Aarushi Talwar, a teenage girl when murdered, became a focal point on the questions as to how an investigation should not have been conducted, and how the media should not have reported. The investigation by the police in the beginning and by CBI thereafter, their press conferences and leaks to press, relentless sensationalism of media in reporting for dozens of hours, raised several questions of journalistic ethics, victim’s rights, family’s privacy, liability of police for defamation, and media’s criminality in crime reporting, besides the allimportant people’s right to know.
Was Aarushi Talwar’s murder case, a trial by invisible police through visible media? The Supreme Court on 9th August 2010 cautioned media against their irresponsible reporting affecting the honour of crime victim. Public interest litigation was filed in the Supreme Court in 2008 seeking some restraint in reporting in the wake of “wild allegations” levelled by the police, which first investigated the Aarushi murder case. The PIL rightly asked, “Can freedom of press be allowed to degenerate into a licence to malign the character of a dead person? Does our Constitution not guarantee the right to privacy even to the dead?” The Supreme Court said: “we not only reiterate our interim order of July 22, 2008, but also restrain the respondents from publishing material which has potential to interfere with the process of investigation of all cases.” On July 22, 2008, a Bench comprising Justices Kabir and Markandey Katju had said, “We will only observe that both the print and electronic media should exercise caution in publishing any news regarding the case which may prejudice the case or damage reputations.” A section of media called it ‘gag order’ or new set of restrictions on media’s crime reporting. In fact Supreme Court was cautioning against violation of a specific order in Aarushi murder case only. Even if it is a gag order it is not a general ban, as that is Aarushi-murder-report specific order. The news media has to understand the difference between a general order and specific direction in a particular case. Another point which the Apex court made is that in general, the media should not resort to publication of a report if it had the potential to interfere with the investigation, tarnish the image of persons or prejudicially affect the accused in trial. This is not a new ‘restriction’. The right of accused to fair trial, right of privacy and reputation as part of right to life of a victim, or relatives of the victim are well protected by the Constitutionally guaranteed freedom which formed the grounds for imposing reasonable restriction by law on press freedom. Media can still investigate to explore the evidence of real culprit, collusion between prosecution and accused, or any other aspect of corruption etc affecting the justice in any crime incident, as part of their freedom of expression and fair criticism.
Then was it trial by media in this case? The Supreme Court questioned the CBI, “Who are these anonymous sources dishing out information to the press?” Just about everyone was brought into the ring of exposure. Both the print and electronic unleashed their ‘reporting’ on the Talwar family, covering issues like their affluence, lifestyle, nature and habits of the victim, her relationship with her friends and above-all her relationship with the other victim, the domestic help. The media did not stop here, they also commented upon the state of the marriage of the Talwars. It appeared that every ‘hearsay’, rumour, or loose remark made by unconnected or remotely connected people became either ‘breaking news’ or ‘turning point’.
It was widely reported in the print media that some channels went overboard after Meerut IGP made the sensational claim on television that the two victims were killed by Rajesh Talwar because he had found them in an “objectionable but not compromising” position. A “media trial” of Aarushi was conducted who was not there to defend herself. It resulted in higher TRPs (viewership measuring instruments) for the channels, but was a fatal blow to the ethos of responsible journalism. Rights activists claim that the high TRPs could have been also due to unnecessary sensationalism of the case created by some insensitive reporting. In the end, the accused walked out of prison as no concrete evidence was there to hold him further without granting bail. But it was only after 50 days of imprisonment- “a punishment before the proof of crime”.
Some prominent journalists have raised the question, whether the Talwars have a case for suing the police and the media for defamation? The answer is in the affirmative. Not only that, the victim can also file a civil wrong case for wrongful imprisonment and claim damages, either the from the police or the state, so that police are deterred in future from making irresponsible utterances through media. However, some media persons will undoubtedly argue that the media had no culpability at all, and that the police is to be blamed. This is not entirely true. Media is certainly responsible if we go by the existing laws of defamation, for making baseless allegations. They can escape liability only when the report was carefully made without them joining in sensationalization for the sake of TRPs, which they certainly did.
The police and CBI’s reputation suffered once again when the newspapers reported that the DNA samples were swapped indicating a larger conspiracy. CBI sources had said that this report, which was extensively discussed at a high-level meeting of investigators, had led CBI to drastically revise its initial findings in the case. The origin of these stories was debatable. Since virtually all television news channels were catering to people’s thirst for sensationalism, it is important to draw a line between voyeurism, sensationalism and a genuine public scrutiny.
We need to address another moot question, whether it is right for the police to hold press conferences and reveal the progress about criminal investigation. The answer is positively yes. When sensational crimes occur, it is the duty of the authorities to rebuild the confidence by giving reassurances that the authorities are in the process of nabbing the culprits.
