This article is written by Mahima Sharma, Pursuing LLB from Symbiosis Law School, Pune. The author in the article has thoroughly discussed the concept of a sting operation in India.

Introduction

A sting operation is an investigatory exercise undertaken by the law enforcement agencies to uncover misdeeds which are widespread in the country. It is built to trap a criminal who commits a crime by deception. It’s a complex trust game masterminded with good caution. The concept ‘Sting operation’ appears to have originated from the name of a famous American movie labelled the “Sting” that was filmed sometime in the year of 1973. The film was based on a complicated plot hatched by two people to trick a third person to execute an offence. To be very precise the term sting operation can be called a deceptive investigation procedure, in which the one who is investigating looks for the facts which are not easy to obtain by simple request in the situation where the commission of an offence is susceptible.

In India application of sting operation or undercover action to gather the evidence without the knowledge and consent of such stung person has attracted a lot of debate, due to-

In the first case, it impacts privacy under Article 21 and places an unreasonable constraint on freedom of speech pursuant to Article 19(1)(a) of the Indian constitution.

Second, it can provide the law compliance agencies with the ability to use secretive devices to apprehend the offenders by catching them which in the law of evidence, the product is dubious and unacceptable.

Where such detective analysis involves the usage of deceptive approaches, it poses problems that threaten to obscure the distinction between law and morality like Is lying legal when it comes to pointing out the truth? Is every approach justifiable, no matter the working conditions and the difficulties in obtaining information?

Sting operation in India

Sting Activities are carried out with a view of digging at the activities of the Government and to see if the actions of any person are contrary to public policy. These activities have properly been characterized as effective sting operations, holding governments honest and transparent. Conversely, there is also another type of such operations that do not support society in a way that violates the right to privacy. Such forms of sting activities, if allowed, would impede the independence of people and limit their freedoms. 

In S. P. Gupta vs. Union of India, the supreme court held that “no democratic government could indeed sustain without transparency, and the common idea of accountability is that people should have relevant data about the functioning of the government.”

In the case of Romesh Thappar vs. State of Madras, the supreme court has held that the public interest through freedom of discussion (of which freedom of the press is one component) derives from the necessity that individuals of a democratic country must be adequately made aware so that they can have an erudite influence on decisions which might affect them. In some, the fundamental principle involved is the people’s right to know.

Positive and negative sting operation

Positive sting operation

Positive sting operations are those which are conducted for the benefit of society to render clear those incidents which should be put to the public domain because they have been proven to be harmful to the needs of the community. We can say positive stings are all in the view of the sincere concern for the general population and designed to infiltrate the context of the government’s work process.

Negative sting operation

Negative sting operations are in contravention of the personal liberties of the individual. They do not function for the benefit of society and are injurious to the person who has been caught in the camera. Negative stings may not benefit the general public, but they are a sensationalized attempt to create an audience in the age of ‘breaking news’ by encroaching on the dignity or sanctity of a person or an entity. Few instances where it can be classified as positive and negative sting operations-

1. It was ‘Tehelka’ who foreshadowed the act of stinging operations and increased its size, follow-up, popularity, and transmission to massive levels through certain operations. One such being in march 2001 when a few defence officials and the government authorities of the governing party demonstrated in the sting recordings taking bribes, which resulted in urgent administrative action and intervention that contributed to their impeachment.
2. On 7 February, 2007, the Supreme court provided notices to a private news channel and its journalist for conducting a sting operation in 2004, which reportedly revealed that a non-refundable warrant could be released against any individual by charging a large sum in court.

Laws governing sting operation 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 pertaining to specific incidents, yet no judge has 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, 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 guaranteed by the Supreme court pursuant to Article 21 – 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, “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.

While there is no clear legislation on the validity or otherwise of a sting operation, the High court of Delhi, in Aniruddha Bahal vs. State, held stinging on the basis that it was necessary to achieve the ideals of freedom struggle, a valued desire enshrined in Article 51A(b) of the Indian constitution. The High Court stated that the right to sting was, as it were, an essential component of freedom of speech and expression, especially in the context of the pursuit of a corruption-free society. However, the opinion of the High Court is not unanimously held by the other courts. The much-awaited directives of the Press Council on sting operations are yet to be seen.

