Sting Operation: Legal, Illegal or Beyond the Law

Problem Definition

As the fourth estate outside the Government, the media plays an important role in a democratic society. In fact, democratic credentials are judged by the extent of freedom the media enjoys in a particular state. This is why most constitutions worldwide guaranteed freedom of the press as a fundamental right.

But in India, the press’ freedom of expression is akin to that of a citizen – and hence either restricted or not duly regulated. The Constitution of India does not expressly mention the liberty of the press. Instead, Article 19-1-A includes it under citizens’ freedom of speech and expression.

Liberty of the Indian media may be illustrated thus: Article 19-1-A incorporates within itself right to receive information about any event, happening or incident etc. And freedom of speech includes freedom to communicate, advertise, publish or propagate ideas and the dissemination of information.

Dissemination of information is inevitably preceded by uncovering information, which brings us to Sting Operations.

Sting Operations were initially about exposing acts of an institution or individual that are against the public order. They were meant to empower society with enhanced awareness, but several instances over the years have been more about the pursuit of profit and short-term sensationalism.

The carrying out of a sting operation may be an expression of the right to free press but it carries with it an indomitable duty to respect the privacy of others. In India we have no specific laws to govern such operations. There are no judicial pronouncements till date that specifically redress operations that have violated the rules of journalism.

Nevertheless, citizens can go to the court under various other laws to protect themselves against defamation, invasion of privacy, etc via the media. This leads us to several pertinent questions:

-Under what conditions, and against whom, should a sting operation be allowed?

-If a sting operation is conducted on the basis of doubts that are later found baseless, who will compensate the violated party – and how?

These and other related queries may be addressed by a study of how the Apex Court has dealt with such cases despite no specific guidelines.

Objective

-Weigh the pros and cons of sting operations through a few landmark cases

-Understand exactly where sting operation lie in our constitution

Case study I: The BMW Hit-and-Run Case, January 1999

The drunken driving of Sanjeev Nanda, son of an arms dealer, crushed six lives in Delhi a decade ago, and the rich and high profile accused also attempted to crush justice, which was brought to light by a sting operation of NDTV. The media trial judgment came as morale booster to constructive sting operations, of course with some cautions and limitations. While appreciating the TV channel’s exposure of a renowned criminal lawyer’s crime of bribing a witness, the apex court declined to regulate media in the interest of an autonomous judiciary and a free media. The 100 page judgment by Justices Agrawal, G S Singhvi and Aftab Ali is an essay on trial by media analyzing both good and bad of sting operations.

Sting Operation

NDTV has telecast a program on May 30, 2007 showing Sunil Kulkarni (key witness to BMW crushing crime) with I U Khan, (Special Public Prosecutor) and R K Anand, (Senior Defence lawyer) negotiating for his sell out in favour of the defence for a very high price. Earlier Kulkarni was dropped by the prosecution but summoned after the telecast. TV channel claimed before court that telecast was based on a clandestine operation by concealed camera with Kulkarni acting as the mole.

Judgement

A city court on Sep 5, had sentenced him to five years of rigorous imprisonment, convicting him under Section 304 (2) of the Indian Penal Code – culpable homicide not amounting to murder.

Analysis

Although many questions aroused regarding the media’s role in this case like, was it appropriate for the media to air the tapes during court proceedings? Does it adversely affect or prejudice the parties involved? At a broader level does this vitiate fair trial? But the Court denied all these acquisitions and accepted that the NDTV was in fact trying to prevent the advocates’ attempt to interfere in the course of justice. It exposed erring lawyers. Further, the stings had nothing to do with the accused, Sanjeev Nanda. The court in fact appreciated the sting.

