Ban on 'India's Daughter': Concern or Censorship?

A ham-fisted government’s ban on India’s Daughter has liberally provided all the lenses through which the documentary should not be judged, analysed, or slammed. That is because free-speech absolutism is woefully inadequate when it comes to taking stock of structural issues.  On this ground, there can be no disagreement with the letter asking NDTV to postpone the telecast of the documentary till the legal proceedings come to an end. Nor can one disagree with the assertion that by the excessive focus on the gang rape convicts’ poverty-stricken background, the film smacks of class-bias and strengthens a very pernicious stereotype- that the poor and irregularly-employed have a higher propensity to commit rape and other acts of sexual violence. 

But the rest of the letter wades into really dangerous territory, and here’s why.

To begin with, the “legal grounds” cited in defence of prior-restraint. First, the letter alleges that the documentary deprives Mukesh Singh and his convicts of the right to a fair trial by obstructing the process of justice. Far from it. I have explained at length why this demand stands on an erroneous interpretation of the law. That apart, saying that a telecast would amount to criminal contempt under the Contempt of Courts Act because it could interfere with and prejudice the judicial process is to give a veritable free pass to judges to be swayed by media sensationalism. Agreed, that trial by media exists and is a worrying phenomenon, but why not make this case a sort of litmus test for the judiciary, and see if it comes out clean? Not to forget that in the not-too- distant past, judges have pulled out all stops to issue gag orders on reportage that would have exposed their foibles- using precisely the law of contempt.

Second, the invocation of Section 153A (1) (a) of the Indian Penal Code, which criminalises hate speech intended to promote enmity between different groups. Reason- the comments of lawyers ML Sharma and AP Singh, sickeningly misogynist as they were, could incite violence against women, besides hatefully targeting the entire womankind of India. No doubt, those comments were risible and deserve the strongest condemnation, but, the legal provision cited here isn’t the one to deal with it. The legislative history of Section 153 makes it abundantly clear that despite the presence of “any other group”, it was intended to penalise religious hate speech- the one that sparks communal violence. Subsequent judicial interpretations have also included vicious casteist speech, but never misogynist hate speech. In feminist jurisprudence, there is a considerable body of work making out a strong case for classifying, and penalising such speech as hate speech, but it is yet to be introduced in the Indian legal regime. A more fundamental question here- do Singh and Sharma’s comments, vile as they are, really incite violence against women? These two lawyers, one of whom is justifiably the object of derision because of his numerous frivolous lawsuits, aren’t oracles. They are pretty nondescript fellows, and attributing currency to their remarks takes a dim view of the intelligence and sense of judgement of the majority of the documentary’s viewers.

Third- the supposed lack of “informed consent” of Mukesh Singh for the interview, because assuming the free, informed and voluntary consent of an incarcerated inmate on death row is of a “vexed nature”. This is a sweeping generalisation, almost suggesting that Singh was made to agree to the interview at gunpoint. 

Legalities aside, the one claim in the letter makes it difficult to tell between the government’s imperious ban and the objectives of those demanding prior restraint. By denouncing the “egregious impact of (the film’s) descriptions of violence” and contending that students’ viewing of it would be “horrific and unnecessary”, the signees play right into the hands of the government. In fact, they steal a march over the government which had only cited possible law and order problems and some tripe about India being shamed for justifying its censorship.

Lastly, by sending out a chilling warning about the most likely consequences of giving convicted rapists the death penalty, Mukesh Singh actually does a service to common sense and justice. In no way does he, as the letter claims in what could be termed as a leap of logic, incite rapists to kill their victims.

It isn’t worthwhile to hurl ad hominem charges against all those who support the demand for postponement, but imperative to criticise earnestness based on misconceived notions of facts and the law, and a wrong understanding of society.