Home Sting Operation A legal analysis of a sting operation

Sting Operation

A legal analysis of a sting operation

December 16, 2020

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This article is written by Darshit Vora of Narsee Monjee Institute of Management Studies. The article provides an in-depth analysis of sting operations and also deals with legal issues involving sting operations.

Table of Contents

Introduction

Media is recognized as the fourth pillar of our democracy. It plays a critical role in discovering the truth. To bring truth in front of the general public, it uses various investigative techniques, one such being sting operation. A sting operation is an investigative tool used by the media to uproot the malpractices existing in society. In this method, the journalists get access to vital information by utilizing a false identity. The sting operation was first used in a movie named “Sting” which highlights two men trying to con a mob boss for money. A sting operation can also be referred to as investigative journalism or undercover journalism. In other words, sting operation refers to a deceptive technique used against a person to get vital information. On one hand, the media has the freedom of press, which gives them the power to conduct such investigations, but on the other hand, such techniques are against various essential rights of an individual.

Types of Sting Operation

Positive Sting Operation: These are the operations carried out for disclosing information which is crucial for the interest of the society. A sting operation can make the government accountable for its action. According to S.P. Jain vs Union of India, it was held that no democratic government can survive without accountability and people should have information about their government.

Illustration: A journalist who dressed up as a businessman tried bribing the minister to pass his project contract. The ministers acceptance of the money for the passing of the contract would amount to positive sting operation due information is leading in the interest of the general public.

Negative sting operation: It is an operation done which breaches the privacy of an individual. These are merely sensationalized news done with an intent to gain viewership. This type of operation doesn’t protect the public interest but in turn, violates it. This operation ends up trapping innocent individuals.

Illustration:A being a politician of a renowned party a sting operation is conducted against him through the sting operation it is proved that he was involved in bribery. The Charges of bribery aren’t proved against A this would amount to a negative sting operation.

Freedom of press under freedom of speech and expression

Media plays a vital role between the people who govern and those who are governed Media plays important functions

Safeguarding the information.
Providing a forum to discuss diverse opinions and ideas.
Acting as a watchdog in a scenario of abuse of power.

In order to perform these functions, it is necessary that there should not be any restrictions on media. Therefore, in Romesh Thapper vs Union of India, the court held that freedom of the press comes under freedom of speech and expression which is granted to both citizens and non-citizens. Press in an informational medium of communication which plays as an eye-opener in society. In Indian Express Newspaper vs Union of India, the court held that freedom plays a crucial role in social and political intercourse. It provides education both formal and informal. According to Article 19(1)(a) of the Indian Constitution, it grants to all people freedom of speech and expression.

According to lord denning, a professional judge cannot get influenced by the media which only affects the common man. The Victim’s mother in the case of Nitish karia expressed her gratitude towards the media and to that “ I thank god and the media for helping me out in a long battle”. There have been various instances in the past where sting operation was used as valid evidence. In the State of UP vs Raj Narain, the court held that people of the country have the right to know about every public act, everything that is done in a public way and by public functionaries.Therefore, the media possess the power to impart information to the society for their interest being an important role player in the democratic society.

International Provisions on freedom of the press

Article 19 of the Universal Declaration of Human Rights: It grants every individual freedom of speech and expression. The right to hold an opinion without interference, and receive and impart information through the media.
Article 19 of the International Covenant on Civil and Political Rights: According to this article everyone has the right to hold opinions without interference. They have the right to freedom of speech and expression, freedom to seek, impart information.
Article 23 ASEAN Declaration of Human Rights: Every person has the right to freedom of speech and expression, right to express an opinion without any interference, right to seek and impart information.

Guidelines to be followed while conducting a Sting Operation

News Broadcasting Association’s Code of ethics and broadcasting standards set certain guidelines for conducting sting operations. Some of the important guidelines are listed below.

A sting operation cannot be conducted without the permission of the head of the editorial team and the person concerned of that news channel.
A sting operation should be done for the public interest.
During the sting operation, it is not appreciated to induce a person to commit a wrongful act.
The recordings of the sting operation should not be tampered or manipulated.
If the sting operation is proved to be fabricated then all concerned would be liable for their actions.
Sting operation can only be relied on and there are no other effective means to collect information.
According to Section 6 and Section 5 of the cable and broadcasting network rules, 1994, a sting operation can only be telecasted if there is any prima facie evidence to show the culpability of the wrong-doer.
Concurrent and contemporaneous recording in writing of various stages of sting operation should be made and be preserved for 90 days or any other period prescribed.

