The post-truth effect on criminal justice

There are numerous similarities in these seemingly disparate cases from Bollywood and academia. In both instances, wild accusations concocted by a frenzied media (often based on snippets leaked by the police) produce conspiracy theories that go viral on social media without a shred of concrete evidence. The feedback loop is completed with the police filing charges that confirm what the media and the general public knew all along about the incontrovertible guilt of the parties involved.

In the past few two months India has been witness to the horrendous ordeal of two unlikely pairs: actresses and academics. Rhea Chakraborty is an actress who was initially accused of abetting her partner’s suicide and when that narrative did not carry legal weight, the charge against her changed to her being the mastermind of a drug cartel in Bollywood. Simultaneously, a number of prominent academics, activists and students have been charged and arrested for their alleged involvement in promoting violence in the Bhima Koregaon case (2018) and the February 2020 Delhi riots. The primary evidence that the police have relied on in these cases is the participation of academics in protests, their role as civil liberties activists and their presence in online solidarity groups and social media. 

There are numerous similarities in these seemingly disparate cases from Bollywood and academia. In both instances, wild accusations concocted by a frenzied media (often based on snippets leaked by the police) produce conspiracy theories that go viral on social media without a shred of concrete evidence. The feedback loop is completed with the police filing charges that confirm what the media and the general public knew all along about the incontrovertible guilt of the parties involved.

It is only befitting that the word ordeal has juridical roots, referring as it does to ancient and medieval legal practices where the guilt or innocence of an accused person was established by subjecting the person to extremely violent and painful experiences such as walking on hot coal or dipping your hand in hot oil. If you emerged unscathed (humanly impossible), your innocence was established while any wound or injury you suffered was a self-evident sign of guilt. These ancient “trials by ordeal” had little to do with the establishment of legal truth and were primarily concerned with being able to deliver judgments that were satisfying for their swift justice and vindication of popular sentiment. Thus the putative value of ‘truth’ in these cases exists only as a self-confirmation of existing beliefs and prejudices. 

Casting aside the hubris that assumes a teleological evolution of political morality as it moves to modernity, it should be abundantly clear that what we are witnessing in the Rhea Chakraborty case and the arrest of academics is a contemporary revival of the trial by ordeal—a flashier, hi-tech app enabled version no doubt—but beneath its shiny surface, there is something rotten in the heart of these trials. 

The Delhi high court implicitly acknowledged this while granting bail to Devangana Kalita, a member of the Pinjra Tod collective who had been arrested for inciting riots during the anti CAA protests. The court held there was absolutely no evidence that the police had submitted to make its case, and to arrest her for being a part of a peaceful protest was unjustified. Undeterred, the police proceeded to file fresh charges against her under the dreaded UAPA. In many of these cases, the trial by ordeal is complete even before the formal legal trial  starts, with evidence forwarded on WhatsApp groups, guilt established through hashtags and sentence passed in 280 characters. Kafka, the prescient sage of modern law captures the unholy nature of this “media-penal” assemblage in his story “In the Penal Colony”, at the centre of which lies a writing machine that inscribes on the body of all condemned persons, the law that they have violated. At the end of twelve excruciating hours and just before they die under the writing machine, the condemned epiphanically discover what they have been charged with. 

There is nothing new about media trials so what distinguishes our present moment from earlier instances? To my mind there are three factors—a transformed media ecology, post-truth practices that constitute this media ecology and the emergence of fake law that mimics fake news. Traditional concerns about the right to a fair trial were articulated around a triadic structure involving distinct actors such as the media, the public and legal institutions including the police and courts. The ‘media situation’, to invoke Kittler’s memorable phrase is significantly different today where the worlds of print, broadcast and social media fuse into each other, and where media is no longer a distinct institution, but rather a mode of being with every person simultaneously a producer, transmitter and consumer of media at the same time.

The blurring of media also extends to a blurring of institutional roles and norms. For instance the police maintain twitter handles, regularly produce media and act as the primary content provider for media channels even as they respond and act upon media reports. Where does the role of an investigating agency end and that of the media producer begin? How does one distinguish between what William Mazzarella describes as the overlap between public interest and the interest of publicity?

Secondly, the fact that contemporary media practices are immersed in an affectively charged domain of “post-truth“ and “fake news” (collectively defined as deliberately falsified narratives that rely on their affective charge being more relevant than objective truth), has a profound impact on investigative procedures. There are good reasons why the notion of legal truth is a highly proceduralised one and subject (at least in theory) to high standards of validation and dispute. These truth validating processes which are instituted in codes of criminal procedure and evidence law constitute the often dull, but necessary world of forensic rigour. When the role of policing intertwines with the role of media circulation you have a scenario in which the actual function of criminal investigation is anticipated and usurped by criminal imaginaries, and truth validating procedures give way to speculative fiction. Were this only a matter of a local dispute between bad detective fiction and principled criminal investigation, one could for the sake of entertainment accede to the jurisdiction of crime fiction. But legal truth has extremely serious and severe consequences, and adherence to procedures is not merely a matter of form, but constitutes the very substance of a fair criminal justice system. 

Lastly, we see the emergence of a dangerous form of mutual mimicry between legal institutions and media practice. Media anchors who have emerged  as new figures of quasi-sovereign power play the role of investigator, prosecutor and judge even as they author a legal and constitutional authority that they do not really have (shows are called “We the people”, “Aap ki adalat”) and justice on television and media takes the form of the visceral reactions of individuals where transparent feelings become a barometer of truth. But if Sansani or sensation is the currency of these media trials, they also serve as the model which investigative agencies emulate and court judgments, legal documents and leaked accounts of investigation similarly echo the narrative conventions of sensational news. 

The cumulative effect of this commingling of populist sentiment, fake news and the criminal justice system is the mutation of fake news into fake law—or legal cases which are unhinged from any relation to truth or truth validating procedures but which cannot be considered fiction because of the real sovereign violence it fabricates. For any person concerned with academic freedom and civil liberties in general, the future seems rather bleak and the serious challenge for the judiciary and the concerned citizen lies in how we can reclaim the domain of criminal justice from what it has been reduced to—the trial by ordeal.

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