By Vikrant Rana, Anuradha Gandhi and Rachita Thakur
Introduction
Following the murder (coupled with an alleged rape) which took place at R G Kar Medical College and Hospital, Calcutta, the name of the deceased and related hashtags has been widely disseminated on electronic and social media platforms including Meta (Facebook and Instagram), Google (YouTube) and X (formerly Twitter). Moreover, photographs of the body of the deceased, including video clips have been circulating on social media and electronic platforms. Against the same a writ petition under Article 32 of the Constitution of India was filed by the members of bar in Kinnori Ghosh v. Union of India. [1]
The Supreme Court on August 21, 2024 immediately directed the Union Government to remove all references to the name, photos, and video clips of the Kolkata rape-murder victim from all social media and electronic media platforms. A bench led by the Hon’ble Mr. Chief Justice of India, DY Chandrachud asserted that revealing the identity of a rape victim is a violation of her dignity.
What did the Court say?
The court stated that the said circulation is in violation of the directives in the case of Nipun Saxena & Anr Vs Union of India & Ors, [2] wherein the Court directed that the identity of the victims of rape should be protected and the media including the press, electronic and social media shall not reveal their identity.
The Supreme Court in Nipun Saxena v. Union of India (Supra) had issued 9 directives to protect the privacy and reputation of victims of rape crimes. These directives include:
- No person can print or publish electronic media, social media, etc. the name of the victim or even remote manner disclose any facts which can lead to the victim being identified;
- In case where the victim is dead or of unsound mind, the name of the victim or her identity should not be disclosed even under authorization of the next of kin, unless circumstances justifying the disclosure exist which shall be decided by the competent authority in the presence of Sessions Judge
- FIRs for sexual offences under the IPC and offences under the POCSO Act shall not be put in public domain
- In case a victim of sexual offence files an appeal, it is not necessary for the victim to disclose his/her name.
The court also relied upon Section 72 of the Bhartiya Nyay Sanhita, 2023 (hereinafter referred to as the “BNS”) that prohibits disclosure of identity of victim of sexual offences.[3]
July 2024 witnessed a historic reform in the India’s Criminal Laws, the provision relating to said non-disclosure was retained in the new criminal law. Section 72 of the BNS states that any person who prints or publishes the name or any matter which may make known the identity of the victim of an offence under Section 64, [4] or Section 65, [5] or Section 66,[6] or Section 67[7] or Section 68[8], or Section 69[9], 70[10], 71[11] shall be punished with imprisonment of either description for a term which can extend to two years and with fine.
Following the order of the Supreme Court, the Ministry of Electronics and Information Technology (MeitY) asked all the social media platforms to remove the name and photograph of the victim in the said case. MeitY also directed the platforms to inform the ministry’s cyber laws division about the action taken in compliance. “Failure to comply with the directions would result in legal consequences and further regulatory action,” said the order.[12]
The Information Technology Act, 2000 and the Intermediary Guidelines
The Information Technology Act, 2000 makes violation of privacy a criminal offence. Thereby, anyone who knowingly or intentionally captures publishes, or transmits any private image of another person without consent shall be punished with three years of imprisonment with fine of two (02) lakh rupees. Furthermore, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (herein after referred to as the Intermediary Rules) under Rule 3(b) (ii) prohibits any intermediary to not to host, display, upload, modify, publish transmit, store, update or share any information that is invasive of another’s privacy including bodily privacy. Thereby making social media intermediaries liable for the content a floating on their platforms. MeitY has also issued several advisories to social media platforms to exercise due-diligence in complying with the Intermediary Rules specifically under Rule 3 (2) (b) and also enable victims or any person on their behalf to file a complaint to report violations as per the reportng mechanism of the respective intermediary. The Intermediary Rules also specify the manner of reporting mechanism to be adopted by the intermediaries.[13]
Indian Judiciary on disclosure of identity of victims of sexual offences
In an unfortunate flow of events, victims of sexual offences are often further blamed and instead of sympathizing with the, the victim is defamed even more than the perpetrators. Considering this, the Indian law in 1983 made equipped with provisions against disclosure of identity of rape victims. Section 228A was introduced in the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”) that prohibited making known of the name or any details of the matter of sexual offence. Thereby making the cases of rape and gang rape to be excluded from being tried in open courts. The said provision was further amended in 2013 to include other similar offences vide The Criminal Amendment Act, 2013 which was the result of the Mukesh v. NCT of Delhi, [14] (commonly known as the Nirbhaya Case).
