child.
(3) The publisher or owner
of the media or studio or photographic facilities shall be jointly and
severally liable for the acts and omissions of his employee.
(4) Any person who
contravenes the provisions of sub-section (1) or sub-section (2) shall be
liable to be punished with imprisonment of either description for a period
which shall not be less than six months but which may extend to one year or with
fine or with both.
This
provision does not only prohibit the disclosure of the names of child victims
but of information potentially leading to the identification of the victims. As
mentioned in Section 23(1) no person shall make any report which may have the
effect of lowering the reputation or infringing upon his/her privacy. This provision recognizes the right to
privacy. Ironically, the Supreme Court is still to hold whether right to
privacy is a fundamental right which falls under Article 21 or not[4].
Therefore, it is safe to say that the provision under section 23 is much
broader than the provisions under Section 228A of the IPC. As per Section 23(2)
of the POSCO Act, only the special and competent court can give permission if
in the Court’s opinion such disclosure is in the interest of the victim.
Section 23(3) fixes the liability of publisher as well as the owner of the
media houses.
The
objective of the provision is easy to discern. It has been enacted in view of
the social object of preventing social victimization or ostracisms of the
victim of a sexual offence.[5]
Though, the practical enforcement of the provision is far from expectations.
Till date there is no reported judgments except Shankar Kishanrao Khade V.
State of Maharashtra reported in (2013) 5 SCC 546 whereby the Hon’ble Supreme
Court has inter alia, directed that, “Media personals, persons in
charge of Hotel, lodge, hospital, clubs, studios, photograph facilities have to
duly comply with the provision of Section 20 of the Act 32 of 2012 and provide
information to the S.J.P.U., or local police. Media has to strictly comply with
Section 23 of the Act as well.”
For
better implementation of the POSCO act, we have National Commission for the
Protection of Child Rights and State Commission for the protection of Child
Rights. The state of Gujarat has also appointed Support Persons who can help
and assist the children about the judicial process i.e. Pre-Trial and Post-trial
Stage. There are reports suggesting to the fact that the Police officers are
still not aware[6]
about the provisions of this Act and they inadvertently disclose the identity
of the victim.
It
is aptly put by Nelson Mandela, Our children are the rock on which our
future will be built, our greatest asset as a nation. They will be the leaders
of our country, the creators of our national wealth who care for and protect
our people. Still, we have
recently witnessed a breach of this provisions in case of Bilkish Bano[7]
whereby the media has openly violated the law by disclosing the name of rape
victim. Till date no action has been taken by any law enforcement agency
against the media houses. This shows the callousness of media and the law
enforcement agency alike. The only solution to this is to spread legal
awareness regarding the provisions and make the victim understand the rights of
their in filing criminal complaint in cases of any violation of above mentioned
laws.
According to the report of National
Crime Records Bureau, a total of 14,913 cases under the ‘Protection of Children
from Sexual Offences Act’, 2012 were registered during the year 2015. It is
necessary to mention that in India Sexual abuses are most under reported crime[8].
Although, the Government is on right path to enforce the provisions of the Act
in its true spirit, the absence of any regulating authority for media houses
which aid the government agencies to find out the violations of the above-
mentioned provisions, created a situation where the provision becomes a paper
tiger.
As stated the competition among the media houses
lead them to resort to unethical way of reporting the crimes. Most of the cases
registered under POSCO provides SENSATIONAL headlines to the media houses. The
sensationalism of news reporting erase the legal boundaries and unfortunately,
it leads to re-victimisation of the child. The provisions of laws are not
enough it requires effective enforcement of the same. Let’s hope for the better
implementation of the law for the betterment of the future of children.
[1]
Impact of child sexual abuse: A review of the
research. Browne, Angela; Finkelhor, David Psychological Bulletin
[3] 228A. Disclosure of identity of the victim of certain
offences etc.—
(1) Whoever prints or publishes the name or any matter which may make
known the identity of any person against whom an offence under section 376,
section 376A, section 376B, section 376C or section 376D is alleged or found to
have been committed (hereafter in this section referred to as the victim) shall
be punished with imprisonment of either description for a term which may extend
to two years and shall also be liable to fine.
(2) Nothing in sub-section (1) extends to any printing or publication
of the name or any matter which may make known the identity of the victim if
such printing or publication is—
(a) by or under the order in writing of the officer-in-charge of the
police station or the police officer making the investigation into such offence
acting in good faith for the purposes of such investigation; or
(b) by, or with the authorisation in writing of, the victim; or
(c) where the victim is dead or minor or of unsound mind, by, or with
the authorisation in writing of, the next of kin of the victim: Provided that
no such authorisation shall be given by the next of kin to anybody other than
the chairman or the secretary, by whatever name called, of any recognised
welfare institution or organisation. Explanation.—For the purposes of this
sub-section, “recognised welfare institution or organisation” means a social
welfare institution or organisation recognised in this behalf by the Central or
State Government.
(3) Whoever prints or publishes any matter in relation to any
proceeding before a court with respect to an offence referred to in sub-section
(1) without the previous permission of such Court shall be punished with
imprisonment of either description for a term which may extend to two years and
shall also be liable to fine. Explanation.—The printing or publication of the
judgment of any High Court or the Supreme Court does not amount to an offence
within the meaning of this section.]
[4] Is Privacy a Fundamental Right? Constitution Bench of
Supreme Court to Decide. Reported at: https://goo.gl/MG8xiG
[6]
What is POCSO: Gujarat DySP wonders in court.
Accessed through: goo.gl/XhOZWz
