ASSESSMENT OF STING OPERATION IN INDIA- AN INTEGRAL PART OF MEDIA TRIALS IN 21st CENTURY by-Gunjan Aggarwal1 & Alisha Singh
The word “Sting” derives its origin from American usage to mean a police undercover operation designed to ensnare criminals. A sting activity is an analytical exercise embraced by media to uncover the acts of neglect pervasive in the general public. The word ‘Sting Operation’ was first utilized in the movie ‘Sting’ in 1973 which relied upon a plot brooded by two men to trap a third individual into completing a wrongdoing. The articulation ‘Sting’ is additionally illustrative of media’s force in a majority rule set-up and how it can be both strong and venomous for general society everywhere; powerful by uncovering the wrongs, and venomous by encroaching the crucial right to security of an individual or possibly capturing somebody into taking hush-money and consequently, causing corruption. This research paper focuses on the importance of sting operation under Indian and international perspective and how the courts are concerned with the outcome of media trial in some of the respective case laws. This paper stresses on both positive and negative implications of conducting a sting operation. This research paper gives a bird’s eye view on the legal validity of sting operation and explains whether Article 19(1) supersedes Article 21which is guaranteed under Part III of the Constitution of India.
Keywords: Sting operation, Media trial, Law, Privacy, Freedom of Speech and Expression, Constitution.
When the concept of ‘media’ evolves in India, it played an important role in the life of people. Media communicate to the whole world by publishing, printing and broadcasting information through internet, newspaper, radio, television. It is the best platform where people can connect with the government & can raise their problem so that government can act accordingly and tries to improve in their functioning. The main function of media is to provide true, impartial and unbiased news to the people as it has the power and ability to influence the people and change their opinion.3 That’s why it is considered as “Fourth Pillar of Democracy hence it has guaranteed Right to Freedom of Speech and Expression under Article 19(1) (a) of Indian Constitution. Freedom of speech and expression also includes the Freedom of Press given to the Media. But no right can be absolute, some reasonable restrictions have been imposed under Article 19(2) of the Constitution of India.4
The burning question in modern era is that now media is misusing the liberty and has totally forgotten the restriction imposed on the liberty, and also the ethics of the media. Media takes the cases in his own hands, starts investigation and declares the accused ‘guilty’ even before the court announces its judgment. This is what we called “Media Trial”.5 Media continuously broadcast these things on their channels, newspaper, internet so that people can see it every day and start believing that the accused person is “guilty” and sometimes it created pressure on the judiciary, making it nearly impossible for the trial to result in a fair judgment and even if finally the person is proved innocent in the proceedings of the court, such innocence will not help the accused person to rebuild his lost reputation in the society.6
OBJECTIVES OF RESEARCH PAPER
The objective of this study is to analyses the importance of sting operation in relation with Indian and International laws. This paper focuses on determine the legal validity of sting operation in India as it serves both the positive and negative impacts in its functioning.
• What are the implications of Sting operation in society?
• Which right should be weigh more: Right to Privacy or Freedom of Press?
• Is there any law in India which regulates Sting Operation?
• Is sting operation legal or illegal in India?
• How sting operation violates right to privacy under Article 21 of the constitution?
The present study relies on the secondary data which is collected from various sources to analyses the impact of sting operation in India. The data sources are research papers, journals, articles, newspaper, magazines, government official websites, Indian Constitution.
HISTORY OF MEDIA TRIAL
Media trial is not a new concept, if we go back in the history, we can find the traces of it in the 20th CE. The first case in which “Media trial” was done is the case of Roscoe “Fatty” Arbuckle (1921). In this case, the accused Roscoe Arbuckle, after the court proceedings was over, it was held innocent and released by the court of law. But media held him “guilty’, by conducting media trial, he lost his reputation. His life and career both were destroyed. Another very famous case of media trial was the case of O.J. Simpson (1995),7 who was the former National Football League player, broadcaster and actor. He was accused of the death of his ex-wife Nicole Brown Simpson and her friend Ron Goldman, on the same day (12 June 1994). He was held innocent by the court of law and was acquitted. But, the media broadcasted the case in a way that influenced the people against him and then he was declared guilty by the media.8
There is no law in our country which gives right to the media people to interfere in the investigation process and the working of judiciary by conducting media trial. There are many famous Indian case laws where trial by media has been conducted which led to the accused person as “guilty. Some examples are the Jessica Lal Murder Case 20109&Bijal Joshi rape case, 2005.10
