Media and Child Protection: Indian Scenario
With the increasing competition among the different newspapers and news channels at times rights of children are infringed. Recently the National Commission for Protection of Child Rights has received complaints on the use of the name and photographs of an 8-year old boy in Begusarai, Bihar. The boy, who is alleged to have killed three children, was referred to in reports as a ‘serial killer’ and a ‘tyrant’. The law is clear that no child who is in conflict with law should be named or his photograph published. This seeks to stigmatize the child. We must recognize that the child acts without experience or knowledge of what he or she is doing.
Another important issue is that of the right to information of a child. Children are the largest viewers of television and also have access to other forms of media, thus, media holds a responsibility to render proper information which is suitable for children.
This paper deals with the role of media in the protection of identity of children and their right to information. With regard to of protection of the identity emphasis is laid on the laws in India which prohibit publication of the identity of a child who is a victim or is a witness to a case. The paper also covers the initiatives which can be taken in India with regard to measures laid down under the Convention on Rights of Child.
Disclosure Of Identity: The Right To Privacy
I. Prohibition on Publication of Identity of Child
The Juvenile Justice (Care and Protection of Children) Act 2000 [Further referred to as JJ Act] clearly lays down: "No report in any newspaper, magazine or news-sheet or visual media of any enquiry regarding a juvenile in conflict with law (under an amendment proposed and now under consideration by the Standing Committee of Parliament, the words or ‘a child in need of care and protection’ are to be added here) under this Act shall disclose the names, address or school or any other particulars calculated to lead to the identification of the juvenile."
"Juvenile in conflict with law" would mean a juvenile alleged to have committed an offence and not completed 18 years of age on the date of commission of such an offence.
However, only if the enquiring authority in the interest of the juvenile permits such disclosure in writing, then the press is justified in publishing such news. The right of privacy and the right of the media and the public in general to the information has to be conciliated very often by establishing thresholds or balances relating to their compatibility.
Particularly important are the cases where the privacy is that of a minor, which deserves special interest and protection in order to avoid any damage to the minor’s development or environment that may cause trouble to the minor’s social life.
Courts, when required to do so, frequently rule “anonymity orders”, preventing the publication of information regarding a particular case where the applicant has provided grounds that his privacy is at risk. The threshold is even higher in the case of minor’s privacy.
Section 83 of the Indian Penal Code, enumerates that nothing is an offence which is done by a child above seven years of age and under 12 years, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion. It should also be noted that children below the age of seven years are deemed to be incapable of criminal offence as per section 82 of the Indian Penal Code.
Principal Air force Balbharti School, New Delhi vs. The Hindustan Times New Delhi.,
This complaint dated 22.10.2001 was filed by Principal, Air Force Bal Bharati School, New Delhi against the Hindustan Times, New Delhi for reporting false, misleading and distorted news items captioned as under:
• “Police asked to submit Cyber porn status report” dated 29.4.2001.
• “Cyber porn case boy gets bail, but is rusticated from school” dated 1.5.2001.
• “Charge sheet filed against school boy in Cyber porn case” dated 21.8.2001.
The impugned news item dated 29.4.2001 reported that the school was going to rusticate the student from the school following charges of having committed an offence under the Cyber law. The complainant alleged that the report was totally misleading and baseless and was not based on any enquiry made by the respondent. The second news report published on 1.5.2001 alleged that the boy was rusticated from the school, which according to the complainant was again false, misleading and distorted since there was no rustication action taken by the school.
The complainant submitted that in order to restrain the respondent from reporting the proceedings of Juvenile Justice Court and to protect the interest of the Juvenile, the complainant school filed an application before Juvenile Justice Court for restraining the respondent from reporting the proceedings of the case in terms of prohibition contained in Section 21 of Juvenile Justice (Case & Protection of Children) Act, 2000. On this application, the Juvenile Justice Court order dated 5.9.2001 restrained the respondent newspaper from publishing the proceedings of the matter pending before the said Court till further orders.
Recommendations of the Committee
• The Inquiry Committee considered the material on record and oral arguments made by the parties. The Committee was of the opinion that so far as violation of Section 21 of JJ Act is concerned, the appropriate remedy had been availed by the complainant school from the law courts.
• The Committee, thus, directed the counsel for the respondent Hindustan Times to publish the complete rejoinder of the complainant giving due reference to its earlier reports but ensuring compliance with the provision of Sec.21 of the J.J. Act. The newspaper while publishing the rejoinder shall thus be at liberty to mention the name of the complainant’s school only for the purpose of making amends, which shall not be constructed as violation of the Act under reference, in order to place before the public the entire facts relating to the case and undo the harm caused by the previous publications.
