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Ethics and Theatrics

On "India's Daughter"

Indira Jaising (indirajaising@gmail.com) is the Director of the Lawyers Collective Women’s Rights Initiative and a former Additional Solicitor General of India.

“India’s Daughter” reflects asymmetries of power and access, and of where and how discourses are generated and directed. Who represents whom, and how they do so, reflects many of these asymmetries and exposes many complicities. As to the question of why “India’s Daughter” was not made by anyone in India, this is a question is best answered by those who were most vociferous in their denunciation of the “ban”.

Imagine the following scenario:

An Indian filmmaker, in collaboration with a major television channel, goes to France with the idea of making a film on the slaughter of the Charlie Hebdo journalists. The assassins are dead but others have been convicted, and our filmmaker gets permission to interview and film them in prison. At the same time, a case against them is being heard in a French court. Our filmmaker is horrified by the murders, but she wants to understand why and how this terrible deed was perpetrated in an advanced, civilised society, and wants to gain an insight into the sick minds of the murderers and their accomplices. She is hugely impressed by the outpouring of protest and support across France and Europe in its wake, wishes to demonstrate her sympathy with the dead journalists, and all those under threat of violence by Islamic “terrorists”. The film would be her gift to the people of France.

It gets made and the filmmaker ties up with a French television company to telecast the film on the anniversary of the assassination. The French courts, when they are seized of the plan to air the film while the case is sub-judice, do what any responsible judiciary in any responsible country would do – they issue a restraining order on screening the film till the case has been disposed of. They do this in the interests of upholding due legal process.

And this is what the Indian courts did with regard to Leslee Udwin and BBC Storyville’s film, “India’s Daughter”, scheduled for telecast by NDTV on 8 March 2015.

In a curious, but quite unsurprising, development, this preventive, restraining action is immediately transformed by the media into a “ban”, and the legal issue is high jacked to become one of “freedom of expression”; this is then further confused and confounded by the Government of India and sundry parliamentarians who declare that far from being about “freedom of expression”, it is really about foreigners conspiring to defame the country, by insulting the “honour” of Indian womanhood.

These slippages may or may not be opportunistic, may or may not be partisan and self-righteous, but they provide us with an opportunity to disentangle the many strands in this story, now that the first flurry of charges and counter charges has abated, and the film been seen by any and everybody who wants to.

Possible Contempt of Court

There is nothing new about crime fiction or, for that matter, with recreating a crime on screen by interviewing a convict. When filmed, this is normally done in the form of a “documentary”, but such documentaries are made after there has been a final closure to the case. They are also made when a person suspected of a crime has not yet been charged, and the filmmaker provides evidence which can lead to charges being brought. Something like this seems to have happened in the case of The Jinx, a serial aired by HBO and made by Andrew Jarecki, towards the end of which Robert Durst is charged with the murder of his friend, Susan Berman. This happened as recently as this month. Questions are being asked about why HBO did not share the evidence they had, more than two years ago, with the police.

“India’s Daughter” falls into neither of the above categories. It interviews a convict while his appeal is still pending in court; there is no closure to the case. Such a film raises serious questions of contempt of court where the appeal against the death penalty is still pending. Miscarriage of justice can take place through prejudice and bias operating during the trial and the appeal. History tells us that innocent persons have been convicted on laughable evidence, due to hysteria built up in the media.

Section 2(c)(2) of the Contempt of Courts Act defines criminal contempt as the publication of any matter which prejudices or interferes or tends to obstruct the administration of justice in any manner. In order to strike a balance between free speech and the absolute need for a fair trial, Section 4 states that fair and accurate reporting of judicial proceedings shall not constitute contempt. At the same time, the court has the power to hold trials in-camera in the public interest.

The Nirbhaya case was one such case in which the trial was held in-camera, perhaps because of the violent, brutal and sexual nature of the crime involved. At that stage, the order was challenged in the high court which modified it and permitted the print media to report while keeping electronic media out. It must be said that the print media reported on the case responsibly.

“India’s Daughter” seems to be in contempt of court as the film was aired during the pendency of an appeal in the Supreme Court. The filmmaker gets the convict to make admissions and confessions in relation to the offence, incriminating the others accused while exculpating himself. Already there is an online petition demanding the death penalty for the accused , while the issue of crime and punishment is yet to be decided. At the time of writing, the high court has orally observed that the press appears to have overstepped its self-imposed limits during pendency of appeal, but the issue that the film raises is far more serious: namely, is there an interference here with the functioning of the courts?

Making of the Film

“India’s Daughter” is a collaboration between Assasin Films and BBC Storyville, co-produced with (among others) one Dibang, and the actress, Frieda Pinto, and funded by a host of organisations including the British charity, Action Aid. Its Indian team consisted of various crew members but also, importantly, an editor, Anuradha Singh, and an unnamed interviewer. The opening credit reads “Produced and directed by Leslee Udwin...”

