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Some of the troubling legal issues around the gang rape documentary India’s Daughter (by @nsaikia)

Legal issues with the story of [redacted]?
Legal issues with the story of [redacted]?
Lawyer Nandita Saikia argues that the controversial BBC documentary on the Delhi gang rape, India’s Daughter, might be flawed, though no more than our society itself.

Regardless of how one approaches the programme ‘India’s Daughter’, which purports to tell the story of the woman who was gangraped and fatally wounded in a Delhi bus in 2012, it appears to be flawed. Its content is questionable, the manner in which it is has been filmed is questionable, the grounds on which it has enraged many people are questionable, and the attempts to suppress it are questionable.

There is no doubt that ‘India’s Daughter’ deals with an important subject, that of violence against women in India, which needs to be spoken of and addressed.

However, it is far from clear whether the programme makes a valuable contribution in that direction except, through what has now become its notoriety, by forcing the general public to further engage, however superficially, with the issues of violence against women and free speech.

There have been a number of concerns which have been raised about the manner in which the programme has been filmed. Indeed, the access obtained by the filmmaker to Tihar jail seems extraordinary, and there are claims that the terms upon which the access was granted have not been complied with.

Whether or not there is truth to these allegations appears undeterminable for the purposes of public debate given that the complete documentation relating to the programme has not been made available to the general public.

When it comes to the content visible in the programme itself though, the flaws become clearer. ‘India’s Daughter’ comes across as being sensational without really engaging with issues: (based on a viewing of what was labelled as the documentary on YouTube on March 5, 2015), there is what appears like a rather dodgy reconstruction of what happened on the night of the rape; and the victim herself seems to lose all agency in the programme (in much the same way, it must be said, as she did in real life with ​the appropriation of ​her name and ​ press-bestowed pseudonyms for use in a number of assorted initiatives intended to address violence against women).

The victim’s friend who was with her during the rape has apparently gone so far as to call the programme a ‘fake’; the father of the victim has reportedly said that he did not want her name to be mentioned; there are doubts about whether the consent given by one of her rapists to be interviewed and filmed was informed consent along with worries about what the consequences of uninformed consent in such situations could be.

In addition to this, there appears to have been little concern in the programme for the privacy of the children related to the rapists who have been shown without their images being blurred or for what appears to be a random child, identifiable footage of whom has been used to accompany the narration of a the story of a boy who once pickpocketed the woman who was raped. No one, however, appears to be advocating for these children.

That said, many of the reasons for which ‘India’s Daughter’ seems to have infuriated a variety of people appear to have little to do with law or ethics.

There has been a great deal of clamour from some quarters about the programme defaming India without much recognition being paid to the fact that it is the violence which women face in India that is the primary problem. There has been much handwringing about ‘giving the rapist a platform’ and supposedly glorifying him although it has never been made clear how the publication of the interview of a rapist per se glorifies him, or how rape can be addressed whilst excluding rapists from the equation.

Many people claim to have been aghast that the rapist was allegedly paid to be interviewed in the programme thus ‘profiting from his crime’ although the filmmaker has denied that such payment was made.

Nonetheless, it seems to be rather odd to see such surprise given that the publication of prison memoirs, for example, is not generally accompanied by shock and leads one to ask if only the book-writing upper class that may ‘profit from their crimes’ by speaking of them.

Apart from this, there have been a deluge of personal attacks against the filmmaker which have largely been beneath contempt. And there have been sweeping allegations made, particularly on social media, about the supposedly wide-ranging legal violations by the programme’s content.

The disclosure of the identity of the rape victim aside though, it is extremely unclear whether the content of ‘India’s Daughter’ does in fact violate statutory law. As far as the disclosure is concerned, it is unclear whether it is illegal in this case (although it may well be given that there doesn’t appear to have been written consent by the victim’s kin to a government-recognised welfare organisation per the requirements of Section 228A of the Indian Penal Code).

The possibility of contempt of court having been committed, the other major statutory concern, is even more unclear: Section 2(c) of the 1971 Contempt of Courts Act defines criminal contempt to mean ‘the publication [….] of any matter or the doing of any other act whatsoever which: (i) scandalises, or tends to scandalise, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner’.

Considering the status of the case, and the statements of the interviewed rapist in the programme, concerns about contempt of court are not out of place although it isn’t clear that it has actually been committed.

The non-statutory issue of whether or not terms upon which permission to film the programme were complied with is also unclear; the answer would presumably depend on facts which do not appear to be in the public domain. Far more than suffering from certain illegality, it appears that ‘India’s Daughter’ suffers from a series of extremely questionable editorial decisions which could be considered to have made its content far from admirable.

But even with regard to the content, it appears that what has raised hackles is not so much editorial decisions but the words of some of the interviewees including the words of two of the rapists’ lawyers.

It is all but unarguable that many of the statements of the rapist and of the interviewed criminal defence attorneys in ‘India’s Daughter’ are vilely sexist and that attitudes such as theirs should have no place anywhere in the contemporary world. That said, there appear to be credible arguments to be made to the effect that journalists of whatever form have a duty to hold up a mirror to society, and in that light, it appears to be unreasonable to hold the filmmaker liable for having included their words in the programme.

Although there are lines of thought that some of the statements in ‘India’s Daughter’ violate Section 153A of the Indian Penal Code (which deals with promoting enmity between societal groups), and, separately, that action should be taken against the lawyers spewing vitriol against women in the programme, the fact of the matter is that even if the parameters within which lawyers function should be rethought, Indian law does not have an established tradition of finding that misogyny or sexism per se are illegal, much less that their expression is criminal particularly when such expression is unaccompanied by threat, incitement to violence, or other abuse.

And there are good reasons not to attempt to set such a legal precedent.

Despite the harm of hate speech (and it is hard to argue that statements such as some of those against women in the programme are not hate speech), attempts to define 'hate speech' at law have generally been notoriously unstable.

And as far as sexism is concerned, in India, with its entrenched patriarchy, it is particularly difficult to fathom at what point sexist speech would be considered to be hate speech, who would make determinations in this regard and how, and, in the case of the non-criminal professional, whether, as a general rule, personal sexist opinions (however worthy of ridicule) should ever be treated as being professional misconduct at all given the wide-ranging implications such treatment could have especially in instances which are not clear-cut.

Focussing on the expressed sexism by lawyers in the programme, the Advocates Act does not appear to immediately and explicitly support the treatment of sexist personal opinion per se as either professional misconduct or hate speech, even though it may, if one were to go on a tangent, highlight the need to attempt to redefine the parameters of acceptable advocacy. Neither does it seem that statutory law would easily support a ban of ‘India’s Daughter’.

That said, Indian content law has too often proven to be extremely malleable, and it could be argued that the attempt to suppress the programme, if not ban it outright, appears to highlight (yet again) that Indian content law needs serious reconsideration. If not anything else, so many of our content laws are so vague that it is often close to impossible to determine with any degree of certainty what content would be legal.

In this specific case, the content in question is a documentary which, legal technicalities aside, despite seeming to be deeply flawed in and of itself, displays societal flaws which need to be addressed. And as a society we cannot address flaws unless we talk about them.

The (non)advisability of even attempting to do so aside, we probably do not have the resources to restrict speech so that only such speech as satisfies a likely indefinable criterion of civility is permitted. Addressing rape is quite simply not optional: it is a requirement, and addressing it requires discussion.

Not everything said during that discussion is likely to be anywhere near admirable but burying our heads in the sand and refusing to hear what we do not want to hear will not help address rape (or any other societal issue, for that matter).

Free speech is not optional.

Nandita Saikia is a lawyer who works on media and content law

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