1.1 What is Sting Operation?
Sting operation, the very famous term in the 21st CE, is also known as “Investigative Journalism”. The term “Investigative Journalism”, means the investigation done by Journalists (Media People). Sting operation is one of the methods by which investigation is done by Media, in order to catch a person who has committed the crime. It is done against the person, group of persons or government officials committing malpractices in the society. This has become very common in the 21st CE. In almost every case media uses this method to bring out the truth in the society. Most often it is done in order to check the working of the government, whether the government is doing in the interest of public or not.11
1.2 Who conducts Sting Operation and how it is conducted?
Sting Operation is conducted by the law enforcement agencies, detective but most of the time Mass Media Journalists occasionally resort to sting operations acts as an ‘law enforcement agency” & conducts investigation.
In starting when the concept of sting operation came, it was done by placing a hidden camera at the place where investigation was to be done & other espionage devices. But later on, the technologies like miniaturized audio and video technology, especially pinhole camera technology is used to record video/audio of the conversations & the actions of the persons.
1.3 When it came into existence?
Sting operation came into existence in 1973, from the very famous American movie named “Sting”. It was made by the George Roy Hall .The film showed two men making a plan in order to trap a third person to commit an offence. This method is used by some of the countries like US, UK and Canada as lawful techniques for gathering information. But in India, there are no laws regarding the sting operation. It is unlawfully conducted by the people of Media in the country.12 At present, Media Trial does not get legal validation in India for conducting trials. But still the fourth pillar of democracy acts as a tool for advancing interest in the minds of individual in various remarkable cases.
2.Perspective of Sting Operation under Indian Laws
As we all know that media is the fourth pillar of the democracy and also it has become the important part of our lives as it publishes and broadcast the information to its citizens about what is happening all around the world. And this right to media is given in Article 19(1) (a) of our Indian Constitution13. No separate right has been given to media in the constitution of our country. ‘Tehelka’ was the first news magazine which publicized the idea of sting operation in India, in 2001. It exposed various ruling party officials accepting bribes14.
Various cases have provided that freedom of press is a part of Article 19(1) (a). In the case of Express Newspapers15, the Supreme Court has stated that the Freedom of Speech & Expression which is guaranteed by Art. 19(1) (a), also includes freedom of press. The press has given the right to free propagation & free publication without any previous restraint on publication. In the case of RomeshThappar v. State of Madras16, the SC said that freedom of press is included in the Freedom of Speech and Expression. As no right is absolute, so media has also been given some restriction under Art. 19(2) so that it cannot misuse its freedom.
Nowadays, media has started misusing its powers through the method of Sting Operation under Media Trial. It has become a trend in media to conduct this operation to dig out the secret and confidential in the public platform to increase their Trade Related Practices (TRP’s). Because of this, they have started interfering in the administration of justice. But, there are no laws which can guide or regulate Sting Operation in our country. They are also not included in the freedom of press. But, one can go to the courts for the infringement of right to privacy given under Article 21 of the Indian Constitution. As the sting operation violates the rights and freedoms of a person which also includes violation of privacy. The law which talks about is the Cable Television Networks (Regulation) Act17, and Rules framed there under. The only law which regulates sting operations in medical facilities is the Pre-Natal Diagnostic Techniques Act (1994),18 which is regarding illegal sex determination. Sting operations done under this act is lawful.19
There is a saying that every coin has two sides, same goes with the sting operation also. It also has two sides. One side of the operation is that it is conducted on the government and its officials for the benefit of society and other side is that it enters the private life of an individual and also ruins their reputation by bringing their personal information in front of public which is not in the public interest. That why it is hard to say that sting operation is legal or illegal: or it is good or bad for the society.
