Sting Operation –To be or not to be?

A Sting Operation is an operation designed to catch a person committing a crime by means of deception. A complicated confidence game planned and executed with great care. The word “sting” derives its origin from American usage to mean a police undercover operation designed to ensnare criminals. The word “sting” is a synonym for the expression “set a trap to catch a crook” and this article uses the term in that sense. In more refined terms, it can be called Investigative Journalism or Undercover Journalism. Sting Operation is an information-gathering exercise; it looks for facts that are not easy to obtain by simple requests and searches, or those that are actively being concealed, suppressed or distorted.

An informed citizenry the bedrock of a democracy, holding the government accountable through voting and participation requires investigative journalism which cannot sustain itself on asymmetric dissemination of information. In many cases, the subjects of the reporting wish the matters under scrutiny to remain undisclosed. Among the most popular programmes in India, are those reporting on corruption and misdeeds of politicians and government officials. ‘Candid camera,’ reports many true stories of the day the bribe that the police inspector extracts from the victim of a crime before agreeing to investigate, the ‘fee’ that the government officer charges for his giving the order to make an electric connection, and the ‘contribution’ that a company pays a member of Parliament before bringing up a legislative concern in the Lok Sabha. Because of all these things do we really require Sting Operations? At the same time, where such investigative work involves the use of covert methods, it raises issues that tend to further blur the line between law and ethics. Is deception legitimate when the aim is to tell the truth? Is any method justifiable no matter the working conditions and the difficulties in getting information? Can television reporters use hidden cameras to get a story? Can journalists use false identities to gain access to information? The critical question that surfaces is “to what extent can the media go and to what extent should a person be informed?”

Sting Operations In India
Sting Operations are undertook with a view to look into the working of the govt. or to see whether the acts of any individual is against the public order. On the basis of the purpose Sting Operations can be classified as positive and negative. Positive Sting Operation is one which results in the interest of the society, which pierces the veils of the working of the government. It is carried out in the public interest. Due to positive sting operation society is benefited because it makes government responsible and accountable. It leads to the transparency in the government. On the other hand negative sting operations do not benefit the society, but they do harm the society and its individuals. It unnecessarily violates the privacy of the individual without any beneficial results to the society. These types of Sting operations if allowed then it will hamper the freedom of the individuals and restricts their rights. Here are some examples which we can distinguish as positive and negative sting operations.

1. Positive Sting Operations:
„« Sting operations on ultra-sound centers carried out by the Health officers in Karnataka for “serious enforcement’’ of the Pre-Natal Diagnostic Techniques Act which bans sex determination of foetuses and consequent abortion of female ones to stop female foeticide.

„« The Ministry (by the Cable Television Networks Regulation Act and Programme Code), has prohibited the transmission of Cineworld channel for 30 days for showing “objectionable content.” Because it “offended good taste and decency” and it “was obscene and likely to corrupt public morality and was not suited for unrestricted public exhibition”

„« An operation by an online news site called Tehelka to catch top politicians and army officers taking bribes from journalists posing as businessmen.

„« An operation in which a journalist posing as a struggling actress met actor Shakti Kapoor, who promised in the televised footage that his secretary would introduce her to movie producers and directors.

2. Negative Sting Operations:
Instances over the years have shown that though sting operations do expose corruption in some cases, sometimes they seriously violate the rules of journalism in the pursuit of profit and short-term sensationalism.

„« The Delhi High Court on Friday, 7th September, 2007, issued notices to the Delhi government and city police after taking suo motu cognisance of media reports alleging that a sting operation carried out by a TV channel, which claimed to have exposed a sex racket run by a government school teacher Uma Khurana, for allegedly luring her pupils into prostitution has now been revealed to be completely fabricated and was fake and distorted.

„« The Supreme Court on Wednesday, 7th February, 2007, issued notices to a private news channel and its reporter for carrying out a sting operation carried out in the year 2004, which allegedly showed a non-bailable warrant could be procured against any person by paying a hefty amount in the court.

These incidents are an example of how a sting operation can go wrong and become an exercise in trapping an innocent person. India TV’s chief editor, Rajat Sharma, said that there was no violation of privacy in exposing such matters as political corruption or the trading of jobs for sex in Bollywood, a practice known in movie and theatrical business lore as the casting couch. “If you are serious about exposing certain social evils, there is no other option but to use sting operations.”

