All eyes in India were on the Delhi High Court today as a verdict on the broadcast ban of controversial documentary India's Daughter was announced. The film, about a gang-rape victim, was originally scheduled for a worldwide premiere on International Women's Day on the 8th of March, but ran into trouble when Indian authorities protested against its content and the way in which it portrayed their country.
This morning, a division bench (a panel of judges) at the Court announced that the ban on the Indian broadcast would continue till the 15th of April, when the court will hear the appeal against the ban all over again. The panel also asked to see the official advice issued by the Government for banning the documentary.
The case went to the bench today — headed by Delhi's Chief Justice, G Rohini — after a two-judge panel at the same court admitted their inability to rule on the ban, because "emotional" media coverage surrounding the case was clouding their judgment. And therein lies a lesson for all of us.
It's tempting to think of a country's judiciary as being completely impervious to any sort of influence; that's the independence every free and fair society strives for. In such a utopia, lawyers are expected to be partisan only to the point considered necessary for helping their clients efficiently.
Judges, however, are deemed to be above even this. They are imagined to be superhuman beings, who must think, live, and work in a vacuum keeping in mind only the Constitution and previous verdicts. (India – like the UK – follows common law, where previous judicial decisions have the power of legislation.)
But this can't possibly be true. If the hoi polloi, media, political establishment and every other pillar of society vehemently speak out in one, emotionally-charged voice, then is it unthinkable that some of that fervour seep into the judges' chamber as well? "[Judges] are not from outer space," said justice BD Ahmed, also at the Delhi High Court. "They can get subconsciously pressured by emotional media trials." Damn right.
For those not up-to-date on raging headlines from the subcontinent, India's Daughter is a British documentary, part of BBC's Storyville series, about the victim of the brutal gang-rape in Delhi in 2012. The woman, a young physiotherapy student, was assaulted and raped by six men in a moving bus. The rapists had inserted an iron rod inside her and drawn her intestines out. She was in hospital for two weeks following the incident, before she finally succumbed to her injuries.
The documentary, by British filmmaker Leslee Udwin, contains interviews with one of the convicted rapists from inside his jail cell. Staring calmly into the camera, Mukesh expresses a stunning lack of remorse. "A girl is far more responsible for rape than a boy. A decent girl won't roam around at night," he says. "Housework and housekeeping is for girls, not roaming in discos and bars at night doing wrong things, wearing wrong clothes."
The team behind India's Daughter aired this clip on Indian news channels a week before the documentary's planned premiere. Shit hit the proverbial fan. The video went viral, Twitter and Facebook feeds were taken over by outraged viewers and The Guardian, for example, has published 22 stories on the controversy in the last two weeks. That's more than a story and a half per day.
In 2013, Mukesh Singh was sentenced to death by the Delhi High Court, a verdict he has appealed against. The case now rests with the Supreme Court of India, which will announce the final verdict, which is a roundabout way of saying that the matter is sub judice, which is a roundabout way of saying the judiciary is still deliberating upon Mukesh's fate. And going by the frank admission by one judicial bench that their integrity had been compromised by a "media trial", it's not preposterous that another judicial bench may also be susceptible to the same.
You may disagree with the notion that publicly documented interviews with convicts who are under consideration can prejudice court proceedings, but it's hard to disagree with the notion that this, at least, deserves the attention of due legal process. Whatever the verdict today had been — ban or no ban — we could have rested in the confidence that the judges reached their decision while cognisant of the ramifications to their actions, not just for freedom of speech and expression in India but also for one man's right to a fair trial.
None of this is to say that everything the Indian government has done over this controversy has been justified. If anything, the country's politicians have taken the legal rationale supporting their actions, and stomped on it in a jingoistic dance of moral policing and censorship.
At various points in the last fortnight, India's political leaders have outdone each other with the jaw-dropping ridiculousness of their statements. During a debate in Parliament over India's Daughter, the Minister for Parliamentary Affairs, Venkaiah Naidu, claimed the documentary was an "international conspiracy to defame India." (It's not.) Meenakshi Lekhi, the National Spokesperson for the ruling party, said the documentary's broadcast would "affect tourism" in the country. (Too late for that.) And the Home Minister, Rajnath Singh, announced the government was looking to pursue legal action against the BBC for broadcasting India's Daughter in the UK.
It would have done India's politicians some good to look up what happened to Barbra Streisand when she tried to remove an aerial photograph of her home from the public eye. In a world with the Internet, banning something or – even worse – talking about banning it is spectacularly ineffective. Not only is it hard to execute, but it actually heightens the interest in the thing to be banned. One can never truly envision how many of the views, retweets and shares garnered by India's Daughter are due to the Indian government's anger with it, but the answer would be: a lot.
Moreover, trying to clamp criticism down is antithetical to a democracy. India's political establishment should realise that there is much to be learnt from constructive criticism, especially if it reveals ugly truths. It took the country's leaders less time to think of India's Daughter as an "international conspiracy" than it did to seek action against two practicing lawyers who make horrifically misogynistic statements in the documentary.
If only the authorities directed their ample energy and resources towards better pursuits, we would come closer to addressing the societal issues raised by this whole fracas.
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