‘India’s Daughter’ and Some Feminist Legal Concerns

By Jhuma Sen (special guest contributor)

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I just finished watching the BBC documentary made by Leslee Udwin titled “India’s Daughter”, which is the subject of much controversy and heated discussion. I must admit that my discomfort before watching the documentary was purely legal—a position that has only been strengthened after watching the documentary. I was holding back my ethical concerns till the time I had actually watched the film. Now that I have watched the film, it is my understanding that the legal and ethical concerns are intertwined so much so that they cannot be easily separated from each other. The clamor of a misunderstood ‘ban’ on the film is so loud, that I thought of laying down my discomfort with the legal concerns this film contravenes. My ethical concern about the documentary toes the line of a brilliant argument by Shivani Nag here –  and so I will desist from using up space reiterating the same. However, as a lawyer and someone who deeply believes in feminist causes, let me articulate some of my legal discomforts about the film.

Here I must start with reiterating a position I have taken earlier—that I do not support ban or censorship of the documentary. The cacophony of a debate in the binary of ban vs no ban gets us nowhere if we are to engage in a more meaningful conversation. A time-bound restraint order/injunction on broadcasting a documentary, containing incriminating evidence of a matter which is still sub-judice as demanded by some in the women’s movement does not amount to ban or censorship by any stretch of imagination. If anything, reducing a nuanced discussion into a simplistic framing of ban especially when no ban exists does a great disservice to anyone who wants a fair and impartial judicial process. We forget lessons of Afzal Guru’s ‘confession’ on prime time television and its impact on the collective conscience of our nation too soon.  The rights of an accused to be a beneficiary of fair judicial process must always triumph over a filmmaker’s artistic or cinematic license till such point of time the judicial process has concluded. Lest we forget, restating the obvious.

THE HYSTERIA OF BAN

At the outset, I think it is important to interrogate the source of this confusion on ban v restraining order. A letter was sent to NDTV on 3rd March 2015 by Indira Jaising and others stating that with the appeal in process, screening of the film with self-incriminatory comments by one of the accused (which was already being circulated in the media) reeks of abuse of fair trial and contempt by way of obstructing administration of justice. No one, who wrote the letter or who supported the content of the letter including the signatories for once demanded that there be a ‘ban’ or censorship of the film and this position has been maintained by all. The issue is not and has never been of a ban on the film but a postponement of the screening till such time the judicial process has concluded. A judicial process includes not only a trial, but also further appeal and even sentencing within its fold.

Protests in New Delhi, December 2012 (photo by Jhuma Sen)
Protests in New Delhi, December 2012 (photo by Jhuma Sen)

In the meantime, brouhaha around the film ensued along with the demand by some individuals (from civil society as well as political parties on varying grounds) to not screen it and the political process was set in motion with the Delhi Police lodging an FIR on its own (perhaps due to an advisory of the Home Ministry) calling for a restraint on telecast/publishing/transmission of the said interview in view of possible law and order problem. The court passed an order prohibiting the publication/transmission of the interview till further orders. The court order  does not call for a ban. However, it must also be mentioned that the FIR was lodged for offences under Ss. 504, 505 (1) (b) and 509 of the Indian Penal Code r/w S. 66A of the IT Act, some of which are fairly abused laws. Needless to say, the FIR or the court order do not speak of the rights of the accused or the questions of due process at play here which are the primary concerns by the signatories of the letter. The restraint order has been a typical response by authorities—reducing a complex situation of violation of fair trial process to a simplistic and colonial understanding of ‘law and order problem’.

So there are two issues at play here. One is a demand by the signatories that there should be a postponement of the screening of the film out of concerns of due process and the other is an actual restraint on the screening/telecast of the film till such time as further orders. None of these imply calling for a ban or an actual ban, since even a temporary restraint order may be modified by an application of the party. Now, if we agree on the assertion that there is no ban on the documentary but a temporary restraint order at play, we can move to the other more significant legal concerns.

LEGAL CONCERNS

The legal objections raised by the letter sent to NDTV on 3rd March 2015 by Indira Jaising and others rest on the issue of fair trial, Section 153A (1) (a) of the Indian Penal Code and Section 2 (c) of the Contempt of Courts Act 1971. On 5th March, Vrinda Grover added to the discussion by confirming the initial objections raised in the letter and also by elaborating the significant points of discomfort experienced by some, including yours truly.

Since the film is now freely available on the public domain, the hypothetical issue of ban is also non est and not of any significance now. So let us try to unpack the cacophony and look at the question of a restraint order in the matter of public broadcasting of the film till such time as the appeal process concludes.

