What gag orders on media in sexual abuse trials take away

The trial in the controversial abduction and rape case of a Kerala actress, in which popular actor Dileep is an accused, is nearing completion in a trial court in Ernakulum.

But what has stirred the hornet’s nest recently is the gag order by the trial court — based on the petition of the accused, not the victim.

The case that triggered a storm in Kerala dates back to February 17, 2017, when the actress was allegedly kidnapped and raped by a gang who were allegedly engaged by Dileep.

The assault was said to be a case of revenge by Dileep because the actress revealed details of his affair with another actress to his first wife and actress Manju Warrier.

Dileep, however, denied all allegations and claimed innocence. He was in jail for about three months and then granted bail.

The trial in a lower court started in January 2020, after almost three years of the incident. As stipulated under section 327(2) of CrPC, the trial is held in-camera to protect the privacy and dignity of the victim in sexual assault cases.

But when news of the trial trickled out to the media, Dileep moved a petition against the “illegal act” of reporting the in-camera proceedings, stating that these were calculated to injure his reputation and deny him a fair trial. The court in an order dated March 19, 2020, banned the media from reporting the trial proceedings. It even sent notices to 10 odd media houses for violating the rules.

The order comes at a time when a number of reports have pointed out that Dileep may have intimidated and influenced witnesses.

According to some industry insiders, witnesses are turning hostile, in favour of the accused. Due to the gag order, not much is known but actors like Rima Kallinkal, Ramya Nambeeshan and Rima’s husband and director Aashiq Abu have been summoned for posting on Facebook about the same.

The prosecution had sought cancellation of Dileep’s bail for allegedly influencing some of the witnesses.

In a recent development, a prosecution witness, Vipinlal, a native of Bekal in Kasargod, filed a complaint that he had been threatened to depose in favour of Dileep.

Vipinlal was the jail mate of the first accused in the case, Sunil Kumar aka Pulsar Suni and had allegedly helped him in writing letters to Dileep from jail. He says that he had received anonymous letters asking him to testify in favour of Dileep. An FIR was lodged by Bekal police on his complaint.

Gag order precedents

Interestingly, the gag order by the court comes on the basis of a Supreme Court judgment in Nipun Saxena vs Union of India case, which clearly restricts media reporting with an intention to protect the interests of the victim and not that of the accused.

“No doubt, it is the duty of the media to report every crime which is committed. The media can do this without disclosing the name and identity of the victim in case of rape and sexual offences against children. The media not only has the right but an obligation to report all such cases. However, the media should be cautious not to sensationalise the same. The media should refrain from talking to the victim because every time the victim repeats the tale of misery, the victim again undergoes the trauma which he/she has gone through. Reportage of such cases should be done sensitively keeping the best interest of the victims, both adults and children, in mind,” the SC had stated in the order.

Another recent case where the gag order was issued was in the trial of the rape case against Jalandhar Bishop Franco Mulakkal. A nun had accused Mulakkal raping her multiple times. Mulakkal was arrested and later released on bail in the case.

A group of nuns from the victim’s congregation who had supported her and staged protests had told the media that they had been pressured and intimidated by Church authorities.

The trial court (additional sessions court, Kottayam) on August 13, 2020, issued a gag order restraining the media from reporting the court proceedings on a petition filed by Mulakkal.

“The proliferation of the media and the increased competition among the visual media has definitely accelerated the coverage of the news but often at the risk of its accuracy and quality. The opportunity afforded through the visual media to make lengthy discussion about matters over which the panellists and moderators have no direct knowledge has made the situation grimmer,” the order in the case stated.

The court however did not admit Mulakkal’s claims regarding the leaking of evidence to the media.

Interests of accused protected?

“This order is illegal. By making such a sweeping generalisation in restraining the media from reporting, the court has gone beyond its jurisdiction” says E S Subhash, general secretary of Kerala Union of Working Journalists. The organisation is working on challenging the gag orders in the two cases in the High Court.

