Prosecution or persecution?

byTamanna PankajOctober 21, 2021

In light of the allegations of an international conspiracy swirling around Aryan Khan’s arrest as he undergoes a media trial, TAMANNA PANKAJ revisits other similar cases from the last one and a half year which all followed the same disturbing trend of State investigating agencies selectively leaking information to unprincipled news media channels of a ‘conspiracy angle’ which then went on to pronounce the accused guilty of the most stringent of offences, before being rapped on the knuckles by courts for not furnishing any evidence for such allegations.


ON October 13, the Narcotics Control Bureau (NCB) invoked two of the most stringent sections, Sections 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) against Bollywood actor Shahrukh Khan’s son Aryan Khan.

Based on alleged conversations exchanged between Aryan Khan and drug peddlers, section 27 was invoked, which deals with financing “any activities of cultivation of coca plant or opium or indulging in production, manufacture, possession, sale, purchase, transportation, use or consumption, import and export or deal in any activities pertaining to narcotic drugs or psychotropic substances or harbours”. Further alleging Aryan Khan to be part of an international drug network, section 29, which deals with criminal conspiracy, was added.

While addressing the special NDPS court hearing Khan’s bail application, the Additional Solicitor General stated “We will ultimately find out how they all connected to each other and establish a case of conspiracy”, making it clear that at the present stage the investigating agency has nothing on record to show that Khan was a part of an international conspiracy angle.

However, even with the lack of sufficient material evidence, the NCB, in their response to the bail plea, has declared Khan to be a part of an international conspiracy. Meanwhile, the news media has been busy rabble rousing in an attempt to satiate the public desire for gossip.

Over the last few years, we have repeatedly witnessed cases where a larger conspiracy narrative has been created by the State investigating agencies, further fed to television news channels bent on vilifying and harassing the accused, only for courts to later grant bail to or acquit the accused and totally disregard the presence of any conspiracy angle.

From the Arushi Talwar and Rhea Chakraborty cases, to Sunanda Pushkar’s case and the Delhi riots cases, and now Khan’s case, we have seen information being fed to the media, which was further used to hound and persecute the alleged accused, and sensationalise the matter within the public.

As yet another new conspiracy narrative comes into the picture, it would be apposite to revisit some similar recent cases involving conspiracy theories and the invocation of special legislation that led to media trials and convictions in the court of public opinion, but failed in courts of law.

Also read: Why the judiciary is responsible for the plight of news media

Rhea Chakraborty’s case

Bollywood actress Rhea Chakraborty was arrested by the NCB last year in September following the suicide of her partner actor Sushant Singh Rajput, after his post mortem report led to an angle of drug consumption.

Chakraborty was arrested on the allegations that she was a part of a major drugs syndicate, and played a role in procuring drugs from drug dealers for Rajput’s consumption and making payments to them.

As the NCB carried on its probe, Chakraborty became the subject of a vicious hate campaign, with every little detail, real or imaginary, of her private life flashing in the national media. She underwent blatant misogynist abuse for months, as journalists described her as a “manipulative woman” who performed “black magic” and drove Rajput to suicide. She was called a murderer and a gold digger, and was trolled mercilessly before any offence or any involvement of hers could be established.

While granting bail from arrest to Chakraborty on October 7, the Bombay High Court observed thatshewas “not a part of drug dealers. She has not forwarded the drugs allegedly procured by her to somebody else to earn monetary or other benefits.”

While the investigating agency filed a 12,000 pages chargesheet this year against Chakraborty and 33 others, it still could not establish the conspiracy angle and the larger drug syndicate with which she was allegedly connected, as was repeated ad nauseam by most sections of the news media.

Also read: Media Trial of Rhea Chakraborty in Sushant Case Plummets to New Low

Disha Ravi’s case

22 year old climate activist Disha Ravi was arrested from her residence in Bangalore by a special cell of the Delhi Police towards the beginning of this year under Sections 153153A and 124A of the Indian Penal Code (IPC).

It was alleged that Ravi was part of a conspiracy which led to the Red Fort violence of January 26, 2021 in Delhi. It was also alleged that Ravi had created a Whatsapp group by the name “Intl Farmers Strike” on December 6, 2020 using her mobile number, which included members of an alleged Canada-based secessionist organization advocating for creation of an independent and separate State of Punjab by the name of Khalistan.

As per the Delhi Police’s story, Ravi and her co-conspirators orchestrated the violence in Delhi on Republic Day, and Ravi shared an alleged toolkit with Swedish climate activist Greta Thunberg as part of their objective to foster disaffection against the Indian State.

Soon after Ravi was arrested and remanded to police custody, TRP-hungry news channels started flashing personal pictures and private Whatsapp chats of the young woman over national media channels, and promptly pronounced her guilty for a conspiracy against her country.

While granting bail to Ravi on February 23, a Delhi court made some strong observations, stating that:

“[C]itizens are conscience keepers of government in any democratic Nation. They cannot be put behind the bars simply because they choose to disagree with the State policies. … [T]he freedom of speech and expression also includes the right to seek a global audience. … [C]reation of a WhatsApp group or being editor of an innocuous Toolkit is not an offence. …[T]he   prosecution has, except for pointing out that applicant/accused forwarded the toolkit to Ms. Greta Thunberg, failed to point out as to how the applicant/accused gave global audience to the ‘secessionist elements’. … [T]hey cannot be permitted to further restrict the liberty of a citizen on the basis of propitious anticipations.

Even after eight months of Ravi’s arrest, with allegations of such serious nature, the Delhi Police has not been able to file a chargesheet in the case.

