On 22nd December 2023, Rahul Gandhi gave an undertaking to the court agreeing to delete his tweet where he had revealed the identity of a minor victim in his attempt to politicise the 2021 Delhi rape and murder case. In August 2021, a 9-year-old Dalit girl was allegedly raped and murdered inside a crematorium. Days after the news, Rahul Gandhi had visited the parents of the victim. Thereafter, the Congress leader and his party published pictures and videos revealing the identity of the family of the victim.
After the tweet by Rahul Gandhi, NCPCR took cognisance of the offence committed and wrote to social media platforms to take the tweet down. The NCPCR informed Twitter that Section 74 of the Juvenile Justice Act, 2015 prohibits the disclosure of the identity of a minor in any form of media and Section 23 of the POCSO Act, 2012 also stated that no information or photo of a minor should be published in any form of media that revealed the identity of the minor.
According to the complaint, the tweets put out by Rahul Gandhi shared certain personal details about the victim violating Section 23 of the POCSO Act, 2012, and Section 74 of the Juvenile Justice Act,2015. Hence, the NCPCR asked Twitter to remove the tweets put out by Rahul Gandhi as it was a deprivation and a violation of child rights.
Thereafter, Rahul Gandhi’s tweet had been restricted in India, while in the rest of the world, his tweet was visible.
The current case in the Delhi High Court stems from a plea moved by Makarand Suresh Mhadlekar where he pleaded that the tweet by Rahul Gandhi violated provisions of the JJ Act and POCSO Act.
While it may seem like Rahul Gandhi was merely following the law by agreeing to take his Tweet down, the truth is far from it. The High Court bench had essentially urged Rahul Gandhi to delete the tweet revealing the identity of the minor victim as it said it did not want to pass a judicial order against him. Essentially, the court told Rahul Gandhi that unless he deletes his tweet, the court will pass an order forcing him to comply. It was after this that Rahul Gandhi submitted an undertaking, agreeing to remove posts where he revealed the identity of the minor victim.
The Delhi High Court further instructed the Delhi Police to file a status report in the matter of filing an FIR against Rahul Gandhi in the next 4 weeks and posted the matter for 24th of January 2024.
While the High Court instructed the Delhi Police to file a status report, the conduct of the police and the arguments it presented in court were nothing short of bizarre.
The Delhi Police’s bizarre arguments in a bid to shield Rahul Gandhi
During the hearing, the Delhi Police on Thursday made arguments that left many shell-shocked. The arguments aimed to shield Rahul Gandhi and absolve him of culpability after he revealed the identity of a minor victim.
In court, the counsel for Delhi Police in the matter, Santosh Kumar Tripathi, told the court that the investigation against Rahul Gandhi was underway and there was “a lot of complexity in the matter”.
Further, the Delhi Police shockingly informed the High Court that the victim was not raped or murdered but died due to electrocution.
If this assertion by the Delhi Police was not shocking enough, the Delhi Police went a step further. When asked about the status of the investigation against Rahul Gandhi and the filing of the FIR, the Delhi Police asserted that “unless the first part is proved, which is the main crime, subsequent circulation of anything on Twitter is not a crime. The purpose of Delhi Police is not to scandalise anyone”.
Essentially, the Delhi Police told the court that there was no evidence to prove that the 9-year-old Dalit girl was raped and murdered, and since the original crime has not been proved, Rahul Gandhi committed no crime by revealing the identity of the minor victim by publicly revealing the identity of her family.
Let us keep in mind here that the Delhi Cantonment case of this alleged rape and murder was a wildly politicised one. After the news of the alleged crime broke, Rahul Gandhi travelled to meet the victim’s parents, there were several protests, and the usual tropes about a “priest” raping and killing a Dalit child were furthered to create disaffection against the Hindu community at large by furthering the caste narrative.
