Wednesday, April 15, 2015

The Chilling Effect of Restraints

Indian governments in general, and the Modi government in particular, can be relied on to elevate spurious notions of national security or national honour over actual change, just like the green curtains drawn over Ahmedabad’s slums when the Chinese president came to visit. God forbid the world should come to know, via a BBC film, that the saintly Indian man commits crimes against the revered Indian woman.
However, one of the more distressing aspects of the non-screening of Leslie Udwin’s film, India’s Daughter, on NDTV, has been the stand of certain sections of the women’s movement, demanding a ‘restraint’ on its release (see Indira Jaisingh and Ritu Menon, Ethics and Theatrics, EPW, March 28, 2015).  Those feminists opposing the film have several problems - such as the ‘orientalist framing’ or ‘white women’s savior complex’ that the film is supposed to embody; a dislike of the title which reduces women to daughters rather than independent agents; the supposed equation of poverty and violence; the fact that the commodification of ‘Nirbhaya’ does injustice to the decades of work by the women’s movement to raise awareness about rape and violence; and the neglect of the structural nature of sexual violence through an overt focus on the mind of one rapist (An Open Letter to Meryl Streep and Frieda Pinto).

Each of these arguments could lend themselves to hours of fruitful classroom discussion, given the multiple ways all texts are read. On the title, one might argue that since much of the film is about the ways in which daughters are treated in a changing India – with some parents selling their land to educate them, and others using technology to practice female foeticide – it is not entirely inapposite. Similarly, the defence lawyers destroy any notion that a violent patriarchal mentality is confined to the poor. While it is important to show up the government for enabling the use of sexual violence as an instrument of domination in communal massacres or counterinsurgency, even as it expresses outrage over the December 16 gangrape, blaming Udwin and her promoters for not addressing the different contexts of rape is missing the point.

The orientalist charge also veers dangerously close to the government’s xenophobia and insecurity. Just as Arundhati Roy’s caste should not affect her right to write about Ambedkar, Leslie Udwin’s  citizenship has no bearing on her ability to make a film on the December 16 gangrape.  We are not obliged to either praise or condemn it for that reason, or treat it as the last word on rape in India. And surely the Indian women’s movement has not developed in splendid isolation. Apart from participating in global campaigns like Take Back the Night or One Billion Rising, Indian feminism owes much to the writings of Western feminists. Udwin is no Susan Brownmiller or Angela Davis but her film is hardly the enemy here. The point is to change Indian misogyny, not worry that we will be seen as a misogynist nation internationally.

The most serious issue is, of course, the call for a restraint on showing the film. While the grounds for this demand have shifted – from describing the accused Mukesh’s statements as hate speech to a concern for the rights of the accused to fair trial in a pending appeal against the death sentence in the Supreme Court, the issue of fair trial itself needs unpacking. In particular, we need to look at the relationship between the media, public opinion and judicial pronouncements.

While I have been unable to locate any empirical study on the extent to which media influences the Indian judiciary, research elsewhere indicates that the record is inconclusive. A 2011 study by Mark Potter ‘Do the Media influence the Judiciary’, argues that while judges also live in society, they are more likely to be influenced by the arguments made by counsel, discussions with their peers, precedents set by other Courts etc.  Other studies from the US suggest that judges are affected by media coverage to the extent that they care about ‘institutional legitimacy’. They are circumspect about lowering the authority of the court by giving judgments which are unpopular or which will not be enforced.  Either way, judicial responses to public opinion are mediated by several factors. If the media created cannibal Surinder Kohli could get reprieve based on facts before the court, there is no reason to assume that this film will overpower the judiciary; or that films in general have such a capacity. And if judges are so easily swayed, we need to worry more about the quality of the judiciary than of films.

Moreover, judicial sensitivity to public opinion is not always undesirable – especially when public opinion is far in advance of the law, such as in getting rid of Sec 377.  If media coverage during the pendency of a trial – even at the initial trial stage of giving evidence, and not on appeal as in this case – is to be restrained, that would outlaw the work of many defence committees, such as those formed for the release of Afzal Guru or Binayak Sen. Moreover, in a country known for its judicial arrears (the Hashimpura case has lasted from 1987-2015), to restrain a film during trial can amount to a life long ban. On the other hand, justice has an unexpected lifespan.  Films or books may play an important role in creating a ground for reparations, e.g. through truth and reconciliation commissions, long after the courts have failed.

In India, the public sphere is divided on many issues, and the same media coverage has contradictory effects depending on the audience – the coverage of Afzal Guru as a terrorist in the Indian media made him a martyr in Kashmir; Maya Kodnani’s conviction for the massacres of 2002 is seen as a good thing by all right thinking Indians but the communal Gujarati Hindu thinks she has been unfairly victimized. The effects of this coverage may impinge on the courts, but indirectly via the political process.

Even were the rights of Mukesh or his co-accused an issue here, to call for a restraint on the film’s screening may do greater disservice to prisoners rights in the long term. For the government and Times Now, which instigated the outcry, the problem is giving accused the space to represent themselves. This logic can then be easily extended to Naxalites,  those accused of terrorism, or even people like Irom Sharmila. In restraining this film, we run the risk of a much larger silencing of our polity.