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.
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.
http://www.epw.in/discussion/chilling-effect-restraints.html