This expose is a huge embarrassment for the police also because it was their responsibility to ensure fair trial. This case involved two of the country’s most high profile lawyers – R K Anand and I U Khan. NDTV investigated how the prosecution, the defence, and the only witness who has not turned hostile, Sunil Kulkarni, collude. This investigation has also revealed how the legal system may have been subverted in the high profile BMW case. And in order to set an example that nobody can play with the law, court for the first time convicted the accused in a hit and run case under Section 304 (2). In most cases, the conviction is under Section 304 (1) – causing death by rash and negligent act – in which the maximum sentence is two years. But, he has been given 5 years of rigorous imprisonment.

This wouldn’t be possible if the sting operation had not revealed the truth behind the curtain.

Additional Information

The apex court has respectfully distanced itself from interfering with the expression autonomy of media by rejecting the plea to lay down guidelines for sting operation. The Supreme Court did not agree with the contention that media could not proceed with sting without prior permission from the court. It rightly said: “Such a course would not be an exercise in journalism but in that case the media would be acting as some sort of special vigilance agency for the court. On little consideration the idea appears to be quite repugnant both from the points of view of the court and the media. It would be a sad day for the court to employ the media for setting its own house in order; and media too would certainly not relish the role of being the snoopers for the court. Moreover, to insist that a report concerning a pending trial may be published or a sting operation concerning a trial may be done only subject to the prior consent and permission of the court would tantamount to pre-censorship of reporting of court proceedings. And this would be plainly an infraction of the media’s right of freedom of speech and expression guaranteed under Article 19(1) of the Constitution. This is, however, not to say that media is free to publish any kind of report concerning a sub-judice matter or to do a sting on some matter concerning a pending trial in any manner they please. The legal parameter within which a report or comment on a sub-judice matter can be made is well defined and any action in breach of the legal bounds would invite consequences. Compared to normal reporting, a sting operation is an incalculably more risky and dangerous thing to do. A sting is based on deception and, therefore, it would attract the legal restrictions with far greater stringency and any infraction would invite more severe punishment.” This is the heart of the judgment on free press and fair trial

But the judgment of apex court comes with a caution. “If the trial by media or sting makes prejudicial pre-judgment as to the guilt or otherwise of accused, it could definitely attract the provisions of Contempt of Court. Another major constraint on stings and trials by media is the public interest. If public interest is missing and self or manipulative interests surface, the media loses its ground and invites the wrath of the court”.

Case Study II: Jessica Lal Murder Case, April 1999

Jessica Lall (1965-1999) was a model in New Delhi, who was working as a celebrity barmaid at a crowded socialite party when she was shot dead on April 29, 1999. Dozens of witnesses pointed to Siddharth Vashisht, a.k.a. Manu Sharma, the son of Venod Sharma, a wealthy Congress politician in Haryana, as the murderer. The model was gunned down at the crowded Tamarind Cafe, after she refused Manu and his friends a drink. All three — Shayan, Karan Rajput and Shiv Das — initially told investigators that Manu fired two shots, one in the air and the other at Jessica’s temple, that night. All three also signed on Manu’s photo at that time to identify him. In court, however, all of them turned hostile, refusing to identify Manu as Jessica’s killer. Additional sessions judge S L Bhayana blamed a shoddy investigation for letting them off; he got a promotion — officially explained as ‘due’ — soon after. In the ensuing trial over seven years, Manu Sharma and a number of others were acquitted on February 21, 2006.

Following intense media and public pressure, the prosecution appealed (a rare measure) and the Delhi High Court conducted proceedings on a fast track with daily hearings over 25 days. The lower court judgment was found faulty in law, and Manu Sharma was found guilty of having murdered Jessica Lall. He was sentenced to life imprisonment on December 20, 2006.

