Maligned by police and media?

BY Madabhushi Sridhar| IN Media Practice | 14/08/2010
Noting the manner in which information was appearing in the media, the apex court asked the CBI, "Who are these anonymous sources dishing out information to the press?"
Investigation in the Arushi murder case raises disturbing questions about the role of the police and media, says MADABHUSHI SRIDHAR

The recent intervention by the Supreme Court into the investigation of the murder case of teenaged Arushi Talwar has shown how the proclivity of the police to go to the media with half baked stories and theories, and the latter’s trigger-happy reporting can completely muddle the search for truth. The case has raised several issues pertaining to the manner in which information is leaked out, the victims’ family’s rights, journalistic ethics, the police and the media’s liability for defamation and the people’s right to know.

 

The Supreme Court cautioned the media (on 9th August 2010) against irresponsible reporting affecting the honour of a crime victim. Advocate Surat Singh filed a Public Interest Litigation in the Supreme Court in 2008 seeking restraint in reporting in the wake of "wild allegations" levelled by Noida police, which first investigated the Aarushi Talwar murder case.  The Bench comprising Justices Altamas Kabir and A K Patnaik passed the order after counsel for Arushi pointed out the repeated telecasts casting aspersion on the character of the victim, the Talwars and their deceased servant. Surat Singh 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?" He sought the court’s restriction on reportage till the investigation was complete.  Arushi’s father also sought similar restraint on media. Talwar said the reporting by a section of the electronic and print media was prejudicing their case and damaging their reputation.

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.’’ In 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." In August 2008 the same bench said: "We are not worried about ourselves. We have sufficiently broad shoulders but we are concerned about the reputation of people as was in Dr (Rajesh) Talwar’s case. When trial court is seized of the matter, ie, sub judice, the media’s role is restricted. Extreme caution and care in reporting such cases was required, as it is not only the reputation of a person but a person is held guilty even before the trial in the case is over….In this case, what is the positive evidence against them (the accused)? "

The apex court further explained recently: "We however clarify that this would not prohibit publication of information which will not interfere with investigation, damage reputation or prejudice the accused……The press is important in a democracy. But it must observe self-restraint. When it fails to self-regulate, what can be done? No one says do not report. But do it in a manner so that none of the parties' reputation is tarnished. What is involved here is a young girl's reputation. Have some sensibility while reporting." 

A section of the media called this a ‘gag order’. Times of India (August 10, 2010) said: ‘SC has virtually slapped a ban on source-based news stories in matters under investigation in an order which can alter the journalism landscape.’ In fact the Supreme Court was issuing only a case specific order and this right of the accused to privacy is well protected by the Constitution and it does not restrain the media from investigating a crime.

 

Noting the manner in which information was appearing in the media, the apex court asked the CBI, "Who are these anonymous sources dishing out information to the press?" Senior advocate Pinaki Mishra said while the the Talwars cooperated with the investigating agencies in every way, the CBI kept leaking information to the media which sensationalized the case. "It is virtually a trial by a voyeuristic media presenting an incident in an extremely malicious manner," he said. (Times of India, August 10, 2010)

 

Vandana K Mittal wrote: "The credibility of the investigating authorities has taken a further beating with the IG police being accused of exhibiting a deeply biased and conservative mindset by commenting on the character of the father as well as the murdered daughter. As a confused nation listens to every twist and turn of the case disturbing questions arise about how this case is being investigated by the cops, covered by the media and followed by the people. Senior cops like the IG Gurdarshan Singh stepped in to ensure that the public trial (outside of a courtroom) of all those involved was complete. We have had the IG making (so far unproved and totally speculative) allegations about the kind of relationship that Aarushi shared with the domestic help, Hemraj. Enraptured by his two minutes of fame on national television the good cop went on to call the father and daughter, both, people of loose character. Anita Durrani was unveiled on live TV as the ‘other woman’ in the case. Even a young friend, only 17 years of age, was not spared and he was named by police in direct contravention of international norms where all efforts are taken to protect the identity of the under aged. His mobile number was incessantly flashed on TV screens. How this young boy is going to cope with the unwanted attention at this young age is anybody’s guess.’’ (http://www.merinews.com/article/aarushi-murder-case-trial-by-media-and-its-implications/134631.shtml.

 

A botched investigation and a trigger happy media

With the police dishing out these types of comments, the media went to town maligning the family and Arushi’s friends and acquaintances. They spoke of the family’s life style, Arushi’s habits, her relationship with her friends and of course about the servant. Words such as relation, affair, nexus, closeness and friendship were used out of context to give rise to further suspicion and speculation. The state of the Talwars and Durranis marriages were questioned and rumour, bit of gossip or loose remark gave rise to ‘breaking news’ or ‘turning point’.

