The conviction rate for criminal cases in India is abysmally low. A fraction of cases actually go to trial each year, of which less than 50% result in a conviction. The conviction rate for people charged under draconian laws like the Unlawful Activities (Prevention) Act is even worse. On average 75% of cases that have gone to trial under this Act in the three years ending 2016 have ended in acquittals.
What is worse is that lakhs of Indians spend years in jail before they reach court only to be acquitted or have their cases thrown out. On average, only a third of cases filed come to trial within a year. At any point in time, close to 70% of India’s total jail population are undertrials – people who have not been tried for the crimes they are accused of committing and have not got bail.
These numbers should make any self-respecting reporter sceptical about police claims about its criminal investigations, and cautious about reporting the police version of investigations, arrests and incarcerations. Yet, media reports of police investigations appear to suggest that the police are doing a stellar job of putting away criminals and terrorists. Scepticism and caution are exceptions in the Indian media. Even a word like “alleged”, which is deployed to minimally acknowledge that under the law a person is innocent until proven guilty, does not seem to be part of the vocabulary of many journalists. Neither does it seem to be required by their editors.
The police version
At its most benign, the media simply reports the police version. For example, in a sequence of reports on the murder of a primary school student in a private school in Gurugram, near Delhi, in November, the India Today group reproduced the changing, even contradictory, police versions as they were delivered with no apparent application of mind. In one of its first reports, it named a school bus conductor as the accused and stated that he was a child sexual abuser. This was proved to have been based on falsehoods – the conductor was innocent, but has been left unemployed. The media group’s website went on to publish a report on the student who was subsequently named as the accused, giving details about his alleged sexual proclivities.
At its most toxic, television and newspapers conduct a media trial such as the one in the case relating to the 2008 murders of Arushi Talwar and Hemraj. That their real killers were never caught and brought to trial does not seem to concern the media, which reproduced and even imaginatively reconstructed the fantastical claims made by the agencies investigating the case.
When a trial does end, as it often does, with the police version torn to shreds, the media reports the verdict and moves on. It takes no responsibility for the role it played in allowing the police to get away with a shoddy or corrupt investigation. There is also no mechanism, save the courts, to hold the media to account. But no one dragged through the courts on false charges is likely to want to go down the route of fighting a defamation case.
Police and media
For example, while reporting on the Supreme Court’s September 14 decision to award compensation to former Indian Space Research Organisation scientist Nambi Narayanan in the fake “Isro spy case”, the media failed to mention the role it played (with one solitary exception) in propping up the police case and systematically destroying the lives and careers of Narayanan and his supposed co-conspirators. The Isro case is a terrifying example of what the police-media nexus can do, and the Supreme Court spelled it out. It was compensating Narayanan for “wrongful imprisonment, malicious prosecution, humiliation and defamation”. The only positive spin that can possibly be put on Narayanan’s story is that it is an example of the triumph of the human spirit over the forces of darkness. Despite the complete erasure of his life as he knew it, he soldiered on in expectation of justice.
There has been some talk about the necessity of holding to account the police officers involved in setting up the Isro spy case. Astonishingly the media’s lack of accountability, its willingness to publish every canard that it was fed, and its spectacular self-assurance that it would never be held to account have barely found mention.
In his recent book, Breaking News, former Guardian editor Alan Rusbridger recounts an early lesson in the rules of journalism from the chief reporter of the first newspaper he worked in. He wrote: “He explained that police work involved keeping one foot on the pavement and one in the gutter. You got their respect by kicking them in the balls at regular intervals, because, in the long run, they needed us more than we needed them. That, he emphasised, was a good rule applicable to all those in authority…He repeated this often in case I had failed to grasp it: they needed us more than we needed them. We owned the printing presses; they didn’t.”
The relationship between the police (and increasingly the rest of the establishment too) and the vast majority of reporters in India is the exact reverse of what Rusbridger’s chief reporter so colourfully described as the ideal. The relationship between reporters, especially those covering the police, and their interlocutors is one of subservience. Anyone who has worked in a mainstream media newsroom will be able to testify that reporters are daily heard saying to their establishment contacts, “Sir, give me a story… you must have something for me…” Reporters mostly report on what is handed to them.
In 2007, Mumbai lawyer Rahul Thakur filed a public interest litigation in the Bombay High Court seeking to limit the details the police could share with the media prior to filing a chargesheet. Thakur was provoked into action by his experience of representing tens of ordinary people who were arrested for crimes they had not committed, and whose lives were ruined by the infamy that media reports brought them. Apart from reporting the police version as true, the media ignored the presumption of innocence, published photos of the accused persons and dissected their personal lives for the public to judge, long before the case was brought to trial. But, clearly mindful of issues pertaining to freedom of expression, the petition was not seeking limits on what the media could report.
The police in India are seen to have concluded a successful investigation once an arrest is made and a chargesheet filed. That the majority of cases the police files fall apart in court makes no difference to their careers or prospects. The quality of investigations and conviction rates are not a consideration for their Annual Confidential Reports – for appraisals – and annual state awards they may receive. The police are one part of the criminal justice system, but they do not seem to be terribly concerned with the justice part of it.