Sting operation

Tehelka had carried out a three-month sting operation against three key witnesses Shayan Munshi, Karan Rajput, and Shiv Das – who had turned hostile in the ramp model murder case leading to the acquittal of main accused Manu Sharma. The operation had sought to reveal how money and muscle power were allegedly used to coerce the three witnesses into changing their stand in court despite having given statements to the police accusing Manu Sharma of the crime. Three prime witnesses in the Jessica Lall murder case were caught on camera saying they had lied in court. Model-turned-film actor Shyan Munshi, a prime witness in the case, was shown talking fluently in Hindi although he had said before the court he did not know the language. He had retracted from his written statement in court saying since he did not know Hindi he had no clue what the police had written in the first information report (FIR). Another of the witnesses, Shiv Das, who used to work as an electrician at Tamarind bar, is also there on tape, admitting he was ‘majboor’ when he changed his version of things in court. Similarly, Karan Rajput, who died in Jan 2005 of cirrhosis of the liver, ran up bills of Rs 80,000 in two Delhi hospitals, investigations by Tehelka revealed.

In court, however, all of them turned hostile, refusing to identify Manu as Jessica’s killer. Additional sessions judge S L Bhayana blamed a shoddy investigation for letting them off; he got a promotion — officially explained as ‘due’ — soon after.

Judgement

On December 15, 2006, the High Court bench of Justice R S Sodhi and Justice P K Bhasin, in a 61-page judgement held Manu Sharma guilty based on existing evidence.

Analysis

In this case, the sting operation by Tehelka played a key role in collecting evidence establishing that money and muscle had been used by the powerful Sharma family to influence the witnesses in the trial. The spectacular revelations of the sting operation acted as a catalyst, creating tremendous pressure through the media and civil society organisations, thereby accelerating judicial proceedings and ultimately leading to the conviction of the accused, which was difficult to achieve. The operation not only solved brought reliable evidence against the proceedings of the lower court, but at the same time unveiled the faces of our corrupt leaders like Venod Sharma (Father of Siddarth Vashisht alias Manu Sharma, the main accused in the Jessica Lal murder case) who at that time was the influential congress leader and Haryana Power Minister. He was considered to be the second most powerful person in the Haryana government after Chief Minister Bhupinder Singh Hooda. But, he had to resign from the state cabinet after the sting operation which showed the key witnesses saying that they were allegedly paid off to shield his son.

Here, the media not only helped the victim but also performed the job which the police should have performed viz. to collect the evidences against the criminal and help the court to give the right judgment.

Case Study III: Nitish Katara Murder Case, February 2002

Nitish Katara was 24 year old Indian business executive in Delhi, who was murdered in the early hours of February 17, 2002, by Vikas Yadav, the son of influential criminal-politician D P Yadav. Nitish had recently graduated from the Institute of Management Technology, Ghaziabad, where, he had fallen in love with his classmate, Bharti Yadav, sister of Vikas. The trial court held that Nitish’s murder was an honour killing because the family did not approve their relationship. Vikas and Vishal Yadav were later found guilty by the trial Court and awarded life sentence on 30 May 2008.

Vikas and Bharti Yadav’s father, D P Yadav, is a noted criminal-politician, the “unrivalled don of western Uttar Pradesh”. Before entering politics, D P Yadav had racked up nine murder charges, and was implicated in a bootlegged liquor sale which killed 350 people in the early 1990s.

The Yadav family never liked Bharti’s liaison, and Nitish had received threats several times. However, he was an idealist, and believed in “standing up to injustice”. On the night of 17 February, 2002, Nitish and Bharti were attending a common friend’s wedding where Bharti’s brother Vikas and a cousin were present as well. From there, Nitish was taken for a drive by Bharti’s brother Vikas and Vishal Yadav, and never returned. Nitish’s fatal mistake was that he agreed to go with them, apparently thinking that Vikas really wanted to talk and sort out the differences between them; he failed to sense that the hidden motive behind the drive was solely to end Bharti’s love tangles with him. Three days later, his body was found beside the highway; he had been battered to death with a hammer, diesel poured on him, and set aflame.

The ensuing trial followed the trajectory of many cases involving money and muscle power in India. A number of respectable witnesses, including key friends of both Nitish and Bharti, repudiated their initial testimony. However, owing to intense media scrutiny, and also the strength of the evidence, a conviction ensued. This follows other notable high-profile convictions (such as Manu Sharma), though other cases (e.g. Sanjeev Nanda) often get away.

