‘Right to justice at stake’

Vrinda Grover is a renowned lawyer and human rights activist who has argued several landmark cases dealing with domestic violence, extrajudicial killings, custodial torture, and riots. She contributed to the drafting of the 2013 Criminal Law Amendment Bill. Vrinda, along with a number of feminist activists and lawyers, has demanded that the broadcast of the controversial documentary film India's Daughter be put on hold until all the legal processes in the case are completed. The activists have, however, distanced themselves from the government’s position on the issue and made a clear distinction between a restraint pending legal proceedings and a ban. In an interview with Frontline , Grover points out some serious legal and ethical concerns with the documentary and highlights earlier episodes where public opinion generated by the electronic media is thought to have impacted the rights of the accused.

You have argued for a postponement of the telecast untile all legal processes and proceedings relating to the case are completed. But a counter argument has been put forward from some quarters, including the Editors’ Guild of India, that the case has already been through all the stages of investigation and trial by the High Court, and therefore raising this issue of the case being sub-judice at the stage of appeal in the Supreme Court is not valid.

I don’t support a ban. My prime concern is that the judicial process is not over. There needs to be a more nuanced debate in this case instead of a mere ban and no-ban argument. The appeal in the case is pending in the Supreme Court. Though academics and film-makers seem to think that the Supreme Court judges will not be influenced, there are instances of the same happening. Former Supreme Court judge Justice Markandey Katju, while dismissing in 2011 the appeal in the Surinder Koli case, a rape-cum-murder episode in Nithari, had termed the accused a “serial killer”, though no trial court had concluded that he had murdered all the other people.

We shy away from critical questions about whether judges are influenced by public opinion. In fact, a lot more research needs to be carried out in this area.

In the case of Afzal Guru, who was the accused in the Parliament attack case in 2001, while handing out the death penalty, the Supreme Court stated that it [the verdict] was satisfying the collective conscience of society. There were events happening outside the domain of the courts which were echoing and resonating in the courts.

I was counsel for Professor S.A.R. Geelani, one of the accused, at the trial stage. There was a film made by Zee TV in December 2002, which was to be shown three days before the verdict was to be given by the special designated Prevention of Terrorist Activities [POTA] court. The channel had advertised the film and claimed that it was based on the version of the prosecution. The court was moved to stop the telecast of the film. It was a so-called dramatised version of what Zee TV had understood from the prosecution charge sheet. The court did not stop the broadcast. The film did not have the defence point of view and did not highlight the loopholes in the charge sheet.

In the Parliament attack case, I do believe that the broadcast of Afzal Guru’s confession across the country on all English and Hindi channels—his speaking out his confession to the media, which were obviously invited by the special cell of the Delhi Police in whose custody he was—was one of the determining factors for the court to decide that he deserved nothing but hanging.

Interestingly, when Afzal Guru’s confession was broadcast, a portion of it was deleted. About 100 days after the attack, Aaj Tak ran a programme by a correspondent, Shams Tahir Khan, in which he played this bit. In this part, Guru exonerates Professor S.A.R. Geelani. He says that the latter was not in the loop about the conspiracy. Shams Tahir Khan later agreed to be a defence witness in the Parliament attack case trial. When this “confession” was made by Afzal, Rajbir Singh of the Special Cell instructed the media that some parts of the confession should not be aired. The entire English and Hindi media dutifully obeyed his instructions.

We have seen that when the person himself is put before the camera, the media have not acted in an ethical fashion and allowed whatever the police or the prosecution wanted to project.

In the present case, the trial is over and the accused have been given the death sentence. The Delhi High Court has confirmed the death sentence, and now the appeal is pending with the Supreme Court. Whether the court will uphold the death sentence or not, I am not taking a second guess. In the Akshardham temple attack verdict last year, all the six persons accused, including two persons who had been awarded the death sentence by a special POTA court and the High Court, were acquitted by the Supreme Court. It’s not unusual in Indian appellate proceedings for some other evidence to come up or for the court to see something new. Even S.A.R. Geelani was given the death sentence and then acquitted by the Delhi High Court.

As far as the interview with Mukesh Singh is concerned, there are reports that money may have changed hands. The matter is under inquiry. There is more to this story. The class angle of the accused cannot be ignored here. If he were not a poor man, if he had better lawyers to give him advice, would he have agreed to give this interview?

