There is a candidate from a political party who cannot by law be named in the media yet she has been widely identified in the news. An Unnao poll candidate, who will face voters on February 23, in the fourth phase of UP polls, is the mother of a victim of sexual assault whose father was killed in police custody allegedly by her attacker, a BJP MLA’s, goons. As things stand, according to Section 228A(2) of the Indian Penal Code, no victim of any sexual crime, or any person associated with the victim, can be identified in any fora. Breaking the law can attract two years in prison apart from a fine. 

The sensitivity and strictness with which the Supreme Court views not only naming of victims but also any reference that could identify the victim, was reiterated by a Supreme Court bench of Justices Madan B Lokur and Deepak Gupta in their judgment in a sexual assault case in 2018. The judgment said, “No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.” The justices reasoned that Nirbhaya became a symbol of protest without her name being in the public arena. 

A blanket ban is well-intentioned, and in many cases must be upheld in full, but it is necessary to note that of late many women have chosen to not keep their identities under wraps over fears of harassment and discrimination.  Among the first who spoke up was the victim-survivor in Kolkata’s Park street case. Assaulted in 2012, she revealed her identity in 2013 as she marched to protest crimes against women. In the latest instance, a Kerala actor has revealed her identity after pursuing justice for four years, where she has accused a popular Malayalam actor of hiring goons to sexually assault her and record the crime. 

In recent years, notwithstanding the emotional and cathartic outrage and changes in law that followed the Nirbhaya case of 2012, gruesome crimes of multiple men assaulting a woman—Badaun, Hyderabad, Hathras, Unnao to name a few—have continued. Convictions remain low—NCRB data show rape convictions have almost stayed stagnant, if anything, has marginally dropped from 40.8% in 2001 to 39% in 2020, the latest data available. It is also a fact that victims have valiantly fought for survival, their families, lawyers and rights groups have fought for justice tooth and nail. 

There is no doubt that victims of sexual assault must continue to have the protection afforded by the ban. But there may also be a case that in today’s India media can perhaps be allowed to carry survivors’ voices—those willing to be named. In select cases then, their lordships may indeed want to consider exemptions. 

Now, it is difficult to be a candidate in any election and yet not be named and without giving away the very reason for the said candidate to be fighting elections in the first place. Thus, she has been named. The law has been broken. Collectively. True, campaigning can be vicious, the vitriol and the debasement horrific, social media abused to harass and harangue. To that end and given the coarse public discourse during electioneering that India has witnessed in the last several years, one fears what she may have to not only brave but also tolerate. Point is that, as we have seen, regardless of bans, those who wish to malign do so regardless, the law is little deterrent. 

This throws up another question that courts may want to address. If a candidate in the election fray in UP for the assembly election in February 2022 has been named, newspapers and magazines have largely followed the rulebook in not naming the Malayalam actor who no longer wants to tolerate her identity being closeted while the man she has accused makes films and graces magazine covers. 

The actor spoke of her journey from “victim to survivor” on social media. Her words:  “For 5 years now, my name and my identity have been suppressed under the weight of the assault inflicted on me. Though I am not the one who has committed the crime, there have been many attempts to humiliate, silence and isolate me. But at such times, I have had some who stepped forward to keep my voice alive. Now, when I hear so many voices speak up for me, I know that I am not alone in this fight for justice. To see justice prevail, to get wrongdoers punished… I shall continue this journey.” 

Will the lordships shine some light on the way ahead? Can the decision to reveal identity be made to legally rest with the victim? The media can take its cue from them. It is time to let go, to hand over victims of sexual assault the agency to decide if and when they may or may not want to reveal their identity and also, legally, the right to be forgotten from online platforms at any point in time. The decision must rest with the victim-survivor. It is time.

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Views expressed above are the author's own.

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