In their letter dated March 5, 2015 to NDTV, a group of activist lawyers and civil liberties campaigners have listed 13-odd reasons for requesting the channel to postpone the broadcast of Leslee Udwin’s film India’s Daughter till the Supreme Court delivers its verdict on the appeals lodged by those convicted and sentenced to death for committing the December 2012 Delhi gang rape. They state that the documentary’s centre-point is the interview with Mukesh Singh, one of the convicts on death row, in which he protests his innocence by asserting that the now-deceased victim was solely responsible for her plight; in fact, he nonchalantly claims that she deserved to be taught a lesson. According to them, this inculpatory statement could seriously prejudice his chances of escaping the hangman’s noose when the Supreme Court hears his appeal.

The government has already ensured that the documentary isn’t available for viewing in India. On an application by Delhi Police, in which it was claimed that Singh’s remarks, along with some other scenes, could sufficiently agitate the viewers to take to the streets and cause a massive law and order problem, the Patiala House Court issued an injunction against any form of transmission, telecasting, or sharing of the documentary, over all platforms, including the Internet.

Nonetheless, it is imperative to scrutinise the issue of postponement of screening of a film, or what is known as “prior-restraint” in legal circles, and see if it serves the purpose of due process of law and fair trial of the accused. More so because a 1970 ruling of the Supreme Court almost vindicates the government’s contention – that the cinematic medium has the capacity to stir the audience more than what literature or even theatre can, hence prior-restraint of films is justified and constitutional, even it comes at significant cost to the fundamental right of freedom of expression.

Prior restraint

The contention that Mukesh Singh’s remorseless statements can jeopardise his case isn’t without merit, since a constitution bench of the Supreme Court held in 1980 that capital punishment can be awarded in the rarest of rare cases, and one criterion for deciding was that the convict showed no regret and hence could be regarded as being beyond reformation and redemption. In the present case, the government itself stated in court that Mukesh and his co-accused’s acts were so diabolical that no reasonable person could expect them to be contrite and turn over a new leaf.

However, upon closer examination, that in itself doesn’t quite justify the imposition of prior restraint in order to protect the sanctity of the legal process. Moreover, the Supreme Court ruling cited by the writers of the letter in their favour involved a different factual matrix and context. Senior Advocate Indira Jaising and her co-signees have relied upon the court’s 2012 decision in the Sahara case, which stated that publication could be postponed if there was a possibility of the right to a fair trial being compromised. But that case involved media reportage about a company which was in the dock for defrauding the government, not convicts on death row hoping for a reprieve from the apex court. Sahara had contended that the adverse press coverage during the course of litigation was causing a sharp fall in the prices of its shares because its image and reputation took a big hit, even though the charges against it were yet to be formally upheld by the court.

Black Friday

The Bombay High Court’s 31 March 2005 decision temporarily halting the release of the film Black Friday would be more pertinent. Mushtaq Moosa Tarani, one of the 189 accused in the 1993 Bombay Blasts, had moved court, contending that the film, which claimed to depict reality, could detrimentally affect his rights as an accused if it was allowed to be shown before the TADA court delivered its verdict. The film showed Tarani and his fellow accused going about implementing the conspiracy, and subsequently confessing to their deeds after being apprehended by the police. Although the high court upheld the plea, a sharp distinction needs to be drawn between the confessional statement of Tarani and the one in which Mukesh Singh is supposedly digging his own grave.

First and foremost, there is a huge difference between a trial and an appeal. Tarani’s case before the Special Court set up under TADA (Terrorist and Disruptive Activities (Prevention) Act, which functioned as a trial court – examining witnesses, recording evidence, and dealing with questions of fact. Mukesh Singh, on the contrary, is facing an appeal before the Supreme Court, which deals only with questions of law and doesn’t re-examine facts or fresh evidence unless warranted by exceptional circumstances. Both the trial court and the Delhi High Court have sifted through and accepted the voluminous evidence presented by the prosecution; therefore, his assertions before Udwin’s camera aren’t adding anything new and material to the case against him. At best, his lack of remorse could only jeopardise his chances of clemency. In fact, his statement doesn’t even amount to a new confession – he is only reiterating what has already been affirmed by the courts below.

Second, the circumstances of Tarani and his co-conspirators’ confessions were significantly different. The prosecution claimed that 145 of the 189 accused had voluntarily confessed to their culpability, but those confessions were given in police custody and under TADA, they were admissible as evidence even if extracted under torture and duress.  Thus, there was a reasonable possibility of both the public and TADA court judge being swayed by cinematic representation.

Third, and most important, the court ruled in Tarani’s favour not out of concern for his fundamental right to a fair trial, but because it was determined to safeguard the judiciary’s reputation in the eyes of the public. The judges had asked that in spite of the cinematic representation in which all the accused were convicted, if the TADA court acquitted even some of them, wouldn’t that dent the court’s image in people’s eyes?

Bandit Queen

The letter to NDTV also alleges that the gratuitous depiction of violence, in  recreating the scenes of the victim’s plight at the hands of her tormentors, are bound to negatively affect the viewers, and is an “incitement “ to commit similar acts. Undoubtedly, those gory visuals are harrowing, but they do serve a particular purpose. In 1996, the Supreme Court was called upon to decide if the public should be allowed to certain scenes in Bandit Queen, a biopic on Phoolan Devi. Those scenes showed her being stripped naked, made to walk before more than a hundred people, and then subjected to violent rape. The court was realistic enough to acknowledge that the only way to raise people’s consciousness against a vicious social evil was to depict it stark naked, even if it evoked disgust and revulsion.

No doubt, the request for prior restraint is borne out of the noblest of intentions, but it is precisely such solicitousness which grants legitimacy to the state’s use of its censorious powers.