Section 228A, inserted in the Indian Penal Code in 1983, prohibits the publication of the name or any matter which may make known the identity of any person against whom rape or a cognate offence is alleged or found to have been committed. The Supreme Court in the Nakkheeran case further made this point clear by declaring that in the interests of decency, as stated in Article 19(2) of the Constitution, a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being published in the media. This rule, based on the right to privacy, is an exception to the right of publication based upon public records including court records.
Justice Arijit Pasayat described the inclusion of the name of a rape victim in a judgment of the Odisha High Court, despite clear direction from the Supreme Court, as judicial indiscipline. Though 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 Section 228A, the Supreme Court is of the opinion that it would be appropriate that in the judgments, be it of the Supreme Court, the High Court or the lower court, the name of the victim should not be indicated.
It was held by the court at that time that by publishing the names of the victims, the newspapers had committed a gross violation of the recognised norm of journalistic ethics which requires that while reporting crime involving rape or molestation of women, or raising doubts and questions touching the chastity, personal character and privacy of the women, the names and photographs of the victims or other particulars leading to their identity, especially at the police investigation stage, should not be published.
Rape and molestation of women, sexual abuse of children etc are fit cases where privacy should be respected and the names, photographs or other particulars leading to the identity of the victims, or sordid details of the offence should not be published. Sensation or a morbid curiosity cannot be a just ground for invasion of privacy at the cost of causing added hurt and trauma to the victims.
From this discussion it is clear that in the case of the “Kochi actress” even the description actress is capable of leading to identification. Even otherwise the identity of the victim was in the public domain from Day One. Then why should the police go after certain persons who inadvertently mentioned that name in TV chat or Facebook post.
The investigation in the instant case was propelled by the media and a curious public which would have been moribund if the characters remained incognito or anonymous. No one will take sides on behalf of an anonymous person. Section 228A need not be used as a blanket to cover total identity.
Rights can be waived. In the instant case the actress has already waived her right to remain anonymous. Shedding silence for the first time since her abduction and sexual assault, the victim came out with a signed statement which was released to the media by her cousin on her behalf. Then what is the need for the police to proceed against actor Aju Varghese for disclosing the identity of the actress in a Facebook post.
Let the whole world know her and remain with her in her hour of crisis. She need not lose her name and fame as a result of this dastardly attack. That is why the parents of Nirbhya came out with the real name of their unfortunate daughter. Now she is not Nirbhaya but Jyothi. At this point I am tempted to raise a toast to our own Nirbhaya in her real name but desist from doing so for fear of attracting imprisonment of either description for a term which may extend to two years for violating Section 228A.
I am already in the cobweb of prosecution for contempt of court and defamation for expressing certain views unsavoury to the lawyers. Instead, let the girl who was prepared to meet the media in the early stage of the investigation come out from the statutory cocoon and speak directly to the cheering public. It will be an inspiration for so many girls in distress.