The News on Sunday: You have also made documentary films. What is the purpose of this genre in your opinion?

Shohini Ghosh: I make documentaries occasionally but more importantly, I teach documentary practice and theory. What I try to convey is that unlike what we tend to assume, documentary is a diverse genre. It is not one thing but many things.

In this case, Leslee Udwin made a TV documentary for a general audience. But like all films, and controversial films in particular, it has met with a diversity of responses. This is the fate of all films. There is no film that communicates the same exact message to everyone. Therefore, it is dangerous to judge a book or a film by a singular response. Which precisely is what all censoring mechanisms try to do -- impose a singular interpretation and predict its consequences -- which is usually negative. But public response cannot be predicted. As is now evident, the response to India’s Daughter has been diverse.

It has disturbed a lot of people because the perpetrator justified the rape using a reason and logic that most of us find reprehensible. Usually, narratives of sexual violence reach us through those who are repelled by it. In this case, it comes to us through an unapologetic perpetrator. The matter-of-factness with which he speaks, gives us an insight into exactly how banal sexual violence has become.

TNS: We have read your objections to some feminists’ stance on the film India’s Daughter. But, as you said, it has affected people differently, from holding a mirror to the Indian society to affecting India’s image, to demands for banning it on various grounds. What does it mean to you as a film?

SG: As I said in my comment, different people will read the film differently. I found the film quite moving, especially the sections that dealt with Jyoti Singh’s parents who, through the film, give us the consent to call her by her actual name and that is what I will do. I was taken aback by the coldness with which the perpetrator expressed his views.

Of course, if I were making the film, I would have taken certain editorial decisions differently -- for instance, I would have done away with the experts and allowed the story to emerge from the players involved -- but that is entirely my subjective opinion. If Leslee Udwin saw my film, she would probably disagree with many editorial decisions that I have taken.

Eventually, people should be able to make the film they want to make and nobody has the right to tell them how to make it.

TNS: Do you think that this conflict between the two questions -- protection of right of freedom of expression and that of fair trial -- will divide the feminists in India?

SG: As far as I am concerned there is no conflict between the freedom of speech and expression and the right to a fair trial. Those fighting for the right to fair trial should demand media accountability and not media censorship. They should demand that the media report fairly and accurately on the trial. There have been cases -- many of them still pending -- where under-trials have been severely disadvantaged because the media has published unsubstantiated facts, planted misinformation, and carried out a witch-hunt.

Needless to say, this is completely contrary to the role that the media is expected to play which is to inform the government and general public about the possible irregularities in criminal procedure. The right to fair trial is a norm of human rights law and its aim is to protect the most basic of freedoms -- the right to life and liberty. I would argue that freedom of speech and expression must be pressed to the service of a fair trial and not placed in opposition to it.

TNS: Keeping the documentary aside for a while, the tragic rape case in Dec 2012 did open up the floodgates of debate and activism. What have been the gains for the women’s rights movement after the incident, both at the level of debate and in terms of actual change in mindsets, legislation, etc?

SG: It was very heartening to see so many people flood the streets and protest against the brutal violence inflicted on Jyoti Singh. That was quite exhilarating; just as it was disappointing to see so many people demanding the death penalty. The public outcry led to the Justice Verma Commission being set up to recommend changes to the criminal amendment process and they did a fairly sturdy job of it. However, when the criminal amendment act was finally passed, it failed to incorporate many of the Commission’s most progressive recommendations. But we must understand that law -- which should always be seen as work in progress -- is only one part of the struggle for social change. The other much harder part -- changing the way people think -- is the real challenge.

TNS: Often, as in this case, the reaction to rape and gang rape is more a sign of a brutalised society than just momentary anger. Do you think there are other ways of looking at and treating a rape perpetrator or is harsh punishment the only deterrent to this crime?

SG: Rape is only one violent part of the larger story of discrimination. I think it is now fairly established that harsh punishment is rarely a deterrent. It is the CERTAINTY of punishment more than the severity of punishment that is likely to make a difference. However, if our main objective is to PREVENT hate crime then we are faced with the daunting task of making a tectonic attitudinal shift that can only happen incrementally. If the problem is complex, its answer cannot be simple.

TNS: You said in your statement that "judicial propriety is perhaps the only good reason to temporarily restrain the screening of the film". But whatever appears in media should ideally not affect the judicial process. The argument could be turned on its head because the earlier protests after the incident and their reporting in media could also have affected the first decision. Should we question that, too?

SG: In December 2003, Zee News had telecast a fictionalised film on the Parliament attack case, claiming that it was based on real events. The film claimed that the accused SAR Geelani, a respected Professor of Delhi university, had mastermind the attack. When Geelani rightly asked for the telecast of the film to be stayed before the judgement, the Supreme Court turned it down on grounds that ‘judges by their judicial training and the office they hold are not supposed to be influenced by broadcasting such films’. But judges are human beings and not above social and political pressures.

It would be naive to imagine that popular demands -- hugely magnified by electronic and social media-- do not affect legal outcomes.

But the other part of the question is as important. Do protests affect the process? When large numbers of people come onto the streets, demanding that an accused be given the harshest punishment, there is a real danger that the legal outcome could be influenced by it. Ideally, a sound judiciary should be able to resist popular sentiments. They should be guided by evidence and judicial reasoning and not be persuaded by what the Supreme Court in the Afzal Guru case has called the ‘collective conscience" of the society.