The Legality of Sting Operation: Critical Analysis

By | February 5, 2021
The Legality of Sting Operation: Critical Analysis

The legality of Sting operations, which is a specialized form of investigative journalism differs from country to country. The ethical issues revolving sting operations has been a long part of the debate in a civil society. Whilst, its role in ensuring public accountability and order has been welcomed by the civil society; it is also subject to criticism on the basis of being an apparent unethical and immoral way.

Sting Operation is majorly believed to be transgressing into the right to privacy of an individual and a practice to damage the reputation and image of the concerned individual in public life. In India, since no statute or guideline is governing it, the admissibility of evidence from string operations has evolved through various case laws.

Introduction

A sting operation is an investigative exercise typically undertaken by law enforcement agencies or the media against an individual or a group to uncover the malpractices occurring in society. The word ‘sting operation’ was first used in a 1973 movie named ‘sting’, which depended on a plot orchestrated by two men to trap a third individual into carrying out a wrong-doing.[1] It is illustrative of the power of law enforcement agencies and the media in a democratic setup to expose the evils. However, it is often blamed to infringe on an individual’s fundamental privacy rights or a potential entrapment for someone to accept a bribe, thereby indulging in corruption.

A few of the countries like the UK, US, and Canada, have perceived sting operations done by legal enforcement agencies as a lawful means of gathering evidence. However, India has no legal setup and set guideline regarding the test for legality of sting operations except the judgments given by various courts which also fails to develop a nexus between the practices of the sting operation to its legality as admissible evidence.

Types of Sting Operation

Sting Operations are undertaken with an aim to look into the government’s working or acts of any individual if they are carrying out their functions against the public order. Based on the premise of purpose, the delegation of sting operations can be classified into two types, i.e. positive and negative.

The positive sting operation is exercised in light of a legitimate concern for the benefit of the public and planned to cover the government’s working procedure. On the other hand, the negative sting operation is not conducted for the benefit of the public, but with a sensationalized endeavour to build the TRP in the era of ‘breaking news’ by opting to encroach upon the privacy and sanctity of an individual or a body.[2]

Indian Scenario on sting operations

India doesn’t have a specific law administering the lawfulness of sting operations and any judicial pronouncements laying down the guidelines for its regulation in the country.[3] So far the courts have decided sting operations related matter on the basis of actualities of the case. There are no hard and fast rules to determine the legitimacy or illegitimacy of the evidence obtained from a sting operation.

The courts, while deciding on different cases, have come across different situation. Resultantly the courts have not been able to reach a consensus or draw a nexus between the decisions of various courts on similar situations pertaining to sting operations. However, on several occasions, there is a common judgment where courts have held sting operations as a legal method to obtain evidence[4], while on other they have found in to be an inducement to crime[5] or an invasion of the individual’s fundamental right to privacy[6].

Role of media in Justice Delivery

The role of sting operations in the deliverance of justice in a country can’t be undermined, and the media plays a very significant role in the same. In India, media being the fourth pillar of democracy seeks to bring out transparent democratic society or malpractices if done by anyone to the general public’s knowledge. The public entrusts the media with its duty to acts as a regulatory mechanism for those in power. Though India’s Constitution doesn’t expressly guarantee freedom of the press as an FR, various interpretations by courts under article 19(1) (a) have enshrined it as one of the basic constituents of right to freedom of speech and expression.[7]

In the case of SP Gupta v. Union of India, the Apex court also gave the view that “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.[8]

However, no right is absolute to exercise in civil society; it must be done so with reasonable constraints.[9] In this respect, the media has a greater responsibility to ensure that every individual’s privacy and dignity are protected and respected. The right to privacy is one of an individual’s essential legal rights and is intrinsic to right to life and liberty enshrined under Article 21 of the Indian Constitution.[10]Therefore, any infringement to right to privacy will be deemed as nothing but the encroachment upon FRs guaranteed under the constitution.

