Libertatem Magazine

India’s Daughter: What is the controversy all about?

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“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”

                                                                                                          – John Milton, Areopagitica

Media today is so powerful a tool that can be used effectively to bring positive reforms at a large scale. But then what does our government do? Yes it imposes irrational restrictions and limitations on it, thereby spoiling the essence and functionality of media as a tool.

One such event took place very recently. It was on 8th March, 2015 known as International Women’s Day, that the documentary named “India’s Daughter” filmed by the British film-maker Leslee Udwin, based on December 16 gangrape that took place in Delhi, was to be aired by BBC (British Broadcasting Corporation). The documentary contained interviews of one of the accused Mukesh Singh and his defence lawyers ML Sharma and AP Singh, apart from the interviews of the victim’s parents and his near and dear one’s. The controversy took its course for two basic reasons. One that the government imposed a ban on it which resulted into questioning the democratic system our country is based on. The other reason was the loathsome mentality that was depicted in the interviews of the above named parties that brought a rage of anger amongst all sorts of people.

Thus, here it is pertinent to discuss the controversy by answering the following questions:

  1. Whether the decision taken by the government leads to violation of the right to freedom of speech and expression as enshrined under Article 19 of the Indian Constitution.
  2. What is the position of women in our country and what are the future prospects?

Article 19 states: All citizens shall have the right…

This in itself gives rise to another fundamental question that whether a foreign national can claim for such rights. Since the word “citizens” is used at the very inception which clearly implies that only citizens can enforce this right. Now if we look at the first question from the point of view of the film-maker herself, meaning thereby, if Leslee Udwin claims it to be broadcasted in India, she would fail in it because being a foreign national, this right can never be enforced by her. Currently the situation is that the Delhi High Court has refused to decide the issue that was challenged through a PIL claiming that it is violation of our fundamental right to speech and expression. The case is still pending and so one can merely assume the course that the Hon’ble Delhi High Court may take while deciding the matter in issue. Here the fact that a PIL is filed by two law students, Arun Menon and Kritika Padode, may or may not protect their right under Article 19. It is so because here the petitioners are actually seeking a right to watch the documentary and the right to speech and expression. It is yet not clear whether Article 19 can be made wide in scope so as to include right to watch or listen any speech or expression. This is a very important aspect to be looked into. It is so because otherwise Article 19 of the Indian Constitution envisages only those situations wherein the petitioner is the one who made that speech or expression and thus claim to exercise it by enforcing Article 19. Here the petitioners neither made the documentary nor assisted in its making. Therefore, what Fundamental Right can they claim under is the most fundamental problem that is to be resolved.

This situation can be easily compared to a similar situation by briefly discussing the case of Life Insurance Corporation of India v. Prof. Manubhai D Shah, wherein the issue was regarding the broadcasting of the documentary titled “Beyond Genocide” showcasing the aftermaths of Bhopal Gas Tragedy. Doordarshan refused to telecast it. It was argued from the state side that airing this documentary would result in vitiating the social peace and harmony since the documentary included clips that showed that the claims of compensation was subjudice and the political parties were disinterested in broadcasting it. Here the petitioner was the film-maker himself and the Supreme Court affirming the decision of the High Court held that Doorshan shall have to telecast the documentary since propagating one’s own views and ideas even through mass media is covered under Article 19 and refusal to do so would violate one’s freedom of speech and expression. It is to be noted that here the petitioner, an Indian, was able to get his rights enforced under this Article. But in case of “India’s Daughter” the petitioner, though Indians, never filmed the documentary and therefore it is not their speech or expression that they can claim under Article 19. It is to be seen how the judiciary adjudicates upon this matter. Whether they will consider the incidental right of the readers and viewers to read or watch any speech or expression as integral part of Article 19? From a reasonable man test, it should be included because the right to freedom and expression remains incomplete because if it can’t be read or viewed by anyone then the whole purpose of the right becomes goes in vain.

A justification for not airing the documentary can be that since the case is pending, the broadcasting of this documentary may influence the judges while deciding the case. This is known as Heuristics which refers to traits that influence once decision making due to external factors. Even if this is considered, it can still be advocated that after the case is decided the documentary should be telecasted in order to let citizens of India get aware of mentality and the reasons of such heinous crimes and learn from it.

The other question regarding the position of women in India is a topic of every debate on rights of women. Women should be given equal respect and position in the society. The statements made by the counsels and the accused that Girls is equally responsible for the crime committed against them, that there is no place for women in Indian culture, that the girl should limit herself in terms of dressing, behaviour, etc should be despicated as much as possible. Such elements in the society should be boycotted until they change their mentality towards women.

Having said this, it can be concluded that just as very lately, the Hon’ble Supreme Court held section 66-A of IT Act as unconstitutional, the judiciary should also look into these issues so as to bring major reforms in right to freedom of speech and expression and also empower women in every aspect possible.

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