• The counsel for the respondent Hindustan Times had on behalf of the management tendered an apology before the Press Council of India w.r.t. the error in the first news item. The Committee thus was of the view that no further action was warranted in the matter. It recommended the Council to dispose of the case accordingly.
Decision of the Council
The Press Council on consideration of the records of the case and reports of the Inquiry Committee accepted the reasons, findings and recommendations of the Committee and decided accordingly.
II. Disclosure of Identity of Victim in Certain Offences
Sec. 228-A of IPC makes disclosure of identity of victim of certain offences punishable. The restriction does not relate to printing or publication of judgment of High Court or Supreme Court. But keeping in view the social object of preventing social victimization or ostracism of the victim of a sexual offence for which Sec. 228 A has been enacted, it would be appropriate that in the judgments be it by the Supreme Court, High Court or Lower Court, the name of the victim should not be indicated.
Section 228A IPC and Section 327 (3) Cr PC also specify similar bars on publication of court proceedings dealing with sexual exploitation of the child.
1. Shri Jayant Deka and Others, Advocates of Mangaldai Town, Darrang District Assam vs. The Editor Sadin, Guwahati (Assam)
Shri Jayanta Deka and others Advocates of Manaldai Town, Darrang District (Assam) have filed this complaint dated 8.7.2003 against “Sadin”, an Assamese weekly, Guwahati alleging publication of an objectionable news item, identifying a rape victim girl captioned “In this way vanishes the sobbing of countless Moni’s in wilderness quietly” along with her photograph in its issue dated 30.5.2003.
The complainants vide their letter dated 28.7.2003 submitted that recently an engineer raped a 12 years old domestic help and as a result she became pregnant and delivered a baby in a nursing home in Guwahati, Assam. They added that the fact of such heinous crime perpetrated by an engineer came into the surface and the “Sadin” a noted weekly of Assam, splashed the incident by inserting a colour photograph of the victim girl and a long report of the said sordid incident based on the first page and continued on the second page with yet another thus, photograph.
They further stated that printing or publishing name and photograph of a rape victim is a penal offence under Section 228-A of the IPC and the respondent violated the same, alleged the complainants. The complainants stated that this complaint was filed in public interest and solely on the basis of report published in the “Sadin” on 30.5.2003 and to protect the right of a helpless juvenile rape victim.
Recommendations of the Inquiry Committee
• The Committee observed that time again the Council has held that “while reporting crime involving rape, abduction or kidnap of women/females or sexual assault on children, or raising doubts and question touching the chastity, personal character and privacy of women, the names, photographs of victims or other particulars leading to their identity should not be published. While such publication served no legitimate public purpose, it may bring social opprobrium to the victims and social embarrassment to their relations, family friends, community, religious order or the institution to which they belong.”
• Section 228A of the Indian Penal Code also carries a provision that is very clear in its intent. The respondent newspaper, thus, grossly violated the above norm guiding journalistic practices and also violated law of the land. The respondent apparently did not have any defence for the same but its failure to even file its written statement to assure careful conduct in future, led the Committee to believe that it had no remorse either for having played with the social life of the victim.
• The Inquiry Committee therefore recommended to the Council to censure the respondent newspaper Sadin, its editor and the reporter who filed the impugned story. It further decided to forward a copy of the decision of the Council to the Information and Public Relations Department, Government of Assam and the District Magistrate, Guwahati for such necessary action as they deem fit in the matter.
Decision of the Council
The Press Council, on consideration of the records of the case and report of the Inquiry Committee accepted the reasons, findings and the recommendation of the Committee and decides accordingly.
2. Dinesh@Buddha vs. State of Rajasthan
On 5.2.1998 the victim had gone to witness a marriage procession in the night. When she was coming back to her house in the night at about 12 O' clock the accused sexually assaulted her. She was threatened that if she disclosed about the incident to anybody, she would be killed. Suffering from the acute pain the victim told her sister, mother and grandmother about the incident. The matter was reported to the police. The accused person was arrested; medical tests were conducted both in respect of the accused and the victim, and after completion of investigation charge sheet was filed. The Trial Court found the accused guilty of the offences charged under Section 376(2) Indian Penal Code and Section 3(2) (v) of the Atrocities Act and sentenced him. The appeal before the Rajasthan High Court, Jaipur Bench, did not bring any relief to the accused.
Supreme Courts Opinion
“Keeping in view the social object of preventing social victimization or ostracism of the victim of a sexual offence for which Section 228A 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.”
III. Protection of Identity of witnesses: Special Status in India
The 172nd Report of the Law Commission (2000), dealing with the review of rape laws suggested that the testimony of a minor in the case of child sexual abuse should be recorded at the earliest possible opportunity in the presence of a Judge and a child support person. It further urged that the court should permit the use of video-taped interview of the child or allow the child to testify by a closed circuit television and that the cross examination of the minor should be carried out by the Judge based on written questions submitted by the defence. The Commission also recommended insertion of a proviso to Section 273 Cr.P.C to the effect that it should be open to the prosecution to request the court to provide a screen so that the child victim does not see the accused during the trial.