In 2021, the Delhi Police said that the child did not die of electrocution as claimed by the accused, but was raped and murdered. In the chargesheet, relying largely on the disclosure statements by the accused, the Delhi Police named 55-year-old Radhey Shyam, the priest of the crematorium in South-West Delhi, and other employees – Kuldeep Singh, Salim Ahmad and Laxmi Narayan, as the accused. The chargesheet claimed that there was sufficient evidence against them.
As per its press release in 2021, the Delhi Police gathered scientific and technical evidence apart from recording testimonies of witnesses before filing its charge sheet. Assistance was taken from the Forensic Science Laboratory, Rohini as well as Delhi Police’s forensic experts on biology and odontology. Forensic psychologists were also engaged during the interrogation of the accused, the Delhi Police stated.
Now, 2.5 years after a 400 page chargesheet was filed in the case claiming that there was sufficient evidence against the 4 accused, the Delhi Police, in a case related to Rahul Gandhi, stated in court yesterday that they had reached the conclusion that there was no rape and murder in the case.
While this revelation was shocking enough, what was far more astounding was the argument that the Delhi Police took, based on this revelation, to shield Rahul Gandhi.
In court, the Delhi Police claimed that since they had concluded that there was no forensic evidence to prove rape and murder, Rahul Gandhi had broken no laws by revealing the victim’s identity.
How the Delhi Police’s argument in the Rahul Gandhi case is legally unsound
The Delhi Police’s argument that because 2.5 years after the FIR was filed, they have concluded that no rape or murder took place, Rahul Gandhi had not broken any law by revealing the identity of the minor victim is legally an unsound opinion. The law has been established as far as the identity of the minor victim is concerned and it has nothing to do with the eventual conviction or acquittal of the accused. This is to say that the eventual outcome of the case in the court of law has no bearing on whether the identity of the minor victim can be revealed or not. Regardless of the outcome, revealing the identity is in contravention of the law.
If the Delhi Police’s argument is to be accepted, then it would mean that till the case reaches its conclusion, which may take years, any individual including the media is free to circulate the identity of the minor victim. This would be against natural justice and the very purpose for which these laws against the revelation of identity have been put in place. The reason the law prohibits the circulation of the identity of a minor victim, regardless of the acquittal or conviction, is because it stigmatises the minor victim. The stigma attached to their identity being revealed is not dependent on the conclusion of the case or evidence of the crime.
There are several laws, provisions and guidelines that prove that the Delhi Police’s position in the case of Rahul Gandhi is legally unsound.
Section 74 of the Juvenile Justice Act, 2015
Prohibition on disclosure of the identity of children.
(1) No report in any newspaper, magazine, news sheet or audio-visual media or other forms of communication regarding any inquiry or investigation or judicial procedure, shall disclose the name, address school or any other particular, which may lead to the identification of a child in conflict with the law or a child in need of care and protection or a child victim or witness of a crime, involved in such matter, under any other law for the time being in force, nor shall the picture of any such child be published: Provided that for reasons to be recorded i.n writing, the Board or Committee, as the case may be, holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the best interest of the child.
(2) The Police shall not disclose any record of the child for the purpose of character certificate or otherwise in cases where the case has been closed or disposed of.
(3) Any person contravening the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to six months or fine which may extend to two lakh rupees or both.”
Section 74 of the Juvenile Justice Act, 2015 makes it amply clear that under no circumstances would the identity of a minor victim or even a minor witness of a crime, will be revealed. The law says that no detail that could lead to the identification of the minor victim or witness shall be published in any medium – this would include the identity of the parents of the victim – a detail which was publicised by Rahul Gandhi in the given case. The law provides that contravention of this act would attract a jail sentence of up to 6 months.
Section 23 of the POCSO Act, 2012
(1) No person shall make any report or present comments on any child from any form of media or studio or photographic facilities without having complete and authentic information, which may have the effect of lowering his reputation or infringing upon his privacy.
(2) No reports in any media shall disclose, the identity of a child including his name, address, photograph, family details, school, neighbourhood or any other particulars which may lead to disclosure of the identity of the child: Provided that for reasons to be recorded in writing, the Special Court, competent to try the case under the Act, may permit such disclosure, if in its opinion such disclosure is in the interest of the child.
