This article is written by Samriddhi, a BA. LLB. student at Symbiosis Law School, Noida. This article analyses whether sting operations are a violation of the Right to Privacy under Article 21 of the Constitution.
Table of Contents
Introduction
Sting operations have become the norm in today’s culture. A sting operation is a well-planned plot employed by law enforcement to catch a criminal. It usually entails a lot of covert effort. Satellite, remote control cameras, and high fidelity sound equipment capable of picking up talks in a room from outside can now be used to spy on a person. In other words, a person does not have any actual privacy that he may rely on. Sting operations carried out by ostensibly private spying agencies are flagrant invasions of an individual’s privacy. Electronic terrorism has become the norm, with little regard for human individuals’ private bounds. With the introduction of miniaturized audio and video technologies, particularly pinhole camera technology, it is now possible to secretly record a video/audio recording of a discussion and the actions of others. There are numerous methods for concealing a camera inside a suitcase, a pager, a cigarette lighter, a cellular telephone, a fountain pen, a smoke detector, or the nose frame of sunglasses or other eyewear, etc.
The majority of these devices include either a self-activation mechanism or a mechanism that must be initiated manually. Watergate is a well-known example of a president leaving office in disgrace and his lieutenants being imprisoned for attempting to have recording equipment installed clandestinely inside the office of a political opponent. In the United States, the only exceptions are law enforcement agencies and police-licensed private detectives, who are permitted to use them in limited cases under very restricted settings. They can be used for evidence collection by licensed private investigators, but not in sting operations.
Laws governing sting operations in India
Sting operations are not mentioned specifically in any of today’s laws. There are also no acts governing such operations. While there have been some judicial rulings about specific incidents, no judge has yet laid down guidelines or legislation governing these media acts. This does not mean that there is no remedy available for the injured. An individual can present before the courts under different regulations to secure his or her rights and independence. For example, wire trapping, which is used as part of a string procedure, is governed by the Telegraph Act of 1885. In People’s Union for Civil Liberties vs. Union of India(1997), the Supreme court ruled that wiretaps are a “significant violation of the privacy of a person.” The Apex court has laid out directions for the government’s wiretapping, which specify who can tap phones and under what circumstances. Only the Union Home Secretary or his equivalent in the state can send a tap order, although it has been adequately shown that the knowledge could not be obtained through some other process. Other than common law, the Supreme court has also acknowledged its constitutional origin. Therefore, in the first instance, a private claim for damages can lead to an unreasonable breach of privacy under the Torts act. These sting operations also infringe the Right to Privacy by the Supreme court under Article 21 of the Indian Constitution– the Right to Life and Personal Liberty. Since we provide that the guarantee of freedom of expression in Article 19(1)(a) is not absolute, the constitution provides for Article 19(2), which protects moral values and ethics in the public interest.
It was well discussed by the Supreme court in the case of R. Rajagopal and Another vs. State of Tamil Nadu(1994), “A person has the right to preserve the privacy of his or her own family, his or her spouse, procreation, motherhood, child-bearing and literacy, among other issues. Nobody can ever publish something on the above-mentioned issues without his or her permission – whether honest or otherwise and whether effusive or critical. If he did so, he would infringe the Right to Privacy of the individual involved and be responsible for damages in the case of a lawsuit. Nevertheless, the situation could be different if an individual willingly engages in controversy or willingly invites or causes a dispute.
Scope, purpose, and media
A sting operation’s goal is to catch the corrupt and spy on individuals involved in illegal or anti-national actions. The small audio-video technology, such as pinhole cameras, makes it simple for anyone to secretly capture a conversation or suspicious action. A camera can be hidden in a variety of places, including briefcases, pagers, cigarette lighters, cell phones, fountain pens, smoke alarms, and even spectacle frames.