Sting Operation

Vikas and Vishal went underground, but they were arrested a few days at a train station in Dabra, Madhya Pradesh. Inspector Ashok Bidhoria arrested Vikas and Vishal Yadav in Dabra, and in his original statement to the court, he said that the Yadavs had confessed having kidnapped Katara from Kavi Nagar, Ghaziabad. However, under cross-examination the inspector changed his stand saying the accused persons made no confessional statements in his presence.

Another police constable, Brij Mohan Mishra, who was at the Dabra police station where the Yadavs were brought after being arrested, said in court: “The accused persons themselves said that they had murdered Nitish Katara after kidnapping him. He added that he had told inspector Bidhoria about the disclosure, but Bidhoria “did not produce me before any magistrate to get my statement recorded”.

Apparently, Ashok Bidhoria’s brother is a business associate of D P Yadav, but he denies that this fact may have had any bearing on his actions. After this they were handed over to the U.P. police, and during their second trial they gave a more detailed confession on having kidnapped and killed Nitish Katara, which the Police recorded on audiotape. In May 2006, the NDTV news channel managed to obtain the tape and broadcast it, which gives a detailed sequence of what might have happened. The channel also did a sting operation in which they captured Ajay Katara, D P Yadav’s nephew and the key witness of the case, in a CD which allegedly showed him admitting to taking bribe for testifying in the case.

Additional Sessions Judge Ravinder Kaur who was to decide prime accused Vikas Yadav’s application seeking re-examination of Ajaya Katara following emergence of alleged new developments in the case, said, “I will first watch the CD before deciding the application.”

Judgement

Six years after the brutal murder of Delhi boy Nitish Katara, a court held influential Uttar Pradesh politician D.P. Yadav’s son Vikas Yadav and his nephew Vishal Yadav guilty. The courtroom was packed as Additional Sessions Judge Ravinder Kaur announced her verdict in the high profile case and held the Yadav brothers guilty of murder, kidnapping and destruction of evidence. On May 30, 2008 a New Delhi fast track court awarded life term to both brothers Vikas and Vishal Yadav for their involvement in Nitish katara Murder. Both were also fined of Rs 1.6 lakh each.

Analysis

Sting operations would have no relevance in a society where the police did its job fearlessly, without interference from political bosses, and without corruption. But in the Nitish Katara case both political pressure and money were involved at almost every level. Both accused persons even after admitting their crime in front of police turned hostile and the officer did not do anything about it, possibly because he was the business partner of D P Yadav. The father of accused also tried to buy the prime witness Ajay Katara which NDTV successfully captured in its sting operation. The audio tape of the accused’s confession and the CD in which Ajay katara was taking bribe both gave impetus to the case.

“I thank god and the media for helping me out in this long battle’’: these are the words of Neelam Katara, Nitish’s mother, which shows that the sting operation played an important role in bringing out justice in this case.

Case Study IV: Uma Khurana’s Case, August 2007

Uma Khurana, a mathematics teacher at Sarvodaya Kanya Vidyalaya in Delhi’s Daryaganj, lost her job, had to face a violent mob, and spent a week in jail after a “sting operation” claimed she was luring students into the flesh trade.

The police registered a case against Uma Khurana under the Immoral Trafficking Prevention Act after the “sting” was aired by a TV channel on the morning of August 30. Soon afterwards, there were protests outside the school and a mob forced its way into the premises and attacked the teacher, who was escorted away by the police. Later the Delhi government declared that Uma Khurana had been suspended and that a probe had been ordered. On September 10, a Delhi court granted her bail, saying she was not an accused but a victim.

The Additional Chief Metropolitan Magistrate said that it now appeared that she had no role to play in the alleged prostitution racket. Investigations have reportedly shown that the two men now in police custody for organising the sting, Prakash Singh and Virender Arora, wanted to settle an old score with Uma Khurana: she apparently owed Virender money. The Delhi High Court has since asked the government to reinstate her in her old job.