Right to Free Trial

Media trials have become quite common where the accused is being proven guilty before the actual court of law. These video’s as well as sting operations influence the general public as well as the judges. It is against the very principle of the right to free trial. The right is granted by the constitution to both citizens as well as non-citizens. In Zahira Habibuylla Sheikh vs State of Gujarat, the court explained the term free trial would mean a trial before an impartial judge, a fair prosecutor, and in an atmosphere of judicial calm. Fair trial refers to a trial in which there is no prejudice, biases against the accused, witnesses, etc.

According to the principle of natural justice, a person is held innocent unless he is proven guilty by the court. This principle is not being abided by various media agencies. There have been various instances in the past when the media has reported various fake news. In 2001, after the arrest of Afzal guru where the media played a role in creating a negative public conscience, a co-defendant S.A.R Gellani was also given a death penalty by the sessions court even with the lack of evidence. Many Media houses named him as a trained terrorist.

The Delhi High Court overturned Gellani’s conviction. According to the 200th Law Commission Report which specified reporting any prejudice against any accused in a criminal case from the time of arrest investigation and trial. The Delhi High Court in their judgment claimed that media trials do tend to influence judges. Subconsciously, it has an impact on sentencing an accused. The Supreme Court in Baker’s case held that the right to free trial is a constitutional imperative. This concept has even more importance in criminal law because the decision affects society at large. In the State of Maharashtra vs Rajendra Gandhi, the trial conducted by the press, protests, and electronic media is very antithesis to law. It leads to miscarriage of law.

There are instances in the past where media has done a tremendous job to bring the truth in front of the general public, but on the other side many innocent people have become victims of media trial even though the person cannot be proven guilty beyond a doubt, he is still convicted as because the judge is not able to succumb to the pressure of media.

International Provision on Right to conduct a Free Trial

Article 14 and 15 of International Covenant on Civil and Political Rights: This right mentions the right to conduct impartial trials. The article also mentions that no one can be held guilty of an offence which he didn’t commit under national as well as international laws.
Article 6 of Equality and Human Rights Commission: It gives access to all individuals to have a right to free trial.
Article 8, 9,10, and 11 of Universal Declaration of Human Rights: These articles mention the right to free trial and the consideration of an accused as innocent until proven guilty.

Violation of Right to Privacy

Privacy is an essential ingredient to the right to public liberty. According to Black’s law dictionary, privacy refers to the right of the person to be free from any unwanted interference. This was recognized as a fundamental right by the nine-judge bench. The right to privacy is an intriguing part of the right to life and public liberty. Various techniques used by the media to extract information is against the right to privacy. Wiretapping, telephone tapping are considered as tools which are a gross violation of the right to privacy.

In R Rajagopal vs State of Tamil Nadu, the Supreme Court held that a citizen has the right to safeguard the privacy of his family, marriage, education, and other matters. No one can publish anything without his consent, no one can publish anything without his consent.

A sting operation is a clear intrusion of individual privacy.

In the Uma Khurana case, the Hon’ble Court held that incidents of false and fabricated sting operations directly infringed the right to privacy because of having a desire to earn a higher TRP rating that should not occur.

In Kharak Singh vs State of Uttar Pradesh, the apex court, in this case, held that over-commercialization is breaching an individual’s privacy. The right to privacy is an essential ingredient of a democratic society. Though the media is considered an important backbone of a democratic society there have been various instances in which due to sting operations have encroached the privacy rights of an individual.

The Labour liberation front vs State of Andhra Pradesh, the court claimed that there is a gross misuse of technological advancement and unhealthy environment leading to an intrusion of privacy of a competition. It becomes the responsibility of the government to protect the privacy of the citizens therefore more stringent laws should be made in this issue to protect the essential right of privacy.

International provision of the Right the Privacy

Article 12 of the Universal Declaration of Human Rights: It mentions that no person shall be subjected to interfere with another person’s privacy, family home correspondence, or attack upon his honor and reputation. Everyone has protection under the law against such interference.
Article 17 of the Universal Declaration of Human Rights: It imposes responsibility on the government to protect individuals from unlawful interference with privacy, home, or corresponding unlawful attack on honor and reputation.
Article 16 on the convention of rights of a child: This section protects minors from unlawful interference to his/ her right to privacy. It is an obligation on the State.
Article 14 international provision for the protection of migrant workers and members and family: No migrant workers or their families shall be subjected to unlawful interference on their right to privacy. Each of them shall have protection from unlawful attacks.