Faced with public outrage over “sting operations” utilizing hidden cameras, the Union Information and Broadcasting Ministry is exploring a regulatory system to protect individuals’ privacy. A segment of the media regards “sting operations” as an acceptable means of revealing the truth, but the Ministry intends to draw a clear line between stories that constitute an “invasion of privacy” and those that expose wrongdoing or have political repercussions.
The growing consensus is that “invasion of privacy” cannot be tolerated and that the government should have a system in place to deal with such incidents. Recently, a TV channel caught actor Shakti Kapoor in a conversation with a reporter posing as a female looking for a role in a film. The Shakti Kapoor event may be true, but such operations are unquestionably a breach of privacy. It is usual to seek favors.
Privacy is both a human and a legal right. Even though there may be situations where the lines between public and private life are blurred, they are two distinct things. It is a well-known fact that when young females approach film directors for certain parts, they make numerous requests. The media has no right to reveal what happens behind closed doors between consenting adults, even if the adults are public personalities. The relationship between the media and one’s Right to Privacy is critical. This type of sting operation is not just an invasion of privacy, but also obscene and nasty. The Tehelka episode has taught Indian democracy a lot. Indian governance is engulfed with corruption, which has not spared even national security matters. The more sobering reality is that it is nearly impossible to ascertain the true condition of affairs using traditional investigative procedures.
There has been much discussion about whether the Tehelka-style stings are ethical in terms of invasion of privacy, violation of usual processes, use of women as part of the sting, and unconventional interviews. To suggest that stings can never be done is to overstate the argument for the sting as a valid investigative journalism weapon. Drawing on the American concept of public exposure in defamation cases, the Supreme Court appropriately reminds public figures in the Auto Shankar case (1994) that they should have nothing to conceal from the public, which has the right to know the truth.
Comparison with position in the U.S.A
In the United States, it is against the law to employ hidden cameras without prior approval. Only law enforcement authorities are permitted to film people who have been convicted of a crime. There, for example, legal permission is required before performing a sting, and there are severe guidelines:
- Sting operations can only be carried out on those who have some evidence of criminality and for whom a sting operation is deemed necessary to get conclusive evidence.
- Sting operations must be approved by the competent courts or the attorney general. This safeguard has been put in place because those who undertake sting operations commit impersonation, criminal trespass under false pretenses, and lure other people into committing offenses.
- While the transcripts of the recordings can be changed, the films and tapes themselves should not be destroyed or altered.
- The Supreme Court of the United States has even defined what constitutes an inducement in a sting.
- The FBI can undertake a sting operation in the United States. No one, regardless of their profession, can authorize it.
Unless there is a reasonable indication, from informants or other sources, that the subject is engaging in illegal activity of a similar type, the opportunity for illegal activity has been structured so that there is reason to believe that the person will engage in illegal activity, an inducement to commit a crime should not be offered.
There’s significant fury in India whenever a sting or expose should be carried out. Some consider it a journalist’s moral right to expose an individual or a group’s misconduct. On the other hand, many people consider this an invasion of privacy. Not only are our police ill-equipped to deal with this new breed of criminality, but our laws are also deficient. There is also the question of whether such exposes should be limited to topics of “national concern” rather than the personal lives of celebrities. In India, there are no regulations or guidelines governing sting operations. Officially, the government’s anti-corruption authorities execute sting operations to catch the corrupt. In such circumstances, officials demanding a bribe are given numbered and chemically treated money notes. This money does not come from the government, but the complainant, and it is the property of the investigative agency until the matter is resolved. As a result, using government funds to undertake such sting operations is often frowned upon because it encourages corruption. Sting operations are classified by legal experts as entrapment, inducement, or persuasion.
This is founded on the idea that “a person is ‘entrapped’ when she or he is encouraged or persuaded to do a crime that she or he had no prior intent to commit.” As a matter of policy, the law prevents conviction in such a circumstance. There is no law against entrapment in India, however, our cyber laws specifically ban sting operations that invade an individual’s privacy. However, sting operations and telephone eavesdropping have not received the same level of attention as cyber laws. This is because since many commercial players have joined these sensitive areas, the state sector no longer has a monopoly. If such an investigation is requested, it must be specified who is authorized to conduct it and why.
