Free Speech and Breach of Privacy

By Monica Sakhrani

The furore over the publication of the FIR in the TISS rape case has led to the raising of the issues as to the limits of free speech and press freedom. The other issue that has come up is whether the press has the right to publish a “public document”, the presumption being that all public documents are in the public domain. This piece seeks to answer as to why is not so.

First of all, the term public document in the Indian Evidence Act (Section 74) includes documents of the State and state records of private documents. Private documents are documents other than public documents. The rationale for the distinction in the law of evidence is mainly relating to proof of the documents. While private documents have to be proved through the production of the original, certified copies and other secondary evidence of a public document is permitted by the law. The reasons for this are obvious. However it doesn’t mean that all public or state documents are in the public domain just as it is a fact that even private documents can be in the public domain. The examples of official secrets and mass media are good examples of this. Fundamentally it has been agreed upon in all jurisdictions including the USA where the First Amendment right to free speech is held to be paramount that there are limits to free speech. State Security, reputation of private persons (defamation), contempt of the judiciary, hate speech and   blasphemy are recognized limits of free speech. In India our constitutional guarantee of free speech under Article 19 (1 (a) also recognizes right to privacy as one of its components and further this right can been reasonably restricted by Article 19 (2) in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

An FIR is the First Information of the commission of a cognizable offence which is disclosed to the police. Under Section 154 of the CrPC, the police have to reduce the statement of the witness who reports the disclosure of the offence in writing, which report then becomes the basis of the beginning of the investigation of the case including the arrest of the accused. The copy of the FIR has to be given to the First Informant free of cost and also a copy of the same is sent to the Magistrate who has jurisdiction over the concerned police station. The FIR is included in the chargesheet. The courts have held that FIR is a public document in cases wherein the accused has demanded a copy of the FIR before the filing of the chargesheet. In these cases, it has been held that the accused can obtain a copy of the FIR from the court by applying to the concerned Magistrate and he cannot be refused the same as the same is needed in order to help him exercise his right to fair trial and bail Once the judicial trial begins, information regarding the proceedings including the FIR and the evidence of the witnesses comes within the public domain as the judicial proceeding is open to the public and publication of the same is permitted. However this is not the case in rape cases, where the trial is in camera and both the disclosure of the judicial proceedings and the identity of the rape victim is proscribed by law under Section 228A of the Indian Penal Code. One of the exceptions to this is if the same was disclosed by the victim herself.

Now we come to the question as to whether the media has the right to obtain copy of the FIR and publish the same. The entire campaign for the right to information was based on the premise that transparency and accountability is one of the necessary ingredients of democracy and good governance. this is why the Right to Information Act, 2005 states that its objective is to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority However it is recognized that withholding of information by the state in certain circumstances are permitted under Section 8 which includes under sub section (1(i) information “which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information”.  Section 11 further states that when any information sought is disclosed by a third party, it cannot in any case (meaning that it is not prohibited under Section 8 (1(i) ) be disclosed without giving the concerned third party the right to be heard.

In the present case, the publication of the alleged FIR and the disclosure of material particulars of the woman which led to her identification were obviously not done in accordance with procedure established by law, i.e. either through making an application for the certified copy to the magistrate or by making an RTI Application. Neither was disclosure done by the victim. In any case, the application whether to the magistrate or the Public Information Officer would be rejected as not only is it against public interest to disclose the same but disclosure is proscribed by Section 228A as it would lead to disclosure of identity of the victim. It is also violative of the victim’s fundamental right to privacy. Apart from the legal reasons prohibiting publication and identification, it would lead to less and less women coming forward to register cases of sexual assault where in any case, women have to bear the blame of at best being stupid and at worst being promiscuous liars. It takes tremendous courage and strength to take recourse to law by a woman in a case of sexual assault where she stands to lose as much as the accused. One must also not lose sight of the fact that the legal discourse is fundamentally a patriarchal discourse with its value loaded binary of chastity versus promiscuity, shame versus brazenness. The very fact that the woman has ‘come out in the open’ by filing the case, condemns her and justifies a vilification campaign through use of arguments of public interest which are invasive of privacy. In effect the site of challenge of patriarchy is itself patriarchy. The press coverage and the publication of the FIR in this case is a case to point.

Monica Sakhrani has been a human rights activist and lawyer for many years. She is currently Assistant Professor at the Centre for Criminology and Justice, School of Social Work, Tata Institute of Social Sciences.

Despair and Deja Vu – Media’s Duty to Exercise its Rights Responsibly

The media’s coverage of the rape of the TISS student has left me with a despairing sense of deja vu. I should have developed a thicker skin after all these years of mainstream journalism but I’m still angry at the quality of  reportage on crimes against women – shoddy, insensitive and insidious in its suggestions of the woman’s complicity in the crime against her..

Over the years, of course, the media has also become an even hungrier beast and keeps demanding more and more scraps to feed its insatiable appetite  for news. In the newsroom, whenever some sensational (its a word I use grudgingly) incident occurs, there is intense pressure to dig out more and more information, to bring in different ‘angles’ and exclusive, breaking news. Some of my younger colleagues speak of how demanding the situation is in print media today, competing as it is with the immediacy and speed of broadcast media.

But I’m still unconvinced. The media’s appetite is a very poor excuse for shoddy journalism and most definitely for unethical coverage. In the reporting of the rape of the TISS student, Mumbai Mirror apologised for hurting reader sentiments when it reproduced the FIR. The tabloid however maintains that the FIR was a public document and it had every right to publish it.

