“Videos will shock India, prompt questions”
“Never seen before video tapes accessed; secrets of a dark night are out on Times Now”
These were the kind of sensational messages put out by news channel Times Now, to promote a show on 28 May 2018 in which they broadcast video footage relating to the Tarun Tejpal trial. The tapes, part of the evidence submitted by the police to the trial court in Goa hearing the case (and now being used by Tejpal to argue for discharge in the Supreme Court), were examined and dissected in great detail on the show, hosted by the channel’s editor-in-chief, Rahul Shivshankar.
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Times Now did not contact the survivor before the show was aired, sources close to her confirmed.
Times Now ran the show as a major news break and stated that they were trying to support the survivor. What they don’t seem to be aware of, however, is that regardless of their motives, what they’ve done is a blatant violation of the law as well as grossly inappropriate and unethical.
Violation of Survivor’s Privacy
Straight off the bat, broadcasting the tapes violates Section 228A of the IPC, a provision used to protect the identity of victims of rape, and prohibits the printing or publishing of anything in respect of a rape trial without the court’s permission to prevent intrusion of their privacy.
By showing the tapes from the hotel where the alleged rape took place, Times Now managed to violate both aspects of this provision:
Disclosing the Survivor’s Identity:
The channel makes a vague attempt to blur the survivor’s face, but doesn’t modify her voice. In any case, by showing the events in such detail, the broadcast gives enough clues to disclose the survivor’s identity.
Publishing Matter Without Permission:
Senior advocate Rebecca John, who has been representing the survivor, told The Quint that Times Now’s broadcast violated a court order by the trial court in this case, which had held that no evidence from the case could be exhibited to the public. The investigating officer hearing the case and the office of the special prosecutor confirmed that the court had issued such an order.
As Justice Gita Mittal (Acting Chief Justice of the Delhi High Court) held while slamming media houses for revealing the identity of the Kathua rape and murder victim, violations of Section 228A of the IPC are offences against public justice.
“Disrespect and violation of privacy of a victim of an offence under Sections 376 and 376A to E, which are concerned with sexual offences including rape, cannot be permitted under any circumstances.”
Justice Gita Mittal, Acting Chief Justice of the Delhi High Court, in the Kathua case
Evidently, Shivshankar and his team at Times Now not only seem unaware of this provision in the IPC, but have also failed to take heed of the warning by Justice Mittal. Their show was a complete invasion of the survivor’s privacy and showed utter disrespect for her and the law.
It would appear that Times Now are also not aware of the fine imposed by Justice Mittal on each of the media houses which did the same to the Kathua victim – Rs 10 lakh – or maybe they just don’t care. The offence also carries a maximum punishment of two years imprisonment.
Violation of Rules on In Camera Proceedings
While court proceedings are normally conducted in the open, in certain cases, these are held “in camera”. This means that they are to be carried out in private, and neither the public nor the press can attend them. The victim’s identity is to remain secret, and the details of the trial are not to be made public, including what has been alleged by the parties.
Under Section 327(2) of the Code of Criminal Procedure 1973, inquiries into and trials of rape or other offences under Section 376 or Sections 376A to E of the IPC, are to be conducted in camera. Section 327(3) also notes that it shall not be lawful to any person to print or publish any matter in relation to any such proceedings without the court’s permission.
Times Now’s coverage makes a mockery of the very concept of in camera proceedings, by not only showing footage that forms part of the incident, but also describing it in detail. The trial in this case is ongoing, so the restrictions that come with its proceedings being in camera continue to apply.
Contempt of Court
Times Now’s show also appears to amount to civil and criminal contempt of court, which are punishable under the Contempt of Courts Act 1971.
Civil contempt means, among other things, willful disobedience to any order of a court. As mentioned earlier, the trial court in the Tejpal case has passed an order prohibiting the publication of details of the arguments and evidence. The tapes shown by Times Now are part of the evidence submitted by Tejpal and therefore fall under the scope of this order.
Criminal contempt of court means the the publication of anything which, among other things, prejudices or interferes with the due course of any judicial proceeding, or the administration of justice. By going into the details of the case on national television, and debating alleged discrepancies in the survivor’s statements vis a vis the video, Times Now is quite clearly interfering in the administration of justice since they are influencing public opinion about the case. Tejpal’s trial for rape is still going on, after all – this is not some post-verdict analysis.
The evaluation of the evidence in this case needs to be done by the trial court, not Rahul Shivshankar and a rabble of talking heads. Reporting on proceedings, even if in camera, does not amount to contempt of court, but Times Now’s show was not a report on judicial proceedings, but a disclosure of key evidence in the case, contrary to the express directions of the trial court.
If found guilty of contempt, this could tack on another six months worth of imprisonment as punishment for the broadcast of the tapes.
Grossly Inappropriate Treatment of Survivor
It is grossly inappropriate that critical evidence like this, which is otherwise prohibited in law from being published, is being played out in public.
Rebecca John
This goes further than violating the legal provisions discussed above, but also raises a number of other questions about the way in which the rights of a survivor are protected by the media.
During the show, questions were raised by Shivshankar and his guests as to whether or not the footage corroborated the survivor’s version of events, about her actions and supposed discrepancies between the video and her initial complaint/statement. However, what the show failed to mention was that the survivor had already answered these questions to a certain extent in court, where she has already given her testimony as the key witness.
To make this worse, she has now been waiting for over four months for Tejpal’s lawyers to cross-examine her – which would be the appropriate forum for raising such ‘questions’. She cannot even come forward to clarify anything or defend herself against the wild statements made by Shivshankar and his panelists since she has not been discharged by the court as a witness.
As an example of the blatant mudslinging against her, see this from lawyer Ravi Sharma:
The narrative which is pre and post the incident of rape, alleged rape, is all false. The girl has lied: @RaviSharmaTalks, Advocate | #TejpalTapes
— TIMES NOW (@TimesNow) May 28, 2018
As pointed out earlier, Times Now did not contact the survivor before the show was aired.
And then there is also the larger ethical question here, of whether any such footage should ever be broadcast, whether a court order exists against it or not. Rebecca John asks: “Tomorrow, if there is footage that clearly includes an incident of sexual violence, will you show it?”
Times Now clearly ignored these questions and decided to run the show regardless of the effect it would have on the survivor – in this case, and the chilling effect this might have on survivors in future cases as well, who will fear a similar invasion of privacy. We can only hope that Times Now realises the consequences of their actions, apologises to the survivor and ensures that this will never be repeated.
—As published in The Quint
