Prosecute leakers those leaking material before a trial subvert justice system & must be criminally prosecuted

Prosecute leakers those leaking material before a trial subvert justice system & must be criminally prosecuted

The leak of alleged WhatsApp conversations of Aryan Khan and Ananya Pandey – the first is under investigation by the Narcotics Control Bureau and the second is being questioned – is part of an extraordinarily dangerous pattern. It violates basic constitutional rights and, therefore, the leakers must be criminally prosecuted. Let’s address the issue of rights, first. There is a time-tested, constitutionally sanctioned and statutorily laid down process through which law enforcement personnel are allowed to take custody of individuals and gather material. Officers are to submit such material to court via chargesheets, whereupon judges adjudicate merits of the case. A citizen’s right to be deemed innocent before being proven guilty and the right to reputation and fair trial – the Constitution’s Articles 20(3) and 21 – specifically enjoins investigative officers to not do anything that subverts these rights. There’s no doubt that such leaks are aimed at turning public opinion against those who haven’t been proven guilty and also to create a hostile legal environment against them.

Coming to why officers leaking such material should be criminally prosecuted, let’s note that already several courts have strongly censured investigators for leaking. The Bombay high court in the Rhea Chakraborty case, the Delhi HC in the Delhi riots cases, and the Karnataka HC are notable examples. Despite such court observations, leaks continue. Indeed, the Delhi HC had even pursued the leak of an accused’s alleged disclosure statement but the police sought to wriggle out claiming the leak wasn’t from its end. Therefore, it is time courts, perhaps the Supreme Court, since constitutional rights are involved, take charge of this matter and frame guidelines. First, any leak before a case is argued on the basis of chargesheets should automatically lead to criminal prosecution. Second, to go around agencies and the police’s usual explanation that the leaker cannot be identified, the rule should be that investigative officers (IOs) directly in charge of the case are to be held responsible in the case of leak. Once this accountability is firmly fixed, there will be a massive disincentive against leaking investigative material. This is the only way the subversion of the criminal justice system that’s happening routinely now can be stopped.

There’s a related point, equally important. As part of this noxious culture of damaging reputations before a court verdict, the police now also routinely oppose bail even in the smallest of offences. With many lower courts keen to “play safe”, long periods in jail even before charges are framed are now worryingly common. In some high-profile cases, denial of bail for the accused becomes a rent-seeking opportunity for some elements in law enforcement. This is another dangerous trend higher courts must take cognisance of.