File photo of Justice Ganguly
Thursday offered a rare occasion for the media to ride the moral high horse that is usually the preserve of the judiciary. In the evening, the Supreme Court made public the report of its three-member committee investigating sexual harassment charges made by a law intern against former SC judge A K Ganguly. The committee found that the intern's statement "prima facie discloses an act of unwelcome behaviour" on part of the judge and its report stated that "no further follow up action is required by the court" since neither the intern nor the judge were its employees. The report's contents were enough to provoke ire in the public sphere, but the Supreme Court made matters worse by uploading the report on its website without even the minimum caution of redacting the name of the woman complainant.
"A two-page statement issued by the Chief Justice of India Justice P Sathasivam disclosed the name of the intern," the news agency PTI said in its report, "but in keeping with the legal requirements and media policy followed in such cases, PTI is not mentioning her name in this news item."
By late evening, the document available on the court's website had been amended and the name of the complainant had been excised. In its current form, the report states in bland terms: 'name of the intern withheld'.
It could be argued that in this case the young woman's name is already widely known. She has herself placed it in the public domain by writing a blog under her name in which she disclosed for the first time that she had been sexually assaulted by a former Supreme Court judge in December 2012. The blog is available on the internet. So are two interviews she has given to online publications on the subject of coming to terms with sexual assault and deciding to speak up against it. Perhaps she had no compunction with her name being published in a court document - or for that matter in a media report - but the fact that the court eventually excised her name from its record indicates that it probably did not have her consent in this regard. The Indian media too has, by and large, refrained from publishing her name, out of the recognition that naming a victim of sexual assault can invite a two year prison term under the law.
In this case, the law might well result in keeping private the name of a woman who does not desire the cloak of privacy, but in a majority of cases in India, it forms a reasonable safeguard for victims of sexual assault, a majority of whom view the prospect of their identity being made public with alarm and distress. Section 228 A (1) of the Indian Penal Code states: Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an [offence under section 376, section 376A, section 376B, section 376C, section 376D) is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
Section 228 A (2) provides three exceptions under which the victim's name can be published: a) by/under the order in writing of the police officer acting in good faith for the purpose of the investigation; b) with the written consent of the victim; c) with the written consent of the victim's kin if the victim is dead, minor, of unsound mind.
There is a third sub section to Section 228 A, which makes for interesting reading in the light of Thursday's events, and the SC's failure to safeguard the privacy of a woman complainant. It states: "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 this section."
In plain words, the higher courts are allowed to disclose the names of victims of sexual assault in their orders and judgements. And it appears that they frequently do so.
Take for instance, a judgement delivered as recently as July 2013 by a two-member Supreme Court bench of Justice P Sathasivam and Justice Jagdish Khehar in a case called 'Karthi @ Karthick v. State of Tamil Nadu', where a man named Karthick was held guilty of repeatedly raping his young neighbor in a village in Tamil Nadu.
"This is a record breaking judgment not because it has laid down a new theory or new school of legal thought or latest method of interpretation of law," writes Dr A K Mariamma, the principal of Balaji Law College, Pune, in an article published on a legal website, "but (because) it will be regarded as the ideal example of judicial laxity as it disclosed the identity of the rape victim 62 times in a nine pages judgment which invariably would have attracted the offence under Section 228A of the Indian Penal Code if it were others."
Mariamma goes on to list several other judgements that have named the victims, and also one that did not. In 2003, Justice Arijit Pasayat and Justice Doraiswamy Raju, while ruling in the case of Bhupinder Sharma v. State of Himachal Pradesh, in which a 16 year old girl had been gang-raped by a group of strangers, decided not to disclose the name of the victim, reasoning thus: "True it is, the restriction does not relate to printing or publishing of judgment by High Court or Supreme Court. But keeping in view the social object of preventing social victimisation or ostracism of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of this Court, High Court or lower Court, the name of the victim should not be indicated. We have chosen to describe her as 'victim' in the judgment."
This judgement could have set a precedent for the rest of the higher judiciary. But it has not - as is amply evident from the July 2013 order that cited the victim's name 62 times.
The debate over sexual violence is peaking in India, and there is greater recognition of the need for an enabling environment for women complainants, which includes respect for their privacy. The Supreme Court self-corrected itself on Thursday evening, promptly removing the name of the law intern from its public report. Surely, in the future, judges could show greater sensitivity to sexual assault victims by making sure that their names are not published in judgements that become public documents available to all? As Mariamma puts it succinctly, "as far as the victims are concerned, whether the disclosure was at the hands of the media or by the Judge, the result is same."
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