A week ago Twitter temporarily locked Congress leader Rahul Gandhi's profile for sharing a photograph of the parents of a nine-year-old Dalit girl, who was allegedly raped and killed at a crematorium in Delhi on August 1, 2021.
The row escalated over the week after the microblogging site temporarily blocked the handles of five other Congress leaders including media head Randeep Surjewala, and the party's official Twitter handle for amplifying Gandhi's tweet.
Gandhi's profile has since been unlocked. However, this incident raises the issue of rights of sexual assault victims and their families.
"We must understand the prohibition against disclosing the identity of a rape victim is to protect the living survivor, that logic does not apply to the dead victim," senior advocate Indira Jaisingh tweeted.
BOOM looks at what the controversy is and explains what the laws say on the revelation of the identity of a sexual assault victim—living or dead. While the laws are clear on a bar to reveal the identity of a sexual assault survivor, questions have arisen on whether the same bar should apply to the victim after their death.
Also Read: Explained: Why Twitter Has Locked Several Congress Accounts
What does the law say about revealing the identity of a sexual assault victim?
The provisions of the Indian Penal Code, 1860, Prevention of Children from Sexual Offences (POCSO) Act, 2012 and the Juvenile Justice (Care and Protection of Children) Act, 2015 bar the disclosure of the identity of a sexual assault victim. If you break the law, you can attract penal provisions from six months to one year in jail or a fine upto ₹2 lakhs, or both.
In 2018, the Delhi High Court had taken suo motu cognisance on the media coverage of the Kathua rape case and fined 12 media houses ₹10 Lakh each.
Simply put, the identity of sexual assault victims who are minors or of unsound mind cannot be revealed. The same rule applies to victims who are adults, but there maybe exceptions to this rule.
However, identities of victims who died as a result of sexual assault cannot be revealed even after their death, even if the same is permitted by the next of kin. Until legislation is passed, a sessions judge will decide on applications filed by the next of kin to authorize the disclosure of the identity of a dead victim or of a victim of unsound mind. For example, the police may circulate photos of unidentified sexual assault victims if they are dead.
The Supreme Court in its 2018 Nipun Saxena judgment had elaborated on these issues and laid guidelines for the same.
The court held that even the dead have the right to dignity.
The Supreme Court judgment said that "it would not require rocket science to find out and establish" the identity of a victim by disclosing information about her parents, family members, specific position at a place or work, etc is revealed. Referring to examples, the court said, in cases where footage shown "on the electronic media where the face of the victim is blurred but the faces of her relatives, her neighbours, the name of the village, etc. is clearly visible. This also amounts to disclosing the identity of the victim."
"We, therefore, hold that no person can print or publish the name of the victim or disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large," the bench had held.
Also Read: What The Law Says About Revealing A Sexual Assault Victim's Identity
What did Rahul Gandhi do? Is it against the law?
The Congress leader on August 4 posted a tweet where he is seen consoling the parents of the nine-year-old Dalit victim who was allegedly raped and killed. The faces of the parents are clearly visible in the photo.
If one goes by the Supreme Court's 2018 Nipun Saxena judgment, then yes, it can be said that Gandhi broke the law. However, the provisions of the law are such that it is a non-cognizable offense. This means that the police cannot arrest Gandhi without a warrant.
Are there any exceptions that allow for the disclosure of a victim's identity?
The police are exempted because they are required to note the victim's true identity for the FIR and their official records. For example, the name of the victim would have to be noted in the FIR, but the Supreme Court in the Nipun Saxena judgment said this FIR cannot be made public, especially to the media. FIRs on offenses of rape against women or crimes under POCSO shall not be made public, the top court clarified in the Nipun Saxena judgment.
However, there are exceptions if an adult victim chooses to disclose her identity. This she must voluntarily and consciously authorize the same, the supreme court said pointing out to the case of the 'Park Street' survivor, Suzette Jordan.
"There were some victims who were strong enough and willing to face [the] society even after their names were disclosed. Some of them, in fact, help other victims of rape and they become a source of inspiration to other rape victims. Nobody could have any objection to victim disclosing her name as long as the victim was a major," the bench said.