There are various cases in which judges have given their own distinct views and opinions about the legality of sting operation. Some have said that sting operation is the freedom of press & is very important in a democratic country like India as it helps in catching the criminals and corrupt government officials, and some are of the view that sting operation is illegal which violates the freedom and rights of an individual.
In, SP Gupta v. Union of India20, the court said that, “In order for a democratic Government to survive it should have accountability and the basic postulate of accountability is that people should have knowledge about the working of the government”. In Bennett Coleman v. Union ofIndia21, the court said that, “The public has a huge trust on media that it can take the responsibility of acting as a regulatory mechanism for those people who have power”. In the, State of U.P. v. Raj Narain22, the court said that, “The media has a duty to provide information to the people as they have the right to know every which is done by the public officials which is in public interest”.
In the case of, AniruddhaBahal& Another v. State23, there were two journalists AniruddhaBahal&Suhasini Raj who had conducted a sting operation where they have shown that few members of parliament had taken money as bribes to ask questions in the parliament. It was shown in the front of the whole nation. Journalists, in the case were made the prime accused instead of making them as a witness. Because the main issue in the case was that, whether any citizen of India can offer bribes to set up a trap in order to expose the corrupt practices of a public officer. The Delhi High Court , upheld the legality of sting operation and stated that it is necessary to cherish and follow our noble ideas which inspired the freedom struggle, under Article 51A(b)24. The court also said that the intention of the journalists in the case was to expose the corrupt public officials, and hence the operation conducted was necessary and valid. The court added that freedom of speech and expression also includes right to conduct sting operation especially in the case of removing corruption from the society.
In the case of RK Anand25(BMW hit & run case), the SC dismissed the request of writing down the rules for sting operation as it would hamper the media’s privilege of the freedom of speech & expression guaranteed under Article 19(1) of the Constitution.
3.Perspective of sting operation under International laws-
There are no laws which can regulate and govern sting operation whether in India or at an international level. Every country deals with sting operation in its own ways through case laws. But there are some which allows sting operation such as United States of America, and some countries it is not allowed such as Sweden and France.
Privacy is very important for every individual. It is an essential right which is provided to all humans in order to protect dignity and unwarranted interference in their lives. ‘Privacy’ means, “the right to be let alone; the right of a person to be free from any unwarranted publicity; the right to live without any unwarranted interference by the society which is not in public interest”. It is a Fundamental Right given to all its citizens under Article 21 of Indian Constitution. As per Article 2126, “No person shall be deprived of his life or personal liberty except according to procedure established by law”.
There are some International laws which also discusses about the protection of privacy of an individual or society-
Article 12 of United Nations Declaration of Human Rights27 states that, “No person shall be subjected to arbitrary intervention with his privacy, family, home or correspondence, neither any attacks upon his honor and reputation. Everyone is protected against such attacks or interference”.
Article 17 of the International Covenant on Civil and Political Rights (ICCPR)28 states that, “No person shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, and to unlawful attacks on his honor and reputation. Everyone has the right to protection of law against such interference or attacks”.
On 18 December, 2013 The United Nations General Assembly Resolution was passed on the Right to Privacy in the digital age and the General Committee of the United Nations Human Rights Committee under the International Covenant on Civil and Political Rights (ICCPR), 1988, which is regarding the right to privacy, family, home, correspondence and protection of honor and reputation. Both of these demands that the working of State Surveillance should be subjected to clear and precise law, which will look into safeguarding the right to privacy.
India is a signatory state party in the International Covenant on Civil and Political Rights.CCPR General Comment No. 16: Article 17 (Right to Privacy)29 says that , “The collecting and holding of personal information whether by public authorities or private individuals or bodies on computers, data banks and other devices must be regulated and guided by law. Effective action must be taken by the state in order to make sure that information concerning a person’s life does not reach the hands of persons who are not authorized by law to receive process and use it, and never be used for the purposes which are conflicting with the Covenant”.30
These rights discuss about the privacy of an individual and its protection and they indirectly regulates and guides Sting operation, because it violates and infringes the privacy of a person.