(3) The publisher or owner of the media or studio or photographic facilities shall be jointly and severally liable for the acts and omissions of his employee.
(4) Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be liable to be punished with imprisonment of either description for a period which shall not be less than six months but which may extend to one year or with fine or with both.”
Section 23 of the POCSO Act, 2021 also makes it clear that any circulation of identifiable information, which includes the family details of the minor victim, is punishable by no less than 6 months in jail, which could extend up to 1 year. While this rule mentions the media, it also extends to individuals such as Rahul Gandhi.
Section 228A of the IPC
“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 or 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 228A of the IPC talks about the illegality of disclosing the identity of a victim of sexual assault. While this law is not specifically made for minor victims, it extends to all victims of sexual assault, including minors.
Nipun Saxena v. Union of India
The Nipun Saxena v. Union of India case is set strict guidelines to be followed regarding the identity of victims of sexual assault. These guidelines are widely accepted as the standard in such cases.
The court in this case set out:
1. No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.
2. In cases where the victim is dead or of unsound mind the name of the victim or her identity should not be disclosed even under the authorization of the next of kin, unless circumstances justifying the disclosure of her identity exist, which shall be decided by the competent authority, which at present is the Sessions Judge.
In the Nipun Saxena case, the court makes it clear further that no individual can disclose the identity of the rape victim or any information that can lead to her identity being known to the public at large, which is exactly what Rahul Gandhi did.
In none of these laws or precedents, does the conclusion of the case have any bearing, which is to say, in none of these laws or precedents does it say that an individual is permitted to disclose the identity of the victim and it would not be considered a crime if eventually, the accused are acquitted.
It is, therefore, shocking that the Delhi Police would in court make such an argument that is not supported by the established law of the land. The only conclusion which explains the Delhi Police and its advocate’s argument is that this was a shoddy attempt at shielding Rahul Gandhi from the repercussions of his action since it is evident that he did not want a judicial order to this effect on his record.
Questions that arise from the conduct of the Delhi Police in the Rahul Gandhi matter
There are several questions that arise from the conduct of the Delhi Police and its counsel in the Rahul Gandhi matter.
- If the police are saying now that there is no evidence to support that rape and murder occurred, then why did it 2.5 years ago mention in the chargesheet that there was ample evidence to support the claims of rape and murder?
- If the victim was indeed electrocuted to death, as the Delhi Police claims now, then why did it in their chargesheet dismiss the accused’s assertions to the same effect?
- If they did have ample evidence of the crime in 2021, what changed in the following 2.5 years for them to claim today that no rape or murder took place?
- In the past 2.5 years since the chargesheet has been filed, why has the trial in the case not proceeded at all?
- If there was indeed no rape and murder, then why did the Delhi Police in the Rahul Gandhi matter insist that they would file their status report in a sealed cover to the court?
- If the Delhi Police is filing a closure report in the case, which says that there was no rape, then why did it insist that it does not want the details to be discussed in open court?
- Why did the Delhi Police feel compelled to safeguard Rahul Gandhi by misinterpreting the law?
- Why did the Delhi Police say in court that it would submit its report to the court in a sealed cover because it did not want to “scandalise anyone”? Who did it think it would scandalise? Rahul Gandhi? Why is that their concern to begin with?
- Did the Delhi government actively subvert the law in this case to shield Rahul Gandhi?
- Why did the Delhi Police insist that the NCPCR has no locus standi in the case against Rahul Gandhi Sec 13 CPCR Act clearly states otherwise?
These questions have bewildered even those in the know of the case and close to the investigation against Rahul Gandhi. A senior advocate on the condition of anonymity claimed that the Delhi Police’s argument in court had shocked everyone and it made no legal sense. “It would appear that the case is being botched up either way to shield Rahul Gandhi”, he said. Another close to MHA, under whom the Delhi Police falls, said that they would be looking into the matter and ensuring that the investigation is not being compromised for political reasons.