Sting Operation

The sting operation was conducted by Prakash Singh, a India Live TV Channel reporter. The sting operation showed a schoolgirl who claimed that she was persuaded by Uma Khurana to indulge in prostitution. The telecast of the video on the TV news channels created chaos in Old Delhi’s Daryaganj and nearby areas.

However, further investigation shocked the police, public and media fraternity of the country. The unedited version of the tapes revealed that Uma Khurana had been framed and there was hardly any truth in the original story. The entire drama was conducted by Prakash Singh and Rashmi Singh, who writes for a Hindi newspaper. She posed as a schoolgirl in the sting operation.

After going deep into the matter, the police found that the entire sting operation was conducted on behalf of a businessman who had animosity towards Khurana. He hired Prakash Singh and Prakash took the help of Rashmi to frame Uma Khurana. And,the girl who had been shown as a student who was allegedly being forced into prostitution by Ms Uma Khurana was neither a school girl nor a prostitute but a budding journalist (Rashmi) eager to make a name in the media world. The police found no evidence to show that Ms Khurana was involved in a prostitution racket. Both Prakash and Rashmi have been arrested and were sent to judicial custody.

Judgement

On 12 September 2007, the high court in the Indian capital, Delhi, ordered that the school teacher who was sacked after a fake television “sting” operation, Uma Khurana, must be reinstated. A police investigation later revealed the sting had been faked and the teacher falsely accused. The undercover journalist, Prakash Singh, who made the report was arrested. Police later questioned staff at the Live India news channel which broadcast the secretly-filmed tape on 30th August. Announcing her bail, the judge said she had been “more of a victim than an offender”.

Impact

The Indian Government banned the channel for a month due to the false sting. It was banned because it breached the Cable Networks Regulation Act, 1995, by broadcasting an admittedly doctored sting operation

Analysis

In this case the sting operation had seriously violated the rules of journalism in the pursuit of profit and short-term sensationalism. This act not only damaged the image of media in society but it also created fear in the minds of people against sting operations. It was a painful experience for Ms. Uma Khurana as she not only lost her reputation but also her job. Although she got her job back in the end, but it isnot possible for her to revert to her normal life, the way it was before the sting operation. Whatever physical and mental torture she has been through during the days following the operation cannot be erased from her life. This case shows us the irresponsible attitude of media-persons responsible for broadcasting news stories on their channel on the one hand, and the corruption in media houses on the other, and how it is possible for corrupt media institutions to play with the lives of innocent people for their own benefit.

In its aftermath, the question that beckons common people is how the recurrence of such an incident can stopped so that an innocent person cannot be victimised and made to lose reputation. In answer to this the apex court has declared the following guidelines:

Guidelines on Sting Operations

1. A channel proposing to telecast a sting operation shall obtain a certificate from the person who recorded or produced the same certifying that the operation is genuine to his knowledge.

2. There must be concurrent record in writing of the various stages of the sting operation.

3. Permission for telecasting a sting operation should be obtained from a committee appointed by the Ministry of Information and Broadcasting. The said committee will be headed by a retired High Court Judge to be appointed by the Government in consultation with the High Court & two members, one of which should be a person not below the rank of Additional Secretary and the second one being the Additional Commissioner of Police. Permission to telecast sting operation will be granted by the committee after satisfying itself that it is in public interest to telecast the same. This safeguard is necessary since those who mount a sting operation themselves commit the offences of impersonation, criminal trespass under false pretence and making a person commit an offence.

4. While the transcript of the recordings may be edited, the films and tapes themselves should not be edited. Both edited and unedited tapes be produced before the committee.

5. Sting operation shown on TV or published in print media should be scheduled with an awareness of the likely audience/reader in mind. Great care and sensitivity should be exercised to avoid shocking or offending the audience.

6. All television channels must ensure compliance with the Certification Rules prescribed under the Cable Television Network (Regulation) Act 1995 and the Rules made there under.

