Bangaru: Heavy penalty in fictitious case?

Shivaji Sarkar

Strange are the ways of justice. Murderers of Jessica Lal or Nitish Katara are acquitted “for lack of evidence” despite the revealing facts. But Bangaru Lakshman is awarded four-year-jail term and a fine of Rs 1 lakh in what the court says is a “fictitious case”.

The stark question is how can there be a real punishment for a fictitious case. If the case itself is fictitious, under what provisions of law one can be sentenced. The courts are expected to protect the Constitution. This case is certainly not an example of that. The Constitution also means all the provisions of laws sanctioned by it. It also ordains that laws must not be sited or used in isolation. The Constitution also calls for the application of the judicial mind for this reason.
The Tehelka sting operation has never been investigated in depth. As the court now says it is a fictitious case, it needs to be probed deeper to find out the motive of the people who planned it. It is a baffling story.
The Tehelka has never been investigated how it could spend large sums on conducting the fake sting. Tehelka is not a cash rich company. It was a fledgling company eleven years back. It did not have enough money even to pay salaries to its staff. How could such a company set up an office in London or hire expensive call girls? It must have spent a huge sum for that purpose.
It paid huge money for supposed trapping of politicians, defence officials and others. Has anybody probed from where it got those funds? Was it a case of money laundering to carry out a conspiracy to malign the political system?
Entire Tehelka is a story as it appears of retribution – definitely planned and funded by people who wanted to settle political scores and malign people. In the name of freedom of speech what they have done is beyond logic and defies all tenets of journalistic ethics. The first tenet of that ethics is that nothing fake or fictitious should be passed off as news. Tehelka did that.
This is where the story takes the ugly turn. The constitutional premium according special privileges for the media includes special investigative rights and empowerment. But, this is not an open-ended licence to ignore or override the law or ride roughshod over the rights of ordinary people unless special legislation accords them this right or such investigative privileges are read into the law, including the law of defamation and privacy which are uncodified.
As the court has reached the conclusion that Tehelka operations were fictitious, it indirectly avers that it was not uncovering big truths.
In the entire Tehelka operation there was transgression of laws. The use of women and sexual inducement to extract stories is arguably inimical to a gender-based public policy even if the women consent to such without pecuniary recompense.
Tehelka is a story of conspiracy, the court judgement, if analysed, indicates that. The learned court should have gone deeper into the case to sue the perpetrators of the conspiracy. It should have done so not because it involves Bangaru Lakhsman but to establish the rule of law.
Using men, women and money to implicate or malign people are a dangerous process in democratic polity. Many regimes all over the world have become victims of it, including the former Iraqi president Saddam Hussein and Libyan leader Moammar Gaddafi. Western conspirators changed the political pattern in those countries because these independent-minded leaders did not suit their commercial and political interests.
The court should have asked the investigating agencies to probe whether such forces within the country or abroad were engineering the fictitious sting operation or not. Was it being done by political parties, countries with vested interests, arms lobbyists or others?
Tehelka certainly cannot claim high moral ground. The prosecution of Tehelka journalists is also limited to the front – journalists directly carrying out the orders of their masters. However, the masters themselves have not faced any problem.
They have transgressed the law to entice and coerce people with a view to tarnishing their image. Criminal law has a wide sweep. Criminal coercions are impermissible. The judgement should have noted that.
It is time the entire political class stands by with Bangaru Lakshman. If this case becomes the litmus for all such future fictitious Tehelka-type operations, no politician or official is safe. The more one would be positioned at top and critical positions would be the target of such sleaze operations.
If it is a corruption, it is the worst corruption people engaged in Tehelka has committed.
They have conspired to malign people and play with their lives. Instead of Bangaru Lakshman those conspirators should have been taken to task. As the judgement unfolds, it appears the points of law require a thorough review. If that is done it is not Lakshman but those who conspired against him needs to be sentenced.
The media cannot circumvent indictment for a crime. In the case of Tehelka, it is a question whether Tehelka can be indicted for running a brothel (widely defined to include a vehicle);  procurement for commercial gain;  or detention in a place of prostitution, whether with or without consent.
It also needs to be probed whether there is similarity between Rupert Murcochs’s Newscorp operations and Tehelka? If Murdoch and Newscorp could face prosecution in UK why not Tehelka and its owners in India.
The Lakshman case needs a thorough review. The court needs to review the sentence it has awarded to Lakshman. It also needs to act against the conspirators. If they are left scot free, it may not be a good sign for democratic functioning. Anybody can be given a bad name and damned. A fictitious case should not be the reason for indictment of a person in a crime which he has not committed.
The case also calls for universalised test. There would be chaos if Tehelka type of investigative journalism – it is sleaze and not investigation – was permissible to all.
Tehelka type organisations should not be allowed to take shelter under the guarantee of freedom of speech. It is a misuse of the provision and obviously not with a pious aim. Transgression of law needs to be dealt with harshly. The purpose should not be stifle journalists but prevent those faking as journalists or editors.?