Let me draw a close parallel of this issue with the screening of Black Friday. For the uninitiated, Black Friday was a movie directed by Anurag Kashyap and based on the 1993 Bombay blasts. Upon a petition of the under-trial, the release of the film was blocked until the conclusion of the trial by Bombay High Court. The producers preferred an appeal to the Supreme Court and the High Court order was upheld. The movie was finally released on 9th February 2007, delayed by almost 2 years. For a good analysis of the ramification of the legal challenge to Black Friday, one may refer to Anuj Bhuwania’s piece – ‘Black Friday: Mediation and Impossibility of Justice’ on the Working Paper Series of CSLG, JNU. The film was to have an all India release on 28th January 2005. One of the accused successfully filed a case for an injunction against it arguing that the film would pre-judge him as guilty and therefore vitiate a fair trial process. It would, thus amount to a contempt of court since administration of justice was being interfered with. It must also be noted that Black Friday was based on a book called “Black Friday: The True Story of the Bombay Bomb Blast” written by crime reporter S. Hussain Zaidi and published by Penguin in 2002. The book was written from a prosecution’s viewpoint and primarily relied on various documents filed by the police which formed part of the trial, especially the confessional statement of the accused. The petitioner called for a gag-order on the film till such time his trial was concluded. The Bombay High Court in its 87 page judgment accepted the petitioner’s arguments and postponed the movie till such time the trial continued. The Supreme Court did not pass any interlocutory order to stay the Bombay High Court judgment, but kept the matter pending and therefore effectively disallowed the release of the film till the trial concluded and judgment was pronounced. For a more nuanced discussion on this, one may refer to Bhuwania’s paper linked above.

Protests in New Delhi, 2012 (photo by Jhuma Sen)
Protests in New Delhi, 2012 (photo by Jhuma Sen)

The High Court in its judgment also observes that the film is based on the prosecution story, there is obviously another side to the whole episode and whether the other version should be accepted or not is something for the designated court to decide. Therefore under the garb of making a film based on the prosecution story and furnishing all details therein, it is not open for the respondents concerned to present a picture which would virtually pronounce the petitioners and others guilty.

So does the specter of the cinematic public haunt the judicial process? The Bombay High Court’s judgment seems to toe the line that it does. While this does not necessarily impute that a judge owing to his judicial training will be affected by the extraneous publication of the film, it also does not necessarily guarantee that the public discussion and debate after watching the film will have absolutely no effect on the judicial mind. Have we forgotten the lessons of Afzal Guru and the judiciary’s reasoning that his life must be extinguished to satiate the collective conscience of the society? Was the collective conscience jolted by the one single act of Parliament attack where Afzal’s role was questionable? Or was the collective conscience shaped by the forced public confession by Afzal on primetime news channels? When we have such dangerous precedents of the courts to speak on behalf of public, should we not care about the outcome of public opinion on the judicial process? A court will clearly be more wary of a situation where it has to deal with an adverse public opinion than a situation where the public is uninformed.

Let us also not forget that the trial was conducted in camera and the prosecution had a gag order on the trial. What is the point of an in camera trial if each and every detail of the case is to be splashed in a documentary during the pendency of the appeal? Both Jaising and Vrinda point out that in their communication with Senior Advocate Dayan Krishnan, who was the Special Public Prosecutor in the Trial Court and the High Court as well as Senior Advocate Siddharth Luthra, Special Counsel in the Supreme Court that both of them were approached by Udwin to see the film etc, however, in accordance with professional ethics they did not (this is in direct contradiction to Udwin’s claims that the prosecution team reviewed the film) No prosecutor of the Nirbhaya case has reviewed or given a go ahead to the film maker. On a related note, Udwin has also in a letter to Kavita Krishnan mentioned that she has been legally advised by ‘Supreme Court judges’ in their written legal opinion vouching that the film does not contravene legal boundaries. This is as absurd as it gets and I would join Ms Jaising in urging that Ms Udwin disclose the names of the Supreme Court judges who have advised her.

On the issue at hand, I am most uncomfortable by the damning interview and the filmmaker’s claim that consent was obtained. Here whose consent are we talking about? If we are talking about Mukesh’s consent, how was that consent obtained? Newspaper reports are surfacing on conjectures that Mukesh was paid 40,000 rupees for his interview. Without getting into allegations and conjectures, please let us pause for a bit and reflect the nature of ‘informed consent’ inside the four walls of jail. For any of us who care to remember the Phoolan Devi case[i], an illiterate Phoolan Devi, who did not know Hindi let alone English ‘signed’ a contract where she had allegedly ‘consented’ to selling the story of her life for a sum of Rs 200,000. The said contract was signed in prison, behind the bars and was in English. A copy was sent to her and she has signed it and returned. A blockbuster was made on her life story by Shekhar Kapoor. In such circumstances, where the contracting party is an illiterate woman sitting in prison who was most reluctant to talk about her gang-rape, how must one come to the conjecture that her signature on a contract written in English that produced a sensational film on her gang-rape spells ‘free consent’? How would the law measure her consent as free? She was successful in getting an injunction from the court, restraining the producer from exhibiting the film. Later, a settlement was reached.