 

As the police suspected the Talwar’s domestic help Hemraj, the media spun stories of a relationship between victim and this servant till the police recovered his body from the rooftop of the Talwars' house. He had also been murdered the same day and the police then suspected that Arushi’s father had committed the crime.

 

The Noida police needs to be berated for the insensitive manner in which they indulged in character assassination without any evidence. In the very initial stages of the investigation they had termed the victim as being characterless. They developed a theory that her father, Ramesh Talwar had an affair with Anita Durrani, and the murder followed Arushi’s knowledge of this and her intimate relationship with the domestic help which Talwar objected to.

Investigators had arrested Arushi’s father, Rajesh, alleging that he had killed his daughter and the servant in a fit of rage induced by alcohol after he found them in an "objectionable but not compromising" position. Police based their findings on the fact that the keys to the doors to the apartment where Arushi was found murdered and where Hemraj’s body was found were with the Talwar’s and since both parents claimed not to have heard any noises through the night, when they were beaten to death. But since they found no evidence, the police had to release Rajesh. (The Hindu, September 4, 2009)

Hindustan Times (June 13, 2008) reported: `Some channels went berserk after Meerut IGP Gurdarshan Singh made the sensational claim that Aarushi and Hemraj were killed by Rajesh.’ ``The television channels conducted media trial of Aarushi, who was not there to defend herself. It would have got them higher TRPs but did a lot of harm to the young soul," said Bharati Ali of HAQ for Child Rights, an NGO.

On May 23, the day Rajesh Talwar was arrested the TRP ??" the viewership-measuring index ??" for this coverage by Hindi and English news channels was higher than that for the IPL match between Mohali and Hyderabad. Five top Hindi news channels had cumulative TRP of over one point as compared to 0.96 for the IPL match, says aMAP, a company that rates television programmes. Television Audience Measurement (TAM), another company in the business of TRP gave the news channels close to nine points as compared to 7.5 for the IPL match. Rights activists said the high TRPs could have been also due to insensitive reporting.  According to TAM, the TRP of Hindi news channels jumped about two points. The jump was confirmed by aMAP too. The head of a Hindi news channel said the Aarushi case was the single most important factor for the jump. Sabhyata Arora, a child physiologist at NGO Pratidhi, said the reason why everyone was hooked onto the Aarushi story was that it had something for parents as well as children.  "Parents wanted to know about the relationship between a child and parents in an influential family. Children were interested to see what was happening to their peer group," she said.  (June 13, 2008 Hindustan Times).

Rajesh Talwar was freed after being held for 50 days for lack of evidence. In an editorial, The Hindu (July 15, 2009) said: The Aarushi murder case is a disturbing example of how a bungling police and a sensation-hungry media can make a horrendous travesty of justice. Arrested for killing his teenage daughter Aarushi on the basis of tenuous circumstantial evidence, condemned by fanciful and self-serving leaks by the Uttar Pradesh police, and tried and ‘convicted’ by the media, dental surgeon Rajesh Talwar has gone from a heartless murderer to a free but traumatised man in the space of less than two months. The Central Bureau of Investigation, to which the case was transferred, has dropped all charges against him.

As an interesting aside to this tirade the media trained its guns on the CBI reporting that it had begun an internal inquiry against those who had leaked information. It also reported that two officials had been sent on leave, a claim denied by CBI Director Vijay Shankar who warned: "If any one person, whether a simple man, a CBI official or person in a specific business tries to obstruct the investigations, he would be dealt with….’’ Shankar also lashed out at the speculation in the media.

In the Grover murder case the Bombay High Court had noted that the police were willing to give the confessional statement to the press but not to the accused. Noted writer AG Noorani says: The kind of statements made by police officials in the Talwar case constitute prima facie contempt of court as does its reportage by the media. (Indian Express, August 28, 2008).

Rajdeep Sardesai of CNN IBN asked if the NOIDA police and the media could be sued for defamation. The answer is yes. Talwar can also file a civil case for wrongful imprisonment and sue the state for damages. While some media persons like Deepak Chaurasia, formerly of Aaj Tak and Doordarshan News, might assert that the media had no culpability at all and that it was all the police's fault, the media is certainly responsible according to the existing law of defamation. The fact that the media deserve credit for catching the real killers in the Jessica Lal and Nitish Kataria cases does not shield it from defamatory reporting.