Interpretation of Indian Courts on Sting Operation

The Delhi High Court in the case of Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Ors[11] (2007) upheld the legality of sting operations when the matter of misconduct of 11 MPs indulged in corrupt practices for taking bribe for unethical reasons was brought into the light. The case was determined as ‘cash for query’ case, and it laid down the parliamentary privileges of MPs in India. The Delhi High Court upheld the footage of sting operation to be solid evidence and not fabricated in any manner.

Further, in another case of Aniruddha Bahal & anr. v. State[12] (2010), two journalists Aniruddha Bahal and Suhasini Raj conducted a sting operation against a few parliament members, taking a bribe to ask particular questions in the parliament. The incident was of 2005, and the public was already aware of the corrupt practices of the political officials, but now they had documentary evidence gathered from a sting operation to back the matter up. However, the matter took a different turn, and the journalists were made the prime accused of the case, citing that, whether someone can offer bribes in this manner to trap and expose a public officer.

The court on this matter held that the fundamental duties of citizens enshrined under article 51A (b) makes it necessary to uphold the ideas of a freedom struggle to cherish our free nation. The right of journalists to conduct sting operations comes under the right to free speech and, therefore, the sting operation conducted by the journalists was held necessary and valid.

Notably, with no set guidelines and laws on sting operation regulation, courts have to come up with their own interpretation in many cases. A request to frame guidelines regulating sting operations conduct came up in R.K. Anand v. Registrar, Delhi High Court[13] (2009). The case is popularly known as the BMW hit and run case where the accused who was from an influential family was driving the car at a reckless speed ran over 6-people including 3-policemen in an inebriated state.

In the sting operation by a T.V Channel, the prime accused’s defence lawyers were seen meeting the prime witness in the case and influencing him not to testify. The Delhi High Court declared them guilty, and the apex court upheld its decision. However,  the request to put down guidelines for the media on conducting sting operations was refused to entertain, citing that, putting down guidelines would tamper the autonomy that media enjoys and it will be against their right to free press. A few isolated incidents of misuse of right don’t justify a complete ban on this manner of investigative journalism.

Conclusion

Unfortunately, there is no law in place to regulate sting operations in India, thus making it prone to misuse. It can be conducted to tarnish the image of particular persons, and in such situations, the conduct of sting operations will always mount the question of invading into the privacy of an individual. The most difficult thing then becomes to distinguish a real sting operation from a concocted one. Since media these days is very reluctant to do anything to increase their viewership, conducting a sting operation with that aim will defeat the whole purpose of this kind of investigative journalism.

Where the sting operations conducted by law enforcement officials are deemed valid and enforceable in court, the position of media and their purpose always remain in question, if it was a positive or negative sting operation. To conclude, there being no law or guideline, there is no effective regulation which will often lead to the exclusion of admissibility of evidence obtained through sting operations.


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

[2] Ethics of Media Sting Operations, I.A.S. G.S (April 5, 2017), www.iasgs.com/2017/04/ethics-of-media-stingoperations.

[3] Ahkam Khan & Parimal Kashyap, Sting Operations: The Role of Media as a Vigilante, https://docs.manupatra.in/newsline/articles/Upload/F02F6FB8-9560-4F94-BE8E-EC9DC6D82B7C.2-D__Media%20and%20Communication.pdf.

[4] Raja Ram Pal v. Hon’ble Speaker, Lok Sabha (2007) 3 S.C.C. 184; R.K. Anand v. High Court of Delhi, (2009) 8 S.C.C. 106.

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

[6] Labour Liberation Front v. State of A.P., (2005) 1 A.L.T. 740.

[7] Bennett Coleman v. Union of India, A.I.R. 1973 S.C. 106; Sakal Papers v. Union of India [1962] 3 S.C.R. 842.

[8] A.I.R. 1982 S.C. 149.

[9] The Constitution of India, art 19(2) (1950).

[10] Justice K.S. Puttaswamy (Retd) v. Union of India (2017).

[11] (2007) 3 SCC 184.

[12] (2010) 172 DLT 269.

[13] (2009) 8 SCC 106.


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