These articles say that no one can interfere in a private life of an individual and states has the responsibility to make laws regarding this. As sting operation conducted by media interferes in privacy of an individual, hence these laws indirectly regulates the operation.
4. Implications of Sting Operation
Sting Operation is both boon and bane to the system and it can be classified into positive and negative sting operations based on their purpose. Sting operations can be distinguished as legal entrapment or illegal entrapment of innocent people.
4.1 Positive Sting Operation
Positive Sting operation is conducted by keeping interests and benefits of the society in mind. The purpose behind this is to lift the veil on the functioning of the government. It focuses its attention on some burning issues which is continuously ignored by respected authorities and failed to catch the eye of general public. Positive Sting Operation is beneficial to the society because it renders government accountable for his actions. It exposes scams, political implication to the general public and it ensured transparency in the government.31 Media plays a significant role in the functioning of the democratic society as it imparts information to the general public in a fair manner.
There are many instances in which sting operations ensures betterment of society. A sting operation was conducted on ultra-sound centers carried out by the Health officers in Karnataka for “serious enforcement” of the Pre-Natal Diagonstic Techniques Act32 which prohibits sex determination of foetuses (male or female) and resulted in abortion of female foetus. This operation was considered as a positive or affirmative action by media because it focuses the attention of general public on burning issue which is prevailing from since long. It helped in stop female foeticide.
Media has an important role to play as the forth pillar of democracy.33It helps in exposing important cases of corruption and misdeeds of the higher authorities. In Operation West End, 2001, it targeted several members of the ruling coalition, the National Democratic Alliance which is headed by AtalBihari Vajpayee. It exposes several political figures as well as army top brass, colluding to take bribes in order to approve defense contracts. It also exposed Gujarat Riots in 2002 by conducting a 6 month long investigation that followed the burning of a passenger train carrying Hindu pilgrims. It dubbed Operation Kalank, the sting claimed to show that the riots were not a spontaneous Hindu backlash in response to the Godhara train burning incident, but it was pre planned program carried out in knowledge and sanction of Gujarat Government.
In Indian Hockey Federation, 2008 case, Secretary of Indian Hockey Federation K. Jyotikumaran was caught on a camera accepting a bribe from a journalist to include a player into the team for the Azlan Shah Tournament. Delhi high court ordered for removal of the secretary and a new committee was set up. Even in June 2008, The Cash for Vote Scam, IBN captured BJP leaders on hidden camera admitting to accepting bribe from Samajvadi Party Members during the trust vote.34
4.2 Negative Sting Operation
Negative Sting Operations does not benefit the society in general but it is a sensational endeavor to increase the viewership of their respective channels on the name of “Breaking News”. Negative sting operation harms the society and its individual by encroach their privacy. It is detrimental to society at large. The major repercussion in sting operation is that it proved to be an obstacle in fair trial.The Constitution of India guarantees the right to a free and fair trial.35The foremost function of media is to provide impartial, true and unbiased news to the people as it has the power to influence the people and change their decision. Sting operation indirectly had adverse impact on judiciary36 and various commissions have accepted the statement.37 Freedom of Press is explicitly not provided under Constitution of India but it can be inferred under Article 19(1) of Constitution of India. But no rights are absolute, they are subjected to limited restrictions.
There are many cases in which media for their own constructive motive had put the life of innocent on stake. In the case of, Court on its Own Motion v. State,38 Ms. Uma Khurana, a teacher in government school of Delhi. The operation was broadcasted on their channel in which she was forcing a girl student into prostitution. After seeing all this, she was physically attacked by some people who even tore her clothes. The court then took suomoto cognizance and ordered an investigation into the matter. After investigation it was found that Ms. Khurana was not involved in a prostitution racket and the girl shown as a student was a journalist, who was keen to become famous. The Delhi High court in its decision has stated that, “such incidents and false sting operations which are directly infringing the person’s right to privacy should be stopped so that innocent persons cannot be victimized and suffer loss of reputation”.
