Friday, 14 July 2017

Child Sexual Abuse and its reporting in India: Media’s identity crisis.






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
[2] https://goo.gl/e0eR5b
[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

[5] (2003) 8 SCC 551
[6] What is POCSO: Gujarat DySP wonders in court. Accessed through: goo.gl/XhOZWz
[7] What is Bilkish Bano Gang Rape Case? Accessed through: https://goo.gl/95qznA
[8] http://ncrb.nic.in/StatPublications/CII/CII2015/chapters/Chapter%206-15.11.16.pdf

Saturday, 23 July 2016

Case Flow Management Rules: Is Justice delivered to the Backlog?

On 05/05/2016, the Gujarat High Court Case Flow Management Rules, 2016 came into force. The objective as gathered from its title, is to evolve a case flow management system. This rules apparently based on the Draft Rules provided by the Law Commission of India in its Consultation paper. In the judgment of the Supreme Court in Salem Bar Association vs. Union of India, the Supreme Court has requested this committee to prepare a case management formula. It is in the light of the said judgment this consultation paper on case management was published. There are many High Courts who have already made the rules for case management.
The rules are in sync with the reality and the expectations of litigants. The only problem which may be arisen is its implementation. Some of the provisions cannot practically be implemented e.g. Rule 13(3), this provision mandates that after the Written Submissions filed by the parties, the matter shall be listed before the Registrar (Judicial), for ascertaining the time likely to be taken for oral hearing. The parties are called upon to indicate the time for the oral hearing. And as per the availability of the said requisite extent of time, the matter shall be listed before the Judge. I have my own doubts regarding its practicality.
The Rules classify three Categories depending on the ‘Urgency’ i.e. Fast Track, Normal Track & Slow Track. Interestingly, the word ‘Urgency’ is nowhere defined in the Rules. It gives complete discretion to the Judge to categorize the matter into any category. This may bring heartburning to various litigants. Though Rule 6 empowers the Judge to shift the case from one track to another, Intra-Court appeals may be filed just to shift the track of the matter!
Rule 8 says that the petitioners/appellants/applicants shall cause to file, separate list, the list of the heirs/Legal Representatives of all petitioners/appellants/applicants. It also mandates to file a declaration to the effect that the address mentioned in the cause – title is correct. I am unable to gather the objective/rationale of this provision.
Rule 9 deals with mode of Advance Service. It says that the respondent must be served the copy of the petition/appeal along with all documents/paperbook prior to 72/48 hours before presenting the petition, in the cases where interim orders are sought against Government or PSUs. So, even if one require to get urgent orders in cases like termination, Tender matter, Demolition; one have to wait till 48/72 hours before presenting the petition!   It also increase the cost of litigation as the entire set of the petition shall be served to all the respondents. So, in cases where there are 25 respondents, you have to have 25 copies with you and it might happen that the matter can be dismissed in limine. There may be some formal parties. Under the new rules they are also required to be served. Ultimately, litigants would suffer.
Only time will tell the real implications of this Rules. Till then let us all self – manage the backlogs!

Wednesday, 20 July 2016

Customary Divorce & Hindu Marriage Act, 1955

Is Customary Divorce through Divorce deed recognised and acceptable as a mode of dissolution of marriage under Hindu Marriage Act, 1955?


STATUTORY PROVISIONS & Judicial Pronouncements: Before adverting to the aforesaid queries, it would be profitable to cite the fundamental provisions of the relevant legislations upon which this query has been given:



          If the marriage is solemnised as per Hindu rituals, provisions of   Hindu Marriage Act, 1955, more particularly Sections 13, 13B & 29, are applicable to opine on the subject.



If both the parties are agreed to dissolve the marriage the only Provision applicable is Section 13B of the Act. But, the Hon’ble Gujarat High Court through various judicial pronouncements held that customary divorce is saved by Section 29 (2) of the Act, and, hence, permissible and having force of law.



In the matter of Sonal Keyurbhai Patel v. Superintendent Regional Passport Office & Anr. 2010 (3) GCD 1771 (Guj.) the Hon’ble Gujarat High Court held that, “…customary divorce can be said to be permissible unless it is objected by either party to the divorce deed or any person who is directly affected by the divorce deed.”


In the case of Twinkle Rameshkumar Dhameliya v. Superintendent, Regional Passport Office, Ahmedabad, 2006 (4) GLR 3443 the Hon’ble Gujarat High Court observed that, “Section 29(2) of the Hindu Marriage Act, 1955 provides that “Nothing contained in the Hindu Marriage Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnised before or after the commencement of Hindu Marriage Act.” Therefore, if the customary divorce is permissible for dissolution of Hindu marriage the same as such is saved even as per the provisions of Hindu Marriage Act.” Further it is observed that, “If the passport officer insists for authenticated divorce deed through the court in all cases of divorce, then in that case, the effect of Section 29(2) if Hindu Marriage Act for saving the customary divorce shall stand nullified.” This makes it very clear that:



·         Customary Divorce is recognised as one of the modes of dissolution of Hindu marriage under the Hindu Marriage Act, 1955.



·         Only in cases where either parties of the deed or any person directly affected by the deed raises any objection regarding the custom prevailing in the community, the prevalence of the customary rights to divorce shall be established by the person propounding such custom.


In the case of Dipika Amrutlal Patel V. Vishwam Pamanand Patel reported in 2011 GLH (1) 457, the Hon’ble Gujarat High Court held that, the Family Court can grant decree in a declaratory suit for the declaration that the customary deed executed between the parties, is valid and legal. Moreover, the Family court can also declare by virtue of the said customary divorce deed that the parties to the deed, is ceased to be husband and wife from the date of the execution of the customary divorce deed.

         
Upon assessment of the above the following emerges:

·         The customary divorce deed executed between the parties can be legally recognised and accepted mode of dissolution of marriage under the Hindu Marriage Act, 1955.

·         As the same is legally recognised no further action is required to be taken for reasserting the dissolution of marriage.

·         As the marriage is not in subsistence the petition under section 13B of the Hindu Marriage Act, 1955, cannot be filed.

·         Parties may file a declaratory suit for issuance of the declaration from the court that the divorce deed executed between the parties, is legal, valid and proper.