Section 228A was introduced into the Indian Penal Code by the Criminal Law Amendment Act, 1983, which allows the disclosing of the identification of victims of such offenses a punishable act, in order to interpret the demand and succumb to the social stigma of victimization after crime.
The crime is cognizable, bailable and non-compoundable under section 228-A, and is punished by any magistrate with a sentence of up to two years and a fine. Under Section 327 of Cr.P.C., the printing or posting of the name or any matter which may reveal the identity of any person against whom a crime under Sections 376, 376A to D is suspected or found to have been committed has been rendered punishable.
Victims of such barbarity are not denied their universal right to privacy and deserve to be isolated from the vicious comments of the media. Therefore, various measures have been expressly introduced to ensure that the survivor is not subjected to any more suffering as a result of relentless social victimization or ostracism after the revealing of her identity after the traumatic act.
Prohibition of Law under Sec. 228A And Privilege of Media
For several, it has remained a sour bone of contention that the origins of S.228A of the Indian Penal Code derive from the orthodox thought that reinforces counterproductive social shame that a sexual crime survivor is similarly at fault.
However, the other side has argued that S.228A is rather a defensive law and, regardless of ethical norms, we are still not able to wind it up for good. Any of the common reasons that are advanced against it are the issue of’ marriage chances’ and’ degradation of esteem’ in society.
Section 23 of the Protection of Children from Sexual Crimes Act 2012 (POCSO) states that the publication of names, addresses, photos, family data, classes, neighbourhoods or any other information that can contribute to the disclosure of a victim’s identification is forbidden.
However, the two parts of the sentence differ. Although S.23 infringement amounts to up to 1 year, S.228A infringement will lead to up to 2 years in jail. It would be important to point out that it is not just the type of victims who have been covered by the statute.
The privacy of accused rapists who are minors is also covered by section 21 of the Criminal Justice (Care and Safety of Children) Act, 2000.
Disclosure of identity and Challenge to Social Stigma
In the Delhi Gang Rape Case, where the parents of the deceased victim came forward publicly and revealed the victim’s identity, a related controversy emerged. They noted that “Our daughter was not to blame.” It should be the offenders if anyone wanted to conceal their identity. This assertion supported a radical and long-awaited stance that society should have taken.
Most individuals and NGOs were concerned that our response to sexual offences and victim support was ironically misconceived.
The victim’s family here took the old and orthodox model of society that requires a radical makeover in the form of the removal of the ban on revealing of the victim’s name head to head. Although the agenda behind such an enactment mostly sounds like a rude mock up to support the perpetrator, amid his continued hideous moral deformities, it has been accepted and enacted.
The true root of the issue is that our culture has been increasingly unable to determine whether to encourage the revealing of the victim’s identification or preserve her identity in isolation. Although the first promotes a good idea of changing culture, the second was instrumental in defending victims from post-crime atrocities and malicious mockery as per the government.
Intent of the Section 228A
In order to discourage social victimization or ostracism of the victim of a sexual crime, Section 228A was incorporated into the Indian Penal Code by the Criminal Law Reform Act, 1983. The suggested concept behind this was to rescue the survivor from society’s post-offense atrocities that came in the form of mockery and degradation of marriage prospects. Victims of rape and sexual harassment were often targeted as those who facilitated the abuse.
The legislature ended up with S.228A, surrendering to the social shame of victimization after violence, banning anyone from making the name of the victim of the crime public.
While it should not be argued that media houses and news gathering companies are vigilant about such laws, there have also been occasions where abuses have been intentional or reckless.
Currently S.228A provides exceptions to non-disclosure requirements under the law: These are:
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 authorization in writing of, the victim; or
c) where the victim is dead or minor or of unsound mind, by, or with the authorization in writing of, the next of kin of the victim:
Provided that no such authority is issued by the next of kin to any person other than the president or secretary of any recognised welfare agency or association, by whatever name it is called.
In the instance of a case of Lakshmipahri v. Ramalingam, it was reportedly found to have engaged in the victim’s identity disclosure. However, on careful review of the issue, the court found that the announcement was made at the time of a known welfare agency. And it did not attract, however, the provisions of S.228A.
Going by the section, it is obvious enough that the legislature was suspicious of the presence of private interests that were not a welfare institution seeking to benefit from the victim’s tragic situation. This portion was then carefully closed, with the proviso clause specifically giving welfare organizations such an exemption.