The merits and demerits of the film are not at issue here, each person will receive its message differently, and very differently in different places; our concern is with the context in which a film like this is made, and by whom; and with how that context and all that is pertinent to it, is represented.

In an obviously Orientalist framing, the young woman who was raped and is the raison d’etre of the film, has been simultaneously invisibilised and reified as India’s “daughter”. This remarkable young woman, one who was determined to forge her own destiny in a difficult environment, is once again represented not in her own right but in relation to: this time as the country’s daughter. That same country had earlier rendered her more or less anonymous as “Nirbhaya”. Inevitably, and unavoidably, she is represented in absentia, through others in the film: her parents, one of the convicts, her tutor. Oddly enough, not by her “boyfriend”, but more on that later. Mukesh Singh ostensibly represents himself, and also represents the three others convicted with him, so do his defence lawyers and Nirbhaya’s parents. A question naturally arises about why the others, the juvenile and fourth accused, were not included in the film. Was permission to interview them not given? Did they refuse to be interviewed? Were they interviewed but not part of the final film for other reasons? These elisions are important, because in the film as is, we are presented with just one version of what happened on the night of December 16, 2013 – Mukesh Singh’s. Even more significant, and much more problematic, is the absence of the boyfriend, the one person who could have countered Mukesh Singh, whose statements would have had the authority of a first-hand account; whose representation of Nirbhaya and what she experienced would have unequivocally repudiated Mukesh Singh’s vile account; and who would have spoken on her behalf. The same questions then arise: was he not sought out? Did he decline? If yes, why? If not, why not?

Mukesh Singh’s statements are objectionable and troubling for all the reasons already given – unrepentant, self-serving, disgustingly sexist and repugnant – but also because they come across as curiously choreographed. Rehearsed, almost. He is at once absolving himself of criminal conduct (“I was only driving the bus, who says someone else also drove? Only I drove it.”) and justifying the rape and brutality. This, it seems, is his defence. Again, there is no one to challenge him -- the juvenile and the fourth accused are mute in the film, Ram Singh is dead. Mukesh is also given more than his fair share of space, because in addition, he has been represented as a victim of his poverty and of the abject environment in which he lived – presented at considerable length. This too, conforms to a familiar trope: poverty make for violence.

By contrast the girl’s parents are transparent in their grief and in the sincerity with which they talk about their daughter. Their daughter, not India’s Daughter. She is brought to life through them, and only through and by them, because they will not, cannot objectify her. Their utterly guileless recall restores her to her context.

But there is another context to this discussion, and that is the context in which a film like this is made and then seen, locally and internationally. Decades of struggle and protest by the Indian women’s movement laid the groundwork both for the kind of widespread protest that followed the rape, as well as for the Verma Committee Report that was its consequence. As many decades of resisting and highlighting such violence against women, and of insisting that media and society take notice of it, now make it difficult for them to ignore its pervasiveness.

March 8 is International Women’s Day, a day of solidarity with women worldwide. What better day, then, to air “India’s Daughter” across the world, demonstrating to one and all media’s commitment to the cause? Imagine their chagrin when they are restrained from doing so (and doing so with so little lost, and so little real investment in the long haul); in one voice they take up the cry of “freedom of expression”; the filmmaker appeals to the Prime Minister himself on television, seeking his intervention; BBC advances the telecast of the film to circumvent the Indian government’s restrictions and makes it available on YouTube; and – as has happened time without number in the past – the uncomfortable, serious, troublesome issue of violence against women and male culpability, individual as well as societal, is effectively swept aside. The political class, meanwhile, mouths its usual platitudes.

How much better the cause of women would have been served had media and politicians investigated, thoroughly, why the roughly now Rs. 2000 crores of the Nirbhaya Fund are languishing in the government’s coffers, unspent. Meanwhile, a star-studded cast in New York (including Frieda Pinto, co-producer of “India’s Daughter”) views the film at the inauguration of the UN’s Committee on the Status of Women meeting, on March 9. The same UN that has only recently, via UNWOMEN, signed up with Uber to provide safe cabs for women! The irony of the real ban on Uber in India, and the so-called “ban” on Leslee Udwin’s film, can escape no one. The commodification of “Nirbhaya” now has international endorsement.

In such a national and international context, the imaginary scenario we sketched in the beginning is almost certain to remain just that. Asymmetries of power and access, of where and how discourses are generated and directed, are also likely to remain for a good long while. Who represents whom, and how they do so, reflects many of these asymmetries, exposes many complicities, and is therefore vulnerable on this count.

As to the question of why such a film was not made by anyone in India, it is best answered by those who were most vociferous in their denunciation of the “ban”.

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