Free speech vs justice

Delicate balance

Print edition : April 03, 2015

The scene outside Alipore Jail in Kolkata on the day Dhananjay Chatterjee, convicted and sentenced to death for rape of a schoolgirl, was hanged in August 2004 after the President rejected his mercy plea. The film-maker M.S. Sathyu had recorded an interview with Dhananjay after the Supreme Court rejected his appeal in 1994, but he had to wait for 10 years, until after Dhananjay's mercy petition to the President was disposed of, to broadcast it. Sathyu claimed that the interview showed Dhananjay to be innocent of the crime he was accused of. Photo: SUSHANTA PATRONOBISH

The controversy over the telecast of “India’s Daughter” brings to the fore the need to balance free speech with legitimate restraints in the interest of justice.

There is no doubt that India’s Daughter is a powerful documentary made with understanding and empathy by Leslee Udwin, even though its professional merits can be debated. The documentary may well be in the public interest, and the film-maker’s claim that it goes deep into the “issue of gender-based violence against women in India” and can help “understand mindsets that indulge in such heinous crimes all over the world” can be accepted at face value. However, there are more basic issues at stake here than what appears on the surface, and the issue should not be understood merely in terms of free speech vs the ban on its telecast.

The Delhi Police’s Economic Offences Wing filed a first information report (FIR) that cited offences allegedly committed in the process of the making of the film, though it does not name Udwin as an accused. The alleged offences are under the Indian Penal Code, including Sections 504 (intentional insult with intent to provoke breach of the peace), 505 (statements conducing to public mischief), 505(1)(b) (intent to cause fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offence against the state or against the public tranquillity); 509 (word, gesture or act intended to insult the modesty of a woman), and Section 66A of the Information Technology Act (sending offensive messages through communication service). Although these are serious allegations, one has to await the conclusion of the investigation to infer whether they are prima facie true.

The Delhi Police was more specific in its application to the metropolitan magistrate, Delhi, in seeking a direction to restrain/block the publication and telecast of the interview, in the documentary, with Mukesh Singh, one of the convicts on death row in the Nirbhaya case. It referred to the interview with Mukesh Singh done in Tihar Jail by Leslee Udwin and said that according to media reports Mukesh Singh had made malicious, derogatory, offensive and insulting remarks against girls, causing harassment and disrepute. “These excerpts of the interview as published are highly offensive and have already created a situation of tension and fear amongst women in society…. In case the interview is telecast, it may lead to widespread public outcry and serious law and order problem as had happened in the aftermath of the Nirbhaya gang rape case,” the application said.

The Delhi Police, therefore, sought a direction to the Ministry of Information and Broadcasting not to allow telecast of the interview and to the designated authority under the I.T. Act to block the excerpts of the interview already published/transmitted electronically and to prevent the print media from publishing the excerpts any further.

The Metropolitan Magistrate, Puneet Pahwa, in his order on March 3, noted the police’s concerns that the programme, if aired, may cause a huge public outcry and create law and order problems, and complied with its request to restrict uploading, transmitting and publishing the interview with Mukesh Singh in any manner until further orders. On March 4, Puneet Pahwa’s order was confirmed by the Chief Metropolitan Magistrate, Delhi, Sanjay Khanagwal, through another order.

The Delhi Police, acting under the control of the Central government, sought and obtained from the court legal restraints on the airing of the interview with Mukesh Singh, which, in reality, translated into a ban on the telecast of the entire programme by the government. Observers, however, wondered whether the Delhi Police was justified in seeking such restraints merely on the basis of the apprehension that the telecast of the interview would lead to a “huge public outcry” and “law and order problems”. They were surprised that the Magistrate granted the request of the police on these grounds when the Supreme Court had clearly laid down in the case relating to the banning of the film Ore Oru Gramathile that it was for the government to manage law and order and protect freedom of speech.

On March 3, the I&B Ministry sent out an advisory to all television news channels not to telecast the documentary or any excerpts from it or any programme based on excerpts. The Ministry said any violation of the advisory would invite such action as provided under the Cable Television Networks (Regulation) Act, 1995, and the Rules framed thereunder as well as under the terms and conditions stipulated in the uplinking/downlinking guidelines. The advisory thus amounted to a clear ban.

To justify this ban, the Ministry suggested a number of reasons:

One, the convict showed no remorse whatsoever for the heinous act; second, the excerpts contained his chauvinistic and derogatory views on women in general and the victim in particular; third, the programme provided a platform for the convict to use the media to further his own case, especially when his appeal against his conviction was sub-judice; four, the telecast of these excerpts appeared to encourage and incite violence against women, thus compromising women’s safety; five, it also encouraged antisocial elements to indulge in violent acts compromising law and order; six, the programme appeared to compromise the role of the media as the upholder of constitutional values as the fourth pillar of our democracy; seven, the media are likely to be seen as a voice for the perpetrator of such crimes by providing him a medium to communicate his views on the matter repeatedly; and lastly, his appeal in the Supreme Court (against the Delhi High Court’s confirmation of his conviction and death sentence) being sub-judice, this is also liable to be construed as interference with the due process of law.