While hearing a petition, the Delhi High Court on November 7, 2008, slammed senior police officers for rushing into press conferences to disclose “leads which are not leads at all” in sensational cases with little concern for an “honest” probe. “Press conferences are hampering your own investigations. As an investigating body, don’t you know how to preserve your evidence… these press conferences are giving away leads,” a bench of Chief Justice A P Shah and Justice S Muralidhar said. The judges criticised the conduct of top policemen, drawing from several recent “sensational” cases such as the Aarushi Talwar murder case; the Batla House ( Jamia Nagar) encounter case; and Journalist Soumya Vishwanathan’s murder case. Chief Justice A.P.Shah said, “Look at what happened in the Aarushi case and the Soumya case… you have not been able to come up with any leads at all. Your officers engage in selective leak of information which surely affects the evidence in hand.”
However, the Additional Solicitor General, Gopal Subramanium, intervened on behalf of the police to contend that press conferences are usually held to “appease the public’s right to know”. It must, however, be borne in mind that people’s right to know cannot authorize the police or media to make baseless character assassinations, or intrusions of privacy. The CBI or the police or any investigating agency should either stop the leaks, or condemn immediately the veracity of leaked information. The Supreme Court and other courts have addressed these issues and recognized the` problem as well. Still, there is a need for a specific direction to CBI or other investigating authorities to formulate some guidelines on leakages. The media can criticize the ineptitude or tardiness of police investigations without prejudging the guilt or innocence of the suspect.
Reporting without checking whether it is just a suspicion or a clue or a piece of evidence or part of complaint or just a guess work of investigating officer, is unfair.
Every sexual assault incident is an interesting news item, both for print and electronic media. When the Principal of Parkwood International School (Hyderabad), Salahuddin Ayub, was accused for sexual assault of a 17 year old girl, television channels showed building shots of all the international schools of Hyderabad unmindful of the fact images were suggestive of those schools also being dangerous for female students. While the parents of the girl alleged that she was repeatedly sexually assaulted by the Principal during the last one year, the school authorities denied it and claimed that the allegations were aimed at defaming their popular school, which has branches in the Middle East.
Generally, once the arrest scenes are repeatedly shown, the media focus shifts to the investigation process, which happened in the Ayub case too. The police tried to use the media’s interest to reveal the details of ‘confession’ of the accused to tell the world that they did an efficient job and caught the real culprit. The whole strength of such reports was the unnamed ‘sources’. Releasing of such ‘sensational’ information with details of incident either formally or informally to the media will not strengthen the case of prosecution in any manner. Neither the police nor the media bother whether such confession to police officer would be admissible in court or enough to prove the guilt? After the confession story is written, both the media and police wash off their hands. Further investigation successes do not appear in media. Once media loses interest, case becomes a routine and no one would be watching the process of destroying evidence, diluting the investigation etc.
Another worrisome aspect of the ‘trial by media’ is that it has become a medium for character assassination of the victim. This character assassination is being used as a vital weapon by the person(s) accused of sexual offence. For instance, a blog was created to defame and demoralize the victim in the Ayub case. It could not be ascertained as to who was the creator of the blog, its content made it amply clear that it was the mouthpiece of the school management. The blog claimed that it was created to foil the “malicious attempt to defame the director and the school” and lists in detail the victim’s family background, her parents, siblings, amongst others.
The law makes it very clear that it would be a crime to reveal the identity of the victim of sexual assault. Section 228A of Indian Penal Code 1860 (IPC), which was introduced in 1983, prescribed 2 years of imprisonment and fine for this offence. The Supreme Court in Dinesh @ Buddha vs State of Rajasthan observed, “Section 228A of IPC makes disclosure of identity of victim of certain offences punishable … True it is, the restriction does not relate to printing or publication of judgment of High Court or Supreme Court. But keeping in view the social object of preventing social victimisation or ostracism of the victim of a sexual offence for which sec. 228A has been enacted, it would be appropriate that in the judgments, be it of this court, High Court or Lower Court, the name of the victim should not be indicated.”
The allegations made in the blog could also attract the definition of “criminal defamation” under section 499 of IPC and hence qualify for punishment of two years imprisonment along with fine under section 500 of IPC. It could also be a crime under the new cyber law in India, such as sending offensive messages (Section 66A of Information Technology Act, 2000 as amended in 2008), publishing or transmitting obscene material in electronic form (Section 67) besides being cyber defamation. Further, the Convention on the Rights of the Child, adopted by the United Nations in 1989 (India acceded to it in 1992), under a Protocol of May 2000, calls for “protecting the privacy and identity of child victims and avoid inappropriate dissemination of information that could lead to the identification of child victims.” Even the Guidelines of the International Federation of Journalists require professionals to have respect for the privacy and identity of children and consider the consequences of publication of any report, and the need to minimize harm to children.
