None of Jaitley's arguments stand scrutiny

IN Law and Policy | 17/03/2015
While in London, Arun Jaitley defended the ban on 'India's Daughter'.
MADABHUSHI SRIDHAR ACHARYULU finds gaping holes in his arguments. Pix: Bignewslive.in
Eminent lawyer and Finance Minister, Arun Jaitley, explained the law and logic of prohibiting the highly controversial documentary made by the BBC, India’s Daughter, during his visit to London. His legal argument was that, during an appeal, the accused cannot be allowed to use the media to defend himself or herself.  
 
It indirectly confirms that the government does not want the judiciary to be subconsciously influenced by the media so as to prevent any prejudice either for or against the accused. Undoubtedly the right to a fair trial is a basic right, especially when the convicted is staring at the death sentence. 
 
In this context, a few questions arise. Is the defence of the accused person and his criminal lawyers being presented for the first time in this documentary?  Have these arguments not been presented during the trial? Is there any possibility of this documentary influencing the minds of the constitutional judges afresh?
 
These questions spring up because the 16th December 2012 rape was profusely discussed not only before hundreds of cameras but in the streets and institutions of this country. The trial judge would have been flooded with information, views, and the emotional upsurge that took place so is it possible to avoid subconscious influence?  
 
But the first and significant aspect of  the objective judicial process of adjudication is  over and had ended with the accused  being awarded capital punishment.  Now the higher courts are engaged in a review of the guilty verdict, based on the law and circumstances of the crime. If at all there is any chance of significant influence, it certainly existed  when the trial was going on. 
 
The training and prolonged experience of judges should keep them immune to the influence of media reporting. If they are not immune, then these standards should be thoroughly reviewed. There is a lot of difference between the kind of ‘information’ that flows out in the media and all the collected clues which take shape as consolidated ‘evidence’ in a court of law while the accused and witnesses are cross-examined. No judge worth his or her salt should confuse the first with the second.   
 
Stretching the legal logic further, we can say that the due processes of law are designed to ensure objectivity. For example, the prosecutor will demand confirmation of the death sentence. The defence lawyers will argue the opposite. The judges hear both arguments and decide, based on the available material before them, with the utmost judicious discretion.  This stringent process is unlikely to be disrupted by any random remarks the accused might make to the media or by any comments made by his lawyers about the status of women in Indian culture or by the flood of op-ed columns and social media eruptions.
 
None of these can cause a ‘fresh’ impact on judicial minds. Don’t forget, such anti-women points would already have been made in court by the defence team during the trial. The issue would have been debated in the media. When young women and students surged onto the Ramlila Maidan to face water cannons and lathis, another trial took place. And when experts under a former Supreme Court judge wrote a report on the rape law, a strong opinion against the accused was already built. Was that not another trial? 
 
In short, there were several print, electronic, social media, magazine and social trials of the accused in this gang rape case. Unable to stand the adverse public opinion, one convict committed suicide. More than influence, it could be a coincidence that the sentencing of the accused to death by the courts happened to match the ‘people’s’ guilty verdict.   
 
The fame, or notoriety, of India’s Daughter was caused by the initial news reports about the documentary which featured only the rapist’s obnoxious opinions, without mentioning  the  comprehensive nature of the documentary.  Before the documentary was released, a widespread impression had been created that the interview with the rapist was the highlight. Only when it was available for viewing did it emerge that it was a collection of interviews. 
 
Whatever it was, the documentary was widely seen in India, despite the ban. The ban could not stop the so called ‘adverse influence’ on the rapist’s pending appeal. No judicial mind will accept the kind of illogical, useless, preposterous and illegal arguments that the rapist put forward in the documentary such as the opinion that women were to blame for crime by being in the streets in the evening. 
 
The definition of ‘rape’ and ‘gang-rape’ in the Indian Penal Code, and the principles of evidence and procedure will never accommodate these views in such a way as to reverse the trial court verdict. Thus the media trial argument in favour of the ‘ban’ does not stand. 
 
The other feeble defence put forward by Mr Jaitley was that no credible media would have violated Section 228A of the penal code which prohibits the victim being named or her image shown. The media reported Mr Jaitley as saying that the new law on rape, framed by the Verma Committee and passed under public pressure after the incident, prohibits this. Being a lawyer, Mr Jaitley might not have said this because this provision about revealing a rape victim’s name was already in the penal code long before the 2012 rape. 
 
In fact, Section 228A provides an exception to this rule by saying that it is no offence if the victim permits the publication of her name. If the declaration of the BBC that the victim’s parents permitted them to use her name is true, then the BBC has not violated the law.  In short, the legal and logical defence of the ‘ban’ does not stand.
 
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