Protests in New Delhi, December 2012 (photo by Jhuma Sen)
Protests in New Delhi, December 2012 (photo by Jhuma Sen)

The question in India’s Daughter remains the same as Phoolan Devi’s. How free is a ‘free consent’ procured from a party who is sitting in the confines of a prison? Does he know how his ‘interview’ will impact his case? Was he informed of the inherent legalities that his interview scheduled to be screened on national television entail? Is there a way of knowing if the other accused persons are aware of the detailing of crime by Mukesh in prison where he exculpates himself and incriminates others? How can we not engage with these issues and be sensitive to the rights of the accused (or any party for that matter) by a whitewashing campaign consisting of a reductionist logic of free speech. The narrative is improperly being framed as that of a question of free speech. We are talking about due process and fairness in trial.

Next, is the question of ‘Hate Speech’ and I know I am walking on slippery terrain here. There may be several questions and concerns regarding the nature of the interview of Mukesh and others—does the documentary give a platform for Mukesh and the two defense lawyers to advance what may be construed as ‘hate speech’ against women? Does giving a platform for hate speech the same as actively advancing hate speech? There are no simple answers. For the record, section 153A (1) (a) which has been invoked in the letter to NDTV, punishes anyone who “by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities”

Section 153-A was added in the IPC by the Act 35 of 1969 with the object of preventing racial and sectarian quarrels entailing the disturbance of public peace. The old section 153-A as it stood then was as follows-

“Whoever by words, either spoken or written or by sign, or by visible representations, or otherwise, promotes or attempts to promote feelings of enmity or hatred between different classes of citizens of India, shall be punished with imprisonment which may extend to two years, or with fine, or with both.”

The distinction between the old and the new section is in the use of ‘different classes’. The word class according to the old reading included any definite and ascertainable class of people and the body of persons must possess a certain degree of importance numerically[Narayan Vasudev Phadke (1940) 42 Bom LR 861]. The replacement section does away with ‘different classes’ and specifies ‘religious, racial, language or regional groups’ or ‘castes’ or ‘communities’.

Protests in New Delhi, December 2012 (photo by Jhuma Sen)
Protests in New Delhi, December 2012 (photo by Jhuma Sen)

The Legislature contemplates that the words spoken or written, which attempts to promote hatred etc. would create sufficient mischief so as to fall within the scope of the section. It is not necessary for the prosecution to establish further that the writer had the intention to promote such hatred.

As far as invoking of 153-A (1) (a) is concerned, there are two major questions that are being posed. Is the documentary ‘promoting’ disharmony or feelings or enmity, hatred or ill-will The second one is a more dangerous argument—that civil liberties advocates should not perhaps use a much abused provision of law frequently used to curb ‘freedom of speech’. Vrinda has adequately articulated a response to the second question and I shall not repeat what she has already said. I just want to add that laws are strategic tools in campaigning and social movements. To view law in isolation, devoid of its context of use is hugely problematic. Experiences from the ground tell us that 153A must be used in cases of communal violence, like a deeply regressive law on restitution of conjugal rights is also used by many women as an empowering and strategic tool to create a space for negotiation. We must be careful in avoiding this trope of use and misuse of law and flatten our arguments in one size fits all kind of sordid conclusions.

On the first question, Mukesh is not an exception to the all-pervasive rape culture where majority share his (or the defense counsels’) deeply misogynistic views. To such an audience, a note by the perpetrator to kill rape victims is very much a direct incitement to kill the rape victim. In the film, Mukesh says–

The death penalty will make things even more dangerous for girls Now when they rape, they won’t leave the girl like we did. They will kill her. Before, they would rape and say, “Leave her, she won’t tell anyone.” Now when they rape, especially the criminal types, they will just kill the girl. Death. 