The case involving a sting operation revealed that former Environment Minister Dilip Singh Judeo obtained a bribe from an Australian mineral rights company in Chhattisgarh. On behalf of the press, it was claimed that the newspapers operate as ‘whistleblowers’ of public life and thus cannot be sued. Nevertheless, the CBI claimed, on the other side, that only the journalists concerned may be punished if there is a deliberate motive to commit a crime by these individuals or when there are certain special interests concerned and not just the public interest. These claimed that law enforcement falls strictly within the control of the forces of government. Others can only help, but they can not take the law in their own hands. Journalists in the instant event, they added, would have contacted law enforcement officials either before or shortly after the incident. Although the media act as guardians of fundamental rights, they must do so in a responsible manner.

Admissibility of sting operations as evidence

Indian legislation on the evidentiary significance of sting operation is still in a place of swirl. The work of law enforcement departments, themselves have not been accepted as full concepts of  Detection of criminality and evidence of illegal conduct. Such operations by The compliance authorities are yet to be evaluated and assessed in India and the formal recognition of these by our judicial framework is not yet in force. 

However One might argue that this evidence has been acquired through incitement or in a sense, even though fraud, and is therefore inadmissible. While there are those who consider that, where there is substantial evidence against the accused or the suspect, the same should be permissible regardless of the approach by which it is acquired. The situation remains ambiguous as the Indian courts have taken starkly different opinions. Earlier, the courts did not really concern itself with the process from which the proof in dispute had been collected. They were of the view that the evidence continues to remain evidence even though the practices prescribed in civil procedure code weren’t really conformed with.

Lately, the courts have viewed the evidence obtained through sting operations with more caution as they tend to invade into the privacy of the aggrieved person. Generally, the evidence is disregarded when it is obtained by influencing the person in committing a crime, however in the case of Sri Bhardwaj Media Pvt. Ltd. vs. State, W.P. The Indian court has gone beyond that principle and upheld the validity of the evidence obtained through sting operation keeping in mind the importance of public interest. 

In certain instances, evidence by means of undercover exercises has been viewed as an extra-judicial disclosure and is thus permissible. An extra-judicial confession cannot be the sole basis for recording the confession of the accused unless the other circumstances surrounding the confession and the material available on the record indicate his complicity.

In the case of State of Haryana vs. Ved Prakash, the Apex Court took a conflicting view by holding that the recorded statements constitute inducement and are therefore inadmissible.

To the extent sting activity by T.V. Channels is concerned, it has been endorsed and even valued by the Supreme Court as a free crime exposure system on account of Rajat Prasad vs. CBI case Supreme Court pronounced that:

1) The reason for news coverage and its job and duty in spreading data and mindfulness stands it on better balance than capture stings led by enforcement organizations in India. It is just in situations where the inquiry sensibly emerges whether the sting activity had a stake in the favours that are purportedly looked for as a return of the bribe that the issue will require assurance over the span of a full judged trial and. At that point, just the sting activity or channel may need to confront the trial for connivance under section 120B, IPC. 

2) Not just a columnist even a resident performs sting activity who has no association with the consideration that is purportedly looked for in return for the bribe, can’t be inputted with the fundamental aim to submit the offence of abetment under Section 12 of Prevention of Corruption Act, or 2014 area 120 B IPC.

Rajat Kumar’s case, in this way, allows the sting made by a journalist or individual incited by want to uncover defilement in public without rationale to look for any favour in return.

Is there a real need for sting operations?

Sting Operations became an amazing resource to discover and expose corruption and the public arena’s defilement. We’ve seen different situations where sting operations have assumed a significant part in combating crime and securing justice for all.

In addition, Article 19(1) also includes within itself the right to receive information on any event, event or incident, etc. Public interest must be at the heart of the legislation, and Sting operations must serve the public interest.

Justice Mathew, in the case of the State of UP vs. Raj Narain, stated: “The people of this country have the right to know every public act, everything that their public officials do in a public manner. Their right to know derives from the concept of freedom of speech.

