AdThis article is written by Rangita Chowdhury of Symbiosis Law School, NOIDA. It talks about the status of sting operations in India.
Table of Contents
Introduction
The legality of Sting Operations differs from country to country. It is a specialized form of investigative journalism. The admissibility of sting operations in India has developed through different judgments. No clear law or guideline is governing it. The ethics revolving sting operations has long been a debate in a civil society. Its role in furthering public order and ensuring accountability in public life has been welcomed by civil society but the practice has also been criticized as it is apparently unethical and immoral and also clearly transgresses the privacy and freedom of an individual and damages his reputation and image in public life.
What is a Sting Operation
A sting operation typically involves law enforcement agencies orchestrating a deceptive operation against an individual or a group committing malpractices in the society. Mass media journalists also often engage in sting operations to record and broadcast criminal activities. Often riddled with questions of morality, the word ‘string’ was first popularized in the 1973 movie ‘The Sting’ by George Roy Hall featuring Paul Newman and Robert Redford. It revolved around two grifters trying to con a mob boss out of a large sum of money.
The police or media trying to lure the criminal might pose as a criminal or a vulnerable candidate to go along with the suspect’s plans to collect evidence for the same. This is often known as a ‘honey trap’ because the baiter might take the bait and once they do, the undercover officials ‘string’ them with legal repercussions like arrest or publication.
A few examples of sting operations would be; someone under the legal drinking age asking an adult to buy them alcohol or a law enforcement official posing as a willing candidate to buy drugs from a dealer.
Types of Sting Operation
Sting operations generally take place to determine the working of the government and focus on whether the acts of the government are against public order or morality. Sting operations have been classified into two types based on their intent-
Positive sting operation– these operations are undertaken for the cause of public benefit and concerns itself with making the government accountable by disclosing its malpractices and bringing them into the light. It helps in making the government more transparent.
Eg- A law enforcement officer going undercover in an organized crime ring and gathering evidence against them by gaining their trust and acting as a confidant.
Negative sting operation– negative sting operations are not undertaken in the interest of the society but rather to infringe on the privacy of others due to reasons of selfishness for acquiring so-called ‘breaking news’ to gain the viewership of the audience. They do not have any constructive motive behind them.
Eg- A media journalist exposing a celebrity for being associated with a sex racket which later on turns out to be fake and fabricated. This ends up defaming the reputation of the celebrity but proves to be a great ‘breaking news’.
Media as the fourth pillar of democracy- freedom of press or Invasion of privacy
The three pillars of democracy are considered to be the legislative, the judiciary, and the executive. However, the Indian society has not been stable on its three pillars which gave rise to the fourth pillar of democracy- the Media. A free and independent media is considered the cornerstone of a successful democracy. It makes us aware of the bare truths of life and helps us gain perspective over the social, political, and economic issues in our society. Media further gives a voice to the voiceless in a representative government and ensures increased participation of people to achieve social and political objectives. Thus, it acts in the public interest and does so within its right to freedom of speech and expression enshrined under Article 19(1)(a) in the Constitution of India.
However, no right can be considered absolute in civil society, it must be practised with reasonable constraints. The media thus has a greater responsibility in this regard to acting responsibly and has to ensure that the privacy and dignity of every individual are respected. We must acknowledge that every individual, unless proven guilty, is innocent and it is the judiciary only that can adjudge whether anyone is guilty or not. The media does not have the right to tarnish one’s image or reputation on the pretext of freedom of the press.
The right to privacy has well established itself as one of the essential legal rights of a human being, very recently even becoming a fundamental right in the case of Justice K.S. Puttaswamy (Retd) v. Union of India (2017). A nine-judge bench of the Supreme Court held that the right to privacy is intrinsic to article 21- the right to life and liberty and is protected under part III of the constitution.
The judiciary has widely acclaimed that privacy is an essential ingredient of Right to Life under Article 21 of the Constitution and it is true that sting operations encroach upon this very important human right. Every individual has the right to lead his life as per his choice and no one has the right to expose it before the public without his consent. Such exposure can often end one’s career and bring untold misery in his future life. It is thus nothing but the encroachment of fundamental rights guaranteed by the Indian Constitution.
Public Interest or entrapment and inducement to crime
Debate continues whether sting operation is a legitimate means of gathering evidence in support of crime or it is entrapment or inducement to crime. The people of a country are primarily governed by the executive which is responsible for the maintenance of public order and providing a just and able administration. The public representatives and the bureaucracy, the two main components of the executive are primarily accountable to the people. The leaders are elected by the people and the administration is paid from the public exchequer. However, there is no proper mechanism to always ensure that these people are always faithful to their duty. It is true people get a chance to change public representatives once every five years but their day-to-day function is mostly outside the purview of the public eye. The bureaucracy enjoys an even more comfortable position and it often becomes very hard to know whether they are working in the public interest or for their interest.