What is even more dangerous is the statements made by the lawyers, apparently informed of the law. This is what in my mind the most terrible part of the documentary. The regressive views of the two lawyers, one of whom asserts that women should not step out of their house after 6.30 pm and that if his daughters were to exercise sexual autonomy outside the bounds of marriage, he would himself drag her to his farmhouse and set her on fire. To an audience that largely subscribes to this view, an affirmation from men informed of law sends out a very wrong and potentially damaging signal. If we are okay with invoking hate speech law against the likes of Togadia using a public platform to air their regressive views, what stops us from strategically using this law to stop screening of a film that amplifies these regressive voices that was to be aired on national television and used in primetime news? There may be a difference in opinion about the difficulties in condemning the documentary as an incitement to violence against women and I can see the view of the other camp. But this is largely dependent on a question that I had set out at the outset of this part- Does giving a platform for hate speech the same as actively advancing hate speech? This is however the subject of a separate discussion.

It is also my belief that the legal and ethical issues in the film cannot be completely disentangled from each other. The film does a disservice to the narrative of Indian women’s movements especially in the latter’s struggle against sexual violence. The uninformed portrayal of the December 16th rape as a result of clash between lack of education and dismal poverty of the rapists who live in ‘semi-slums’ and the aspirational ‘on the rise’ middle class women effectively creates a selective amnesia on the all-pervading nature of rape culture where wars are waged on women’s bodies every day in Kashmir, Manipur and Chhattisgarh, where Dalit women are brutalized every day and where within the confines of our ‘safe’ homes, women are raped by their fathers, brothers, uncles and significant others. Poor people rape; uneducated people rape, Sheila Dixit reminds us of this and Udwin sends the message through her in the film. Not once does Udwin question the politics of Sheila Dixit who infamously, after the murder of journalist Soumya Viswanathan had said— “All by herself till 3 am at night in a city where people believe…you know…you should not be so adventurous.” While what can be and must be shown in a 60 minute film is the complete prerogative of the filmmaker, let us also not forget how the film peddles the stereotype of rape as a result of abject poverty of illiterate men and fans the flame of a nation in the grip of hysteria and mob violence. And as we dissect the film and the legal issues, a rape accused was dragged out of jail in Nagaland (Dimapur) and lynched to death by a mob. He was, as a newspaper article reminds us an ‘illegal Bangladeshi immigrant’. One article goes as far as to point out that ‘rapist lynched after BBC documentary aired’. While it will remain unclear how much of the film had an impact on the Dimapur incident, the demand for blood of illiterate men who cannot handle the aspirational middle class women framed in the rhetoric of ‘Nirbhaya rapist unrepentant’ on social media and primetime television is deeply disturbing. This kind of profiling is undesirable. The women’s movement can do without this mob justice and lynch campaign. On another forum, someone[ii] recollected how Truman Capote wrote his non-fiction novel ‘In Cold Blood‘ based on interviews with a man who had, with an accomplice, killed a whole family. Those interviews, too, took place while the appeal process was on, and the only reason why the book was not published until it was over, despite demands from the publisher, was that Capote refused to finish it until he knew the end of the story. I only wish Ms Udwin has shown similar restraint. There are many more issues and areas of discomfort including the suitability of using this movie as a campaign and advocacy material but that is a subject of dissection for another day.

Protests in New Delhi, December 2012 (photo by Jhuma Sen)
Protests in New Delhi, December 2012 (photo by Jhuma Sen)

Under the meaning of Article 19 (2) of the Constitution, law in relation to Contempt of Court is a reasonable restriction. And yes, it is a law that is also used for censorship and has ingloriously been used against Arundhati Roy when she critiqued the Narmada Judgment. But to say that a law which has been twisted for gains must not be used for the purpose for which it was made that is to ensure an unobstructed path to the administration of justice is a travesty in itself.

All important values must be tested, qualified and balanced against other important values. Consequently free speech in appropriate cases has to relate to fair trial. It also follows that in appropriate cases one right (freedom of speech) may have to temporarily yield to another right like right to fair trial. Post Maneka Gandhi, Article 14 and 21 are also subject to the test of reasonableness. In other words, prior restraint gas not been rejected per se as constitutionally impermissible. The court has a power to do in camera proceeding and right to open court/open justice are not absolute. Hence gag orders on reporting and in camera proceedings are permissible under the protection of law. In India, like in some other jurisdictions, the Court has the power to postpone reporting of judicial proceedings in the interest of justice. And justice, to use the well-known cliché should not only be done but also seem to be done. Mukesh has an equal right to a fair judicial process like Nirbhaya and everything she signifies. For if the accused is treated as a lesser citizen at the altar of justice, the greatest disservice is done to justice itself.

[i] h/t Indira Jaising for reminding the ‘consent’ issue in this case as well

[ii] h/t Rohini Hensman for reminding the Capote parallel

Jhuma Sen is an Assistant Professor at Jindal Global Law School, Sonepat.