Is it appropriate for the state to require victims to formally file complaint to initiate action? Supreme Court advocate Babila Ummarkhan.
Published Aug 29, 2024 | 11:00 AM ⚊ Updated Aug 29, 2024 | 2:31 PM
Adv. Babila Ummarkhan
On 19 August, the Kerala government released the Justice Hema Committee report, which probed the working conditions of women in the Malayalam film industry, and detailed the harassment and exploitation that even popular women actors face.
Since the release of that report, several women who have worked in the Malayalam film industry have made fresh allegations of abuse against prominent male members of the industry, causing a slew of resignations from positions of responsibility. The Left Democratic Front government in Kerala initially suggested action would be taken against perpetrators if victims filed complaints with the police. Questions have been raised about whether that is necessary, given the sensitive nature of the matter.
Is it appropriate for the state to require victims to formally file complaint to initiate action? Does the Indian judicial system mandate that victims recount their trauma to pursue justice? Are media revelations and public testimonies not considered actionable? Supreme Court advocate Babila Ummarkhan spoke with South First about the legal questions that have arisen since the release of the report.
Even though written complaints are the traditional mechanism for initiating police investigations, Ummarkhan explains that the judicial system recognises witness statements and media disclosures, which can offer crucial evidence in cases of sexual harassment. The legal framework does not strictly limit action to complaints filed in writing; it also values other forms of evidence and testimony. She hopes that the discussions that have begun with the release of the Hema Committee report will evolve to ensure victims’ voices are heard and justice effectively pursued.
Q: Did the five-year delay in releasing the Hema Committee report impact its effectiveness as a means for justice?
A: The delay in releasing the Hema Committee report highlights the lack of vigilance in dealing with systemic problems. The delay shows how even privileged groups, including celebrities, are victims of exploitation and abuse, and remain helpless within the system. Given the stigma attached to these issues and the fear of retaliation by the powerful accused, will victims come forward to complain formally? State support is essential. A robust framework is needed to provide protection and encourage victims to speak out.
This is a matter that concerns fundamental constitutional principles, including the right to equality, freedom, and personal liberty. These principles must be upheld across all industries, ensuring women receive the dignity, safety, and fairness they deserve. Securing these rights requires concerted efforts from all stakeholders. What is described in the Hema Committee report are crimes; the state is bound to prosecute the accused, but instead chose not to put out the report in the public domain, until pressure mounted. Besides the government, the film industry and individuals engaged in it are responsible for the safety of workers. To transform the film industry and ensure gender equality and professional integrity, it is essential that all parties work together.
Q. The state government has now formed a SIT to probe the abuse of women in the Malayalam film industry – what is your take on that?
A. Under the Seventh Schedule of the Constitution of India, both the police and public order fall under the jurisdiction of the state government. The state is duty bound to protect the lives and property of citizens. Thus, investigation and prosecution of crimes against women also falls under the jurisdiction of the state government.
Q. Can statements made to the media be considered legal witness statements?
A. The media is often described as the fourth pillar of democracy. It holds significant responsibility, alongside the legislative, executive, and judiciary. Each “pillar” must operate within its own domain, while maintaining a broader perspective of the whole picture. The ultimate goal is to connect with and serve the people of the state.
Judges should remain impartial and recognise that ideology is a matter of personal choice, not a determinant of judicial decision-making. Following the enactment of the Bharatiya Sakshya Adhiniyam, which has replaced the Indian Evidence Act, statements made in the presence of media or to the media are considered as evidence.
The Hema Committee has put together the report based on WhatsApp messages, the contents of pen drives and other such pieces of evidence – there is enough material to corroborate allegations, it appears.
Q. The victims have spoken to – and in – the media about the harassment they have been subjected to. Is that not enough for the state government to take cognisance and initiate action?
A: The Bharatiya Sakshya Adhiniyam 2023 defines e-evidence, including electronic and digital records, as admissible evidence. Section 61 of the Adhiniyam states that nothing in this Act shall be used to deny the admissibility of electronic or digital records as evidence.
A statement in the media that is recorded and can be produced should be accepted as evidence in the Indian legal system. Statements documented in media outlets must be considered valid evidence.
(Edited by Rosamma Thomas)
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