NEW DELHI: On Tuesday, the Delhi High Court handed down an order banning the broadcast of the documentary on the December 16, 2012, Nirbhaya(Jyoti Singh) rape, entitled ‘India’s Daughters’. On the heels of the order, Senior Advocate, Indira Jaising, and seven other prominent women in the legal and activist world, wrote a letter to NDTV’s Prannoy Roy, listing a set of objections to the airing of the documentary at this juncture (http://www.countercurrents.org/cc050315.htm). The authors have three broad concerns – (1) a trial by media that will jeopardize the appeals; (2) whether the interviewee, Mukesh, whose appeal is underway gave valid consent to the taping and airing of his views; and (3) the documentary incites violence against women. More than any concerns about legal procedure, it is the arguments regarding how to frame the feminist debate in the country that are deeply problematic. Let’s discuss each in turn:

Trial by Media

The first point made by the authors is that, due to the fact that the appeals are pending in front of the Supreme Court, the documentary “clearly constitutes an obstruction in the administration of justice, and therefore violates the law”. As pointed out by them, The Contempt of Courts Act, 1971, states that an act of publishing material which “prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or, interferes or tends or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner” constitutes contempt of court. But the necessary question that follows is, in what way does reporting a criminal defendant’s statements in the media prejudice, interfere or obstruct the administration of justice? Especially when these statements have been willfully and consensually given?

Bear in mind, in our country we do not have a jury system. For example, in the United States, where there is trial by jury, jurors are routinely sequestered and instructed not to watch media coverage of the case in order to maintain their objectivity. However, if a defendant waives a jury trial, a judge is not similarly sequestered. This derives from a presumption of jury being less sophisticated in the law than judges, and therefore more prone to being swayed by public sentiment. This may be an unfair characterization, as logically, judges too are human and equally susceptible to public opinion. However, the demarcation is a necessary one. What justice system can survive if we question the judge’s credibility and ability to decide the issues based on the proper application of law? Even if we want to question the credibility of the justices, which is the undercurrent of such an argument by the authors, and argue that they will be prejudiced by this documentary, the solution would be asking the justices not to watch the documentary. Not holding the entire country and our media channels hostage.

Consent Given By Accused Mukesh

NDTV has published the required consents given by both the Ministry of Home Affairs to interview Mukesh Singh, as well as the defendant himself. The clearances may be viewed at http://www.ndtv.com/india-news/indias-daughter-required-clearances-were-taken-744072. The Ministry states that it has “no objection to the proposal provided informed written consent is obtained from each of the convicts interviewed”. Mukesh himself signed a consent “on the condition that you do not publish, broadcast or release my interviews until 9 months from today or until the legal processes in my case are finished, whichever happens earlier”. This consent was signed by Mukesh on 7th October 2013. Under the terms of the consent, the documentarian, Leslee Udwin, is allowed to publish the documentary today.

A valid and legitimate legal question arises about whether Mukesh fully understood what he was signing and gave informed consent. However, note that neither Mukesh nor his attorneys have raised an objection so far. This comes from various, unrelated parties, who have no standing to raise the issue on behalf of Mukesh. Even if one would argue that they did, the proper remedy sought would be to argue that such statements made in the film are inadmissible during arguments. Again, we are at the stage of appeal where there are no new findings of fact made by the court. But, if there was some concern that the justices may consider Mukesh to be unrepentant, when considering his application to commute his sentence to a lesser one, or may become intolerant towards the other co-defendants whom Mukesh implicates in his statements, again an instruction to the justices not to watch the documentary would be the wiser alternative as it is evidently their ability to remain unprejudiced and uphold the law that is thrown into question here.

Inciting Violence Against Women

The letter is littered with statements about how the documentary is actually inciting violence against women, and it does not focus on the bigger issues surrounding sexual violence. They state: “How shocking that on Women’s Day, instead of talking about the serious issues of ending all forms of violence against women, we should be listening to hate speech and incitement to violence against women”. I admit that this part of the letter perplexed and confounded me. How can one address issues of sexual violence without some graphic language and imagery? Depending on one’s viewpoint, does not any statement of violence either repulse or titillate?

In the first two minutes of her immensely powerful November 2009 TED Talk, Sunita Krishnan, founder of NGO Prajwala, talks about a small child named Shaheen who was found on the railway tracks, raped by an unknown number of men (Krishnan, perhaps hyperbolically, estimated “hundreds”), with her intestines lying outside her body. Is this an incitement to violence against women? And what if Krishnan had interviewed the men who did this - would their heinous statements be an incitement to violence? I would argue not; it is a necessary investigation of the facts and mindsets prevailing. And I would argue that the “right thinking person or responsible channel” that the letter alludes to holding a different opinion, would actually be wrong in doing so. I can only speak for myself, but I am not so fragile a human being that I cannot take viewing and listening to these horrendous accounts. I may cry out of anger, pain and frustration, but I am not incited to violence. And I’m assuming that the authors of the letter did not find themselves wanting to pick up weapons to bludgeon Mukesh or the other defendants. In fact, after the actual incident, and the 24x7 reporting of the incident, including impassioned debates about whether imposing a death penalty will lead to more murders resulting from rapes, I recall the citizenry engaging in peaceful protest.

The authors further argue that broadcasting the lawyers’ reprehensible comments would be tantamount to clothing their misogynistic statements in the garb of the law. If such is the concern about the rogue lawyers, the legal collegium must take disciplinary action against the lawyer who stands by his statement that he would commit first degree murder by lighting his daughter on fire if she had premarital sex, as conduct unbecoming a member of the legal profession. It is a perverse result indeed that the person making the controversial remarks is unscathed, but the person reporting such remarks has had an FIR lodged against her.

In the end, the injunction imposed upon television channels from showing the documentary is unjustifiable. The subject of sexual violence does not lend itself to a sanitized debate, and attempts to do so will merely enervate and defang the discussion. Perhaps the documentary brings out a generalized anxiety about our social challenges being filmed through lens of the “white gaze”, though the authors expressly state that they do not oppose the airing of the documentary at this time in order to protect “the image of India”. And yet, the over-simplistic way in which the documentary deals with the subject does cause some unease in many of us. But that unease should not enjoin media outlets from showing the documentary, and the rest of us from watching it. Instead, as the citizens burdened with the painful, tortuous and humbling role of carrying on Jyoti Singh’s legacy, and as India’s Daughters, we must critically engage.

The author is Assistant Professor and Assistant Dean (Academic Affairs), Michigan-Jindal Center for Global Corporate and Financial Law and Policy.

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