7. The Chief Editor of the channel shall be made responsible for self regulation and ensure that the programmes are consistent with the Rules and comply with all other legal and administrative requirements under various statutes in respect of content broadcast on the channel.

8. The subject matter of reports or current events shall not:

(a) Deliberately present as true any unverified or inaccurate facts so as to avoid trial by media since a “man is innocent till proven guilty by law”;

(b) Present facts and views in such a manner as is likely to mislead the public about their factual inaccuracy or veracity;

(c) Mislead the public by mixing facts and fiction in such a manner that the public are unlikely to be able to distinguish between the two;

(d) Present a distorted picture of reality by over-emphasizing or under-playing certain aspects that may trivialise or sensationalise the content;

(e) Make public any activities or material relating to an individual’s personal or private affairs or which invades an individual’s privacy unless there is an identifiable large public interest;

(f) Create public panic or unnecessary alarm which is likely to encourage or incite the public to crime or lead to disorder or be offensive to public or religious feeling.

9. Broadcasters/Media shall observe general community standards of decency and civility in news content, taking particular care to protect the interest and sensitivities of children and general family viewing.

10. News should be reported with due accuracy. Accuracy requires the verification (to the fullest extent possible) and presentation of all facts that are necessary to understand a particular event or issue.

11. Infringement of privacy in a news based/related programme is a sensitive issue. Therefore, greater degree of responsibility should be exercised by the channels while telecasting any such programmes, as may be breaching privacy of individuals.

12. Channels must not use material relating to persons’ personal or private affairs or which invades an individual’s privacy unless there is identifiable larger public interest reason for the material to be broadcast or published.

Case Study V: Death of AMU’s Gay Professor, February 2010

Dr Sreenivas Ramchandra Siras, a Marathi professor at the Aligarh Muslim University (AMU), was sacked after being taped having sex with another man. The film was circulated among university authorities, following which Professor Siras was suspended on grounds of “gross misconduct” and an inquiry was ordered against him. He then took his case to the Allahabad High Court, arguing that the cameras placed in his home without his knowledge were an invasion of his privacy. He also said the action taken against him by the university violates the recent court order that has decriminalized homosexuality. The Allahabad High Court revoked the suspension and ordered his reinstatement. The Court ordered AMU to not just take him back, to but provide him accommodation till his retirement later this year. The court stayed the university’s decision on April 2. Five days later, Siras was found lying on the bed in his private apartment outside the university after police broke open the door which was locked from inside. His cell phone was missing, fuelling suspicion that his death was a result of foul play.

On April 9, an FIR was lodged on the order issued by the Chief Judicial Magistrate in response to a plea filed by Siras before his death. The Proctor of AMU Zubair Khan, Prof NAK Durrani, Media Advisor to the vice chancellor, PRO Rahat Abrar and two media-persons belonging to a private news channel have been named in the FIR.

Sting Operation

Siras was filmed in a consensual homosexual act with a rickshaw puller in his room in the AMU premises. The cameras were secretly placed in his apartment, and the tape was then circulated among university authorities. Police officials suspect the rickshaw puller of being a gay prostitute.

Judgement

The Allahabad High Court stayed the order and directed the reinstatement of Prof. Siras and the return of his apartment in the Medical Colony residential area of the university. The police is still investigating the death of Prof. Siras. Since his post-mortem report was inconclusive, the results of further tests are being awaited.

Analysis

  • Last year the Delhi High court decriminalised homosexuality. Being a hetro/homosexual is person’s own choice, nobody has the right to say anything against it. But his being a gay became a big issue and a sting operation was done to defame him.
  • This is a case of invasion of privacy because, it is illegal to use cameras, tapes etc covertly against another person in his or her house or office. And this person was captured in camera which the journalists of a private channel have planted in his own room.
  • On the basis of the available information it is clear that the sting operation has a big role in his death.
  • This sting operation was just to come into the limelight as the channel was just launched and not many people are aware of it. It was not meant to serve any public interest.

