Seven days ago, right before Aaftab Poonawala – accused of murdering his partner Shraddha Walkar – was slated to be produced before the Saket Court on 17 November for his remand hearing, lawyers gathered outside and demanded that he be hanged.
“Phaansi do, Phaansi do.
Love Jihadio ko phaansi do,” they said.
The police, then, citing security reasons, requested the court to allow him to appear via video conferencing.
The court agreed and said that it was allowing this because some “religious miscreants" were threatening to attack him.
This reference to the ‘Love Jihad’ angle is not an isolated one. Nor is the demand for death penalty.
After Aaftab was arrested on 12 November, calls demanding he be hanged for killing Shraddha and for perpetuating love jihad, flooded the internet.
And, on 22 November, Assam Chief Minister Himanta Biswa Sarma said:
“Aaftab killed Shraddha and chopped her body into 35 pieces. When police asked why he brought only Hindu girls he said he did it because they're emotional. There are other Aaftab-Shradha too, country needs strict law against Love Jihad.”
Important to note here is that no police statement about the investigation so far has confirmed this.
What these rallying cries, even before the case has gone to trial, mean is that he has become a convict without having been convicted yet.
He has been tried without the trial even having begun.
Why is this harmful? Even if we were to ignore that this goes against the legal maxim of being 'innocent until proven guilty' and the rights of the accused under Article 21 (including right to a fair trial), legal experts seem to think that “public perception" before the trial has even begun has the potential to hamper the investigation.
“Public perception, in high-profile cases like this, creates unnecessary pressure on the investigating agency to fasten up the process,” Former Chief Justice of the Rajasthan and Bombay High Courts Pradeep Nandarajog told The Quint.
“What happens then is that investigating officers end up doing a rushed, shoddy job. The trial court too gets in a hurry to convict the accused based on an investigation far below the requisite standards,” he added.
The recent Supreme Court acquittal of the convicts in the 2012 Chhawla rape case, citing inadequate investigation should be a grim reminder of this, Delhi-based criminal lawyer Vaibhaw Kumar, pointed out.
Justice for Shraddha Walkar too, depends on a watertight investigation, as reported by The Quint in a previous piece.
But let’s take a step back: Where is this ‘public perception’ that experts are warning against coming from?
“The media conducting trials and leaking every single, often unnecessary detail about the case plays a major role in forming public opinion that goes against the due process of law,” Kumar said.
In fact, Indian courts have recognised the pressure this creates and how it obstructs justice.
‘Media Trials Lead To Miscarriage of Justice’: What Have Courts Said?
"Media trials do tend to influence judges. Subconsciously a pressure is created and it does have an effect on the sentencing of the accused/ convict...."
- Delhi High Court 2016 (on the ban of the documentary ‘India’s daughter’)
“ During high publicity court cases, the media are often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial nearly impossible but means that, regardless of the result of the trial, in public perception the accused is already held guilty.”
- Supreme Court, 2009 (R.K. Anand V. Delhi High Court)
“A trial by press, electronic media or public agitation is the very antithesis of the rule of law. This may very well lead to miscarriage of justice.”
- Supreme Court, 1997 (State of Maharashtra v. Rajendra Jawanmal Gandhi)
Former solicitor general Harish Salve, in a 2015 interview with NDTV had said:
“The problem today is that the small screen has become the judge and jury of everything… and I confess, that the fact that these perceptions do not affect the final decision-making is a ‘legal fiction’. They do affect and this is my feeling as a lawyer.”
Stop, At Least For Shraddha’s sake
When news of the murder first surfaced, media headlines focussed on how Shraddha was Aaftab’s ‘live-in’ partner.
As the horrendous facts of the case unfolded over the week, and the media brought to the fore more details, one such story revolved around how Aaftab and Shraddha posed as a ‘married couple’ near Vasai.
This went on to upholster the relentless stigmatisation of ‘live-in’ relationships.
Not sparing the deceased, Walkar's Instagram account has also been flooded with comments about how she would have been alive had she ‘listened’ to her parents.
"How was the bit about them posing as a married couple relevant to the investigation?" Justice Nandarajog questioned.
Every picture of hers on Instagram, every little detail of her life (including WhatsApp chats) was dragged into the public eye.
Shraddha's agency was stripped.
She ceased to be a person and became a mere victim, or by some accounts even responsible for the heinous tragedy that was wreaked upon her.
“Can freedom of press be allowed to degenerate into a license to malign the character of a dead person?"
"Does our Constitution not guarantee the right to privacy even to the dead?”
Advocate Surat Singh had said in 2008, while seeking a restraint on the media during the Arushi Talwar investigation.
“When you expose every gory detail about how he chopped her body and sensationalise every aspect of the case, it goes on to normalise such crimes. People start feeding off the drama and stop thinking about the victim," Justice Nandarajog pointed out.
Is There a Better Way to Do This?
Every investigating agency has a public relations officer (PRO) or a press wing that should update the media with details on the ongoing case, Kumar explained.
“No one is asking the media not to report on cases but simply asking them to not pre-empt investigations,” he said.
Commenting on the media trial that had ensued in the aftermath of Sushant Singh Rajput's demise, the Bombay High Court had asked the press to not cross the proverbial "lakshman rekha". They further said:
“Any report of the press/media, having the propensity of tilting the balance against fair and impartial “administration of justice”, could make a mockery of the justice delivery system rendering ‘truth’ a casualty. “
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