In any case, in the current conditions, where government corruption is at its peak, it is difficult, in essence, to discover which actions of the Government are politically exhilarated, which are truly posited to filter the social order, or which are truly the collection of various political gatherings, their corporate beneficiaries.

Concerned problems with the sting operations 

Inducement to commit the crime

A sting operation has real legal implications. In case the defilement is uncovered that leaves the person Susceptible to felony offences.

A sting operation broadcast by ‘Live India,’ illustrated by Ms Uma Khurana, a teacher,  who allegedly intended to drive a female woman into prostitution. In the confusion that followed, Some men violently attacked her, even ripped her clothes. The Court took suo-motu’s understanding of the case and initiated hearings where the Court found that the perpetrator was innocent and a portion of the sting operation had been orchestrated dramatically. The court held that media in its efforts

Revealing the facts of the public interest does not need to go too far by moving to an entanglement of any individual.

If the charges are false, sting operations may act as a trap for responsible public officials as well. The problem is that of public morality, that is, first, you encourage an individual to commit a crime by giving him a bribe for violating the rule, and then you hold him responsible for taking the bribe. Many sting operations include having individuals perform offences that they would not have done otherwise and are thus unethical. This is opposed to public morals and justice and thus comes under the meaning of Article 19(2).

Invasion into privacy

Notwithstanding the fact that the right to privacy was not explicitly lauded in Indian  Constitution, the protection of the Right to life pursuant to Article 21, has granted protection to the Right to privacy by means of different frames of reference set out in the various case laws that have been introduced. It has also been articulated as an essential item for a cheerful existence.

An individual who is the subject of sting operation has his or her personality, reputation, or career torn to the ground after such a media exposure. His fundamental right to live with dignity and respect and the right to privacy guaranteed by Article 21 of the Constitution is infringed.

Dire consequences of a sting operation to reputation

A perfect representation of this should have been Uma Khurana’s case where the court found the sting operation to be false. Although the accused was acquitted after the sting resulted in her termination and the protesting mob attacked her.45 This case shows how sting operations can harm an innocent person and harm his reputation.

Various courts and law commissions report all around the world has seconded this view that “Media trials do tend to influence judges. Subconsciously a pressure is created and it does have an effect on the sentencing of the accused/convict”.

Sting operations in the US and UK

Sting activities in the United States of America are legal. They are regarded to be the bread and butter of the organization, given the reality of the FBI. The entrapment, though, is not legal, that is where the law enforcement officials encourage an individual or a community to commit a crime that they might otherwise have not committed. Evidence of sting operation in the U.S.A. is recognized, sting operations are valid tools or  legal Enforcement agencies to apprehend suspected offenders Various crimes, such as drug trafficking, political and judicial

Abuse, pornography, stealing of goods, traffic offences, etc.

Across the United Kingdom too, sting operations are deemed to be legal, but in a restricted manner.

Conclusion

There needs to be a set of laws and effective regulation. This is now suggested for the establishment of a sovereign quasi-judicial organization, with both censorship forces and productivity. This is also proposed that a regulation will be enforced to prohibit media from intervening with people’s privacy in the name of a sting operation. Since there are no provisions dealing with the admissibility of the evidence obtained through a sting operation, The courts should give less acknowledgement and exposure to the defendant Conferring an offence when the proof is measured against admissibility. Greater enunciation should be set down on how the offence that’s been committed would have anyway been done even if there was no inducement. Auto-visuals of sting operations can be required to be displayed so far as it is not a media trial and Will not intentionally or unintentionally influence the value of the case during trial pending. What’s more, the court must Be cautious and diligent in safeguarding freedoms and integrity to people.

A sting activity must have the assent of a suitable authority. Since no such position exists in India, and until it is set up, a sting activity by a private individual or office, should have the assent of a court of capable jurisdiction which might be in a situation to guarantee that as far as possible legal limits are not violated.

References

• http://timesofindia.indiatimes.com/city/delhi/Fake-sting-Uma-Khurana-withdraws-defamationcase/articleshow/3629666.cms
• www.firstpost.com/india/media-trials-tend-influence-judges-delhi-hc-indias-daughter-documentary2149773.html

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