Legality of Sting Operations

By Sanchita Bera-


MEANING OF STING OPERATIONS

Sting Operations is done through covert means, the authorities create or facilitate the very offense of which the defendant is convicted. Normally this is done by having an undercover agent hold out some sort of bait, or opportunity, to commit a crime and then punishing the person who takes the bait[1].


THE ADVENT OF STING OPERATIONS

The origin of the term 'sting' goes way back to the 1930s when American's used the term to mean slang. Sting then meant, an act of theft or fraud, especially one that was carefully planned in advance and swiftly executed[2]. In 1973, the term 'sting operation' was used for the first time in the movie 'Sting'. In this movie, there was a portrayal of a trap being set up by two men to grasp a third person who was involved in carrying out a crime. The movie further illustrates, the power of the media in a democratic society and their potential to play the role of both a formidable character through the exposure of the evils of the society and venomous character through the infringement of the right to privacy of an individual or using the technique of entrapment to force an individual into bribery or corruption. The two characters played by the media in the movie were shown to be for the interests of the public. After the movie gained popularity, American’s used the terminology to indicate the cops who conducted undercover operations to trap the criminals in their act of crime.


INDIAN MEDIA AND THEIR LOVE FOR STING OPERATIONS

The popularity of sting operations garnered into the Indian media houses, when ‘Tehelka', the first-ever magazine which circulated tabloid-format newspapers back in the year 2004, released an issue in 2000, breaking out the first-ever sting operation being conducted on cricket match-fixing scandal. The sting operation cosplay gained momentum when in 2001 the magazine won national fame and gained public support for yet another sting 'Operation West End', wherein the sting operation was conducted to expose government officials accepting prostitutes and bribes in a fake arms deal. Another issue that caught the public eyes, was the report published by 'Tehelka' in its issue in 2007, wherein members of the Bajrang Dal and their involvement in the Naroda Patiya massacre were exposed. For this issue, 'Tehelka' won the International Press Institute (IPI) India Award for Excellence in Journalism both in the year 2010 and 2011. Now, 'Tehelka' being the exposing genie and garnering all the wow's and compliments, encouraged the media houses to wear their armor and get into ground zero to collect, evidence on socio-legal issues. Gradually, the media houses did some social work of exposing the black and blue of the going corruption on various levels, but slowly and gradually, the sting operations turned out to be a means to gain TRPs (Television Rating Point). The graph of social good, public interest curved down to a mere gain of TRPs and obtaining popularity and creating high voltage drama.

The fact does not change that these sting operations have their own pragmatic and unrealistic approach.


THE UNREALISTIC SIDE OF STING OPERATIONS

The Media has been playing a prodigious role as the 'fourth pillar of democracy'. The media uncovers the Government's working procedures and policies. These sting operations have urged the Government to work transparently and for the welfare of the public, but the turning point arrives when the media houses go on with their melodramatic sting operations just for the sake of gaining TRPs and public recognition. The media forgets that their responsibility of spreading public awareness, they are tied to certain limits, and must not cross the same. The high voltage dramatic sting operations may make force an individual to pay a price that cannot be overturned, sometimes it is seen that such individuals have nothing to do with the ideology of the sting. The media presents the videos of sting operations in a high sensationalized manner to boost their viewership. In the era of breaking news, sting operations are violating the individual's right to privacy. Instances of sting operations that hampered the individual's life, without his/her fault:

i. In the case of Court on its motion v. State Writ Petition[3] a schoolteacher was telecasted as a racketeer of prostitution in ‘Live India’ news channel. After the telecast, the teacher was severely beaten in front of her school by the public. The matter brought outrage among the public, due to which the education department of Delhi first suspended her and then dismissed her from the service. Later, it was exposed that the whole matter was a plot framed and executed by the journalist and the news channel. When the matter was taken up by the Delhi High Court on its own accord, the bench ordered: "such incident should not happen and false and fabricated sting operation directly infringing upon a person’s right to privacy should not recur because of desire to earn more and to have higher TRP rating[4]”.

ii. In the case, Rajat Prasad v. CBI[5], the journalist who conducted the sting operation was himself guilty of abetment to bribery, wherein he drew another man into acknowledging the payoff off-camera and then recording the latter's video.


THE PRAGMATIC SIDE OF STING OPERATIONS

Although the sting operations have their mishaps, the role of such dare deviling actions cannot be forgotten which attempts to bring justice to the public at large. The Courts have time and again supported sting operations. The following cases are examples of the same:

i. In the case of S.P Gupta v. Union of India[6], the apex court states: “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". This statement highlights the fact that the media does has the right to impart and disseminate information that involves the public interest and welfare at large and the right the public holds to know the reality of the corrupt officials.

ii. Nitish Katara's case was successfully solved and the accused Vikas Yadav was convicted by the Supreme Court, all thanks to the media's sting operation.

There are many more instances, where the media played a big role in gathering evidence against the accused through sting operations and brought justice.