Private agencies should be prohibited from engaging in the same; stiff punishments, including the closure of their operation, should be made mandatory if they are found guilty of undertaking such activities. Surprisingly, the proliferation of detective services and security organizations utilizing illegal measures to collect bank loans is authorized, despite the absence of any legislation restricting their operations.
Sting operation vis-a-vis Right to Privacy
Nothing in sub-clause (a) of Article 19(2) of the Indian Constitution affects or prevents the state from enacting legislation dealing with libel, slander, defamation, contempt of court, or any other matter that offends decency or morals or threatens the security of the state. In Romesh Thappar vs The State Of Madras(1950), by interfering with Article 19 clause 2, the Supreme Court established an important principle: after allowing the imposition of restrictions on freedom of speech and expression for specific purposes, any law imposing restrictions that can be applied for reasons other than the express purposes cannot be held constitutional or valid.
‘Freedom of the Press,’ on the other hand, has been recognized as a component of the fundamental right of ‘Freedom of Expression and Speech’, granted to Indian citizens under Article 19(1)(a). It was previously argued that ‘Freedom of the Press’ is required for citizens to practice their fundamental freedom of ‘speech and expression.’ As a result, ‘Freedom of the Press’ cannot be declared unconstitutional and invalid. And, as the Constitution states, this can only be practiced so long as it does not jeopardize a person’s decency or morality. The Indian Constitution guarantees full freedom of the press, albeit with caveats. Article 19(2) was amended on June 18, 1951.
Adding the word “reasonable” to constraints. The constraint must be appropriate. To put it another way, it must not be excessive or inappropriate. The approach and manner in which the restriction is imposed must also be equitable, fair, and reasonable. In a major decision in the Sakal documents case, the Supreme Court ruled that Article 19(2) of the Constitution allows for the imposition of reasonable limits only on the grounds listed in Article 19(2). As a result, unless the action can be justified by a statute under Article 19 clause 2, the state cannot restrict the freedom of speech and expression. Furthermore, it is vital to note that all sting operations violate the Right to Privacy to some extent because, in nearly all cases, the individual being videotaped is unaware of the presence of a hidden camera during a sting operation, and has the right to film anyone. However, it may be argued that an illegal act committed by a public servant during his office hours and in abuse of the spirit of his office is not worthy of protection under the Right to Privacy. Besides, what a public servant does while discharging his duty is in the public domain. In such cases, the public interest does seem to weigh heavier compared to the Right to Privacy. If a person has no duty towards the general public, his morally questionable conduct is not open to public scrutiny unless he violates the law by such conduct.
Article 21
Article 21 includes an implicit Right to Privacy. According to Subba Rao J, the term “liberty” in Article 21 is broad enough to cover privacy. His Lordship stated that, while he does not directly identify the Right to Privacy as a fundamental right, it is an essential component of human liberty. It is considered a fundamental right, yet it is not absolute. It can be limited if there is a compelling public interest. The court, on the other hand, has limited to personal family intimacies, marriage, motherhood, procreation, and childbearing. On the other hand, the media in India only covers the work of public workers in their offices in their sting operations. Since it is in the public interest, the official activity of the public servant should be transparent and open to everybody. However, the court’s decision on the Right to Privacy does not include this official job in its definition. Sting operation began with the noble goal of exposing corruption in high places and devolved into cheap entertainment.