In the above context, the role of sting operations in unearthing truth before the people can never be underestimated. It is, therefore, a means of delivering public justice. The media being the fourth pillar of democracy, therefore, has a greater responsibility to ensure that those entrusted with the responsibility of delivering justice are being faithful to their duty. Thus the press here acts as a regulator of social justice by unearthing valuable information that the public would never have access to had the press not brought it up in front of them through sting like operations.
One might also argue that under Article 19(1)(a) of the Indian Constitution, which guarantees the right to freedom of speech and expression, the press is perfectly entitled to engage in sting operations. The public has every right to know whether the people at the helm of affairs are acting in the public interest and the press is just acting in public interest The means employed, though they appear to be unethical, are thus fully justified.
However, with freedom comes responsibility, and the greater the freedom the greater the responsibility to be exercised. The press indeed enjoys a high degree of freedom in any democratic country and this freedom needs to be carefully exercised. The most important question that needs to be answered is how far the media should go to reveal the truth in the public interest. Here the target is caught completely unaware. He does not know that he is a part of a greater scheme of things. He is inducted into a crime in place of a reward and then held guilty for accepting the bait. It could be his first crime but once caught, his image becomes tarnished forever. Further, it may not always be about money. One might reveal confidential information to the operator believing that it would be kept secret. Thus ethics and morality are issues that will always be a clash with the objectives of a sting operation. It is also a point of high debate that sting operations are not always conducted in the public interest but to increase the TRP ratings of TV channels and if this is true, then the operation will always be regarded as entrapment or inducement and not an action is undertaken to bring the real truth before the people.
Interestingly the Judiciary has also reacted differently to this question. Are sting operations ethical, are they an effective tool of public service or do they just lure a person into committing a crime?
The judicial perspective vis-à-vis Sting Operations in India
India does not have any specific law pronouncing the lawfulness of a sting operation nor does it have any guidelines to regulate a sting operation.
It was in March 2001 when ‘Tehelka’ a news magazine first popularized the idea of sting operations in India. It disclosed several ruling party officials accepting bribes which promptly led to administrative action and their ousting.
There are no hard and fast rules to determine the legitimacy of a sting operation and under which circumstances will it be considered as evidence under law.
The Pre-natal Diagnostic Techniques Act (1994) is the only legislation in India which talks about sting or decoy operations in medical facilities which might be suspected of illegal sex determination. Sting operations undertaken under this act are legitimate and regulated.
Even though there is no distinct legislation governing the legality of sting operations, a person can approach the court under different laws to protect their privacy and freedom.
For example, the Telegraph Act of 1885 regulates ‘wiretapping’ which is an essential part of a sting operation.
People’s Union of Civil Liberties v. Union of India and Anr (1996)– Ruled that wiretaps are a serious invasion of privacy of an individual. It also laid down guidelines for wiretapping the government, who can do so, and under what circumstances. The guidelines laid down only gave the Union Home Secretary and its counterpart in the state power to tap and a copy of the order must be sent to the review committed within a week.
Legal validity of sting operations in India
There is no legal validity of a sting operation unless the courts deem so. The legality of sting operations varies from case to case. None of the courts in India has laid down any regulations concerning the admissibility of sting operations as evidence in a court of law. There is no nexus between the judgments of different courts dealing with similar situations related to sting operations. Some of them consider it as valid evidence while others have rejected it as evidence and mark it as an infringement of the right to privacy and possible incitement of crime.
In Raja Ram Pal v. Hon’ble Speaker, Lok Sabha and Others (2007) The Delhi High Court upheld the legality of sting operations that brought to light the misconduct of 11 MPs and led to their removal, it was a ‘cash for query’ case and determined the parliamentary privileges that were laid down in India. The 11 MPs were allegedly accused of indulging in corrupt practices and taking money for unethical reasons. The footage of the sting operation was held to be solid and not fabricated in any manner, thus incriminating the fellow MPs.
In another similar case, Aniruddha Bahal & Another v. State (2010), two journalists Aniruddha Bahal and Suhasini Raj conducted a sting operation against a few members of parliament where it was shown that they took money as bribes to ask questions in the parliament. This happened in 2005 and the whole nation watched something which was already public knowledge but now had documentary proof to back it up. The journalists were, however, made the prime accused in the case instead of making them a witness. They claimed it was wrong as they were merely doing their duty as a well-informed citizen of the nation by exposing such unrestrained corruption. The central issue before the case was whether someone can offer bribes in this manner to trap and expose a public officer. The court held that under the fundamental duties of a citizen, Article 51A(b) makes it necessary to uphold the ideas of a freedom struggle to cherish our free nation, therefore, the sting operation conducted in this case was necessary and valid and the right to conduct sting operations comes under the right to free speech.