TUSSLE 1: BETWEEN STING OPERATIONS AND RIGHT TO PRIVACY

The Supreme Court from time to time has in cases defined Article 21, Right to Life and Personal Liberty. From A.K Gopalan to Maneka Gandhi, the ‘Right to Life' and 'personal liberty' have seen many dimensions. The meaning of 'personal liberty' has traveled a long way from 'liberty of physical body'[7] to ‘more than mere animal existence’[8] to ‘emergence of the right to privacy, but no strong hold’[9] to ‘personal liberty should stand the test of not only Article 21 but also Articles 14 and 19’[10] to ‘right to privacy’[11]. In the case of People’s Union of Civil Liberties v. Union of India, the Supreme Court held that telephone tapping involved the serious invasion of the individual's right to privacy, which is part and parcel of the Right to Life guaranteed under Article 21 of the Constitution, and the State should not resort to such practices unless it is necessary for public emergency or involves public interest at large. The Supreme Court has held that the defense of privacy will not be available if a public officer conducts sting operations in the course of his professional employment, and will be in his private domain not under public scrutiny[12]. The media must remember that while trying to expose others and resorting to practices such as secretly implanting hidden cameras, and audio devices, leads to the intrusion of one's privacy, the Courts have clearly stated, that the media can bring in evidence, only when such practices are the last resort or they are in the interest of the public at large. In the case of Naz Foundation v. Govt. of NCT of Delhi, Siras professor of Aligarh Muslim University was secretly filmed in a homosexual encounter within his home premises. Due to utter humiliation and damage to his reputation, he committed suicide. His case gained momentum, and raised questions on freedom of the press and the media and the propriety of the sting operations. The Delhi High Court while decriminalizing homosexuality, also stated that one's preferences do not fall under public interest and it is his/her choice and falls under private life and privacy.


TUSSLE 2: BETWEEN STING OPERATIONS AND EXCEPTION UNDER ARTICLE 19(2)

Although Article 19(1)(a) provides freedom of speech and expression, which further includes the right to broadcast and entail the right to receive information, this fundamental right has been in clear and conspicuous words restricts speech and expression which will go against the public interest, public order, decency, morality, and defamation under Article 19(2). These exceptions may be seen as a barrier to the sting operations conducted by the media. The media being the fourth pillar of a democratic country must be given the freedom to both receive and give information to the public, but this right of broadcast does not give them the right to misuse the same. The question of their freedom and its misuse arises when the very purpose of sting operation has diverted to some other angle such as TRPs, popularity, gaining more advertisements, and creating content reality shows (instead of news bulletin).


CONCLUSION

The media primarily started off the practice of sting operation to expose the corrupt officials or the accused whom they police in ordinary circumstances could not arrest or find evidence against the same. But when the sting operations gained public support and interest, the media started using the same as an entertainment purpose. Sting operations are one of the methods of investigative journalism or are used interchangeably. The main purpose of which was to retain credibility and to carry out such practice sparingly, and with caution and responsibility towards the public interest.

The Supreme Court stated that the legality of sting operations would depend upon the facts and circumstances of each case. The court further went on to say that the Indian law is not in a settled position to question the legality or morality of sting operations because they are prompted by the immense public interest. The court emphasized that the crime which seems to be committed against public interest would be loathed in India's criminal jurisprudence, and the sting operator just because has stained his hands for filming the crime will not be immune to the criminal charges in the Indian system of justice[13].

The News Broadcasters Association (NBA) which covers the reports on crimes, depiction of women and children, from time to time sets up guidelines for the sting operations. The guidelines state that sting operations must be resorted to only when no other option is left for gathering evidence. Also, the sting operations must be editorially justified exposes the wrongs against public life.

References:-


[1] Bruce Hay, Sting Operations, Undercover Agents, and Entrapment, Harvard Library (May 18, 2021, 08:16 PM) https://dash.harvard.edu/bitstream/handle/1/12991689/Hay_%20Sting%20Operations%20Undercover%20Agents%20and%20Entrapment.pdf?sequence=1 [2] Dr. Meenakshi Arora, Investigative Journalism, And Sting Operations by Electronic Media vis-à-vis Right to Privacy, Pramana Research Journal (May 18, 2021, 09:06 PM), https://www.pramanaresearch.org/gallery/prj-p424.pdf [3] Dr. Meenakshi Arora, Investigative Journalism, And Sting Operations by Electronic Media vis-à-vis Right to Privacy, Pramana Research Journal (May 18, 2021, 10:48 PM), https://www.pramanaresearch.org/gallery/prj-p424.pdf [4] Ibid. [5] Ahkam Khan and Parimal Kashyap, Sting Operations: The Role of Media as a Vigilante, Manupatra (May 18, 2021, 10:54 PM), https://docs.manupatra.in/newsline/articles/Upload/F02F6FB8-9560-4F94-BE8E-EC9DC6D82B7C.2-D__Media%20and%20Communication.pdf [6] Ahkam Khan and Parimal Kashyap, Sting Operations: The Role of Media as a Vigilante, Manupatra (May 18, 2021, 11:03 PM), https://docs.manupatra.in/newsline/articles/Upload/F02F6FB8-9560-4F94-BE8E-EC9DC6D82B7C.2-D__Media%20and%20Communication.pdf [7] A.K. Gopalan v. Union of India [8] Kharak Singh v. the State of U.P [9] Govind v. State of M.P [10] Maneka Gandhi v. Union of India [11] R. Rajagopal v. State of Tamil Nadu [12] R. Rajagopal v. State of T.N [13] DR. G.P. TRIPATHI, CONSTITUTIONAL LAW – NEW CHALLENGES, 624 (2nd ed. 2018)



Author- Sanchita Bera

LLM- II

The Maharaja Sayajirao Univeristy of Baroda, Faculty of Law, Vadodara

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