Sting operations are frequently employed to apprehend corrupt officials, criminal dons, and spies. Terrorists and anti-national elements can be apprehended using a sting operation. The media’s spy camera caught 11 M.L.A.s accepting money in exchange for asking questions in parliament. When the media obtains all of the evidence against the corrupt and wrongdoing, and their goal is the public interest, why does the media not file a case in court and present these as evidence? This will result in the punishment of these wrongdoers, which is in the interest of the public. Or, even if such evidence is obtained, why is no report sent to public authorities to compel them to take action? However, such cases cannot be filed in court using these tapes, audio, or video recordings as evidence or proof since courts do not consider these to be credible evidence or proof. Furthermore, because the government machinery is not running correctly, such incidents are rising, so what is the use of reporting it to public authorities? Aside from that, when all of this is exposed by the media, the general public becomes aware of the criminal activity taking place in the so-called “Government Machinery.”
Right to Privacy in sting operations
The media’s power and importance in a democracy are well acknowledged. Article 19(1)(a) of the Indian Constitution guarantees press freedom as well as freedom of speech and expression. The existence of free media is at the heart of democracy, particularly in a multi-ethnic community like India. The media is used not only to share one’s thoughts, beliefs, and opinions, but also to form opinions and opinions on many topics on the regional, national, and international agenda. The primary job of the media is to bring millions of people together in their ideas. ‘The hand that controls journalism, radio, television, and the broad magazine runs the country,’ observed Supreme Court Judge Learned Hand. His statements accurately represent the media’s expanding significance in today’s globalized and technologically savvy world.
Democracy is a three-pillared organization that governs the people. However, the Indians of today have been fairly dysfunctional in their three pillars of the administration, the legislative, and the judiciary, and a fourth pillar known as the media has been established by ensuring Article 19(1). It serves as an alert guard, a watchdog of civil officials, and attempts to address systemic flaws by bringing them to the notice of all in the goal of correctness. It is undeniable that the current media shift has benefited the public in a variety of ways. After leveraging its reports and news to highlight major violations of rights, the State’s courts have been able to profit from responsible and daring journalism, and in many cases have obtained suo-moto cognition. The criminal justice system in our country has various loopholes that are exploited by the wealthy and powerful to free up scot. The numbers are the same in this case as they are in our country, where conviction rates are abysmally low by 4 percent. In these cases, the media plays a crucial role not just in mobilizing public sentiment, but also in exposing injustice that would otherwise go unnoticed.
A coin, however, always has two sides. This growing media presence and relevance cannot overstate the importance of responsible and competent reporting. No right to freedom in civil society, no matter how valuable, can be viewed as unlimited, unfettered, or unqualified. As with the other freedoms guaranteed by the Constitution, media freedom must be utilized within reasonable boundaries. With immense power comes enormous responsibility. The right referred to in paragraph (a) of Article 19(1) is inextricably linked to the need not to violate any statute.
All institutions are vulnerable to violence, and every freedom is vulnerable to a license that, if allowed unchecked, leads to chaos and anarchy. That is where we are right now. Television networks utilize sensationalized journalism to boost their TV ratings points to get a competitive advantage over competitors (TRPs). The emphasis is increasingly on sting operations. They are a part of the media’s evolution, offering as much promise as the risk with each stroke. It cannot, however, be bent by technology, and it has limitations. The importance of striking a fine balance between constitutional freedom of expression and the right to personal privacy cannot be overstated. The second option, which is becoming more popular, is media trials. This move has now become a pattern that is severely interfering with the court system and has begun to reveal the truth about proceedings to the broader public. Both are media-heavy tools. And both emphasize the critical importance of “responsible journalism.”
Sting operations v. Right to Privacy
A sting operation is a law enforcement operation aimed to deceive a criminal actor. A typical sting would entail a law enforcement officer or a willing member of the public acting as a criminal partner or possible victim and following the actions of a suspect to obtain evidence of the suspect’s criminal offence. The question now is whether the media should act as a police force. This is a problem. While the success of a sting operation may reflect the freedom of the press, it also has an inalienable duty to preserve the privacy of others. Following media exposure, the goal of the newspaper or television issue has shattered the identities, reputations, and careers of many individuals. Every person has a fundamental right to live with equality, integrity, respect, and the Right to Privacy as provided for in Article 21 of the Indian Constitution.