Do We Really Need Sting Operations?
The media plays an important role in a democratic society. It acts as the fourth institute outside the Government . Sting operations are methods of uncovering information. Although, the Indian Constitution does not expressly mention the liberty of the press, it is evident that the liberty of the press is included in the freedom of speech and expression under Article 19(1) (a). Various Constitutions have guaranteed free press or media as a fundamental right . Freedom of press is a special right under art. 19(1)(a) of the Constitution of India, 1950 but it has certain restrictions. The democratic credentials are judged by the extent of freedom the media enjoys in a particular state . Further the media has a right to impart the information to the public. Freedom of speech includes freedom to communicate, advertise, publish or propagate ideas and the dissemination of information . Furthermore Art. 19(1) also incorporates within itself right to receive information about any event, happening or incident etc. “The heart of journalism has to be public interest” and Sting operations, serve public interest.

In Romesh Thappar v. State of Madras Court said, “…. The public interest of freedom of discussion (of which the freedom of press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed so that they may influence intelligently the decisions which may affect themselves. ….In some the fundamental principle involved here is the peoples’ right to know.”

This concept of peoples’ right to know, which was found to be so essential for democracy, was located by the Court in Article 19(1)(a) in Bennett Coleman and Co. v. Union of India observing thus:

“Although Article 19(1)(a) does not mention the freedom of the press, it is settled view of the Court that freedom of speech and expression includes freedom of the press and circulation.”

The Court held:
“Press has a fundamental right to express itself; the community has a right to be supplied with information; and the Government has a duty to educate the people within the limits of its resources.”

Justice Mathews ruled in the case of State of UP v. Raj Narain , “The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. Their right to know is derived from the concept of freedom of speech”.

In S.P. Gupta v. Union of India , “No democratic Government can survive without accountability and the basic postulate of accountability is that people should have the information about the working of the Government.”

In Prabha Dutt v. Union of India the Supreme Court upheld the right claimed by the press to interview prisoners that the right claimed by the Press was not the right to express any particular view or opinion but right to means of information through the medium of interview of the prisoners.

In Indian Express Newspapers (Bombay) Private Ltd. and Ors v. Union of India and Ors. , the Court emphasized that the freedom of press and information were “vital for the realization of human rights”. The court relied upon the Article 19 of the Universal Declaration of Human Rights, 1948

Why No To Sting Operations?
With great power comes great responsibility, therefore the freedom under Article 19(1)(a) is correlative with the duty not to violate any law. Every institution is liable to be abused, and every liberty, if left unbridled, may lead to disorder and anarchy. Television channels in a bid to increase their Trade Related Practices (TRP’s) ratings are resorting to sensationalized journalism. Sting operations have now become the order of the day. The carrying out of a sting operation may be an expression of the right to free press but it caries with it an indomitable duty to respect the privacy of others.

In Time v. Hill the U.S. Supreme Court said: “The constitutional guarantee of freedom of speech to press is not for the benefit of the press so much as for the benefit of all the people. The same principle was followed by Mathew, J. in Bennett Coleman and Co. v. Union of India.

Article 19(2) - An Exception to Article 19(1): It is however pertinent to mention that, freedom of speech and expression of press is not absolute but is qualified by certain clearly defined limitations under Article 19(2) in the interests of the public.

In Romesh Thappar v. State of Madras, and Brij Bhushan v. State of Delhi the Court firmly expressed its view that there could not be any kind of restriction on the freedom of speech and expression other than those mentioned in Art 19(2) and thereby made it clear that there could not be any interference with that freedom in the name of public interest even when Clause (2) of Article 19 was subsequently substituted under the Constitution (First Amendment) Act, 1951 by a new clause which permitted the imposition of reasonable restrictions on the freedom of speech and expression of media.

Against Right to Privacy: The individual who is the subject of a press or television ‘item’ has his or her personality, reputation or career dashed to the ground after the media exposure. He too has a fundamental right to live with dignity and respect and a right to privacy guaranteed to him under Article 21 of the Constitution. The Supreme Court, Kharak Singh v. State of UP held that right to privacy is inherent under Article 21. The Delhi High Court observed that right to privacy that flows from Article 21 couldn’t be invoked against private entities. It can not be denied that it is of practical importance that a precarious balance between the fundamental right to expression and the right to ones privacy be maintained. ‘Right to Privacy’ has ceased to have any pragmatic value where ‘sting operations’ define the order of the day. The right to privacy is an alleged human right, which may restrain both government and private party action that threatens the privacy of individuals. It has been recognized as a fundamental right by the Hon’ble SC under Article 21.

