By Palak Jain, NLIU Bhopal
Editor’s Note: Sting operations can be classified into positive and negative sting operations based on their purpose. Positive sting operation takes place in the interest of the society, which helps to lift the purdah of the working of the government. On the other hand negative sting operation harm the society and its individuals. It unnecessarily violates the privacy of the citizens without any benefit to the society.Freedom of press in India has been derived from freedom of speech and expression. Media has a right to impart information to the public in a fair manner, thus playing an important role in a democratic society. Journalism shall always be in public interest and sting operation for exposing corruption serve public interest. A sting operation with genuine motive to create awareness or bring forward the ongoing corruption should not be prohibited.A line has to be drawn between sting operations that invade privacy and those which exposes corruption and like others in order to protect the very essence of the Constitution of India. The author attempts to elucidate on this issue in detail.
A sting operation is an operation designed to catch a person committing a crime by means of deception. Typically, a sting operation involves an investigative agency such as the police or the media, who lure a criminal to commit a crime in order to trap them red-handed. They might pose as a criminal themselves, and thereby set up a trap in terms of an alluring offer, often known as a honey trap. Once the target takes the bait, the trappers “sting” them by way of arrest or publication.
In more refined terms, it can be called Investigative Journalism or Undercover Journalism.
Such journalism has been raising issues regarding law and ethics and has resulted in various questions; whether deception is legitimate when the aim is to tell the truth or can journalists use false identities to gain access to information. The critical question is “to what extent can the media go and to what extent should a person be informed?”
Sting operations in India
Sting operations in India have been majorly undertaken with a view to look into the working of the government or to see whether the acts of any individual are against the public order. These operations have been rightly termed as positive sting operations as they make governments accountable and responsible. However, there is another category of such operations which do not benefit the society rather unnecessarily violates the privacy of an individual and is conducted, most of the times, for profit-making and sensationalism.
These operations can again be classified as legal entrapment or illegal entrapment.
A sting operation can constitute a legal entrapment only in certain cases. An e.g. of a legitimate trap would be where the bribe has already been demanded from a man, and the man goes out offering to bring the money but goes to the police and brings them to witness the payment, it will be a legitimate trap.
On the other hand, where a man has not demanded a bribe, and he is only suspected to be in the habit of taking bribes and he is tempted with a bribe, just to see whether he would accept it or not and to trap him, if he accepts it will be a illegitimate trap. Such an act unless authorized by an Act of Parliament will be an offence on the part of the persons taking part in the trap. All such persons will be “accomplices” whose evidence will have to be corroborated by other evidence before the bribe taker can be convicted[i]. However, in India the distinction between the two is not very clear. There is no law on the validity of sting operations hence the confusion persists.
Do we really need sting operations?
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 Indian Express Newspapers (Bombay) Pvt. Ltd. and Ors v. Union of India, the Court emphasized that the freedom of press and information were ‘vital for the realization of human rights’ and relied upon Article 19 of Universal declaration of Human Rights. The heart of journalism has to be public interest and sting operation serve it, most of the times.
Problems with Sting Operations
Every liberty if left unchecked, can lead to disorder. Sting operations may be an expression of freedom of press but carry an unavoidable duty to respect privacy of others. TV channels in the bid of increasing their TRPs resort to sensationalized journalism. Freedom of expression is not absolute but is qualified by certain clearly defined limitations under Article 19(2).
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 such a media exposure. His fundamental right to live with dignity and respect and a right to privacy guaranteed to him under Article 21 of the Constitution is violated. ‘Right to privacy’ is ceasing to have pragmatic value where ‘sting operations’ define the order of the day. Despite the growing invasion of privacy, there is no Indian legislation that directly protects the privacy rights of individuals against individuals.
The classic ethical problem which haunts all sting operations is whether you can hold somebody liable for a crime that he would not have committed if not encouraged. It may, hence, come under the purview of Article 19(2) (public morality and decency).
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 individuals.
Another major problem is against whom should the sting operation be allowed? Some are of the opinion that it must be allowed against public servants[iii]. Then, again the problem arises whether a sting operation can be conducted on a public servant when they are not in course of their duty.
Position of sting operation in India
In India we don’t have a specific law governing sting operations but a person can go to the court under different laws to protect his rights and freedom. A private action for damages may lie for an unlawful invasion of privacy under Torts. They also violate the right to privacy guaranteed under Article 21 according to Supreme Court and such a violation is protected under Article 19(2). 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. The apex court, however, has always upheld the importance of an informed citizenry.
The Indian position on entrapment and sting operations was explained by the Delhi High Court in the case pertaining to a “Live India” sting operation[iv]. Television news channel “Live India” carried out a sting operation which showed Ms. Uma Khurana, a teacher with a Delhi government school, purportedly forcing a girl student into prostitution. Subsequent to the telecast, a crowd gathered around the school and demanded for Ms. Khurana to be handed over to them.