However, given the selfish essence and ulterior interests of less responsible news media, there is often a temptation to be a hand in glove with the news houses for welfare institutions. Although the possibility of such a union cannot be completely eliminated, allowing such disclosure would be unfair.
Media Privilege under the Sec. 228A
In cases of tortuous damages arising from slander due to false reporting, media houses usually invoke the protection of “media privilege”. The need for immediate monitoring that is frequently performed without adequate verification is primarily cited by this defense.
Such defenses, however, desperately struggle to protect media houses from charges under S.228A. Criminal responsibility includes limited exceptions under this provision.
Though judicial wisdom forbids media houses from joining the risky realms of victim defense rules, persistent vigil demands the same. There is barely any damage control expedition that can be conducted by media houses or the state to reverse the same until the leak is completed. Publication by media houses with apologies will be more or less a bandage over an organ failure.
While damage control over the Kathua Rape Case has been launched by the Hon’ble Delhi High Court, there is barely much that can be done since the identity of the victim and accused is well known.
Although Gag Orders are useful instruments for banning the publication of a certain topic by news houses, the same should be followed and applied carefully. It would result in platform distortion between the media and the public if the gag orders get too strict. And this would definitely build the dilemma of breaching freedom of speech and expression.
There is a mutually existing pair of rights presently working between the broadcast houses and the audience. In such situations, the right to freedom of expression and the right to access are interlinked. Incomplete data does not invite comments and debate from the public.
The right to accurate facts is an equivalent breach of the right to keep the public uninformed, mis-educated or deficiently informed. In such situations, the degree and necessity of judicial interference requires a careful approach. The communication distance must also be fair enough to preserve the victim’s privacy and relaxed enough so that individuals know what is happening in society.
The general public is often willing to extend financial and moral assistance to the victim, so these points can be taken into consideration by the courts when agreeing on the intensity of gag orders.
Objection To Disclosure of identity of Victim
The real intention of the victim’s identity disclosure should be in the interests of both the victim and the public. Although the victim’s struggle should inspire us to recalibrate the justice system and our social norms, it is also the responsibility of society, which knows the identity of the victim, to offer financial and emotional recovery assistance.
NGOs and civic activists would be best positioned to support victims if they were aware of their identities. It is not the isolation but the helping shoulder that will give way to a happier future, contrary to mainstream public sentiment.
Nature of Offence: Non-Compounding
The offense is cognizable, bailable, and non-compoundable under S.228A. The abuse has been rendered non-compoundable so that dominant media houses can not purchase the consent of victims from the very money made from the sale of the press.
The gains made by news attracting audiences are unquestionably remarkable. It would cause the non-compounding essence of the offence to proceed if the dignity of this Clause and the related clauses were to be maintained.
Lastly, it is to draw the attention of readers to the under-used legal regime available under the 2000 Information and Technology Act. As of today, the courts are troubled that news publishing agencies are constantly increasingly involved, culminating in the exposure of the identities of victims and the media prosecution of convicted individuals.
The news is often often transmitted by ordinary people via social media such as Facebook, Watsapp, Twitter etc. Crime infringements of this type are often harmless and individuals are always oblivious that their acts can result in a wide dissemination of victims’ identities.
The virtual medium controls and moulds the common man’s life and can also be a forum for mass violation. Separating deliberate offences and innocent abuses is the charm and responsibility of the statute.
A clear and obligatory disclaimer that the news gathering agency can send below the victim’s photograph indicating that they have received consent from the victim or her next kin helps them to publish bonafide materials/photographs/documents that appear to make the victim’s name/address/family public will curb mass infringement.
This sort of mandatory provision puts a constructive responsibility on the media and individuals in possession of information, with the duty to demonstrate that the person involved had proper consent before the name of the victim was made public. The new amendment should also protect individuals against “innocent breach” where any person thinking that permission from proper authority has been obtained has circulated the material.
While it should not be argued that the media has the right to freedom of expression and that the general public has the right to access such material, we do have a legal responsibility that is subject to victim waiver. Although we are currently struggling to shape society’s social culture from “victimizing and ridiculing” to “supportive and helpful,” it might be important to shield vulnerable individuals who may unknowingly perpetuate illegal infringement.
It will be more relevant as to how the Hon’ble Delhi High Court decides on the “Principal Perpetrator” question as there are many news houses interested in the immediate matter and all of them can contend that their reporting was made after the victim’s name became public knowledge through any other news house’s earlier publication.
It may therefore become a game of moving responsibility. Such defenses can be approved or denied by the Hon’ble High Court depending on the gravity of offence.