In 2014, the Bombay High Court, in response to the 2007 plea, issued a circular ordering the police and prosecution to not share any information pertaining to the identity of an accused and the line of investigation, until a chargesheet – the legal case made against the accused and accepted by the court as the basis of trial – was filed. Similar circulars have been issued from time to time by different courts across the country, and have largely been ignored. Earlier this month, the Bombay High Court bench monitoring the much-delayed investigation into the murder of rationalists Narendra Dabholkar and Govind Pansare criticised the drip-drip of information the police feeds the press. “What is this everyday hue and cry?” Justice Satyaranjan Dharmadhikari asked. “What is all this coming in the press? At whose instance?”Dharmadhikari said that the police were “showing total lack of maturity”. He had harsher words for the media, saying it “...does not know its responsibility…Media does not know that presumption of innocence is a human right.” The court reporter of the city’s largest circulating newspaper called the judge’s comments a “tirade”.
The Urban Naxal narrative
In the case of lawyers and activists Arun Ferreira, Gautam Navlakha, Sudha Bharadwaj, Vernon Gonsalves and Varavara Rao – arrested by the Maharashtra police from Thane, Delhi, Faridabad, Mumbai and Hyderabad – on August 28, the police not only briefed the press, but provided them printouts of what they claimed were incriminating documents, allegedly taken from the laptops of the activists. At a massive press conference in Pune, the Additional Director General of Police Param Bir Singh read out some of these purported emails, which he claimed revealed a massive conspiracy to foment violence at Bhima Koregaon, create a “Kashmir-like situation” across the country and blow up Prime Minister Narendra Modi in the same manner as Rajiv Gandhi was. The Bombay High Court pulled up the state police for this press conference. “How can the police do this?” it asked. “The matter is sub-judice. The Supreme Court is seized of the matter. In such cases, revealing information pertaining to the case is wrong.” This, however, did not stop the police from continuing to give reporters leading information and printouts of the purported emails.
The media, with a few notable exceptions, reproduced the police version of the arrests and the so-called evidence the police shared with them, without asking any questions. Large sections of the media also embellished the police version, heightening the drama of the arrests, by using the term “urban Naxal” to describe the activists. This is a term that has clearly been propagated by the BJP government in its effort to stigmatise its critics and political opponents. The media, as it has done many times before, has given the police a platform from which to try and create a public mood favourable to its claims, to subvert the presumption of innocence and declare those arrested guilty on the basis of calculated misinformation, rumour and innuendo.
In his dissenting judgement on the arrests Justice Chandrachud noted this corrosive use of the media by the police and its impact on lives and reputations of those caught up in such cases. He said, “…The use of the electronic media by the investigating arm of the State to influence public opinion during the pendency of an investigation subverts the fairness of the investigation. The police are not adjudicators nor do they pronounce upon guilt. In the present case, police briefings to the media have become a source of manipulating public opinion by besmirching the reputations of individuals involved in the process of investigation. What follows is unfortunately a trial by the media.”
The media’s role in this most recent case is entirely in character. When a case is said to involve alleged acts of political subversion, sedition or terror, the media is at its most toxic. Its toxicity is conveniently wrapped in the national flag.
The media spares no one – as journalist Iftikhar Gilani discovered, not even its own. In 2002, Gilani was arrested under the Official Secrets Act on entirely fabricated charges, jailed and tortured for seven months. On the day of his arrest Gilani and his wife watched on TV inside their home as reporters standing outside claimed he was absconding, and that the police had found incriminating evidence on his laptop (he did not have a laptop). In the days that followed, newspapers reported as fact what the police leaked to them: that Gilani had evaded lakhs of rupees in tax, had illegal foreign currency in his home, had foreign bank accounts and was an informant for a terror organisation. Even newspapers not reporting against him seem to have failed to do basic fact checks, reporting incorrectly that he was the India resident editor of two Pakistani newspapers.
Gilani’s crime was that he had unearthed and reported on corruption involving the Intelligence Bureau in Kashmir. The case against him was a blatant abuse of State power. The so-called “secret” documents laid against him by the police and Intelligence Bureau were published reports available in public libraries. The majority of the news media not only ignored the facts, but also the presumption of innocence. It presented Gilani as an anti-India spy and worse to their unsuspecting readers and audiences.
While weighing in on police leaks and media reporting of police leaks, Justice Dharmadhikari had said: “It is a very boring, long, tedious, arduous road from being an accused to a convict.” The slowness of the judicial process, which favours delayers, plays a major part in this. On average, trials in India are completed in only 13% of cases filed annually. The rate of conviction is around 45%.
The police does not have to travel this long, tedious and arduous road. The police have no incentives apart from personal morality or professional self-esteem to behave differently. Up and down the line, police officials are rewarded for investigations that have been completed and not penalised if those investigations fall apart in court or prove to have been fanciful or malicious or both.
But why does much of the media play stenographer to the police’s maleficent flights of fancy? The only explanation is that perhaps, by and large, the Indian media sets itself very low standards. It is the determination of the very few – mostly smaller circulation newspapers, the independent new media and a rare TV channel – that helps shine a light on the rot in the system. The rest are part of the rot.
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