Free Speech, Fearless Listening and Fair Trial

How Indias Daughter has led to a bonfire of free speech

Sukumar Muralidharan,
March 13 2015
Free speech is not about raging at the walls of an empty room. It also involves the right to be
heard. And this freedom could reasonably be limited where speech offends a person of
robust common sense. Free speech requires fearless listening.
Yet thresholds of tolerance are notoriously low in a world where offence is a political
resource no actor is willing to surrender. Early this month, Indias parliament came close to
declaring the whole country a cloistered hermitage where no evil will be seen, heard or
spoken.
That occasion arose with the scheduled telecast of a documentary on the gang-rape and
evisceration of a young woman in Delhi in December 2012. The young woman died within a
fortnight of the horror that was inflicted on her, but not before exciting a nations outrage,
causing agonised questioning and getting even the most hardened sceptic to pray against
all human and medical possibility for her recovery.
Pronouncing himself deeply pained by the contents of the film, Home Minister Rajnath Singh
declared in Parliament, soon after the question was posed, that all necessary instructions to
ban the documentarys broadcast in India and elsewhere had been issued.
It was another matter that the putative ban perhaps only created a still larger audience for
the film on video-sharing websites.
Promos for Indias Daughter, produced and directed by British filmmaker Leslee Udwin,
began appearing on social media sites of news broadcaster NDTV 24x7 on March 1. These
spoke of an interview with one of the accused, Mukesh Singh, since convicted and
sentenced to death, which testified to his moral certitude and complete lack of remorse.
A competing channel was not about to let the opportunity go. Times Now which has long
since reduced itself to a caricature of serious news analysis and debate, went quickly on air
with elaborately simulated indignation. With Arnab Goswami, an anchor-person who has set
himself up as the nations tribune, holding forth with contemptuous aggression towards
dissent and unctuous deference to authority, the stage was set for a bonfire of free speech.
Issues of aesthetics and factual veracity and there are several that could be raised about
the film were quickly buried as agitated minds turned their attention obsessively to Mukesh
Singhs unrepentant attitude. Lawyers who represented a seemingly lost cause emerged as
loutish and ill-informed, mirroring all the perversities of the criminals they were appointed to
defend.
A group of feminists and civil liberties activists, all highly respected for their moral courage
and conviction, denounced the locutions of the rape convict as hate speech which
threatened public order. Others fumed that a convict had been afforded a bully pulpit.

Members of the ruling party fretted over the defamation of the nation. And still others worried
about a possible decline in tourist arrivals.
What is the status in law here? In 1994, M.S. Sathyu, the famed director of the partition
family drama Garam Hawa, sought permission to interview Dhananjay Chatterjee, a convict
awaiting execution for the rape and murder of a child. Denied permission by prison
authorities, Sathyu approached the Supreme Court and won the right to conduct an interview
on camera, conditional on the subjects informed consent.
In the words of the court then: The media has the right to every criminal. Likewise, every
criminal has the right to every media.
There was a caveat attached: the interview could not be broadcast or disseminated in any
way till the prisoners appeal was finally heard and the inevitable mercy petition disposed of.
Chatterjees mercy petition was rejected in 2004 and he was executed soon afterwards. Yet
Sathyus film, an hour-long voyage into the moral repugnance of capital punishment, did not
secure a screening till 2012.
The formal language of the Indian Constitution allows for restrictions on free speech to
safeguard against contempt of court. The courts ruling in the Dhananjay Chatterjee matter
seemingly added the administration of justice as another criterion under which speech could
be restrained.
In July 2013, the National Law University (NLU) in Delhi began an ambitious project to
gather and analyse all available information on capital punishment. Every execution since
Chatterjees, which broke a long but undeclared moratorium, has triggered public debate,
since there is a strong current of opinion for abolition. There is little information in the public
domain though, on the numbers on death row and the circumstances in which they were
convicted.
Aside from pens and paper, every other recording device was prohibited in each of the
prison interviews the NLU carried out, reveals project director and legal scholar, Anup
Surendranath. And as part of their ethical guidance, investigators made it a point to fully brief
interviewees about the purpose of the project and the manner information would be used.
On the project website (www.deathpenaltyindia.com), the identities of all prisoners are
protected so that the judicial process is not affected in any way, going forward.
No such norms were followed in the case of Indias Daughter. Prison authorities only
reserved to themselves the right to finally approve of the manner in which recordings were
used. When faced with a copious volume of footage, their judgment and nerve seemed to
fail. Rather than deal with interminable delay, the filmmaker then made a unilateral decision.
In the bargain, ethical questions on the administration of justice were thrown overboard.
Speaking in parliament just after the Home Minister, independent member Anu Agha warned
that self-delusion was not a prudent course for a nation struggling to deal with the
pathologies of patriarchy. And Javed Akhtar spoke of the salutary public service the
documentary had rendered by bringing every man in intimate contact with the potential rapist
in him.

These were powerful interventions that yet proved cries in the wilderness, since the mood of
the moment was to evade the tough questions. Without an early judicial ruling which upholds
the spirit of the Sathyu decision, free speech risks being severely set back by this incident.
---And as a postscript, it may be added that the Delhi High Court, which was approached by
NDTV 24x7 for a reversal of the ban on Indias Daughter, seems from the remarks made by
judges hearing the case, to uphold the wisdom of restraint on free speech in the interests of
the administration of justice.
Post postscript (March 14): Vrinda Grover reminds me that the opinion attributed to
feminists and civil liberties activists above fails to mention that the statement she issued
with Kavita Krishan and others, calls only for the suspension of telecast till the judicial
process is concluded. I acknowledge the omission which arose from the tight word limit
imposed on the article and the pressure of the deadline.
As somebody who approaches the question from the free speech side, my questions in re
the interview with the accused were: has there been informed consent, a full awareness of
consequences, and competent legal vetting by counsel for the accused? I think the answer
on all three counts is possibly no. So there are serious ethical issues involved for the media
here.
Vrinda et al have underlined the complexity of assuming "informed consent", in a custodial
situation, especially in relation to a convict on death row. It is unseemly they argue, for free
speech advocates to put their faith in a piece of paper that Mukesh Singh is believed to have
signed, waiving his right to silence. In the process, the rights of the other accused get short
shrift while Mukesh Singh partially exculpates himself (by claiming for example, that he was
all the time at the wheel).
All very good points. But there is a complexity involved in the changed information landscape
since 1994 when the Supreme Court rendered its ruling in the M.S. Sathyu case. Once put
on record, information is now virtually impossible to keep out of circulation. In their
eagerness to provide this British filmmaker a tour of the inner recesses of the exotic Indian
male pathology, the jail authorities forgot about both the fundamentals of due process and
the realities of the new information environment.
But then, is there a greater purpose served by locking away these persons in Tihar jail and
pretending their thought processes will somehow perish on the gallows? This film has
troubled several in the country because of all that it says about ourselves -- the point that
Javed Akhtar made in parliament. That has been the main cause of outrage, not the vitiation
of fair judicial process.
What this also tells us is that the due process norms would have to be reworked since older
practices, such as sequestration of judges and juries are increasingly ineffective. I can
understand where the Delhi HC bench is coming from when it refuses to reverse the ban
because "judges are not from outer space". But it is most unlikely that any judge who hears
the appeal of the Dec 16 convicts would be unaware of the contents of the film. The judicial
sensibility has to be robust enough to isolate that knowledge from its deliberations.

All this does not mean of course, that the media can spare itself the long overdue lesson in
ethics 101.