In the chaos that followed, some persons physically attacked the teacher and even tore her clothes. When the incident was published in popular newspaper Hindustan Times, the court drew up proceedings on its own motion. The court ordered an investigation into the matter and it was found that Ms. Khurana was not involved in any organized prostitution racket involving school girls as shown in the sting operation and that a part of the sting operation was stage managed.
The court observed that while there is no doubt or second opinion that the “truth” should be shown to the public in public interest whether in the nature of a sting operation or otherwise, but entrapment of any person should not be resorted to and should not be permitted. In this connection, the Court referred to the decision of the Supreme Court of the United States in Keith Jacobson v. United States (503 US 540). In the said decision, it was held by the Supreme Court of the United States that “in their zeal to enforce law, law protectors must not originate a criminal design, implant in an innocent person’s mind a disposition to commit a criminal act, and then induce commission of the crime so that the government may prosecute.”
The Delhi High Court held that the principles of the U.S. Supreme Court decision can be extended to the media. The Court held that inducing a person to commit an offence, which he is otherwise not likely and inclined to commit, so as to make the same part of the sting operation is deplorable and must be condemned by all including the media.
In the very controversial cash-for-queries scam, the Delhi High Court in September 2010 upheld the legality of the sting operation conducted by journalists Aniruddha Bahal and Suhasini Raj in 2005 to expose corruption in the Union Parliament[v]. The Delhi Police had previously charged the journalists under the Prevention of Corruption Act for seeking to bribe the MPs. The prime issue which arose in this case was whether any citizen of this country can carry out such an operation and offer bribe to a public officer to expose corrupt practices.
The single Delhi High Court judge opined that such a right flowed from the fundamental duty to cherish the noble ideals which inspired the freedom struggle as under Article 51A(b), and creating a corruption-free and independent India is one such ideal. As regards offering bribes by the journalists is concerned, the learned judge was of the opinion that in the instant case, the intention of the journalists must be seen, which was clearly to expose corruption amongst the top brass of the government.
It is not just the executive and the legislature which have come under the Media’s eye. Supreme Court in its judgment in Vijay Shekhar v. Union of India[vi]uphold that warrants obtained against certain eminent persons (including former President Dr. Abdul Kalam and Former Chief Justice of India, Mr. Y.K. Sabharwal) in pursuance of a sting operation to expose corruption in the subordinate courts of Gujarat were illegal. Mr. K.G. Balakrishnan even asked the journalist who had conducted the operation to tender an unconditional apology.
Another case which deals with a sting operation showed former environment minister Dilip Singh Judeo receiving a bribe from an Australian firm for mining rights in Chattisgarh. It was argued on behalf of the journalists that the media acts as ‘whistleblowers’ in public life and thus cannot be prosecuted. However, the CBI on the other hand contended that even journalists involved may be prosecuted where there is an active inducement to commit a crime by such persons or where there are other vested interests involved and not just public interest. It argued that law enforcement is solely within the ambit of powers of government. Others can merely assist, but cannot take law in their own hands. The journalists in the instant case, they said, should have informed law enforcement agencies either prior to or immediately after carrying out operation. Though media acts as a guardian of the fundamental rights, it must do so responsibly.
The petition by Rajat Prasad evoked contrasting views from a two-judge bench of the Supreme Court — Justice Markandey Katju holding sting operations to be a just means to expose the corrupt, while Justice Altamas Kabir reminding all about the goofed-up Uma Khurana sting. The Bench had issued notice to CBI seeking its response to Prasad’s plea seeking discharge from the case
Sting operations and their admissibility as evidence
One of the major issues we face today is whether or not evidence gathered by way of sting operations is admissible. Some would argue that such evidence has been acquired by way of inducement or in a sense, even by way of fraud and is hence inadmissible. While there are others who believe that when there exists compelling evidence against an accused or suspect the same must be admissible irrespective of the method by which it is obtained. The position remains unclear as Indian courts have adopted divergent views. Previously, the courts did not concern themselves with the method by which the evidence in question was obtained. Their position was that evidence remained evidence even if the methods prescribed in CrPC were not complied with[vii].
Of late, however, Indian courts have looked at evidence obtained through sting operations with more caution. The general standard employed is to disregard evidence if it has been obtained by luring the defendant into committing a crime or incriminating himself. However, there have also been instances where courts have admitted evidence against a person lured into committing an offence upon observing that there would be an increase in corruption if people who help unravel acts of corruption in an institution are prosecuted. In such cases courts have ignored the factum of entrapment keeping in mind the larger public interest[viii].