The Press Council of India’s norms for journalistic conduct say that in reporting sexual assault on children, names, photos and particulars of their identity shall not be published. Press Council of India laid down Norm No.14 which states: “Caution against identification: While reporting crime involving rape, abduction or kidnap of women/females or sexual assault on children, or raising doubts and questions touching the chastity, personal character and privacy of women, the names, photographs of the victims or other particulars leading to their identity shall not be published.”
We cannot ignore cases wherein media has played a positive role in drumming up public support against apparent injustice. It was because of media’s relentless campaign in high profile murder cases of Jessica Lal, Priyadarshini Mattoo, and Nitish Katara that citizens were able to highlight injustice through mass peaceful protests/ rallies and appearance in media, both print and electronic. Notably, talk-shows of various news channels provided platform to the citizens to raise these burning issues and demand justice.
Santosh Kumar Singh, son of a senior IPS officer, was accused of raping and brutally killing Priyadarshini Mattoo, a 25-year-old law student, in 1996. In 1999, the trial court acquitted him quoting manipulation of evidence by influential father of accused. The Delhi High Court in 2006 held him guilty and awarded him death penalty since his guilt was proved ‘‘beyond any doubt by unimpeachable evidence,’’ including DNA fingerprinting. It is relevant to refer here to the remarks of the then Chief Justice of India, Justice Y.K Sabharwal, who gave full marks to the media for being instrumental in spurring the judiciary into action in the instant case, which had been lying in cold storage for years.
Manu Sharma, son of a wealthy politician in Haryana, was accused of killing Jessica Lal in 1999, because she refused to serve him liquor in a restaurant where she was working as a bar-maid. A long and protracted trial followed which lasted seven years. In 2006 all the accused were set free due to lack of evidence. The case was re-opened following public outcry publicized extensively in the media. In the immense uproar, hundreds of thousands of people e-mailed and sent text messages conveying their outrage on petitions forwarded by media channels and newspapers to the President. A poll conducted by a leading newspaper showed that on a scale of 1 to 10, the public’s faith in law enforcement in India was as low as 2.7. The prosecution appealed and the Delhi High Court conducted proceedings on a fast track with daily hearings over a month. The lower court judgment was found faulty in law, and Manu Sharma was found guilty. He was sentenced to life imprisonment in December, 2006.
Nitish Katara, a young business executive, was murdered by Vikas Yadav, son of an influential politician of Uttar Pradesh. The trial court had held that Nitish’s murder was an honour killing because the family of the accused did not approve of the victim’s relationship with the sister of the accused. The ensuing trial followed the path of similar cases which involve “money and muscle power” in India. A number of respectable witnesses, including key friends of both the victim and the girl, repudiated their initial testimony. The person in the eye of storm, Bharti Yadav, too retracted her initial verbal statements wherein she had admitted her relationship with the victim. However, owing to intense media scrutiny, and also the strength of the evidence, a New Delhi fast track court awarded life sentence to the accused and his accomplice in May 2008. In the end, the victim’s mother, Neelam Katra, who fought the six year long legal battle, Thanked the media for supporting a just cause.
In India, trial by media has no doubt assumed gigantic proportions. On one hand we have some famous criminal cases which would have gone unpunished but for the intervention of media, while on the other hand, media has drawn flak for pre-empting the court as well as for irresponsible and erroneous reporting. Either way, the impact of television and newspaper coverage in the administration of justice can no longer be wished away.
R K Sinha Chief of Legal Bureau (Press Trust of India)
The basic point in legal reporting is that one has to be present in the court and observe what is being spoken there; how the statements of the witnesses and defence witnesses are being recorded and act according to that. A journalist is not supposed to make any interpretations. He is supposed to give a factual account of what has happened and that way they will remain away from any controversy.
It depends on the respective organisations. The senior people of the organisation should realise the sensitivity of the problem. They should lay the guidelines as to how and what can be reported and make sure that journalists are not influenced by anything else but the facts. They must inculcate this sense of responsibility in young reporters and thus improve the quality of electronic media.
Self -regulation is more important than needing any regulatory body while legal reporting. A person going in for legal reporting must understand the feelings of the victims as well as the accused because till the time nothing is proved, you cannot say one is guilty. It all depends on proper training given to a reporter. Most reporters in the field who are well-trained do not breach the code.
I think only a few journalists have disregarded this ethic. Coming to PTI, we have a very clear cut policy and we are not allowed to disclose the name of victims in certain offences. Privately, I would say, one has to regulate oneself.
In India, the liberty given to the press is laudable. In no other country can you find such massive reporting of cases the day it happens.
