Two lessons from the Aryan Khan case

FORMER A-G MUKUL ROHATGI SAYS THERE ARE TWO LESSONS WE MUST LEARN FROM THIS EPISODE. FIRST, WE NEED A STATUTORY RIGHT TO COMPENSATION FOR WRONGFUL ARREST. SECOND, JUST BECAUSE INVESTIGATING AGENCIES HAVE THE POWER TO ARREST, THEY MUST NOT RUSH TO DO SO

Aryan Khan’s treatment at the hands of the Narcotics Control Bureau (NCB) ought not to be surprising. I’m pretty sure tens of thousands, if not millions, of Indians are equally shabbily treated by the institutions of our government. But when it happens to someone we consider “people like us”, it comes as a terrible shock. I know that’s hypocritical. But you can’t deny it’s a brutal waking up. So, let me admit, that’s one of the reasons I’m writing this piece.

That, however, is not the point I want to make. What shakes me and even depresses me is that our system does not have the capacity — I won’t even think of using the word generosity — to apologise and to compensate for the wrongs it wilfully inflicts. I dare say mistakes can be made by every institution — although ours make far more than their fair share — but when an error of this magnitude occurs, surely, it’s morally imperative to apologise and also compensate?

Think for a moment of what actually happened. A 24-year-old young man was arrested and kept in jail for almost four weeks on charges that weren’t just baseless and unjustified, but also wild and, in fact, fictitious. He was accused of being part of an international drug cartel, an unspecified conspiracy and of peddling drugs. All of this was made worse by the deliberate malicious leaking which, daily drip by drip, fed the media with concocted fantasies. Who but the NCB was doing this? The only conceivable explanation is they wanted to shatter a young man’s reputation, perhaps because they knew they did not have a case that would stand up to scrutiny. So, destroy his name, prejudice the public, possibly try to influence the judiciary and, thus, through this Machiavellian process, hope to secure a conviction even if the facts don’t support your allegations.

Unfortunately, sections of our media played along. Night after night, the Khan story was the subject of tortuous debates on television. In the morning, it was splashed across our front pages. Many channels and newspapers didn’t bother about the fact they had no proof for what they were reporting. They blithely sourced it to unnamed officials, not one of whom had the guts to be identified and substantiate the malicious stories they were propagating. It was unadulterated and unforgivable speculation. Sections of the media became a willing handmaiden to support and further the deliberate and undisguised malice of the NCB.

So, tell me, isn’t Khan owed an apology? Indeed, isn’t he owed compensation? Not just from the NCB but from the media as well. Yet consider how the director-general of the NCB, SN Pradhan, responded, after readily admitting in public that the initial investigation was riddled with “lapses”, “irregularities” and that action would be taken against the staff involved. When he was asked on news channel NDTV whether the arrest was justified, this was his response: “In investigation, subsequent facts clear up the matter so I won’t jump to blame the initial investigation”. Frankly, I’ve rarely seen a man contradict himself as blatantly as this.

Mukul Rohatgi, Khan’s lawyer and an illustrious former attorney-general, tells me there are two lessons we must learn from this sorry and lamentable episode. First, we need a statutory right to compensation for wrongful arrest. Second, just because the police or investigating agencies have the power to arrest, they must not rush to do so. Pause, think and deeply consider if you actually have a case before you arrest.

Prashant Bhushan, another of our leading lawyers, goes one step further. If some of the initial investigators — and he named Sameer Wankhede — were to be prosecuted for malicious prosecution, such hideous abuse of power would never happen again. Bhushan is not the only person to believe punishment is often the best deterrent. Voltaire in Candide justified Admiral Byng’s execution for failure to perform his duties with the memorable phrase “pour encourager les autres” (to encourage the others). I think that applies here as well.