Evidence by way of sting operations has been treated as extra-judicial confession in certain cases and thus, admissible. The extra-judicial confession cannot be sole basis for recording the confession of the accused, if the other surrounding circumstances and the materials available on record do not suggest his complicity. However, if it is voluntary, truthful, reliable and beyond reproach, it is an efficacious piece of evidence to establish the guilt of the accused, and it is not necessary that the evidence should be corroborated on material facts.[ix]
In State of Haryana v. Ved Prakash[x], Supreme Court held that tape-recording of confession denotes influence and involuntariness and hence are inadmissible.
In the famous Godhra train carnage case, the court of Additional Sessions Judge P R Patel observed that a sting operation carried out by a person without authority cannot be accepted or permitted to be put as an evidence especially when the Supreme Court has deprecated such sting operations. Ashish Khaitan, a journalist working for Tehelka magazine, had done a sting operation on many people, including witnesses of the Sabarmati Express train carnage and people suspected to have played a role in the communal riots of 2002. In the secretly recorded video, two star witnesses of the train burning case, Prabhatsinh Patel and Ranjit Patel, were shown as saying that they were given money to give a statement that six accused of the case had come to get loose petrol from Kalabhai petrol pump on the night of February 26, 2002.
However, in the Naroda Patiya massacre case, the same sting operation by Ashish Khaitan was considered as a reliable and valid piece of evidence. In the opinion of the Court, extrajudicial confession in this case possessed a high probative value as it emanated from the person who commited a crime, which was free from every doubt. Ashish Khaitan (PW-322) before whom the confession was given by Babu Bajrangi (A-18), Prakash Rathore (21) and Suresh Richard (22) was an independent and disinterested witness who bore no eminence against any of the accused. This extra judicial confession, in case of all the three accused was relevant and admissible in law under Sec.24 of the Indian Evidence Act. Believing the footage of sting operation, which had passed close scrutiny of the CBI and court through various FSL tests, special judge Jyotsana Yagnik also held, “The court has also considered this extra-judicial confession as corroborating evidence against other accused. In this manner, roles played by Naresh Chhara, Dhanrao Sindhi, Kishan Korani, Kodnani, Manoj Kukrani, Bipin Panchal and Dinesh Barge also came into scrutiny. The court used the sting operation as evidence against all these. Except Sindhi, all others have been convicted.
In India, sadly, the Pre-natal Diagnostic Techniques Act is the only legislative authority in place which discusses sting operations to a certain extent and upholds the validity of the same for the purposes of the Act. Thus, a definite statute or regulation must be enacted, setting out standards which must be followed by the media, without affecting the freedom of press to a great extent. Courts must formulate clear principles as to the admissibility of evidence in such cases, keeping in mind the facts and circumstances. While there has been a fair degree of uncertainty, Indian courts, of late, seem to have taken the position that entrapment, in the event it helps combat corruption, is not impermissible.
While the ability of an entrapment to give rise to legal (and in particular, criminal) proceedings needs to be reconsidered, a more immediate concern is ensuring that certain procedural safeguards are implemented to ensure that false and fabricated sting operations are not publicized. In this regard, the Delhi High Court, in the Uma Khurana case[xi], provided certain guidelines for channels/newspapers proposing to publish sting operations. A channel proposing to telecast a sting operation should be required to obtain a certificate from the person who recorded or produced it saying that it was genuine to the best of his or her knowledge. The channel should also obtain permission from a committee appointed by the Ministry of Information and Broadcasting to telecast the sting operation by producing unedited tapes. Reports should not be such as to create alarm or panic or amount to incitement to commit any crime and the media should avoid overplaying certain parts and underplaying others. Media is to observe general standards of decency, having regards of the sentiments of viewers, particularly that of children. However, it becomes imperative that these guidelines are carried out, in fact.
Formatted on 13th February 2019.
[i] In re M.S. Mohiddin AIR 1952 Madras 561, Rao Shiv Bahadur Singh v. State of Vindhya Pradesh AIR 1954 SC 322
[ii] Romesh Thappar v. State of Madras; Bennett Coleman and Co. v. Union of India
[iii] Section 2(c) of Prevention of Corruption Act
[iv] WP (Crl.) No.1175/2007)
[v] Aniruddha Bahal v. State 2010 172 DLT 269
[vi] 2004 4 SCC 666
[vii] Pushpadevi M. Jatia v. M.L. Wadhawan, AIR 1987 SC 1748
[viii] Sri. Bhardwaj Media Pvt. Ltd. v. State, (W.P. (Crl.) Nos. 1125 and 1126/2007
[ix] Section 24 (Comments section)
[x] 1994 Cr LJ 140 (SC).
[xi] Court on its own motion v. State, 146 (2008)DLT 429