Comprehending the Legal Status of Sting Operations

Profile of the Author- Shriya Ojha is a 2nd-year student of LLB at Faculty of Law, University of Delhi. She is deeply interested in constitutional and criminal law.

Introduction

Sting operations have been a much-talked-about and controversial tool of investigative journalism. It is an operation designed to catch a person in committing a crime by means of deception. The advent of miniaturized audio and video recording devices like pinhole cameras etc. enable one to discreetly record audio/video recordings of conversations or actions of individuals. The word “sting” originated and popularized by an American movie ‘The Sting’ in 1973 which depended on a plot incubated by two men to trap a third individual into carrying out the wrongdoing. [1]

Sting Operations in India

Freedom of press although not an exclusive fundamental right, has been read as a part of freedom of speech and expression under Article 19(1)(a). [2] However, in a civil society no right, howsoever invaluable, can be considered absolute, unlimited, or unqualified in all circumstances. The freedom of the media, like any other freedom recognized under the Constitution, has to be exercised within reasonable boundaries. Freedom of the media, like any other freedom recognized under the Constitution, has to be exercised within reasonable boundaries. A few nations like the US, UK and Canada have perceived sting operations completed by legal enforcement agencies as lawful techniques for gathering evidence.[3] However, in India, there are no directions regarding the test for legality of sting operations, no legal or administrative framework around sting operations and there is no nexus in decisions given by various courts which makes this an important issue for consideration. In such a scenario, an important question that arises is that is it appropriate for media houses to act as “law enforcement agencies.”

There have been instances of the court upholding the validity of sting operations such as R. K. Anand v. NCT of Delhi [4] and Raja Ram Pal case [5]. In the latter, Delhi High Court endorsed the legality of the sting operations directed to uncover the misconduct of the Parliamentarians that led to the ousting of 11 members from their term in the office. However, there have also been instances where the court has condemned the practice.[6] The Apex Court has abstained from providing any comprehensive legislation or guidelines with respect to sting operations. Due to lack of a legal answer to these questions, the courts have answered the question of admissibility of sting operations on the basis of whether the operation was positive or negative-

1. Positive Sting Operations are the ones which are undertaken for the benefit of the society for the larger public interest. They make known such cases which ought to be brought in the public domain since they are proved to be detrimental for the interest of the society. For example - Operations conducted by health officers for enforcement of Pre-Natal Diagnostic Techniques Act which bans sex determination of foetuses and consequent abortion; operations conducted by a news site to expose corrupt politicians and army officers taking bribe by journalists posing as businessmen etc.
2. Negative Sting Operations are those which do not serve a benefit to the society and are detrimental to the person who has been caught on camera unnecessarily and in violation of his/her right to privacy.

Legal and Ethical Ramifications of Sting Operations

Sting operations have been condemned with respect to invasion of privacy of individuals. A nine-judge bench of the Supreme Court, in a recent judgment, pointed out that privacy is an essential element of life and personal liberty and is a part of the fundamental right guaranteed under Article 21 of the Constitution in its spirit. [7] There have been quite a few instances of media abusing its power of expression by meddling in the private lives of individuals. For example, the production of what a Mumbai newspaper asserted were photos of Kareena Kapoor and Shahid Kapoor sharing intimate moments, the revelation of Shakti Kapoor's casting couch controversy, and the video of Nityananda in a compromising position with a Tamil actress, that ended her career, have all collectively added to the outcry for a more characterized right to privacy in the nation. [8] A lack of comprehensive legal infrastructure to strike a balance between the two rights leaves ample room for clashes between the two.

Trial by media is a phenomenon that initially started with the purpose of showing the truth about cases to the public but has now been dangerously interfering with the judicial system. The broadcast of sting operations happens in such a manner that prejudice is set in the minds of the public. Trial run by media does not only add prejudice against the accused and hampers his/her right to free and fair trial but also does severe damage to the person’s reputation, even after his acquittal. In the matter of Uma Khurana [9] where the court found that the sting operation was false rendered immense damage to her reputation and termination of her job.

The question of admissibility of evidence collected by means of the sting operation is also a question that remains unanswered and the courts have resorted to discretionary power over this issue. In Piara Singh case the court said that “Evidence collected by a sting operation is an extra-judicial statement given to a third party in a specific circumstance, which makes it admissible.” [10] whereas a contradictory opinion was given by apex court in State of Haryana v. Ved Prakash [11]

Over the years, with the increasing role of media in generating an informed citizenry, sting operations have been a frequently used tool in attaining the same by means of exposing evils prevalent in society. Certain media houses like ‘Tehelka Magazine’ have assumed a leading role in the area of investigative journalism and have frequently resorted to sting operations to conduct the same. But just like the term ‘‘Tehelka” suggests a sensation or a scandal, sting operations are also used in a bid to increase Television Rating Point (TRP) ratings and gathering publicity by resorting to sensationalized journalism with a view to earning a competitive edge over the others. The competitive spirit often leads to a compromise of the larger objective of public welfare. Moreover, questions have been raised as to whether it should be allowed to provoke a crime which otherwise would not have occurred. This also gives rise to the question of culpability in giving opportunity and encouragement to an offence which would not have taken place otherwise. In Rajat Prasad case [12] Justice P Sathasivam stated that “The victim, who is otherwise innocent, is lured into committing a crime on the assurance of absolute secrecy and confidentiality of the circumstances raising the potential question as to how such a victim can be held responsible for the crime which he would not have committed but for the enticement”.

Conclusion

Sting operations have been existing in the grey areas of journalism and law due to lack of regulations surrounding this. The NORMS OF JOURNALISTIC CONDUCT 2019 [13], released by Press Council of India has attempted to touch the issue by providing certain guidelines [14], but these are not comprehensive enough to deal with so many complexities. In my opinion, sting operations empower society by enhancing awareness, but every power is subject to abuse, therefore it should be extensively regulated and needs immediate cognizance by the court. The media has an enormous responsibility towards the society, and therefore should exercise their journalistic responsibility and power cautiously.

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References

[1] Sherman v. United States, 356 U.S. 369 (1958).

[2] Romesh Thappar v State of Madras 1950 AIR 124

[3] Sorrells v. United States, 287 U.S. 435 (1932) 441, 451

[4] R.K. Anand v. National Capital Territory of Delhi, 2009 S.C.C. OnLine C.A.T. 1818

[5] Raja Ram Pal v. Hon’ble Speaker, LokSabha (2007) 3 S.C.C. 184

[6] Court On Its Own Motion v State 146 (2008) DLT 429

[7] K.S. Puttuswamy v. Union of India, 2017 S.C.C. 996.

[8] Shoma Chatterjee, Sting Operations and the Ethics of Journalism, KERALA MEDIA ACADEMY

[9] Supra 6

[10] Piara Singh v. State of Punjab, (1977) 4 S.C.C. 459

[11] State of Haryana v. Ved Prakash,1994 Cr.L.J. 140 (SC).

[12] Rajat Prasad v. C.B.I., (2014) 6 S.C.C. 495.

[13] http://presscouncil.nic.in/WriteReadData/Pdf/NORMSTWOZEROONEININE.pdf

[14] The NORMS OF JOURNALISTIC CONDUCT 2019, Section 43