Tuesday, 29 September 2020

Aarushi Case Yet Another Scam

Updated: February 5, 2011 1:00 pm

The trio of Jessica Lal, Priyadarshini Matto and Nitish Kataria cases and the recent judgment of the higher courts convicting the accused of sensational crimes led all of us to be elated with the belief that the Indian criminal justice system is working well. The double murder in Aarushi’s case leading to the death of 14-year-old teenager and a domestic employee and the failure to find the accused is some-what disheartening. Today civil society is extremely pro-active and demands justice with a vengeance.

                More than 2 years have passed since the double murder was committed on the night of May 15, 2008 in an up-scale locality of NCR. The investigating agencies including the CBI have been unable to find an answer or solve the crime.

                The recent closure report filed by the CBI has raised a lot of hue and cry in society. Most people are angry that the case has been closed without identifying the culprits. The Talwars are angry because of the observations made in their regard in the closure report. The concerned Court is yet to decide on acceptance or rejection of the closure report.

                It is heartening that the CBI should have filed the closure report against two innocent domestic employees, Krishna and Raj Kumar, who had been recognised as the prime accused in the case alongwith Rajesh Talwar, Aarushi’s father. Prolonged investigation against innocent people wrecks havoc on their lives and tarnishes their image. They had already faced public wrath for quite a while and grilling investigation.

                It would not be incorrect to say that the matter is not closed forever. Various options are available to the Court. Firstly, the Court may reject the closure report; secondly, the court may direct further investigation to be conducted by the police, thirdly it is open to the CBI to further investigate and to file a fresh charge sheet, if new evidence is found.

                Aarushi’s case raises several interesting questions about the role of the investigating agency; duties of the investigating agency; reporting and airing of news by the investigating agency, particularly during investigation and media trial.

                This case is a prime example of negative impact of media publicity. UP police went on air and vehemently pointed fingers at Talwars. Subsequently, there were several twists and turns. The fingers kept pointing and then shifted onto Hemraj the other victim, then Krishna Talwar’s compounder, then Raj Kumar—the domestic of Talwar’s friends. Almost every person in society started deciding, who the accused is. The verdict was delivered by the media and the public, and yet there was no trial.

                This brings us to the question of media trial. We need to re-examine the question of media reporting a sub judice matter and more so when a case is still being investigated. So far as the law on the subject is concerned, it is not very developed. However, the Supreme Court while hearing a PIL on victimisation of the victim in Aarushi case in August 2010 cautioned the media against irresponsible reporting which affected the honour of the crime victim. Rajesh Talwar, father of teenager Aarushi, also moved the Supreme Court seeking to restrain the media from indulging in reckless and irresponsible reporting on the case.

                On July 22, 2008, a bench comprising Justices Kabir and Markandey Katju held 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. The Supreme Court observed on August 18, 2008, “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”.

                The Supreme Court on August 9, 2010 cautioned media against their irresponsible reporting affecting the honour of crime victim, as in case of Aarushi murder.

                The Supreme Court on August 10, 2010 not only reiterated the interim order passed by it on July 22, 2008, but also restrained the media from publishing material which has potential to interfere with the process of investigation of all cases.

                The Supreme Court held that when trial court is seized of the matter, i.e. sub judice, the media’s role is restricted. Extreme caution and care in reporting cases of sensitive nature is 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.

                However, the Supreme Court added a word of caution by observing that the order passed by them would not prohibit publication of information which will not interfere with the investigation, damage reputation or prejudice the accused. The Supreme Court reiterated that the press is important in a democracy but it must observe self-restraint. The Supreme Court held that “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”.

                Some sections of the media believe that the Supreme Court has virtually slapped a ban on source-based news stories in matters under investigation, which can alter the journalism landscape.

                The right of accused to fair trial, right of privacy and reputation are well protected by the Constitution of India as a part of right to life of a victim, or relatives of the victim, which formed the grounds for imposing reasonable restriction by law on press freedom by the Supreme Court in the abovementioned case. The media may 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.

                The questions that have been raised in this case need to be answered. It is not necessary that in every case, accused will be indentified but the investigation cannot be questionable, and the investigating agencies cannot be allowed to get away with making a mockery of their job and should be taken to task. The faith of the public in criminal justice needs to be reaffirmed by taking affirmative action against the erring investigating officials. It is not the responsibility of the media to conduct the criminal trials in our country. It is very rightly said that “not only must Justice be done; it must also be seen to be done”.

By Pinky Anand

(The writer is senior advocate, Supreme Court of India)

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