Various restrictions on freedom of press apart from constitutional provisions

Section 499 of the Indian Penal Code: According to this section if any person by either word spoken, gesture, visual representation published with an intent to defame would be liable for punishment.
Section 327 of the code of criminal procedure: The proceeding happens in the open court where the general public has access to it. Provided that if the judge feels that the person should be given in the entry shall be removed from the room.
Section 22 of the Hindu Marriage Act: It mentions that proceedings shall be held a camera and cannot be published without the prior permission of the court.
Section 376 D, 376A, 376A of the Indian Penal Code: Inquiry and trial of rape should be conducted in camera.

Cases where Sting Operation was used as an evidence

Aniruddh Bahal vs State (2010)

Facts: In this case, a sting operation was conducted against two politicians where the members of parliament were offered money for asking questions in parliament. Soon after it was aired on the television, an FIR was registered against the politician. The question was whether it was valid to conduct a sting operation?

Judgment: The Delhi High Court recognized sting operation as evidence and held that according to Article 51A(b) and 51A(j) it was the duty of the ordinary citizen to conduct these operations. It was an act done in the public good. The public officials in this case couldn’t have claimed the right to privacy.

Courts on its own motion v. State (2020)

Facts: In this case, a television news channel named Live India had conducted a sting operation on a school teacher forcing a girl into prostitution. It was proved after the investigation that Ms. Khurnna(School teacher) was not involved in a prostitution racket case. The Information and Broadcasting ministry issued a notice against the channel. In 2007, the Delhi High Court took Suo Moto cognizance of this case.

Judgment: The court held that the Information and Broadcasting ministry should examine the guidelines. The guideline stipulates media to have a standard of decency.

Rajan Ram Pal v. The Hon’ble Speaker of Lok Sabha (2007)

Facts: In this case, a private news telecast forecast aired a program which claimed that 10 MP’s were involved in bribery, A committee was set up to investigate this matter. It had been found that they had committed misconduct and contempt. The Loksabha according to the findings removed them from their positions. In Rajya Sabha, an ethics committee was set up, which held that the ministers took the money and therefore, they were expelled. They filed a writ petition against their expulsion.

Judgment: The court rejected the claims of the ministers and held that even the houses set up a probe and were expelled on the basis of their misconduct so that their expulsion is a valid one.

R.K. Anand Case (2009)

Facts: In this case, RK Nanda a prominent criminal lawyer was charged with contempt of court because he tried to influence the witness and was caught in the sting operation.

Judgment: The Supreme Court had convicted R.K. Anand suspended his license. The court held that the sting operation was in the public interest.

Godhra Case (2002)

Facts: In this case, journalists working in Tehelka news channel recorded a video of two star witnesses, who claimed that they were paid to make such statements in the court. This was presented in the sessions court.

Judgment: The sessions court rejected to consider it as evidence because it was a sting operation carried out without the authority.

International comparison of Sting Operation

United States of America: In the United States sting operation is legal. Entrapment is not considered legal in the United States where a person is induced to commit a crime.

United Kingdom: In the UK sting operation is considered to be a legal practice.

Canada: It is legal for the media to extract information by the method of the sting operation.

Sweden: It has a restrictive approach and has denied carrying out of the process of a sting operation to collect information.

France: It has a very similar approach as that of Sweden and has denied the right to the press to carry out sting operations.

Conclusion

Freedom of the press is an important cornerstone of democracy. The press not only provides information to the general public but also influences the public to form an opinion on an issue. Media started sting operations with an intent to expose crimes where evidence could not be obtained by any other process of investigation, being necessary to provide information to the general public as because they have the right to know, but in the recent years the intent has been replaced by public interest for over sensitization of crime to gain publicity. While conducting operations they don’t care whether there is any breach of any individual privacy or not.

Though freedom of speech and expression covers freedom of the press, it is not an absolute right. There are restrictions on this right as well. It is necessary for the Information and Broadcasting ministry to impose strict guidelines and stricter punishment on those operations which are against the rights of other individuals. It is also equally important that sting operations should not be considered as an illegal weapon and should be carried out respecting the rights of the other individual.