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Media as the gangster?s moll

The media?s obsession with TRPs has led to a scenario in which discretion required by the law has been done away with. The media must desist from becoming tools in the hands of unscrupulous investigators, writes Mahesh Jethmalani.

india Updated: Apr 05, 2006 02:50 IST

The downside of trial by media has begun to raise its pernicious head. Flushed with the success of obtaining officialdom’s facile response to its crusade in the Jessica Lall case, the electronic media have thrown caution to the winds and begun highlighting select and obviously salacious facets of the Anti Terrorists Squad’s (ATS) investigations into the shenanigans of gangster Abu Salem. The narco-analysis and brain-mapping of Salem, the media would have us believe, led him to confess that he liquidated Dewani, the secretary of film actor Manisha Koirala, after being allegedly given a supari by Koirala.

The story is pregnant with vexed ethical and legal issues. First, there is the question of media responsibility. The allegations -- if indeed there are any -- were made by a person facing investigation and trial for a variety of crimes from extortion and criminal intimidation to murder and terrorism. The accuser had a serious credibility problem and statements emanating from him were inherently dubious. In fairness to Koirala, there was a serious ethical issue: whether so serious an allegation by so discredited a person ought to have been given such wide publicity.

Second, the statement was made in the course of an investigation by the ATS. Investigations, particularly those of the ATS, a wing created especially to probe terrorist crimes, are supposed to be conducted in utmost secrecy. This is no idle mandate.

Secret investigations subserve the interest of both prosecution and accused. In this case, the advantage of secrecy to Koirala is obvious. Salem’s alleged statements have been leaked when the police have neither verified nor corroborated them. If the police finds them to be false, Koirala would’ve suffered damage to her reputation and have undergone grave emotional distress.

Equally, it is hard to imagine that the ATS or any of its members would consider it beneficial to announce Salem’s allegations, unless it was their aim to tip off Koirala and permit her, if she was so inclined, to abscond from Australia where she is presently ensconced. Given then that both the sanctity of an investigation and fairness to the accused necessitate that investigation be conducted in secrecy, it surely does not behove a mediaperson to publicise information pertaining to a pending investigation to which he is privy.

The statements made by Salem are reported to have been the outcome of brain-mapping and narco-analysis techniques. As regards the former, Salem’s answers could not have been induced by any such tests. Brainmapping is an investigative tool that involves the attachment of sensors to the head of a suspect who is made to sit before a computer monitor. The witness is then shown certain images or made to hear certain sounds. The sensors monitor electrical activity in the brain which are generated only if the subject has a connection with the images shown to him. Significantly, in a brain-mapping test, a witness is not asked any questions. The investigator can only determine if the witness has any knowledge regarding the crime. No new information could have been induced from Salem that he committed a particular crime at Koirala’s behest.

Narco-analysis involves giving a suspect a truth drug -- the most common drug being sodium penthathol. Administration of such drugs induces suspects to reveal information in their hypnotic states. The technique is relatively new in India. Research that has been conducted abroad on its efficacy suggest that such drugs “provide rapid access to information that is psychiatrically useful but of doubtful validity as empirical truth”. Further, hardened criminals, psychopaths and hard drug users can actually resist the drug and fake states of semi-consciousness to offer false information.

While the Bombay High Court has upheld the constitutional validity of narco-analysis as an investigative technique (a highly questionable decision), the admissibility of statements obtained by such techniques is most certainly inadmissible at a trial, as being ‘compelled testimony’ as per Article 20 (3) of the Constitution. The ethical balance clearly lies in not publishing a statement extracted from a person by recourse to the technique.

On the assumption that the media have got the story right, it is manifest that the source of the story is one or more of the members attached to the ATS investigation team. This raises the most disturbing question of propriety in the matter of the investigation.

For too long now have the police been permitted to indulge in selective leaks to sources in the media in an attempt to sensationalise a case and prejudice the judicial mind against a particular accused. This unholy nexus between the investigating agency and mediapersons at the stage of the investigation has only led to unjustified denials of bail to and unnecessary and prolonged custody of accused persons pending investigation and trial.

The media have to only recall the many cases in the past that were publicised and the abysmal conviction rate in those very cases to realise that they were manipulated by the plethora of investigating agencies. The obsession to contest bail applications of accused persons by investigators in India, rather than be proud about high conviction rates, stems from the fact that the custody of an accused during investigation is partly at the mercy of the investigator while his fate after trial is exclusively in the hands of the judge.

The fat however is in the fire. After the considerable airtime devoted to the Salem and Koirala issue, the Additional Commissioner of Police, ATS, Jaijeet Singh, is reported to have stated that the news about Salem’s implication of Koirala is false. Salem’s lawyer too has denied that Salem made any such statement.

If the recent flurry of stories devoted to investigations, trials and verdicts stems from a crusading zeal to remedy injustice -- and not with an eye on TRPs -- then the electronic media owe an apology to Koirala which they must air with the same prominence as was devoted to the offending report.