In 2021, a judgment delivered by Hon’ble Mr. Justice Anup Jairam Bhambhani in the case of Saleem v. The NCT of Delhi & Anr.,[15] wherein it was held that that there is no requirement in law to implead the victim of sexual offences as party to any criminal proceedings instituted by the State or the accused.[16] Thus, directing the Registry to ensure that the particulars of victims like, name address, photographs, etc. do not get reflected in the cause-list of the court in any manner.
The Indian judiciary has been proactive in constraining the disclosure of identity of rape victims. In one the most recent case, Gangadhar Narayan v. The State of Karnataka, [17] a report was published in in the newspaper regarding the sexual harassment of a sixteen year old girl revealing her identity. The complaint was filed by the victim’s mother under Section 23 of the POCSO Act, wherein disclosure of child’s identity is made a punishable offence. Justice Indira Bannerjee opined that the POCSO Act clearly prohibits disclosure of identity of the victim and doing so is a fundamental breach of the right of the child to dignity.
Does the right to privacy ends with death?
The Calcutta High Court in a case, (Name redacted) v. State of West Bengal,[18] while directing the police to immediately ‘withdraw’ the WhatsApp messages and photographs of a deceased woman with her friend that were disclosed under Right To Information Act, 2005 noted that the right to privacy does not ends with death.
While commenting on the previous chats of the women who died under mysterious circumstances, the Court further observed, “The obligation assumes a higher moral ground since the deceased cannot defend oneself against such unwanted intrusion into her private space. After all, the right to privacy drawn within its fold, the right to be left alone (or with others) and the right to treat ones’ intimacies, relationships, beliefs and associations as information which is to remain in private domain. It also about the belief that a person should be allowed to carry his/her secrets to the grave.”
Once the photographs of deceased are on social media, there is a high possibility of Deepfake images and videos being created and circulated on various platforms which is why it is disturbing to see the latest google search trends in India. According to the data from Google Trends, searches for terms like ‘rape video’ and ‘rape photo’ following the victim’s name spiked by 160-190% in India while the victim’s name was searched for over 3000 times on porn sites.[19] This not only highlights the public insensitivity towards a rape victim but also how prevalent the voyeurism in our society.
The need to protect identities of victims of sexual offences is also acknowledged and accepted internationally.
The United Kingdom’s Information Commissioner’s Office has even released a report “Information Commissioner’s Opinion: Under Who’s Investigation?”[20]detailing the procedure for processing of victim’s personal data in rape and serious sexual offence investigation. The report highlights the need to follow the principles of data minimization and lawful purpose when collecting personal data of victims during investigations in such process. UK’s Online Safety Act provides for offences for sharing of ‘deepfake’ intimate images. [21]
Furthermore, the Belgian Council and the European Union has also agreed on first-even EU law on violence against women, which also aims at protecting victim’s privacy to prevent repeated victimization.[22]
Edwin Clemance Thottappilly, Intern at S.S. Rana & Co. has assisted in the research of this article.
To read more on similar topics:
https://ssrana.in/articles/right-to-be-forgotten-judicial-publicly-available-documents/
https://ssrana.in/articles/r-g-kar-medical-college-case-supreme-court-forms-national-task-force/
https://ssrana.in/posh-law/articles/anonymity-under-posh-act/
[1] https://www.livelaw.in/pdf_upload/3715820242024-08-20-556675.pdf
[2] Writ Petition (Civil) No. 565 of 2012
[3] https://www.mha.gov.in/sites/default/files/250883_english_01042024.pdf
[4] Section 64 of Bhartiya Nyaya Sanhita, 2023 – Punishment for rape
[5] Section 65 of Bhartiya Nyaya Sanhita, 2023 – Punishment for rape in certain cases
[6] Section 66 of Bhartiya Nyaya Sanhita, 2023 – Punishment for causing death or resulting in persistent vegetative state of victim
[7] Section 67 of Bhartiya Nyaya Sanhita, 2023 – Sexual intercourse by husband upon his wife during separation
[8] Section 68 of Bhartiya Nyaya Sanhita, 2023 – Sexual intercourse by a person in authority
[9] Section 69 of Bhartiya Nyaya Sanhita, 2023 – Sexual intercourse by employing deceitful means, etc.
[10] Section 70 of Bhartiya Nyaya Sanhita, 2023 – Gang rape
[11] Section 71 of Bhartiya Nyaya Sanhita, 2023 – Disclosure of identity of victim of certain offences, etc.
[12] https://pib.gov.in/PressReleseDetailm.aspx?PRID=2047347
[13] https://www.meity.gov.in/writereaddata/files/Eradicated_Advisory_26Dec2023.pdf
[14] (2017) 6 SCC 1
[15] 2023:DHC:2622
[17] Criminal Appeal No. 451 of 2022
[20] https://ico.org.uk/media/4020539/commissioners-opinion-whos-under-investigation-20220531.pdf