A request to frame guidelines for sting operations came up in the case of R.K. Anand v. Registrar, Delhi High (2009). It was commonly known as the ‘BMW hit and run case’ where a young man from an influential family, driving at a reckless speed ran over six people including three policemen in an inebriated state. The lawyers of the accused were seen meeting the prime witness of the case and influencing him not to testify. The Delhi High court declared them guilty and the Supreme Court upheld the decision and refused to put down guidelines for the media conducting sting operations, which was requested in the case. It said by putting down guidelines would tamper with the autonomy of the media which is against the media’s right to free press. A few isolated incidents of misuse do not justify a complete ban on this manner of investigative journalism.
Scope and limitations
Scope
Any action should be judged by its intent and its outcome. The efficacy of sting operation in uncovering misdeeds can never be undermined. If used as a tool of establishing public order and bringing to light the misdeeds and misdemeanours of corrupt persons, then the role of sting operation as a cleansing tool should be welcomed. It, no doubt, brings to light invaluable evidence that can help the judiciary in deciding with a fair degree of certainty and swiftness. It can act as a deterrent for corrupt public servants as well. Before doing wrongful deeds, such as taking a bribe, they will be more careful, as the advent of technology has now ensured that a sting operation can be conducted in such a manner that it can catch the target completely unaware. Thus, I find that as an aid to collecting evidence and as a social deterrent, a sting operation has scope if conducted with restraint and accountability.
Limitations
- Unfortunately, no law regulates sting operations in India, thus making it prone to misuse. Such operations can be conducted with the sole purpose of tarnishing the image of an individual. With state of the art technology being used nowadays, we may not be able to distinguish a real sting operation from a concocted one. Once telecast, it creates such an indelible impression before the naive and gullible public, that the reputation of the framed person gets tarnished forever, even if at a later stage, it is found out that the operation was fabricated.
- Without any law in place regulating sting operation, the question of invasion of privacy will always be under discussion. Though one can initiate a private action for damages for an unlawful invasion of privacy under torts, it has to be accepted that this phenomenon is a serious threat to privacy. Everybody has the right to lead his life in his terms and unlawful transgression into public life can never be supported.
- Another limitation of the sting operation is that it is being increasingly misused by many television channels to increase viewership. There being no law, there is no effective regulation. Thus the whole purpose gets defeated. Employing sting operations for political vendetta is another pertinent issue. It is not unusual to employ reporters or others to conduct stings for destroying the political career of any particular individual.
- On the other side of the coin is the issue of police harassment against any well-meaning person who has done operation with honesty and purpose. People in high offices, if they see their reputation is at stake, often use the State machinery to harass, intimidate and coerce journalists, to prevent such footage being produced before the court as a piece of evidence.
- It would also be interesting to find out whether evidence from sting operations actually speed up the judicial process or helps in unearthing the real truth and aid in quicker conviction. A classic example is the Narada Sting Operation Case which happened 6 years ago. The probe by CBI, ED, and the Parliamentary Ethics Committee is still on and several PILs have also been lodged. But even after so many years, we are yet to see the case come to its logical conclusion.
Repercussions of Sting Operation on a fair trial
We are all aware of the phrase ‘Seeing is believing’, which is what most takes place in trials conducted on the evidence gathered through sting operations. The moment a sting operation is disclosed in front of the public, the target becomes stamped forever. Media nowadays with technological advancement and professional skills conducts such operations with great finesse and the purported crime is painted vividly in front of the public giving the target no scope to prove that he/she has been trapped unknowingly.
The judge can also be manipulated with the sting operation because visuals, without a doubt, are far more convincing than oral evidence. The broadcasting of the operation sets forth a prejudice in the minds of the public as well as the presiding judge. The negative sentiments created in the minds of the people and the public opinion generated against the accused make it hard for the judge to make an objective decision. The accused is pronounced guilty by way of the public even before the complete trial takes place. In criminal law, a person is considered innocent unless proven otherwise. This facet of criminal law is completely ignored when the trial is influenced by the outcome of a sting operation. Our constitution provides us with the right to a free and fair speedy trial, the prejudice against the accused clashes with this right. The courts must be vigilant enough to avoid such prejudices and develop progressive measures to overcome the same.
