The Kolkata doctor rape-murder victim’s name, photos and her identity have gone viral on social media. Crime scene photos including those with her in the room where she was last found have also gone viral.
On Instagram one can find more than 21,000 hits if you search for #Victim’s[first name + last name], #JusticeFor[Victim’s name] and variations of the same. The Calcutta High Court today cautioned people from circulating such posts since the law prohibits such disclosures.
The posts are disturbing and triggering to amplify outrage of the crime.
Kolkata Police also issued notice to X user Nikhil Mishra (@harsh5699_) for posting the victim’s photo. Kolkata Police issued notice under Section 168 Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 for publishing “offensive, malicious and inciteful” posts. The X user has been directed to delete the post or face “strict penal action”.
The Police issued notice on August 16 in the early hours of the morning at 1:36 am. However, at the time of writing this story, Nikhil Mishra’s post was still online. It has 479 comments, 4.8k retweets, 9.8k likes, and bookmarked 4k times.
Apart from the general public, YouTuber Dhruv Rathee and actor Genelia Deshmukh are among the few celebrities with massive social media reach and following who have outed the Kolkata doctor in their posts. Rathee's post got 66k likes and more than 12k retweets.
What does the law say? Are we allowed to disclose a rape survivor or victim’s identity? The short answer is NO.
In 2018, the Delhi High Court took offence to the media reporting in the Kathua rape case and fined 12 media houses ₹10 Lakh each. Even in the Kathua rape case, social media was abuzz with #JusticeFor(victim’s name). The court observed that apart from the media houses being in “absolute violation” of the law, their reportage also disrespected the victim’s privacy.
Law prohibits the revelation of a sexual assault victim’s identity
The new Bharatiya Nyaya Sanhita (BNS), 2023 which replaced the Indian Penal Code on July 1, criminalises the disclosure of a sexual assault victim’s identity. Those who violate the law attract a financial penalty and stand to attract upto two years jail time.
However, there are certain exceptions when such disclosures can be made. According to the law, the victim, or in case the victim is deceased, is a child or is of unsound mind, then the next-of-kin may permit the disclosure of the identity to an authorised welfare institution only. Family members cannot disclose the identity of a sexual assault victim even after their death.
The law also permits police officials “acting in good faith” to disclose identities for to further their investigation. "For example, police officers may publish a victim’s photo if they remain unidentified by any other means (because for instance the body or face is disfigured),” advocate Nipun Saxena said.
"Furthermore, the case diary, FIR and other papers regarding Medico legal examination, 161 and 164 statements are to all mask the identity of the prosecutrix and no part can ever be released. The actual documents are to be kept in a sealed cover only for the perusal of the Court," Saxena added.
In its notice to X user, Kolkata Police has relied on Section 168, BNSS to compel the takedown of a post. According to the BNSS—which replaced the Code of Criminal Procedure on July 1—says “Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence”.
This could be seen as a preventive action, whereby the social media user is given the opportunity to take down the post voluntarily, failing which it becomes a cognisable offence.
Court guidelines to protect victims of sexual assault
The Supreme Court in 2018 noted how victims of sexual offence, especially rape victims, are “treated worse than the perpetrator of the crime”. In a scathing indictment of the society, the police and the judiciary at large, the Supreme Court observed how rape victim “face hostile discrimination and social ostracisation in society”.
The division bench of Justices Manan Lokur and Deepak Gupta (both since retired) pointed out how such victims find it difficult to assimilate in society like “normal human beings” after their nightmarish ordeal. “Our criminal jurisprudence does not provide for an adequate witness protection programme and, therefore, the need is much greater to protect the victim and hide her identity,” the court said while issuing guidelines to protect the identities of sexual assault victims.
- Nobody, including the media can publish a sexual assault survivor or victim's name or even in a remote manner disclose any facts that can lead to the revelation of their identity
- In cases where the victim is dead or of unsound mind, the name of the victim or her identity should not be disclosed even if it is authorised by the next-of-kin, unless there are circumstances to justify the disclosure of her identity that will be decided by the competent authority
- FIRs relating to offences of all provisions of rape and offences under POCSO (Protection of Children from Sexual Offences Act, 2012) cannot be made public.
- In case a victim files an appeal challenging the acquittal of the accused; the conviction of the accused under a lesser offence; or inadequate compensation, the victim is not bound to disclose one's identity
- The police must keep in sealed cover all documents pertaining to the name of the victim and furnish only those documents pertaining to the case where the victim's name is redacted
- All the authorities who know the identity of a victim of sexual assault are also duty-bound to protect the same
- In the case of minor victims under POCSO, special courts may permit the disclosure of the victim's identity only if it is in the interest of the child. 9) All the States/Union Territories are requested to set up at least one 'one-stop centre' in every district within one year from today.
Why is it important to protect sexual assault victims?
The Supreme Court in the 2018 Nipun Saxena judgment noted how sexual assault victims were treated as “untouchables” and “pariahs”.
The top court’s verdict noted how a victim was ostracised from society and “many times, even her family refuses to accept her back into their fold.”
“The harsh reality is that many times cases of rape do not even get reported because of the false notions of so-called 'honour' which the family of the victim wants to uphold,” the verdict read.
More often than not, a sexual assault survivor was re-victimised when trying to lodge an FIR and the police “more often than not question the victim like an accused”. “The victim's first brush with justice is an unpleasant one where she is made to feel that she is at fault; she is the cause of the crime,” the top court added.
Where sexual assault victims have reclaimed their identity
There are a few instances where a sexual assault survivor or a victim’s name has become a rallying point for justice. Take Bhanwari Devi for example.
In 1992, Bhanwari Devi was gangraped for trying to stop a child marriage in Rajasthan. The Bhanwari Devi case made national and international headlines not only for the gruesomeness of the crime, but also because of the uphill fight for justice. Bhanwari Devi persevered and in 1997 the Supreme Court convicted her perpetrators. Not only that, the case lit the spark for a law to protect the vulnerable from sexual harassment at the workplace. The Vishakha Guidelines that were issued in this judgment later became The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and mandated Prevention of Sexual Harassment (POSH) committees in all institutions.
Suzette Jordan, the Park Street rape victim, also became a rallying point for justice. Priyadarshini Matoo, Aruna Shanbaug are a few others.
And Jyoti Singh – or Nirbhaya, as she is popularly known.
But, it is pertinent to point out that all these examples are pre-2018 Supreme Court judgment.