New Delhi, March 4: The interview of Mukesh Singh, one of the men who savaged the December 2012 gang-rape victim, will not be telecast in the country but the rest of the world can watch it when the BBC airs the documentary India's Daughters.
Prominent lawyers today explained that the restraint order a Delhi magistrate has passed on telecasting the documentary cannot be enforced beyond the country's territorial jurisdiction.
"Courts can definitely exercise their jurisdiction over Indian airwaves so that the footprints are not available in any part of this country. But beyond this, they cannot exercise their power like asking the BBC not to telecast the interview," senior criminal lawyer K.T.S. Tulsi told The Telegraph.
The interview, shot by British filmmaker Leslee Udwin in Tihar Jail as part of her documentary, had triggered outrage as the unrepentant rapist blamed the victim for her sexual assault and eventual death.
As anger erupted over the comments, Delhi police approached the magistrate yesterday for an order to restrain the documentary from being aired.
Under Section 188 of the Code of Criminal Procedure, 1973, Indian courts have certain inherent powers to deal with an offence by a person who is not an Indian citizen. But the power only covers offences committed on a "ship or aircraft registered in India".
In such cases, the person or persons concerned "may be dealt with in respect of such offence as if it had been committed at any place within India".
But since the BBC has its offices in London and the documentary will be telecast from the UK, Indian courts cannot enforce restraint orders although the interview had been conducted in India.
Conscious of these limitations, the magistrate directed "that the said interview shall not be uploaded, transmitted/published thereby in web portals or print media till further orders".
Neither did the magistrate say the order would extend to the BBC, nor did he say the interview shall not be aired in India, although the terse order was obvious as the police had sought a restraint on the Indian media pleading that it could, otherwise, trigger a "huge public outcry" in the country.
"It is immaterial where this film was shot and the citizens of a foreign country who shot that film would have rights in their country to broadcast it freely and their rights cannot be curtailed by Delhi High Court or even by the Supreme Court of India," said K.V. Dhananjay, another prominent lawyer.
"Powers under Sections 187 or 188 of the Criminal Procedure Code are powers of a court to inquire into offences committed outside India and nothing therein empowers any court to issue such a blanket order at all.
"If an American or a British citizen comes to India and shoots something of public interest without the permission of the Indian government and sneaks the same back into his country, their own courts would be powerless to ban it. Their courts or government would not recognise the authority of Delhi High Court to forbid what their own constitutions freely permit their citizens to do," Dhananjay said.
That there was no permission to shoot would be no ground for any court to simply ban the film itself, the lawyer added.
Moreover, Dhananjay added, the film would be the copyright of an overseas body and, "without hearing the copyright owner", courts cannot issue such orders.
Senior lawyer Tulsi said the Indian government could use diplomatic channels if it wanted to stop the BBC from going ahead with the telecast.
"It is for the government at the diplomatic level to take up the issue with the government concerned to say that the telecast of the interview would affect the sensibilities of Indian citizens living in the UK," Tulsi said.
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