Nowhere in the world would a convicted prisoner, whose appeal is still pending, be allowed to confess on national television that he was part of a gang which raped and fatally injured a young woman, that the juvenile was the one who committed the most brutal violence and that he was only driving the bus. That apart, the Indian Constitution in Article 20(3) provides a guarantee against self-incrimination. Even during investigation, the investigating authority is not permitted to question a suspect in a manner that would incriminate him. Yet, investigating agencies continue to hold suspects in custody and employ third degree methods to get information. So routine has it become for the police to hold press conferences incriminating suspects on national television before trial, that we the people now think it is fine for us to do the same. Something similar has happened with the BBC 4 film India's Daughter on the Nirbhaya case. The filmmaker has put herself in the position of an interrogator.
"The film trivialises the enormity of rape. It presents the rapist's point of view as a rationalisation."
And how do we know that the convict Mukesh is telling the truth? How do we know that he is not performing for the benefit of the filmmaker or a larger audience on a predetermined script? There is no way of knowing, which is why the interview with the convict is legally, and morally wrong. There is no transparency in the making of the film. It has now been suggested that money was paid to Mukesh for giving the interview. The money that the documentary will generate is also not disclosed and yet, the film is being passed off as an awareness-raising tool.
There is no closure in the Nirbhaya case, either for the accused or for civil society. The appeal of the convicted prisoners is still pending in the Supreme Court. In fact, we are still coming to terms with the issue. Why did it happen? What kind of brutalisation has taken place in society? Most importantly, what can we do about it?
What 'Awareness' Really Means
The film claims to be an exercise in "awareness-raising". But what do we do with that awareness? Surely, it is intended to prevent rape; surely, that is the moral and ethical duty of each and every one of us. What purpose does "awareness" serve without any follow-up action?
The Indian women's movement has, since 16 December 2012, worked tirelessly to build an atmosphere of zero tolerance towards violence against women in the public and personal domain and in some measure, succeeded. The journey began way back in 1978 with the rape of Mathura in a police station and in the two years post Nirbhaya, it has telescoped into a heightened engagement with the State in the demand for safe cities, accountability of investigation agencies and the judiciary. It has yielded results.
Yes the judicial process is long and winding and must account for it, but post Nirbhaya a lot of change has happened in the judiciary as well. The Supreme Court's social justice bench focuses much of its efforts on hearing and clearing cases pertaining to violence against women. Attempts are being made to place qualified social workers in police stations as the first point of contact for women who have been sexually abused.
Much has changed but not everything. But suggest that a one-year delay in the Supreme Court is too long is misleading. The courts have been reacting to people's protests and public opinion in favour of expeditious trials. Any campaign to reform the courts would be more than welcome, but the documentary attempts no such thing. Conviction rates for rape are abysmally low across the world. That does not make it right to delay a rape trial, but at least in this case, thanks to a vigilant press and the power of a people's protest, this case was decided in less than one year. We were trying to create a template for an expeditious yet fair trial and succeeded in good measure. The challenge, no doubt, is to make it happen in all cases.
Some believe the film should be shown to children. For what? Presumably to raise awareness and prevent violence against women. It will do no such thing. It contains no conceptual understanding within which to comprehend rape as an act of power within a patriarchal society. Well-researched studies published in Lancet 2014 show that the depiction of positive gender relations and norms and avoiding stereotyping of gender roles is what works.
Rape, Personal Responsibility And The Law
The mind of one rapist does not represent the mind of all rapists. This film is not a work of research, nor does it offer any recommendations for pathways to safety for women. To those who say the film holds up a mirror to society, I would say, in which mirror have you been looking for so long? To those who say, this is what people say in a normal drawing room conversation in Delhi, I would ask, why have you been complicit in these conversations? Have you not by your complicity in these conversations been part of the "rape culture" of the country? For us in the women's movement, each time such a statement was made, we stood up and were firm in our protest. After all, there is only one change agent, and that is protest - whether it's in the well-appointed drawing rooms of Delhi, television studios, in the corridors of Parliament or in the courts.
Is this film part of that protest culture? Does it strengthen the rule of law, which in turn will end impunity for rape? Far from it. It violates the fundamentals of the Indian Constitution and of our laws
Section 228A of the Indian Penal Code, 1860 prohibits disclosure of the identity of a rape victim even when she is dead. Disclosure is allowed only to a recognised welfare organisation or institution by the next of the kin (if the victim has died) in order to assist prosecution. By no imagination does the BBC or the filmmaker come under the definition of "recognised welfare institution or organisation". It is unfortunate that the Supreme Court continues to use the name of a rape victim, even those who have survived, in their judgments. This must stop to align with the spirit of Section 228A
" The film, besides being violent, is a form of pornography. Recall for legal purposes cannot degenerate into reenactment either by the prosecution, or the accused's lawyer or by a filmmaker."
The film trivialises the enormity of rape. It presents the rapist's point of view as a rationalisation. It allows the viewer to think that perhaps there can be explanations for rape, such as poverty. It takes away individual responsibility for rape, which, like murder, is anti-life. Rape is a crime abhorrent to the human spirit and cannot under any circumstances be justified. No doubt the rapist has a point of view but he must articulate that in court. When aired in public, it is an attempt to abnegate personal responsibility, making it instead a societal crime.
A Violation Of Dignity, Legal Ethics
The most revolting physical details are listed by the convict, who appeared almost to be gloating. The film, besides being violent, is a form of pornography. Respected academics have noted that such descriptions are unnecessary even in a courtroom during a trial. Often a rape trial degenerates into the presentation of details by the prosecution as well as the defence counsel that can only be described as pornographic and grossly humiliating to the survivor. During the trial of the Shakti mills rape case, the prosecution virtually asked the survivor to reenact the rape in court, and showed her the clips on the mobile phones of the accused, leading her to collapse in the court room. Even then we protested-- is this necessary to get a conviction? Recall for legal purposes cannot degenerate into reenactment either by the prosecution, or the accused's lawyer or by a filmmaker.
In all this, the victim's perspective is missing. She is called Nirbhaya but do we really know how afraid she was at the moment of rape? The film is likely to have a devastating impact on rape survivors. The perspective of her parents also cannot be her perspective, or the perspective of the law. The judges must be allowed to do their job, without being influenced by online petitions demanding the death penalty for the juvenile based on what Mukesh Singh says. No matter what the judges say, they too are human and can be influenced by the "collective conscience" of society. At the time of writing, Delhi High Court judges, in a petition challenging the ban imposed by the Government, has said as much.
The ecosystem of support necessary for a survivor of rape has been painstakingly put in place over the last 30 years by tireless work. At least in the public domain, no one can justify rape in the manner in which the convict and their lawyers do. While the law will deal with the lawyers for violation of professional ethics, Mukesh and the other accused stand in danger of being condemned to death for having " no remorse". Even after the conviction is upheld by the Supreme Court, the convict has a right to present a mercy petition to the President of India for commutation to life. One of the major factors taken into consideration at that stage is whether the prisoner had remorse while under sentence of death in prison. The prison superintendent is called upon to express an opinion on his conduct in prison. The film now pronounces that he has no remorse. Much as we find the crime repugnant to the human spirit, we still believe in the rule of law and must stand by it.