Also read: Delhi Court’s Order on Disha Ravi’s Bail is Reminder that India’s Sedition Law Needs Revision

Delhi riots conspiracy cases

The Delhi Riots of last year, which led to the death of more than 54 people in the National Capital, alongside large scale destruction of property, a lifetime of scars for victims and an unprecedented chasm in communal relations in the capital, quickly descended into a TV soap, with the Delhi Police periodically leaking sensitive information to news channels, and the media, in the name of investigative journalism, delivering their verdicts before the courts could.

Over the last year or so, courts have been forced multiple times to make stern observations regarding the leak of information and alleged disclosure statements of the riots accused to media channels.

In January this year, a Delhi court, while deciding an application by student activist Umar Khalid, charged under the draconian Unlawful Activities (Prevention) Act (UAPA) and under arrest since last year for his alleged involvement in the riots, on the leak of the chargesheet by the Delhi police to the media much before the copy of the charge sheet was supplied to the accused, commented:

“[T[here exists a risk of prejudice being caused if the press and media fail to do their duty with care and caution. One of such risks is that of ‘media trial’. One of the basic principles of criminal jurisprudence is presumption of innocence. … This should not be destroyed at the very threshold through the process of media trial. Protection of such presumption is essential for maintenance of the dignity of the courts.”

Also read: Court slams media reports on Umar Khalid’s alleged confession on involvement in Delhi riots; says reporters must know the law

In another related application, a different Delhi court, while expressing its disapproval of media reports with the exact contents of the charge sheets filed in the Delhi Riots case even before the court had taken cognizance of them and had supplied them to the accused, observed in March:

“There is also a disturbing trend about the reporting of the exact contents of the charge sheet before cognisance is even taken or counsels for the accused are provided copies of it. It is one thing to report generally about the charge sheet but quite another to reproduce it as it is and thus, obviously, the question of leakage would arise. This is grossly unfair and unjustified and the court expects that it would not occur in future”.

Another Delhi riots accused, student activist Asif Iqbal Tanha, who has also been booked under stringent sections of the UAPA and IPC, aggrieved by the publication and broadcast by various news outlets of highly sensitive/confidential information in connection with the on-going criminal investigation, where the news outlets have made a multitude of claims based on purported disclosure statements given by Tanha, and the sole aim of such disclosures appeared to be to vilify and severely prejudice the right to a fair trial of the accused, filed a petition before the Delhi High Court earlier this year against the media trial.

In March, the Delhi High Court condemned the Delhi Police’s vigilance branch for the leakage of information to the media, and, blasting it for its failure to identify the source of the leak, said“This vigilance inquiry is even worse than what they do in a petty theft case”.

Warning the authorities of harsher orders being passed, the High Court also expressed its displeasure with the evasive stand taken by Delhi Police in responding to the grievance raised by Tanhathe Delhi Police had claimed that the allegations of leakage were “unsubstantiated”.

Devangana Kalita, a 31 year old M.Phil. student at the Jawaharlal Nehru University, was also arrested by the Delhi police last year for allegedly being part of a premeditated conspiracy behind the riots. Kalita was eventually saddled with charges of terrorism, sedition, criminal conspiracy, murder, dacoity, and rioting.

In the 17,000 page chargesheet filed against Kalita and 15 others, the only case the Delhi police could establish against Kalita is that she was part of a women’s sit-in in north-east Delhi, that she apparently provoked the women protestors for a chakka jam, which went on to lead to riots in north-east Delhi, and that she was in touch with other conspirators.

While granting bail to Kalita earlier this year, the Delhi High Court observed that:

“[T]ere is absolutely nothing in the chargesheet, by way of any specific or particularised allegation that would show the possible commission of a “ terrorist act” within the meaning of section 15 UAPA; or an act of “ raising funds” to commit a terrorist act under section 17; or an act of  “conspiracy” to commit or an ‘act preparatory’ to commit, a terrorist act within the meaning of section 18 UAPA.”

The high court also observed that “the prosecution allegations are not specific factual allegations and are based on certain inferences and mere use of “alarming and hyperbolic verbiage” in the charge sheet will not convince the court.”

Also read: Delhi Riots case: UAPA accused Devangana Kalita, Natasha Narwal, Asif Iqbal Tanha get bail

The latest developments in the Aryan Khan case bring us back to the question: is the trend of State investigative agencies bringing conspiracy angles to high-profile cases a new normal?

This vicious circle of painting all the accused persons with the same brush, showing a larger narrative in cases when there is none, leaking information to unscrupulous news media channels who, in pursuit of high viewership, run a parallel investigation, hounding and heckling the accused, and tainting their image before anything is proven against them in courts has become an unfortunately routine state of affair in our country. Investigating agencies seem to be primarily interested in creating juicy conspiracies that provide fodder to media channels, armed with conjectures, to run a media trial, as opposed to probing the cases in a fair, unbiased and objective manner. 

This dangerous trend is poised to become so extensive that this might be the beginning of a new default prosecution tactic which will take scores of innocent people into its trap who would even be deprived of pleading their innocence. Persecution, and not prosecution, risks becoming the new objective of criminal investigations.

It is hoped that the Indian media pays heed to the Delhi High Court, which, in response to an application by Kalita regarding media leaks by the Delhi Police, had noted in its judgment:

“Selective Disclosure of Information calculated to sway the public opinion to believe that an accused is guilty of the alleged offence; to use electronic or other media to run a campaign to besmirch the reputation or credibility of the person concerned; and to make questionable claims of solving cases and apprehending the guilty while the investigations are at nascent stage, would clearly be impermissible. This is not only because such actions may prejudicially affect a fair trial but also because it may, in some case, have the effect of stripping the person involved of his/her dignity or subjecting him/her to avoidable ignominy.”

(Tamanna Pankaj is a Delhi-based lawyer. The views expressed are personal.)