Argument

Following are the arguments that came up after Uma khurana’s case:

“Such incidents should not happen and false and fabricated sting operation, directly influencing upon a person’s right to privacy, should not recur because of desire to earn more and to have higher TRP,” a Bench comprising Chief Justice M K Sharma and Justice Sanjeev Khanna said.

“No doubt the media is well within its right domain when it seeks to use tools of investigative journalism to bring us face to face with the ugly underbelly of the society,” the Bench said.

“There is no doubt and there is no second opinion that truth is required to be shown to the public in their interest and the same can be shown whether in the nature of sting operation or otherwise but we feel that entrapment of any person should not be resorted to and should not be permitted,” the Court said.

The Delhi HC’s proposal suggests setting up of a committee by the Information and Broadcasting ministry to okay sting telecast on channels. The job of the panel will be to issue a NOC only after being satisfied that the operation would serve public interest.

While the move will hopefully contain cases of unauthentic operations or those where people are unwittingly trapped in such sting operations, the proposal itself does not have many buyers.

Calling it a “ridiculous suggestion that should be scrapped immediately”, Tarun Tejpal, noted journalist credited with pioneering the trend of sting operations in India, reacts: “Why should we hand over the power to the state? They are are no repository of moral standards!”

At the same time, Tejpal opines that certain sting operations, especially on celebs or those allegedly exposing the practice of casting couch, serve no public interest. “They are bad journalism, but it doesn’t mean there should be a blanket ban on sting operations.” Instead, his suggestion is that if there “has to be a regulatory authority, it should be from within the journalist fraternity.”

While some feel the move will curtail the freedom of press, others call it a cover-up for the alleged corrupt practices.

VK Mehrotra, High Court judge (retd), shares. “A case-to-case examination is a better idea than handing the overall censorship charge to a government body. It would curtail the freedom of the press, which can also be seen as violation of the right to free expression.”

But then, how can there be a check on fake sting operations? Advises Mehrotra, “The victim is empowered to file a case against the channel where, if the operation is proven fake, it can cost it lakhs in fines. Otherwise, sting operations are the only means to cleanse the society by exposing untold truths about people who are otherwise considered respectable.”

There is the classic ethical problem that haunts all sting operations: can you hold somebody responsible for a crime that he would not have committed if you hadn’t encouraged him? The essence of all entrapment is that you promise a man a reward for breaking the law and then, apprehend him when he takes the bait. All sting operations involve making people commit crimes that they would not otherwise have committed and are therefore immoral. It is against the public morality and decency and hence falls within the purview of Article 19 (2).

The 17th Law Commission in its 200th report has made recommendations to the Centre to enact a law to prevent the media from interfering with the privacy rights of the individuals

Conclusion

In India we have no specific law which governs such operation and also we had no judicial pronouncements till the Uma khurana’s case which guides such operations or the acts of the media. But people go to the court under different laws to protect their rights and freedom.

In all the cases that I have discussed in this paper sting operations had played a major role, but it was not always constructive, sometimes it appeared to be very destructive. Various questions were also raised in different cases against or in support of sting operations.

In cases like BMW hit-and-run case and Nitish katara murder case etc, it seems that if those sting operations wouldn’t have been done, it was almost impossible to get the justice. But at the same time, in Uma khurana and Prof. Siras’s cases sting operation destroyed their life just for the sake of sensationalism and to settle their own score.

As I have discussed before that we have freedom of expression under Article 19(1)(a) but it is not absolute, there are reasonable restrictions also under Article 19(2) which protects the public interest, morality and decency. A person who welcomes media interest in his life will not be able to claim a right to privacy as easily as a ‘private individual’. There is vast room for interpretation, especially with terms such as ‘private affairs’ and ‘public interest’; and interpretation will be made by the regulatory authority even though the onus on proving that a particular publication was in public interest lies with the media house. Undoubtedly, the jurisprudence of the Supreme Court will certainly influence interpretation The Apex Court has always upheld the importance of an informed citizenry. A ‘sting operation’ with a genuine motive to create awareness of wrongdoing, cannot be proscribed or prohibited but when it comes to invasion of privacy and defaming an innocent person, strict actions should be taken against it.