Sure, it has the right to publish it. So does the DNA for supposedly initiating a debate on date rape. Or the Mid-Day for reproducing the blog by one of the friends of an accused that the latter was actually a good guy! The Indian Express gives a small report of the traces of cannabis in the girl’s urine while there isn’t even a line on the medical reports of the accused. (The TOI at least, reported the same news but pointed out that the presence of alcohol or drugs meant that the girl could not have put up any resistance. So much for small mercies).

So all these newspapers have rights. They have a right to inform the public, to uncover hidden facts and to get as close to the truth as possible…but just one correction – this is the media’s right, but it’ll also the media’s duty. It becomes a right when the media is prevented from getting at the truth or uncovering some information.The media has a duty to exercise its rights responsibly. And that’s not as subtle a difference as we may think. Its quite simple. Take a look at the Mumbai Mirror report on the FIR. It covers an entire page, with a a dark, blue illustration of the bowed head of a woman -  a silhouette defeated and hidden in shame. And the headline: ‘Vinamra kept kissing me, though I told him to stop’.

In the entire FIR, was this the only sentence the newspaper could headline to indicate the girl’s resistance?

The publication of details of how the girl met the youth, how much she drank, who kissed her and fell asleep afterwards, how she woke up the next morning – this is voyeurism and builds up to actively destroy any empathy/sympathy for her.

I find this aspect of media coverage of assaults on women the most disturbing. The media digs out and highlights any supposed ‘transgression’ in the girl’s ‘character’ – whether she worked in some ‘questionable’ job or had ‘loose’ morals or dressed provocatively.

For the media, the issue isn’t only a matter of sensationalising the incident to sell more copies. It also operates at two levels – one, where police leak such information to deflect public opinion from any anger at the lack of safety and security for women and two, to insidiously claim that the crime was not as serious as it seemed as the girls asked for it by stepping out of line. When doubt is created about the gravity of the crime, the response to it is also muted and diffused.

Mathura was doubted for being a tribal who was sexually active, Surekha Bhotmange was a woman who was close to the local police inspector, Sunil More could pick a victim who went out with male friends, the post-mortem of the Jogeshwari nuns who were murdered said they had VD, Jessica Lal got shot because she didn’t make herself available to Manu Sharma, even the schoolgirl Arushi was painted as a fast girl….the list is endless.

Back to deja vu….

Geeta Seshu

Mirror has the company of its rivals

We’ve heard and read about the Mumbai Mirror‘s (by now) infamous page 12 of its April 18 edition. On that page, the paper ran several readers’ letters criticising its decision to publish the victim’s statement in its entirety. It also printed an apology, but only for offending readers’ sensibilities.

Despite our protest in front of The Times of India building, the Mirror ran two more readers’ letters on April 20 that supported its decision. One congratulated the paper for printing the critical responses and thereby, strengthening reader-editor interaction. The other underlined the need to highlight “such barbarity” and “understand the ordeal the girl went through”.

While the Mirror deserves our mud-slinging, The Hindustan Times had run excerpts from the victim’s FIR in its April 16 edition. These excerpts do not divulge many of the graphic details of the violent act, but HT was the first to print the statement.

As it turns out, these papers are facing tough competition from rivals in the English news media. DNA ran an article headlined “Why was she with sex men that night?” on April 21, the day that Vinamra Soni, the sixth accused, appeared in court for his anticipatory bail hearing. The headline is a paraphrased version of what appears in Soni’s bail application. Disturbingly, the victim’s being out at night with the six accused, the only woman among a group of men, leads the lawyers to conclude that the what happened wasn’t rape but consensual sex. The application reads:

“The act of the victim accompanying the accused persons who was lonely lady (sic) with six male persons in long midnight itself shows the nature of the victim and therefore, whatever would have happened might be due to willingness of the victim (sic).”

The article even goes on to quote Soni’s lawyer Patil as saying that the victim tried to extort money from the accused after the alleged rape.

What might be the implications of publishing an article such as this? Could the defense have been using the media not only to cast aspersions on the victim’s character but also to influence public opinion in its favour?

If the media justifies this act with its “getting both sides of the story” thumb rule, we need to ask: What two sides are they talking about? To my knowledge, the victim or her lawyers have not yet spoken to the media and her statement was published without her or her lawyers’ knowledge.

Finally, what might make for good, responsible reporting in a case like this?

– Subuhi Jiwani

Protest against Mumbai Mirror – coverage of TISS student rape case

TISS Student Rape and Mumbai Mirror Coverage

A student of TISS in Bombay was raped. The media coverage, especially in the Mumbai Mirror, was horrific. Sticking only to the least possible letter of the law and in complete violation of the spirit of the law to protect the identity of the woman who was raped, Mumbai Mirror not only gave every single little detail of information about her which made her immediately identifiable to anyone on or around the TISS campus, or who knows her from outside the campus, they printed, in total, her statement to the police given at the time of registering the FIR (first information report). Yes, FIR is a public document so in theory, no law as such was broken. However, it broadcast across Bombay to all its readers, each personal detail of her ordeal.

A loud angry demonstration was held at the portico of the Times of India Buulding, the publishers of Mumbai Mirror. Below is a video of the event.

(video shot and edited by Tejal Shah)

This protest was not covered in Bombay English language papers. We hear it was covered well in Lok Satta. It was covered in an informative and responsible manner in The Hindu, from Chennai, here

This woman was violated and then again violated by the media. It takes courage to report a rape because its a long and excruciating process to go through the trial. To have the media expose her identity in all but name, strips her of any private space and anonymity in the world to start the healing process. Other women, seeing this public exposure, will not have the courage to come forward if they ever are in the same situation. This act on the part of the Mumbai Mirror (and other papers but Mumbai Mirror was the most egregious) creates an unsafe space for women to seek justice and claim back their agency after such a violent violation to their personhood.

See here for coverage in The Hoot

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