Speak the truth, be factual, and stick to honesty.We at PTI, have always been trained according to ABC- Accuracy, Balance and Credibility- which are the main ingredients of this profession. We are trained for all kinds of reporting- from lower courts to the Supreme Court.
Justice R.S.Sodhi (Retired Judge, High Court of Delhi)
Trial by media in any case, be it a crusade or otherwise is not acceptable. Media has an important role to educate people about the factual aspects of a case. But it cannot justify valuing evidence, arriving at a conclusion or returning a verdict. Freedom of press is not absolute. It is within the boundaries of certain restrictions; this right ends when the next man’s freedom of privacy and fairness begins. That has been clearly demarcated by the Press Council and by the law itself.
The role of Press is to educate the people or to bring the facts to their knowledge. Anything beyond that is not their job. If one says that a Court prevents one from doing any harm to somebody else, it is because the accused has his rights. Those rights cannot be compromised with merely because the Press claims to be the mouthpiece; a mouthpiece with no fetters at all! That’s why terms like “gag-order” are inappropriate to use. However, a “gagorder” might be necessary for an irresponsible Press.
As far as the investigation of a case is concerned, the police have only one duty i.e. after they conduct the investigation, they are supposed to file the report of the same in the court. Between the investigation and filing of the report, there is no such thing as “investigating officer arriving at a conclusion”. Those are just investigative angles; therefore he has no business whatsoever, to approach the Press and give his side of story.
A newspaper report of a factual event taking place or an accused being questioned because of that is admissible and permissible. But going beyond that i.e. to gather evidence, to analyse it and to return a finding or even rashly give comments on whatever is available with the Police is again crossing that Lakshman-rekha where the rights of somebody else are affected.
There is no wrong which cannot be addressed by a remedy. That is the “rule of law”. Every accused whose rights have been violated by the Press can approach the Court and claim damages. The Press does not have immunity. The Court should not hesitate to protect the accused just the way it has been protecting the Press against the onslaught of the Executive or the legislature. The judiciary has been quite balanced but whenever the need arises, the judiciary must stand up to restrict the press from ‘shooting its mouth’ with absolutely no restrictions. …as told to Avinash Mohapatra
K.N. Balagopal Senior Advocate, Supreme Court of India. Advocate General for the state of Nagaland
The first point which is expected of a journalist is stick to writing the truth, and then there will be no occasion for a journalist to be questioned by any authority. After getting the news, journalists tend to give their opinion and that is where the problem arises. We have the freedom to give our own opinion; and if the journalist, while reporting, says that, this is the news and this is my opinion about it, then there is no difficulty. But when the personal opinion of the journalist is conveyed as the news, then it becomes an issue. Anybody who reads the newspaper believes any allegation to be true even though it is yet to be proved. Whatever is written in the press is generally not questioned by the public, and is generally believed to be true. That is the common perception in our country; most people are biased towards believing the print.
In the Talwar case, local police had said that the parents are the culprits. To the credit of CBI, they came out clean. The media should have applauded the CBI instead of criticising the police as a whole just because the CBI could not catch the real culprit. The CBI must be applauded as they did not allow the authorities to implicate the wrong person. Regarding civil action, there is no prohibition in this country against anyone apart from those with immunity. It can be taken but one has to bear the expenses which set the law in motion. Though you have a right, it takes so many years that one feels that it is not worth it. But today, the media gets away. A large number of members of the media investigate and print their assumptions.We do not have a statutorily constituted academy for regulating the press.We also don’t have any disciplinary academy to regulate the conduct of the competing media. The Government has so far not been serious in that regard. There is a lot of competition in the media and until you have a regulation, you will not be in a position to control it.
I don’t suggest any regulatory structure.We have to basically see that if they transcend certain parameters, how can you penalise them in a fast-track way. There must be a within-30 daypunishment rule for a journalist to print unaccountable or misleading information. Nowadays, an adventurous journalist does not even bother to refer to the notice, because the one who takes action gets fed up of the system due to the long time that it takes. Hardly any journalists have been penalised in the past. Therefore, it is not just some regulation which is required, but we need a system which can bring them to justice within 30 days of making their mistake. And if a person is making a false allegation against the journalist, there must be parallel association to ensure protection to journalists in case the allegation is found to be false.
Media has a fantastic role in our country. Though they are being attacked by various organisations, their role cannot be undermined. It is important to understand that the 3 pillars of the Constitution stand on the foundation of the media. If the media is strong, judges, Parliament members and the executive will be vigilant. But I understand that the media is controlled more by certain religious and business institutions. So independence of media is barely 10-12%. Irrespective of this, if a shortcut mechanism to discipline them is introduced, they will know their boundaries. ….As told to Avinash Mohapatra
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