India dispatches: Aryan Khan Bollywood drama raises serious legal questions and privacy concerns
© JURIST (Vishwajeet Deshmukh)
India dispatches: Aryan Khan Bollywood drama raises serious legal questions and privacy concerns

India Staff Correspondent Sambhav Sharma and India Chief Correspondent Neelabh Bist offer their perspective on the legal issues surrounding the recent high-profile arrest and detention of Bollywood celebrity heir Aryan Khan on illegal drug charges. They file this for JURIST from New Delhi.

India got its very own Bollywood drama last month when Aryan Khan (“Aryan”), son of Bollywood superstar Shah Rukh Khan (“Shah Rukh”), was arrested with several other individuals on the cruise ship “Cordelia” while sailing off the coast of Mumbai. The arrest was made by the Narcotics Control Bureau (NCB) in connection with an alleged drug bust. Aryan and the other accused were charged with possession, consumption and sale of illegal substances.

Thus started a series of events that unfolded over a period of 27 days and had many Indians bolted to the case.

Although no contraband was found on Aryan’s person, the NCB invoked bailable charges against him and two others stating that it found evidence in the form of WhatsApp chats showing their nexus with peddlers and suppliers on a regular basis, pointing towards international drug trafficking.

The Additional Solicitor General argued before the court that a high-profile celebrity such as Aryan is seen as a role model in Indian society and such possession and consumption of illegal substances paint a sorry state of affairs.

While Aryan’s earlier petitions were rejected by the lower courts, he finally got relief from the Bombay High Court. A chain of high profile lawyers that included the former Attorney General of India, Mukul Rohatgi, were roped in to defend the celebrity-heir in this roller coaster case.

The Special Narcotics Drugs and Psychotropic Substances (NDPS) Court granted conditional bail to Aryan and all the other eight individuals on October 30. These conditions included furnishing a bail bond of 100,000 (approx. US $1,350), weekly visits to the NCB office in Mumbai, surrender of each of the individual’s passports to the NDPS Court and signing an undertaking to not leave India without permission from the court.

Aryan’s entire case creates curiosity in the minds of the readers as there are many questions left unanswered. The confusing aspect of this case is that Aryan received a bail under the NDPS Act after 27 days; however, according to the arrest memo, no banned substances were recovered from and no medical tests were conducted on him to confirm or refute his possession or consumption of such substances.

As observed by many lawyers, Aryan was still charged under the concept of cumulative intent—i.e. on the basis that he was surrounded by people possessing banned substances. A bail enlargement is available to any accused person under the NDPS Act if certain conditions are met. First, there must be “reasonable grounds” to believe that the accused is not guilty of an offence covered under the NDPS. Second, the accused must not be likely to commit any such offence while on bail.

In the present situation, the co-accused accompanying Aryan had a small quantity of a banned substance on his person and the whole case was thus built on the basis of an intent to commit a crime in the future. It is pertinent to note that lack of a proper data protection bill in the country and the consequent use (or misuse) of WhatsApp chats as evidence creates an ambiguous interpretation of the laws.

The ‘sensationalisation’ of this case has further contributed to the complexity of interpreting statutes regarding bail under the NDPS Act. Without a proper procedural mechanism, the NDPS Act is being kicked around like a football between officers interpreting at different levels.

Although no momentous achievement gave rise to such an occasion, October 30 marked the homecoming of  “prince Aryan” to the abode of his father Shah Rukh. While it was a joyous moment for millions of Shah Rukh’s fans, it was a big letdown for some who saw Aryan’s arrest as symbolizing a sorry state of affairs of the drug-influenced youth of India.

This case had all the elements of a good Bollywood drama—King Khan’s son caught at the gates of a “rave party,” his detention making ‘round the clock news for almost a month, the country’s former Attorney General flown in from London, a bail hearing spilling over for three days, and finally redemption for Aryan. The drama kept Bollywood fans at the edge of their seats till the very last hour of Aryan’s release.

Apart from all the limelight and glamour the Aryan Khan case possessed, it gave a chilling realization to the public about how a citizen could easily remain behind bars for a significant amount of time. This is noteworthy as 70% of the prisoners in India are under-trials. The case is also a fitting example of how easily a privacy infringement can be committed by authorities under the garb of national security by looking into our private chats on forums like WhatsApp. The Supreme Court of India has come out heavily on this point and has categorically observed, while addressing a recent privacy issue in the country, that the State will not get a free-for-all under the national security umbrella. One can only hope that the Aryan Khan saga would bring much more to the fore than just another episode of Bollywood gossip.