State surveillance has always posed the biggest threat to a citizen’s right to privacy. The 1933 Reichstag Fire Decree that compromised the privacy of citizens in Nazi Germany, as well as the 2013 Snowden revelations about mass surveillance in the US, are only a few examples. Any gathering of intelligence by the state for legal investigations, even if revealed by third parties such as telecom operators or forensic analysts, is strictly classified.
However, a new trend in the reportage of the Sushant Singh Rajput and Hathras cases by the right-wing Indian media puts a question mark on the classified status of legal evidence. Pro-government media channels and platforms are now directly obtaining classified evidence from investigating agencies and the police. This illegal supply of evidence that is then broadcast on television and circulated on social media is one of the many dangerous turns that the Indian news media has taken.
On October 2, the audio clip of a private conversation between Tanushree Pandey, an India Today journalist, and Sandeep, the brother of the Hathras gang-rape victim, was published by OpIndia, a pro-government website. OpIndia wrote, “Throughout the conversation, Tanushree Pandey appears insistent on coaxing out a very specific statement from Sandeep while the latter remains non-committal on his statement and appears hesitant to toe the line that the journalist wants him to toe.”
However, it is clear from the conversation that Pandey was only doing her duty as a journalist. She was asking Sandeep to send her a video recording of the victim’s father testifying that the family was under a lot of pressure from the UP government to admit that they were satisfied with the investigation. As reported by India Today, the phones of Sandeep and the victim’s entire family were also seized by the police later.
Following the release of the audio clip, India Today issued an official statement questioning the legal grounds on which Pandey’s or Sandeep’s phones were tapped. India Today also questioned the BJP IT cell head Amit Malviya about how the audio clip reached the news organisation and social media. As one would expect, Malviya did not provide any real answers, only mentioning that such clips can be recorded, leaked and circulated easily in a “high paced tech era”.
WhatsApp chats leaked
A similar trend was observed in the Sushant Singh Rajput case, when Navika Kumar of Times Now exposed Deepika Padukone’s WhatsApp chats as “exclusive evidence” and claimed that the messages had been retrieved by the Narcotics Control Bureau (NCB). Again, how and under what laws were the audio clip and the WhatsApp chats shared with the media? In both these cases, it would not be appropriate to use the term “leaked” for the audio clip and chats. There seems to be a deliberate exchange of evidence between investigative agencies and right-leaning news organisations. The term “leaked” only obscures an orchestrated breach of law by investigative agencies and the police. In both the cases, news platforms received and spun the evidence to declare their version of the truth.
On a related note, the BJP leader Kapil Mishra was recently described as a “whistleblower” in the 17,000-pages-long Delhi riots’ chargesheet filed by the Delhi Police. Ironically, acts of leaking and whistleblowing, which are usually associated with exposing the government, are now being used to support the government.
The collapse between media reportage and trial on grounds of illegally obtained evidence is a concern that must be raised in any democracy. We are noticing a shift from what has so far been referred to as ‘Godi media’ – that is a group of media houses which support the ruling party – to a mediatantra, where news channels and social media are becoming the authorities which release and interpret classified evidence. The collapsing Indian loktantra (democracy) and nyayatantra (judiciary) are being replaced by a mediatantra (mediacracy) in the literal sense of term.
The conversion of news channels into courtrooms is now legitimised by the illegal supply of private communications by investigative agencies such as the NCB in the SSR case and the UP police in the Hathras case. This development also reveals a new strategy of the BJP government to influence public opinion. Indian news media has hit an all-time low, peddling fake news and noise. But pro-government news anchors now assert that they speak only on the basis of ‘evidence’, irrespective of whether they have been obtained on legal grounds.
Previously, there have been instances of surveillance of phone calls and chats of journalists, activists, lawyers and academics through the Israeli spyware Pegasus, especially in relation to the Bhima Koregaon case and before the 2019 Lok Sabha elections. It is probably not a coincidence that the Union home ministry gave ten investigative agencies the authority to tap phone conversations and tap into communications in 2018. Though the intensification of surveillance practices is dangerous in its own right, the acquisition of classified evidence by media platforms to deliver instantaneous justice and manipulate public opinion is a phenomenon that must be questioned and condemned.
What constitutes ‘evidence’?
What exactly constitutes ‘evidence’ has also been a central concern in other cases recently. All those who were accused in the Babri Masjid demolition conspiracy case were acquitted due to “lack of evidence”. In the sedition case of Sharjeel Imam, reading academic books on communal violence in India was cited as evidence. In a Delhi Riots supplementary chargesheet, several anti-CAA protesters, including Umar Khalid, were accused or arrested on grounds of fabricated disclosure statements by Natasha Narwal and Devangana Kalita from Pinjra Tod. Most recently, the Hathras gang-rape victim’s body was cremated without the family’s consent in order to foreclose their option to have a second, independent post-mortem conducted.
While the fabrication and erasure of evidence has always been part and parcel of the Indian legal system, the direct access of classified evidence by news channels is a new and dangerous phenomenon that gives them the power to conduct vicious media trials. Media has become the jury and the judge. The impact of this alarming trend – like many other illegal and unconstitutional changes in the fabric of Indian democracy – will be long-lasting.
Mehak Sawhney is pursuing her PhD in Communication Studies from McGill University and works as an activist with India Civil Watch International.