According to the Director of the documentary film India's Daughter's, this is the procedure that was followed in order to get the interview of the accused in the December 2012 gang rape case in Delhi, along with that of several other convicts in similar cases:

“I wrote a letter to DG of Tihar. The DG of Tihar had to consult with MHA. The letter basically stated that it was a campaigning film. I had applied permission in May 2013 and I got the answer 'yes' in two weeks. Official permission of MHA also came. Permission from the prison was also signed.”

I'm struggling to find the appropriate provisions under which such a procedure is authorised. The Delhi Prisons Act. 2000 certainly does not bar any visitor, but makes a very important point of guaranteeing confidential meetings between a prisoner and the advocate. The reason for this is obvious— the two should have the freedom to discuss the matters pertaining to their case without the apprehension of being recorded etc. Manual 5 lays down conditions for those entering for interviews.

Journalists have always had an obsession for death row convicts. There is no doubt that a journalist could interview prisoners sentenced to death, as was famously allowed in the case of the notorious duo of Ranga and Billa in 1981, eventhough the same was not expressly provided for in law. The category of “friend”, as permitted to visit convicts, was expanded to deem journalists “friends of the society”.

In 1992, the serial killer Auto Shankar's autobiography was sought to be published by the publication Nakheeran, and the publication was sought to be restrained by the Prison Authorities. At the time, his mercy petition before the President was under consideration. Under pressure from authorities, who he named complicit in his acts, Auto Shankar denied writing his autobiography and wrote to the Prison Authorities to prevent its publication. This case ends up being one of the most important cases in the right to privacy recognition in India, and the Supreme Court makes an interesting observation:

“24.It is not stated in the counter-affidavit that Auto Shankar had requested or authorised the prison officials or the Inspector General of Prisons, as the case may be, to adopt appropriate proceedings to protect his right to privacy. If so, the respondents cannot take upon themselves the obligation of protecting his right to privacy. No prison rule is brought to our notice which empowers the prison officials to do so. Moreover, the occasion for any such action arises only after the publication and not before, as indicated herein above.”

The autobiography is inculpatory— it admits his own guilt, as well as many who had not stood trial for the same. It was written by his own hand, and retracted similarly. In this case, however, the imminent publication of the work was brought to his attention by the powers-that-be.

Since Auto Shankar denied authorship of the writing, it was not necessary for the Court to really look into anything else. Here, however, we have a case which isn't so easy to deny— an accused has made an inculpatory statement on video camera. The case hasn't reached the stage of mercy petitions yet—​ in fact, the Supreme Court is presently seized of the matter, in its second appeal. It seems to have been established, as above, that some procedure has been followed before the grant of the request to video record the interview given by the accused. However, I am curious to know a few other things:

a. Was the interview recorded in the presence of other police/ jail officials? The reason this is important is that this could change the nature of a confession from an extra judicial to a judicial one and have an impact should the State choose to rely upon it before the Supreme Court.

b. Was the accused given to understand the nature of the interview and the repercussions it could have on his case? Assuming that the Supreme Court does not interfere with the findings, one of the considerations of the Jailer's report while forwarding Mercy petitions is observations regarding remorse and reformation of the prisoner, the lack of which is harped upon in this report.

It is interesting that the Ministry of Information and Broadcasting has barred the broadcasting of this documentary, and that recourse was not taken to the Supreme Court under Contempt of Court Law, or under the guidelines framed by the Supreme Court recently in the Sahara/SEBI case. For the State, the former may just have been the more expedient option.

When we look at the law relating to confessions in India, the position is clear. In most cases, confessions made to Police Officers are inadmissible as evidence. Even when an accused seeks to confess to a Magistrate (which is the only authority before whom an accused in such a case can legally confess), a procedure mandates the Magistrate giving the accused a clear idea of what the repercussions of such confession will be, and in fact gives the accused a time period to mull over these consequences and come back for the confession if still desired by the accused. The question really is that when an accused is under the protection of the State, and when such recording is made by any person, by a visitor who receives the authorisation from the State, is there no duty to ensure that the accused is according his informed consent for the same?

It's easy to say, “Of course he did it”, and therefore bar all considerations of due process, but that's precisely what due process is for. It is well settled law that “executive action and the legal procedure adopted to deprive a person of his life or liberty must be fair, just and reasonable and the protection of Constitution of India inheres in every person, even death-row prisoners, till the very last breath of their lives.”

The problem with high profile cases such as these are that they often set precedent which impinges upon the rights of others who come after them— some who may not be involved in such open-and-shut cases. Tackling challenges which have been posed by situations like this needs to keep in mind the innocent, simply because that is the fundamental basis upon which our entire criminal justice system is based. There is no doubt as regards the freedom of the press, but as reiterated time and again, it cannot override the due process rights which have been accorded to an accused in a criminal trial. Perhaps the damage has already been done in this case, but one hopes that the ban on the film will result in a renewed interest in protection of these rights in the digital media age, without, of course, undue fetters on the freedom of expression of the press.

[Let me clarify my stance here. As much as I am appalled and enraged by the incident of December 2012 and all instances of rape before and after that, it's important to not get caught up in the fact that in this particular case we all know that this guy did it and that he needs to burn in hell for all eternity. I also am aware of the arguments against the film as a whole, as better articulated by activists and writers elsewhere, and I agree with them. My grouse, however, and as usual, is a question of procedure.]

(Amba Salelkar is a lawyer, who moved into disability law and policy after six years in criminal litigation. She works with the Inclusive Planet Centre for Disability and Policy.)

Also read: Don’t want to be raped? Then don’t exist