Why Dileep's demand for visuals of actor assault is morally wrong and dangerous

Dileep has already been shown the visuals by the Magistrate without informing the survivor or the prosecution.

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Malayalam actor Dileep’s demand for the visuals of a female actor being attacked and assaulted to be handed over to him has now reached the Supreme Court. His plea requesting all evidence materials, including the video recording of the assault taking place, had been rejected by the Angamaly Magistrate Court on February 7, 2018. He then went to the Kerala High Court, claiming that accessing the video would help him prove his innocence in the case in which he has been named as the mastermind in the chargesheet. The HC, too, turned down his petition on August 13, 2018, stating that his persistent demand for the video was a delaying tactic to slow down the progress of the case in court.

But why is Dileep so obsessed with obtaining these visuals in the first place, and is it morally feasible for this video to be handed over to him?

The visuals in court

The memory card was handed over by the main accused in the actor assault case, Pulsar Suni, to a lawyer based out of Angamaly-Aluva. The lawyer immediately handed over the memory card to the Angamaly District Magistrate. After formalities registering the submission of the memory card were completed, it was handed over to the forensic department. The memory card, according to sources close to the investigation, had visuals transferred from Suni's phone and showed the sexual assault as well as the abductors threatening the survivor. Upon investigating the visual evidence, a forensic report submitted in court said that there was no sign of audio or video tampering in the submitted visuals.

However, in mid-December, a few days before Dileep was officially scheduled to appear before the Magistrate, he went to the Angamaly Judicial Magistrate First Class Court without informing the public prosecutor in the case. At this point, Dileep and his lawyer were shown the video visuals in question on a laptop in the Magistrate’s chambers. This was done by the Magistrate without informing the survivor, the prosecution or any other aggrieved party.

Main accused Pulsar Suni, vehicle allegedly used in attack

From 31 December, 2017 onward, Dileep has been on a persistent and sustained quest to obtain the visuals of the attack, claiming that the footage had been fabricated. He alleged that the video clip was a compilation of clips shot within a stationary vehicle, and did not match the police’s description of the video being an uninterrupted 3-minute stretch shot within a moving vehicle.

The moral question

While lawyers tell TNM that an accused does have a right to access the evidence logged against him, there are special circumstances in which this may not be applicable, or even morally just, given the overarching privacy concerns that the sharing of this particular video would throw up.

Section 207 of the CrPC, which contains the laws outlining the “documents" that must be made available to the accused, was not framed at a time when it could be envisioned that crimes of rape and sexual assault could be recorded electronically. It is possible that the Supreme Court could accept Dileep’s advocate Mukul Rohatgi’s contention that a memory card does fall under the definition of a document, as it had done in a child abuse case from Punjab in 2015. In that case, the SC had allowed the accused to access a telephonic conversation on a CD. In Dileep's case however, handing over video visuals of a sexual assault to an accused remains extremely shaky and morally dubious territory.

Given that this is a recording of a woman’s sexual assault, it would be a painful breach of the survivor’s fundamental right to privacy if the video visuals of her sexual assault were handed over to another person, especially the one charged with orchestrating the attack against her.

Moreover, the police chargesheet in the case states that Dileep had asked Pulsar Suni to record the attack and pass on the visuals to him, possibly to humiliate or blackmail the survivor later. The police has also cited Dileep's long-standing personal enmity with the survivor as the motive. It is only reasonable that Dileep is denied the visuals, considering that obtaining the same was allegedly his primary aim in planning the conspiracy.

But it isn’t only a question of principled objections pertaining to a survivor’s right to privacy, or not giving an accused what he allegedly wanted. The dangers posed in handing over physical copies of the evidence in this case to Dileep are very tangible and real.

The prosecution in the case says that if the physical copies of the evidence are handed over to Dileep, there is no way to ensure that Dileep will not make copies of the extremely sensitive and traumatic video. Anyone with that copy could use it at a later point or distribute it in some manner in order to humiliate or blackmail the survivor.

On January 22, 2018, the police told the court that Dileep in his petition demanding the video was deliberately quoting specific parts of the conversations recorded in the video with the intention of further humiliating the survivor. Police and lawyers representing the survivor have told the court that he was also trying to malign her by releasing this sensitive petition to the media, and therefore it doesn’t feel far-fetched at all to imagine that Dileep’s plans, upon obtaining the video recording, could be malignant.

Handing over copies of this extremely sensitive video, which shows the sexual assault of a woman, to those who are not involved in investigating and deliberating over this case, could also have other consequences, particularly given the high profile nature of this case and those involved in it. The consequences of the video being misplaced or lost could be widespread and irreparable, and given that it would be a copy directly furnished to Dileep, he would be at liberty to guard it with as little or as much security as he desired. Nothing could stop the video from being stolen by burglars or "lost" in rains or floods. Dileep’s hometown, Aluva, for example, was one of the most badly hit regions in the recent Kerala floods in August.

Now it can be argued that Dileep, as an accused in a criminal case, has a right to a fair trial, which supposedly depends on him gaining access to the video. But on the other hand, it is not as though Dileep and his lawyers have been unable to view the video in question. They were allowed to do so twice.

Adv. Rohatgi claims that without a physical copy of the video, Dileep cannot independently prove his contention that the video has been doctored. But this is where creative or unconventional approaches need to be found in order to safeguard both Dileep’s right to a fair trial and the survivor’s fundamental right to privacy. In a non-political, criminal case such as this one, the video can be sent by the Court to the highest cyber forensics labs in the country, like CDAC or the Central Forensic Science Laboratory, or a Court-appointed commission can be formed to conduct a final forensic investigation into the video in question.

It is at times like these, when the law is forced to meet completely unforeseen circumstances thrown up by complexities of gender, gendered assault and technology, that we realise how carefully we need to tread when making sure that the Court remains meaningfully open to women while still providing fair trials to those accused in criminal cases.