Kharak Singh v. Uttar Pradesh State
According to the Supreme Court, our Constitution, in particular, does not identify a “Right to Privacy” as a basic right, but that the right is a vital component of personal freedoms. The case of Kharak Singh vs. Uttar Pradesh State(1962) led to the launching of campaigns in India to recognize the “Right to Privacy”. Following a detailed review of this right in Gobind v. Madhya Pradesh State and Others(1975), the extension to humanistic content of Article 21 of the Constitution is fully integrated into the right to life and personal rights.
PN Swammy Labor Liberation Front v. the Station House Officer
Today, the media is substantially infringing on the “Right to Privacy” by over investigating the product of excessive marketing and violating the bounds of the person’s rights. Another ruling from the Court, which touched on this issue of the violation of people’s privacy rights, was contained in the High Court’s judgment in PN Swammy Labor Liberation Front v. the Station House Officer(1997). The Court stated: “After a case involving important individuals or institutions, the press acts and does nothing to be done by the Public Prosecutor or the Courts.” It has recently reached alarming dimensions in terms of interfering with people’s privacy. Great abuse of technological advancements and low competition in reporters’ industries has caused standards or commitment to a noble profession to vanish. Freedom of expression is grossly undermined, which is the basis of journalism. It should be remembered that rights and freedoms can be effectively exercised only in those who are excluded.”
Mr X v. Hospital Z
In Mr X v. Hospital Z(1998), the Supreme Court ruled that, in addition to the contract, a specific business, marital, or even political tie could give rise to a Right to Privacy. Even true personal information might be a breach of the Right to Privacy if it is made public. The Supreme Court emphasized the limitations of press freedom in the field of privacy in R. Rajagopal and Others v. State of Tamil Nadu and Others(1994): “An individual should have the right to preserve their own private, family, marriage, childcare, motherhood, and education.” Nobody can make something public, whether accurate or false, praised or critical, without his authorization. The individual in question violates his or her Right to Privacy and is also liable for damages in the proceedings. The role, however, may be distinct if a person actively becomes involved in a conflict, invites or voluntarily creates a quarrel.”
Law enforcement personnel in the United States use sting operations to penetrate their financial system at every point of entry suspected of bringing in illegal revenues. As a result, access to locations such as car dealerships, motels, bookmakers, cash-making services, pebbles, and even churches was utilized. “Covert investigation techniques are also the safest, most effective, and only practicable method of gathering evidence for the prosecution and conviction of individuals responsible for the most virulent strains of crime, such as organized and big drug offences.” In Sherman vs the US(1958), “A distinction must be drawn between an unconscious innocent trap and an unconscious criminal pit,” said former US Chief Justice Earl Warren. Nonetheless, this is a critical crossroads. The UK authorities, on the other hand, have devised and developed a code for the covert operations committee. The potential to accomplish significant good never comes without the opportunity to cause significant harm, and journalistic freedom is no exception. Although the media can help prevent abuse of authority (self-examination and competition can also help), we should also try to understand why and how press freedom improves human life, increases public justice, and promotes economic and social growth. The media employs technology to highlight “truths” that the general public has never understood. However, making the best use of technology while emphasizing the necessary principles is critical.
Which fundamental right is more important
The freedom of the press stems from the freedom of speech and expression granted by Article 19(1)(a) of the Indian Constitution. Furthermore, the Right to Privacy stems from the right to life and personal liberty given in Article 21 of the Indian Constitution. Both of these are covered by Part III of the Constitution, known as the Fundamental Rights. As a result, there is a conflict between two major fundamental rights provided by the Indian Constitution. These fundamental rights, however, are not absolute and can only be revoked under Article 19(2) with reasonable conditions. This sparks a fiery dispute between the two fundamental rights, something the framers of the Constitution would never have considered.