While some of these reasons may well be true, it is debatable whether they are valid grounds for the ban.

The advisory also informed the channels that the telecast would attract Rule 6 (1) (d, e, f, i, k and o) of The Cable Television Networks Rules, 1994. The relevant provisions of these rules are as follows: Rule 6 (1), dealing with the Programme Code, says that no programme should be carried in the cable service which (d) contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths; (e) is likely to encourage or incite violence or contains anything against maintenance of law and order or which promote anti-national attitudes; (f) contains anything amounting to contempt of court; (i) criticises, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country; (k) denigrates women through the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to women, or is likely to deprave, corrupt or injure the public morality or morals; and (o) is not suitable for unrestricted public exhibition.

As is clear, these expressions in the rules are very broadly worded and have the inherent potential for being abused by a government that intends to muzzle the freedom of expression of television channels. The channels had no choice but to comply with the advisory despite the fact that some of them may have disagreed with the government’s interpretation of the rules.

Sub-judice rule

Concerns have been expressed, however, that the airing of the programme may cause prejudice to the convicts’ appeals pending in the Supreme Court against their death sentence. It is pointed out that judges of the Supreme Court have, in the past, allowed themselves to be influenced by public opinion rather than be guided in their verdicts by the merits of the case.

The Supreme Court, for instance, dismissed Surinder Koli’s appeal against his death sentence in the Nithari case, calling him a “serial killer” on the basis of the media coverage of the case, although the facts of the case before the court did not suggest it. The Supreme Court justified its confirmation of the death sentence of the Parliament attack case convict Afzal Guru on the grounds that the “collective conscience of the nation” required it. Such conclusions of the court on the basis of what it believes to be “public opinion” are outrageous, and the court reached such bizarre conclusions even though there were no such documentaries as in the present case. It would be absurd to suggest that the government ought to ban television programmes and reports in the media on appeal cases in the Supreme Court in order to avoid the miscarriage of justice as in the Nithari and Parliament House attack cases. Supreme Court judges, during appeal proceedings, ought to go strictly by the trial court and High Court records and the arguments of counsel before them, rather than by what appears in the media. Therefore, aberrations of judicial conduct in the case of some judges cannot justify restrictions on freedom of expression.

Concerns have also been expressed that the programme, by persuading Mukesh Singh to express in public views that could be used against him when the hearing of his appeal is pending in the Supreme Court, violates the convict’s right to silence. Although Udwin obtained the convict’s consent for the interview, it is not clear whether she also ought to have obtained the consent of other convicts who are shown in the programme and whose complicity in the offence Mukesh hints at during the interview. It is also not clear whether Mukesh’s consent to be interviewed was voluntary and whether he knew and understood its consequences. These are valid concerns which hinge on both law and professional ethics and may take time to unravel. However, as the opinion given to Leslee Udwin by a former judge of the Supreme Court makes it clear, the documentary and the interview with Mukesh Singh which it carries have no evidentiary value and, therefore, do not violate the sub-judice rule. ( Frontline has in its possession the opinions given by one former Supreme Court judge and one former Chief Justice of the Delhi High Court to Leslee Udwin.)

Previous cases

The Supreme Court, in Sheela Barse vs State of Maharashtra, on September 18, 1987, held that in order that the guarantee of the fundamental right under Article 21 may be available to citizens detained in jails, it becomes necessary to permit citizens access to information as also interviews with prisoners. Interviews become necessary as otherwise the correct information may not be collected, but such access has got to be controlled and regulated, the court observed in this case, assuming that those who interview prisoners will agree to abide by reasonable restrictions imposed by the authorities.

In M.S. Sathyu vs State of West Bengal (1994), whose facts are somewhat similar to the present case, the Supreme Court permitted the film-maker M.S. Sathyu to interview Dhananjay Chatterjee, a death-row convict lodged in Alipore Central Jail, Kolkata, after obtaining his consent, on the condition that the interview should not be published or broadcast until the mercy petition of the prisoner was decided. Sathyu, who recorded the interview after the rejection of Chatterjee’s appeal by the Supreme Court in 1994, had to wait for 10 years to broadcast it as there was an inordinate delay in disposing of Dhananjay Chatterjee’s mercy petition, and his eventual execution happened in 2004 following a public outcry demanding his hanging.

The Supreme Court’s order in this case, which Frontline has access to despite its non-availability online and its non-publication in journals, was not a reasoned one, although the clear implication was that the court did not want the broadcast to influence even the President while considering the mercy petition. In a subsequent interview, Sathyu claimed that the interview showed Dhananjay Chatterjee to be innocent of the crime he was accused of. If the interview had been broadcast before the President’s rejection of his mercy petition, it was likely that the result could have been different, he claimed. Justices B.P. Jeevan Reddy and Sujata V. Manohar, who heard the case, did not feel that Sathyu’s documentary could have been useful material for the President in making a decision on the mercy petition.