 

After some interval the CBI alleged that a neighbour’s servant, Krishna, had assaulted Arushi with the help of his associates Raj Kumar and Shambhu and had killed the servant as he was a witness to the murder. Former CBI Director, Arun Kumar, asserted in a July 2008 press conference that Krishna had confessed to the murder however they failed to gather evidence and were unable to file charges against the suspects. Meanwhile, no murder weapon has been found and the CBI has said that it was not a case of honour killing. Who should the media & the people believe - CBI or the Noida Police?

The credibility of the investigating agencies was further put to test when it was found that Arushi’s DNA samples had been tampered with and an officer of the CBI told the media that the three who were suspected to have committed the murders did not have the resources to tamper with evidence.  As part of the standard autopsy procedure, New Okhla Industrial Development Area-based doctor Sunil Dohere had drawn vaginal swabs from Arushi’s body and reported that the swabs contained a white discharge, suggestive of seminal fluid. However, his superior, Dr. S.C. Singhal, later told the media that slides prepared from the swabs had tested negative for semen.  Officials at the CDFD, India’s premier DNA-testing institution, said there was indeed no semen in the slides sent to them by the CBI and added that corroborative testing left no doubt the material was not drawn from Arushi in the first place. (The Hindu, September 4, 2009).

Akhila Sivadas who heads a media advocacy group said not many had bothered to find out where the stories had originated. "Virtually all TV news channels and dailies had gone to town to cater to people’s thirst for voyeurism and sensationalism," she said.

People’s Right to Know

 

The other significant issue thrown up by the case is the people’s right to know details about a brutal crime and the progress being made by investigators. At such times public morale is low and it is the duty of the state to reassure them. The question is the extent to which revelations, which may constitute baseless speculation, may be made. Hearing a petition on November 7, 2008 the Delhi High Court (Indian Express, November 8, 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 told senior Delhi Police counsel Mukta Gupta.

 

 The judges criticised the conduct of top policemen, drawing from several recent "sensational" cases such as the murder of Aarushi, the Jamia encounter in September, and the killing of journalist Soumya Vishwanathan in October 2008. Justice Muralidhar asked, "Is it a policy to arrange press conferences where your police officers go on to disclose leads which turn out to be no leads at all?"  Chief Justice 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."

The Additional Solicitor General (ASG) Gopal Subramanium intervened on behalf of the police to contend that press conferences are usually held to "appease the public’s right to know. After a sensational event, lack of information causes a certain degree of public unrest. The public wants to know as soon as possible. We have to strike a balance between informing the public and making police officers accountable for making excessive disclosures. This requires a certain degree of introspection by the probe agencies as there is no existing codification of guidelines on interaction with the media." There is justification for the need for press conferences, as explained by the ASG, "We live in times when civil rights activists go to police stations for information and then pass it on to the media. Police at times feel that it is better they call these press meets and brief the media themselves."

However, the right to know cannot authorize the police or media to make baseless character assassinations. While officers can be held responsible for information given during press conferences, who is responsible for the leaks by `reliable sources’? The need is for the establishment of some norms and guidelines on how information may be disseminated during such cases.

 

The outlook of the police too needs to undergo a change. In such cases they automatically suspect the people around the victim and if the latter happens to be a female, sexual motives are immediately attributed. When a woman or a girl asserts her right alleging sexual harassment by male colleagues or the husband, she first encounters police allegations against her character. Having drawn such hurried conclusions from deeply rooted male biases, they rush to the press with their implausible theories and the media accepts this without questioning and adds its own two bits on the basis of unreliable information from just about anyone who is willing to speak. Channels and the print media do not have the time and (increasingly less) the inclination to verify the information coming their way and in the game of one-upmanship they do not want to be beaten to a story by their rivals.

 

Vandana Mittal’s question is worth pondering upon in this context as she puts the voyeuristic viewers on the mat: `Is the airing of private MMS clips, of insinuations about the character of the victim, contamination of the potential witnesses justified in the cause of serving our concerns? Are we not equally guilty of turning this case into a trial by media? And before we rub our hands in glee at having nailed and blamed the media and the police for conducting a trial via media, we need to do a reality check. Are we really completely free of any blame? Sitting in the comfort of our homes, it is our insatiable, almost perverse, curiosity that drives up the Television Rating points (TRP)’s of the channels."

 

 

Prof. Madabhushi Sridhar is Coordinator, NALSAR Center for Media Law & Public Policy, Hyderabad.

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