As a feminist who has fought half her life to argue that custodial consent is not consent, why should I accept it for an accused? Custodial consent is not the same as informed consent. Consent is often obtained under duress in the jail. We know that another accused, Ram Singh, died mysteriously. A person must understand the full consequences of what he is participating in.

I agree these are areas of research. I would be very interested in more and more psychologists, psychiatrists and sociologists interviewing rape convicts, murderers. But that is material created for purposes of study created by professionals. I don’t feel enlightened after watching this documentary. She does not try to show why this crime is happening, what the nature of the crime is.

The trial in the Delhi gang-rape case was made available to the media but the print and television media exercised respectful and dignified restraint. What is the public purpose achieved by this documentary? It is sensational and it makes you angry and fearful. Everyone—even those who support it—says that it is bone-chilling. This is no reason to ban it, of course. But this is for the first time the gang rape has been reported in this manner.

Also, does the film-maker have the consent of the co-accused? Mukesh makes statements incriminating them and assigning a role to each one of them. Their consent has not been taken. They are also on the death row.

I have been told by Dayan Krishnan, special public prosecutor in the December 16 gang-rape case in the trial court and the Delhi High Court, and also by Siddharth Luthra, special counsel for the prosecution in the Supreme Court, that both of them were telephonically approached by Leslee Udwin to discuss and review the film. However, both refused to either meet with her or discuss the film. Both are designated senior counsel and have conducted themselves with professional propriety. This clearly refutes the claims repeatedly made by Udwin that the film was reviewed by the state prosecution team.

Also, her claim that the film was reviewed by Supreme Court judges is nothing short of scandalous.

Here someone’s life is at stake and the right of the victim to justice is at stake. Why can’t a right to see a film wait?

In the joint letter addressed to Dr Prannoy Roy, co-chairperson of NDTV, you, along with other prominent lawyers and activists, have pointed out that the interview with Mukesh Singh falls within the ambit of Section 153 (1) (A) of the Indian Penal Code. Could you please elucidate on this? Section 153 (A) has been notoriously used as a tool for censorship by governments.

All laws can be used both ways. Section 153 (1) (A) was invoked recently when Vishwa Hindu Parishad chief Praveen Togadia was prevented from entering the Kandhamal district in Odisha as there was a possibility of fresh violence being unleashed.

I personally do believe that freedom of speech is not absolute. Article 19 of the Constitution is very clear about this. If speech incites violence, then it needs to be curtailed. For example, in Rwanda, the massacre of the Tutsi community was largely encouraged by propaganda on the radio. There are occasions when freedom of speech needs to be curtailed when the right to life is at stake. The one sentence in this documentary which I think does amount to hate speech is when Mukesh says: “The death penalty will make things even more dangerous for girls. Now when they rape, they won’t leave the girl like we did. They will kill her. Before, they would rape and say, ‘Leave her, she won’t tell anyone.’ Now when they rape, especially the criminal types, they will just kill the girl. Death.” There can be a discussion whether this utterance amounts to hate speech.

Though Section 153 (1) (A) doesn’t talk about gender explicitly, we can still read gender into it as the last word used in the section is “communities”. We are a community of women. Around the same time that the controversy about this documentary erupted, the Naga students union representative tried to justify the horrific lynching of a rape accused in Dimapur. Also, there is a new petition that is doing the rounds of the online forum change.org which says that all the accused are “demons” and “monsters” and even the juvenile accused should be hanged. These are the kind of tendencies that the documentary will feed into.

You have also argued that the amplification of violence and misogyny by the documentary will push back the agenda of the women’s movement in India. But isn’t it important to highlight the deeply entrenched patriarchal mindset prevalent in society? Does showing what exists out there in society amount to glorification of the same?

Do we not know about it already? And now we need to hear it loud and clear on March 8 [International Women’s Day]? In an article in the online forum Youth Ki Awaaz, Shivani Nag has brilliantly analysed the messages that the film sends out. In my view, the film only showcases misogynist attitudes and gives them further leverage at a time when a conversation has begun in society about systemic changes. Following the wide outrage after the gang-rape incident in 2012, we had got an opportunity to challenge and push back these views.

You also feel that the documentary gives too much space to the views of Mukesh and his defence lawyers. But the film-maker also devotes a lot of time to the narratives of the rape victim’s parents, her friend, the police, etc.

The two images that emerge out of the film are of the man who tells us why rapes happen and his defence lawyers who support this kind of vision. The family is shown as helpless and despondent. The victim’s pain and agony and suffering are unimaginable. But, the family’s narrative is not a feminist narrative at all.