“The courts cannot issue gag orders arbitrarily,” says justice (retd) Kemal Pasha, former judge of Kerala High Court. “Such provisions are given for the protection of the victim. The courts cannot use such provisions to protect the interest of the accused.”

There are others examples of similar gag orders passed by courts, sometimes even against the defendant lawyers.

The gag order issued by the Delhi High Court, on the petition of former TERI director RK Pachauri who was accused of sexual harassment, also put a ban on the victim’s lawyer speaking to media. (This order was later vacated.)

Former Supreme Court judge Swatanter Kumar also managed to get a gag order in a sexual harassment case against him filed by an intern in the Delhi High Court in 2014. This order remains unchallenged till date.

An interim order issued in favour of the venture capitalist Mahesh Murthy restraining the media from publishing the ‘Me Too’ allegations against him by the Delhi High Court in 2017 was vacated three years later in July 2020. In this gag order, even the women who raised allegations of sexual harassment were restrained from going public with their grievances.

Victims isolated?

Although trials in sexual harassment/rape cases have been generally held in-camera as stipulated under section 327(2) of CrPC, some argue that that the blanket ban on media from reporting the trial need not necessarily help the victim always.

According to Geeta Seshu, a senior journalist and columnist based in Mumbai, this provision invariably works against the victims and helps the accused get acquitted.

“It further isolates women. If in-camera trials provide an enabling environment for victims and survivors, with efforts by amicus curiae helping them, they can be strengthened and supported to give their testimonies without fear.”

She also feels that the media provides scrutiny and plays the role of a watchdog.  “It can spot and draw attention to any distortions in the investigation being presented in the court. It is true that an agenda-driven media can distort or report mischievously, but a blanket ban clamps down on all media — good and bad — into silence. It becomes a sweeping weapon going beyond the testimonies of those who are being protected to the testimony of the accused, the cross-examination, the arguments etc.,” says Geeta who has reported investigations and trials of many sexual assault cases.

Advocate J Sandhya, who has been a defendant lawyer in several rape cases and also a former member of the State Child Rights Commission, says in both Dileep and Mulakkal’s cases, it is evident that both the accused(s) approached the courts for gag orders fearing media scrutiny as in both the cases it was the media which played a significant role in pressurising the government to book the culprits.

“From whatever reports that came out prior to the gag orders of the trial courts, it is clear that the accused(s), both still holding highly influential positions in the society, are trying to influence the witnesses and thus scuttle the prosecution. When viewed in this angle, the orders are definitely disappointing,” she says.

“The present gag orders are excellent examples of how the legal provisions incorporated exclusively to protect the interests of victims of sexual abuses can be subverted to protect the interests of the accused(s). The courts need to be doubly guarded against this trend,” she says, adding that the final call on the matter should be left to the victims alone.

In the case of Tarun Tejpal, the former editor-in-chief of Tehelka who has been facing trial in a rape case, the trial court in Goa asked the reporters to leave the court room on a petition moved by his counsel.

“Only the rich and the wealthy can get such gag orders in the name of social standing, and as usual, the poor accused will be edged out of such orders being given,” justice (retd) K Chandru, former judge of Madras High Court, tells The Federal.

He is of the view that this is an unhealthy trend. “The fundamental question is whether publication of the proceedings affects the victim or the accused. Now in the name of fair trial and to avoid media trial, if gag orders are issued, then certainly it may result in the news being buried in trials conducted in a secret manner,” he says.

Irresponsible reporting by the media also facilitates such gag orders. “There is no doubt that some sections of the media do not appear to have even a nodding acquaintance with established norms, standards and ethics of journalism, and regularly violate them” says Ammu Joseph, a senior journalist and author.

“Ideally such irresponsible conduct should be dealt with at the professional level, by institutions like press or media councils.  Unfortunately, we do not have any credible self-regulatory authorities.  This is presumably why courts decide to step in,” she presumes.