In August 2007, a government school teacher, Uma Khurana was the victim of a sting operation by a private news channel that showed her being ‘supposedly’ involved with a sex racket. When the sting operation came into light, her reputation was charred and she was even attacked by a mob once. The government of Delhi also sacked her from her job. When the court took suo moto cognizance of the matter, it was revealed that the sting operation was fake and there were no incriminating facts to convict her. She sued the news channel but later on withdrew the case and settled it amicably. Her reputation, however, was possibly forever tarnished.
The question of admissibility of evidence obtained
The question of admissibility of evidence obtained through sting operations is still not properly documented, nor there is any proper guideline or legislation governing the same. Our knowledge mostly derives from our reading of the different cases (and the judgements passed in those cases) where evidence gathered from sting operations have been examined by the Court.
The press is still the most important mechanism of providing people with information that helps them in making decisions that have a bearing on their living, their future, and for the society, community and nation at large. In Bennett Coleman and Co. Vs Union of India (1972), a group of petitioners had challenged some restrictions put on the newspapers and claimed that those restrictions trampled with their right to freedom of speech and expression. The Court ruled that the people’s right to know is essential in a democracy and this right stems from article 19(1) of the Indian Constitution, i.e. freedom of speech and expression. It was also a settled view of the Court that freedom of speech and expression includes freedom of the press. The public has the right to be informed and educated and they also have the right to know public acts and how the public representatives are conducting themselves. Whether the trust entrusted upon them is being honoured or not, should be within the public domain. The Press by gathering such valuable information for the benefit of the public is actually acting in the public interest. This view establishes that evidence gathered through sting operations is relevant and can, therefore, be used in a court of law to come to a decision. Democracy cannot survive without accountability and as sting operations make public servants accountable, there is nothing wrong in conducting such an exercise, even if the means adopted are not proper.
However, in the State Of Haryana vs Ved Prakash (1992) the court held that tape-recorded confessions are not admissible in a court of law because it was not done voluntarily and they represent inducement.
I would also like to make a very interesting and pertinent observation on freedom of the press. A free press is necessary not for the press as such but for the public. For democracy to thrive, people should have access to proper, unbiased, impartial, and accurate information which is possible only if we have a free press. This is the meaning of freedom of the press. It does not mean that the press is free to do anything and violate the freedom and privacy of another individual by trapping him. The sting operator needs to realize that his target is much entitled to freedom and privacy as he is. Every individual has the right to privacy and safeguards the privacy of his family members as well. It is a basic human right and has to be respected. Thus gathering evidence by trapping an individual and coercing him to commit him a crime which he would not have committed otherwise, is a gross violation of one’s fundamental right and hence it would not be proper to consider such evidence admissible.
Do we really need sting operations
We have discussed the pros and cons of the sting operation and its moral and ethical aspects. It does help create accountability and keep people informed. In a country like India where corruption is widely prevalent in public life, it helps create fear within the minds of corrupt public servants and people’s representatives. But the practice is prone to misuse, can be used for ulterior motives and is a clear transgression of the privacy of an individual. I would, therefore, opine that if sting operation is really needed, it should be covered by standard operating procedures. Either the Supreme Court should come out with clear guidelines or the State should frame suitable legislation in this regard. One cannot expect that every news channel or media house would be responsible in conducting sting operations and would respect the privacy and freedom of people, more so in the present time when the race for ‘breaking news’ has become a part of journalism.
Such guideline or legislation, if framed, should address the following specific areas:
- The agency conducting the sting operation should see to it that it is being done in public service and there should be elaborate mechanisms to ensure the same.
- Every sting operation should address the issue of individual privacy and freedom of the individual.
- Strict penal provisions should be there for punishing individuals and agencies that conduct sting operations with political and ulterior motives or for the purpose of increasing viewership of any channel or readership of a newspaper.
- Similarly, penal provisions should also be there if it is found out that a sting operation has been conducted with the sole purpose of tarnishing the image and reputation of an individual.
- There should be a regulatory body within the media fraternity to control all aspects of sting operations. Since any outside regulation would amount to the interference of freedom of the press, it is desirable that either the Press Council of India or any other body be entrusted with this responsibility.
- Information collected from sting operations should be made admissible in court but only if it is found that the said information is not concocted and not gathered for an ulterior motive.
Conclusion
General standards of decency should be followed by the media and sting operations conducted for commercial gain should be strictly banned and regulated. Laws should be introduced as sting operations are very common these days which call for their regulation in some form or manner. Some countries like the US find sting operations legal and valid whereas in countries like Sweden they are strictly forbidden. I think there should be a balance between both with proper legislation governing it.
References
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