A lot has recently been said to justify a ban or at least, postponement of the telecast of the documentary, India’s Daughter. Two apparently contradictory grounds have been cited. First, the misogynistic statements of the accused and their lawyers in the film could be said to amount to “hate speech” under Section 153A of the IPC. Second, the accused Mukesh Singh’s right to a fair trial would be jeopardised as his seeming lack of remorse during his interview would ensure an absence of judicial sympathy in sentencing him.
The first ground hinges on this question: does the accused have a right to express and publicise his views, even if they are repulsive and repugnant to many? In a country with a million mutinies, where political dissent is increasingly dealt with through criminal law, to muzzle the speech of the accused under a provision as sweeping as Section 153A would ensure that the political nature of such “crimes” does not emerge in the public sphere.
The second ground seems more persuasive: the contents of the film, especially the interview with one of the accused, will interfere with the second appeal, still pending in the Supreme Court. But there is a crucial difference between this case and previous cases where the courts have restrained coverage of a pending trial: it has hitherto been done at the behest of the accused. In the case of Black Friday, for instance, the Bombay High Court ordered that the film’s release be postponed after an accused filed a writ against it — he felt the film would prejudge him when the trial was still on. Then take Afzal Guru’s infamous TV confession and India Today’s story on the confession of the accused in “the Batla House encounter”. In both cases, the accused quickly repudiated these media accounts and approached the courts to stop their publication.
The primary problem with this kind of argument for India’s Daughter is that none of the accused has asked for any such restraint on the film. In fact, Singh and two defence lawyers seemed to participate actively in the film. The only aggrieved party here would be the other accused, who alone could ask for this film not to be shown. In India’s Daughter, Singh makes many apparently self-incriminating statements while reconstructing the events of December 16, 2012, but with a crucial rider: he emphasises that he was just driving the bus through it all while the other accused committed the actual crimes. The interview that Singh gave in the film would probably not help him in the pending appeal, even if he thought so, but the point is that the accused and his lawyers are the best judge of this. So long as there is informed consent from the accused, there should be no paternalistic second guessing of their agency.
What often gets forgotten is how crucial media strategy is in high-profile cases. It is a truism, which gets repressed because of the stubborn fantasy of an unmediated trial. In two other high-profile cases, of Rajesh and Nupur Talwar and of Binayak Sen, where appeals are pending, the accused have repeatedly spoken to the media about the crimes they have been convicted of by the trial court. It is not entirely clear if their respective media strategies have helped them, but it would be difficult to argue that it has not affected their cases. Certainly, nobody would ask for a ban on their speaking to the media. They may have pursued a high-risk strategy, but it should be left to the accused and their lawyers to choose their media advisories.
The key difference between the media statements of Singh, the Talwars and Sen on one hand, and of Afzal Guru and the three Batla House accused on the other, is that the former were voluntary while the latter were obviously involuntary. Afzal’s and the Batla House confessions to the media were obtained in police custody, and the nature of that process is a public secret in India. To compare such confessions with the others would be to miss something important.
The incarceration of the accused while the case is still being adjudicated on leaves them with limited resources to fight such cases in the court of public opinion. The prosecution has no such limitations. Often, access to the media, even if limited, enables the accused to give their side of the story. There are many situations where they need access to the media to ensure that their rights are not violated — for instance, when they are subjected to custodial violence.
There is a need to focus on enabling and empowering the accused to adopt a media strategy that is not unfair to them, rather than wish away the media’s presence. Most commentators, however well-intentioned, seem to continue to live in a state of wilful denial about the endlessly mediatised nature of trials like the December 16 case. It is time to stop.
The writer teaches sociology at the South Asian University, Delhi