Another side of the coin
According to some legal experts, the recent ruling of a nine-judge bench of the Supreme Court that declared the Right to Privacy a fundamental right under Article 21 of the Constitution will not influence sting operations frequently conducted by journalists and other individuals.
This is because fundamental rights can only be enforced against entities covered by Article 12 of the Constitution—entities that fall under the definition of “State”; any other person violating such rights cannot be challenged through the writ petition, but rather through other criminal resources available under the Indian Penal Code (IPC), according to experts.
This is likely to make phone tapping and surveillance by government agencies and the police considerably more difficult, as it would directly violate the individual’s Fundamental Rights.
Siddharth Srivastav, advocate and partner, Link Legal, told The Sunday Guardian, “Fundamental Rights are enforced against the State and for non-State entities, other statutes such as the IT Act, IPC, Contract Acts, etc govern the relationship between individuals.”
A top Supreme Court lawyer, Vikas Upadhaya, underlined that the recent Supreme Court decision would not affect sting operations. “Fundamental Rights are imposed against the state, and when it comes to matters between two individuals, it is governed by other laws under the IPC,” he explained. However, if the state infringes your Fundamental Right, you have the option of petitioning the Supreme Court directly.
Pawan Duggal, a well-known lawyer, and IT expert spoke along the same lines, claiming that any breach of a Fundamental Right is believed to be done by the “State,” and that any other person invading privacy would be dealt with under other laws available under the IT Act or the IPC.
Unless done by the State, sting operations and call recordings would be controlled by the previous legislation that we had under several Acts and penal codes. We previously had such measures in place under previous legislation, but this judgment has given privacy greater teeth and attempted to prevent the State from entering into individuals’ private spaces.
However, legal experts have also said that no Fundamental Right is absolute and the State, by following the due process of law, can take away such rights from the individual when the need arises.
The Sunday Guardian in their article quoted: “The State would have the right to tap phone calls of individuals and citizens of the country provided the same falls within Article 19 (2) (permitting State to make laws or put reasonable restrictions) and pass the test under Article 21 of the Constitution. In other words, surveillance must be made following the Fundamental rights in Articles 14, 19, and 21. The Right to Privacy, like any other right, is not absolute and the State is entitled to impose reasonable restrictions based on social, moral and compelling public interest. These statements were made in the Supreme Court while discussing the Right to Privacy verdict is unlikely to impact sting operations. The discussions are ongoing and are all over the place leaving two different sides with confusing conclusions. When we look at the laws there are no changes made with references to ting operations violating the Right to Privacy.
Conclusion
Privacy is what is demanded by and for each and every person in his or her life. And this privacy means nothing but being aloof from society on some issues of personal life. But, the question is, can sting operations, take away this privacy and make it public. The answer to that seems clear and open but with limitations as the operations do violate the Right to Privacy but then again the means justifies the end. But the exposing and violating of their rights take place when the media enters, this is where the limitations lack but at the same time this is a necessity. The media’s power and importance in a democracy are well acknowledged. Article 19(1)(a) of the Indian Constitution guarantees press freedom as well as freedom of speech and expression. The existence of free, independent, and powerful media is at the heart of democracy, particularly in a multi-ethnic community like India. The media is used not only to share one’s thoughts, beliefs, and opinions, but also to form opinions and opinions on many topics on the regional, national, and international agenda. The primary job of the media is to bring millions of people together in their ideas.
References
- http://www.rmlnlu.ac.in/webj/charu_article.pdf
- https://www.sundayguardianlive.com/news/10729-right-privacy-verdict-unlikely-impact-sting-operations
- https://lawzmag.com/2017/02/11/sting-operations-an-invasion-of-right-to-privacy/
- https://www.indiatoday.in/magazine/controversy/story/20050328-shakti-kapoor-caught-in-sting-operation-offering-work-in-bollywood-for-sex-788030-2005-03-28
- https://indiankanoon.org/doc/1295265/.
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