In a country like ours where corruption and dishonesty has gone deep into the veins of the people, the humungous facts revealed by sting operations like in BMW hit-and-run case and Nitish Katara murder case, cannot be overlooked. If a person of eminence does some wrong, people have right to know about it but inducing someone to commit a crime like what media did in Uma Khurana’s case and revealing it in the name of social interest is unethical. Media needs to be accountable to the society. It should gather news not create news and when it indulges in creating news, it goes off balance. Media should not fail the people. The content aired should be securitized very carefully lest it should create social unrest in the society.The irresponsible behavior of media needs to be checked and for that court has given some guidelines which I have already discussed.

Although, we have guidelines regarding sting operation now but, some questions still exist:

  • Why is the delay in setting the guidelines though we had cases like Uma Khurana in the past also?
  • To what extent will guidelines be followed in future?
  • Are these guidelines sufficient or there is a need of a specific law in our constitution?
  • What will happen with those cases which are still in court like Shakti Kapoor’s, ND Tiwari’s, Cash for Query etc. Will these guidelines be applicable to these cases also?
  • Supreme court in R. Rajagopal and Another v. State of Tamil Nadu case clearly said that nobody can publish anything concerning the person’s private life without his consent, but if we look at the cases happened after this judgement we can see how it has been followed so far.

Other cases which also need attention:

The Supreme Court rulings in R Rajagopal and Another vs State of Tamil Nadu (October, 1994) and other cases are true reminiscence of the limits of freedom of press with respect to the right to privacy:

“A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. No one can publish anything concerning the above matters without his consent – whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.”

In People’s Union for Civil Liberties vs Union of India, the Supreme Court made a decision which says that wiretaps are a “serious invasion of an individual’s privacy” The Court also laid out guidelines for wiretapping by the government, which define who can tap phones and under what circumstances. Only the Union Home Secretary, or his counterpart in the states, can issue an order for a tap.

In Cash-for-Query Scam, 2005: 11 MPs were caught on-camera accepting bribe for asking questions in Lok Sabha during a sting operation, code-named Operation Duryodhana. This operation was conducted jointly by Cobrapost.com and Aaj Tak news channel.

Argument here is, parliamentarians are made targets of sting operations because they are public figures and represent public therefore public has a right to know if they are indulging in malpractices.

Another point is, the journalists who were part of Operation Duryodhan did abet corruption, because they approached MPs and offered them money to ask questions in Parliament on behalf of a fictitious business organisation. Eleven MPs – 10 in the Lok Sabha, one from the Rajya Sabha – fell for the bait.

Emotional Atyachaar, 2010: It is a new reality show on UTV Bindass in India. This show claims to test the bond of your relationship. It is meant especially for young generation. If anyone has any doubt towards his/her partner, he/she can just go through Emotional Atyachaar show to test the reality of that person.

Emotional Atyachaar Show investigates about your partner, if you need to test your partner’s character. They put one of their teammates as a mole into the scene and then capture the actions of the suspect by hidden cameras and then reveal the truth on the national television.

Questions here are:

  • Is this not a case of violating the right to privacy?
  • By introducing a mole into the scene you are actually provoking the person into a situation which otherwise would not have happened.
  • Are these things legal or illegal?

Although, this case is not under judicial system yet but there is a sting operation involved in it and all the other questions also exist which are attached to above mentioned cases.

References

–  indiankanoon.org/\

–  www.nerve.in

– currentlegalissues.blogspot.com

– www.thaindian.com

– www.merinews.com/

– epaper.hindustantimes.com

– epaper.timesofindia.com

http://www.ndtv.com

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About sadianasr

Road safety x digital, social, policy, media at SaveLife. AIR, Urban Justice, CAIR, ICGC, UNDP alum.

One comment

  1. Thank you so much for sharing such informative and wonderful paper.

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