A lot has recently been said to justify a ban on or at least a postponement of the telecast of the documentary India's Daughter. There are two apparently contradictory grounds. First, the misogynistic statements of the accused and their lawyers in the film could be said to amount to 'hate speech' under S. 153A IPC. And second, the right of fair trial for the accused would be jeopardised as his seeming lack of remorse during his interview would ensure lack of judicial sympathy in sentencing him. The first ground then hinges on a fundamental question: Does the accused have a right to express and publicise his views, even if they are repulsive and repugnant to many? In a country with a million mutinies, where political dissent is increasingly dealt with through criminal law, to muzzle the speech of the accused under a provision as sweeping as S.153A would ensure that the political nature of such 'crimes' get no space in the public sphere. One can easily imagine the Delhi Police Special Cell arresting another 'Kashmiri militant' and ensuring his version gets no play in the media because he would speak in favour of 'Azadi' in Kashmir.
More persuasive seems to be the second ground: that the contents of the film, especially the interview with one of the accused, will interfere with the second appeal still pending in the Supreme Court. But there is a crucial difference between this case and previous ones where the courts have restrained coverage of a pending trial: it has hitherto been done at the behest of the accused. For example, the Bombay High Court ordered the postponement of the release of the film Black Friday when an accused filed a writ against it as he felt the film compromised his right to a fair trial. Similarly, in the case of Afzal Guru's infamous TV confession as well as India Today's story on the confession of the accused in 'the Batla House encounter case, the accused quickly repudiated these media accounts and in fact approached the courts for stopping their publication.
The primary problem with making this kind of argument in the case of India's Daughter is that none of the accused have asked for any such restraint on the film. In fact, two defence lawyers and one of the accused participate actively in the film. The only possibly aggrieved parties here would be the other accused. They alone could ask for this film not to be shown. In India's Daughter, Mukesh Singh makes many apparently self-incriminating statements in his interview while reconstructing the events of the night of 16 December 2012, but with a crucial rider: he emphasises that he was just driving the bus while all the other accused committed the actual crimes. The interview that the accused Mukesh gave in the film will probably not help him in the pending appeal even if he thinks it might, but the point is that the accused and his lawyers are the best judge of this. As long as there is informed consent, there should be no paternalistic second guessing of their agency in this regard.
Criminal trials increasingly operate in a world of saturation media coverage. It is time to acknowledge this fact in our treatment of them. What gets often forgotten is how crucial media strategy is in high-profile cases. It is a fact that gets repressed because of the stubborn fantasy of an unmediated trial. In two other such high profile cases, those of Rajesh and Nupur Talwar as well as of Binayak Sen, where appeals against their convictions are pending, the accused have repeatedly spoken to the media about the crimes they have been convicted of by the trial court. It is not entirely clear if their respective media strategies have helped them or not, but it would be difficult to argue that it has not affected their cases. Surely nobody would ask for a ban on their speaking to the media. It is a high-risk strategy perhaps, but it should be left to the accused and their lawyers to choose their respective media advisories.
"The only possibly aggrieved parties here would be the other accused. They alone could ask for this film not to be shown."
The key difference between the media statements of Mukesh Singh, the Talwars and Binayak Sen on the one hand, and Afzal Guru and the three Batla House accused on the other, is the voluntary nature of the former and the obviously involuntary nature of the latter. Afzal's and the Batla House confessions to the media were obtained in police custody, and the nature of that process is a public secret in India. To compare such confessions with the former would be to miss something important.
The incarceration of the accused while adjudication of the case is still pending leaves them with limited resources to state their case in the court of public opinion, while the prosecution has no such limitations. Often access to the media, even if limited, enables the accused to provide their side of the story. There are many situations where the accused need access to the media to ensure their rights are not violated -- when they are subjected to custodial violence, for instance. There is a need to focus on enabling and empowering the accused in adopting a media strategy that is not unfair to them, rather than wish away the media's presence.
Most commentators, however well-intentioned, seem to live in a state of wilful denial about the endlessly mediatised and overdetermined nature of trials such as the Nirbhaya case. It is time to stop pretending that legal strategy and media strategy are mutually exclusive in such cases.