The Supreme Court in R. Rajagopal and Another v. State of Tamil Nadu and Others 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 another landmark judgment which addressed the issue of privacy was the telephone tapping case- People’s Union for Civil Liberties v. Union of India the Court observed:

“The right to privacy by itself has not been identified under the Constitution. As a concept it may be too wide and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case….”

Against Public Morality: 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.

Problems With Sting Operations
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. A defence that can be taken by the accused that the act had been committed as a result of inducement, and which he (the accused) did not intend himself to commit, or, in cases where lack of consent constitutes the offence, such as rape, that the consent had been implied by the inducement, where because of the ‘trap’ laid down for the accused, the impression given was that an offence had not been committed.

Fundamental rights can’t be enforced against the individual or private entity: When Maneka Gandhi sued Khushwant Singh over certain references to her in his autobiography “Truth, Love and a Little Malice” saying that it was a violation of her privacy, she lost the case. It is precisely because of this lack of legislation that we have numerous Sing Operations taking place almost daily thereby obtruding upon individual privacy. However, despite the growing invasion of privacy, there is no Indian legislation that directly protects the privacy rights of individuals against individuals.

Conflict of Laws: Although on one hand, the Constitution confers the fundamental right of freedom of the press, Article 105 (2) provides certain restrictions on the publications of the proceedings in Parliament. In the famous Searchlight Case , the Supreme Court held that, the publication by a newspaper of certain parts of the speech of members in the House, which were ordered to be expunged by the Speaker constituted a breach of privilege.

Another major problem which we face today is against whom the sting operation is allowed? Some are of the opinion that it must be allowed against the public servants. The definition of “Public Servant” is given in 2(c) of The Prevention of Corruption Act. Again a problem comes that can we have sting operation against the public servants when they are not in their course of duty? There are so many problems which arise because we do not have proper legislation. We can say the root of all these problems is the lack of legislation first and any thing after.

Position Of Sting Operation In India
In India we have no specific law which governs such operation and also we have no judicial pronouncements till today which guides such operations or the acts of the media. But a person can go to the court under different laws to protect his rights and freedom. We have wiretapping which is a part of sting operation is regulated under the Telegraph Act of 1885. In 1996 decision by the Supreme Court which ruled 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. The government is also required to show that the information sought cannot to be obtained through any other means. The Court mandated the development of a high-level committee to review the legality of each wiretap. Tapped phone calls are not accepted as primary evidence in Indian courts.

Apart from the common law, the Supreme Court has recognized a constitutional origin as well. So, firstly, a private action for damages may lie for an unlawful invasion of privacy under The Law of Torts. These sting operations also violates right to privacy which according to the Supreme Court is guaranteed under Article 21- right to life and personal liberty. As we are provide that the freedom of expression guarantee in Article 19(1)(a) is not absolute therefore the constitution provides with 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.

Final Remarks:
The Union Information and Broadcasting Ministry must favour the introduction of a clause to address “Sting Operations” in the Broadcasting Bill. The Ministry must make a clear distinction between stories that amount to an “invasion of privacy” and those which expose corruption or have political implications. However, “Sting Operations” which expose corruption and tell stories with political implications will be allowed, as any attempt to proceed against them would be seen as an effort to stifle the media.

What journalists and editors need to determine is who will benefit as a result of the reporting. If journalism is committed to democratic accountability, then the question that needs to be asked is whether the public benefits as a result of specific investigative reports. Does the press fulfill its social responsibility in revealing wrongdoing? Whose interests are being affected? Whose rights are being invaded? Is the issue at stake a matter of legitimate public interest? What the regulatory body will need to determine is who will benefit as a result of the reporting. Is the issue at stake a matter of legitimate public interest? These are some questions which need to be answered when going for a sting operation or going for making legislation on it.

The legislation must govern the conduct of the media and must define the extent media can sting a person’s life and whom they can sting? In the US for example, it is only the federal government and the FBI alone has the right to use a hidden camera and go for sting operation. In India too some body like CBI or any other body must only be legalized to perform sting and their conduct must be regulated through the legislations. This body must not be immune to any legal proceedings. There must be a proper authority like court or Attorney General, whose permission must be sought on proper proof against the subject of the sting. The subject of the sting must have the evidence of criminality

Today the sting operations is taking place for commercial gains therefore the Supreme Court should take observations about it. Problem with the media is that it only campaigns for cases which appeal to its market and its imagination, which may result in its good reputation in front of the society.

To avoid falling into that trap, the sting operations need a code of conduct. Laws too, should be strengthened in this regard. Sting operations are completely justified if they are carried out with the protocol that has been talked about.