In Sakshi v. Union of India the Supreme Court referred to the 172nd Report of the Law Commission and laid down that certain procedural safeguards had to be followed to protect the victim of child sexual abuse during the conduct of the trial.
Similar safeguards can also be seen under Section 24 of the Youth Justice and Criminal Evidence Act, 1999 evidence may be given through a live telecast link where the witness is outside UK or is a child. Ss.16 to 33 of the same Act require the court to consider special measures of various kinds for the protection of vulnerable and intimidated witnesses. In R vs. DJX, SCY, GCZ , the Court of Appeal allowed child witnesses to be screened from the accused.
I. Conventions on the Rights of a Child [CRC]
Ministry of Broadcasting, Ministry of Home Affairs etc. had initiated the process of examining the relevant Articles with a view to take necessary measures to internalize CRC provisions in their programmes and activities. Various sectors have strengthened and refined their schemes with a view to provide effective services to ensure welfare and development of children. The implications involving legislative changes are being actively examined.
Partnership with the Media
• The media can be a powerful advocate for children and is central to promoting awareness and understanding of the Convention on the Rights of the Child. In terms of Article 42 of the Convention refers to the State Parties obligations to inform adults and children of the provisions of the Convention. A number of initiatives were undertaken to make the principles and provisions of the Convention widely known by appropriate and active means to adults and children alike.
• Radio and Television have been highlighting children's issues regularly. All India Radio has planned a fifteen-episode serial on children's rights in the four major Hindi speaking States. Radio and TV producers have been oriented on children's issues with a desired perspective. A Workshop on the CRC for the radio stations in the East and North East was held in September 1994. All programmes focussed on children have included messages and information on the `Rights of the Child'. Spots on these issues are being televised on prime time in National T.V.
• Media interventions on children's rights have also included special issues of Nai Disha (Hindi newspaper) and Tamasha (children's magazine) on CRC. Media Workshops for newspaper editors and journalists on CRC were organised at Madras, Bhubaneswar, Cochin, Hyderabad and Calcutta.
• The theme for National Children's Day 1994 was Rights of the Child: A Commitment'. All major newspapers carried articles as well as supplements on the issue, which was also extensively covered in the media. A document was entitled Rights of the Child: A commitment has been brought out by the Deptt. of Women and Child Development which has been disseminated widely. This has become a reference both for all those working for children, and of their obligation and responsibilities in implementation of the National Plan of Action and CRC.
• A survey of Indian newspapers over the last two years indicates a growing awareness, of the concept of children's rights. Protection rights like child labour have received most attention. Survival rights are covered particularly during an epidemic or emergency. However, in addition to the above rights, Development rights, like primary education have got much greater focus in the media in the post-convention era.
Right to Information
Article 17 of the CRC relating to the information and the role of the media says: "State Parties recognize the important function performed by the mass shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, State Parties shall:
(a) encourage the mass media to disseminate information and material of social and cultural benefit to the child in accordance with the spirit of Article 29;
(b) encourage for development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of Articles 13 and 18.
As per Article 17 States parties should ensure freedom of information, so that children can take advantage of a diversity of opinion concerning all matters. This Article both the educational role which the mass media should play, and also encourages guidelines towards protection of the child from unhealthy information. This Concept has also been raised in the case of Ajay Goswami vs. Union of India wherein the petitioner argued that under Article 21 of the Indian Constitution a child has the right to education which includes the right to “proper education”.
In its regulation the Article even refers to the right to freedom of expression formulated in Article 13 and to the primary responsibility of parents for the upbringing and development of their children in Article 18. This could mean that the limits of guidelines for protection are formed by the freedom of the child to seek, receive and impart information. In an area of information for a country like India which is still in the stage of formulating an information policy
As Article 17 states, access to information should be ensured, and as the relation between mass media and state is one of official distance (relating to the freedom of expression and the free flow of information) the state's obligations cannot be formulated in strict terms. The state's role is one of encouragement and stimulation towards the mass media.
The scope for regulation of the media with regard to matters relating to children seems bright with the newly formed National Commission for Protection of Child Rights (NCPCR) planning to take up this matter with media organizations. Also with the Ministry of broadcasting and Ministry of Home Affairs taking initiative in this regard, there is hope for constructive child protection programmes in line with Convention on the Rights of Child (CRC). What is of outmost importance is that Children themselves should know about their rights. CRC could be promoted as a kind of children's law. Article 42 prescribes that the principles and the provisions of the Convention should be widely known. Also apart from the various regulations the media needs to be sensitized on the issue on the right to privacy and information of children.
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