They involved in high profile cases to increase the viewership of audience and conducted their own parallel investigation and interfered in the court proceedings Recently, Sushant Singh Rajput death controversy catches the eye of media and general public. Media allegedly declares Rhea Chakraborty guilty of his murder, although she is the prime suspect but who authorizes the Right of declaring someone guilty to Media. Media creates so much hatred against her in the general public and it eventually affected her family, career, reputation. Supreme Court denounced sting operations as money making ventures as it had capacity to ruin the life of an innocent person. Therefore, a bill was designed by the Parliament to overhaul the existing Broadcasting Services Regulation Bill and propose to arm the central government within powers to even cancel the license of broadcasters for the benefit of society.
Sting Operations sometimes forget the ethical values in order to achieve high Trade Related Practices (TRP). On 7th February, 2007 Supreme Court issued notices to ZEE NEWS and its reporter on a sting operation conducted in 2004. In this operation, it was showed that a non bailable warrant could be procured against any person by paying a large amount in the court. It somehow disgraces values, sanctity, ethics which are imbibed upon Judiciary. Hence, it was concluded that sting operation acts as a boon and bane to the society as it helps in lifting the purdah of the corrupt officials are hiding their corrupt practices under their duty.
5. Right to Privacy or Freedom ofPress: Which Fundamental Right is more important
Article 19(1) of Constitution of India39 guarantees Freedom of Speech and Expression. Freedom of Press is enshrined under Article 19(1) (a) of Constitution of India.Is had been held that ‘Freedom of Press’ is necessary for exercise of fundamental freedom of citizens of ‘speech and expression’.40Independent Media is considered as the foundation of democracy that’s why it was recognized as Fourth Pillar of Democracy. It gives voice to the voiceless people in a democratic country and put forth the ground realities in front of general public. Article 21 of Constitution states Right to Life.41 Right to life includes Right to live with human dignity, Right to Privacy, Right to Food, Shelter, health facilities etc. Right to Privacy can be limited for compelling public interest.42 Now, there is an important question which fundamental right should b w weighed more either Freedom of Press or Right to Privacy.
There is constant debate going on between these two fundamental rights on the basis of their importance. Article 19(1) (a) guarantees Right to Freedom of Speech and Expression to Media but it is also subjected to restrictions under Article 19(2) of Indian Constitution.43But the restrictions can be imposed only on the grounds mentioned under clause 2 of Article 19.44 Sting operation do infringes the Right to Privacy of an individual. Sting operations are conducted by putting hidden cameras or in better words the other person does not give consent to be filmed and thereby encroaches their privacy. It has been established that Right to Privacy is a crucial component for cheerful life.45Media has encroached upon the right to privacy of an individual exposing his private life to the perusal of general public.
It is contended that Sting operations are conducted to expose any kind of practice of public officials related to their official duty. It is stated that what any public official do is for public domain and their working should be transparent. Media exposes those activities which are against public interest and there is no protection of Right to Privacy for those corrupt officials. However, when he is not discharging his official duty; he had a right to privacy like other citizens. The pulverization of the standard sense of duty anticipated in the noble profession has been brought on by grave mishandling of creative development and unhealthy competition in the field of news coverage.46 Wiretapping or telephone tapping, which is used in sting operations, was deemed a grave invasion of privacy and restricted as such, both by legislation47 and by judicial precedent.48
Right to Privacy is an essential element of life and personal liberty and is a part of the fundamental right guaranteed under Article 21 of the Indian Constitution.49 Sting Operations are conducted on the basis of allegations on an individual. If the allegations turned out to be false, it will consequently make him liable for criminal accusations.50 The rightfulness of a sting operation cannot be determined objectively as the journalist may have a bias towards or against a certain person that he might target and thereby encroach Right to Privacy without any objective of Public interest. The main problem is that there is no balance between the two utmost fundamental rights. Sting operations should not create nuisance and it should recognize limits on Right to Privacy of an individual.
Sting operation has become an important part of media trial in the 21st Century. In order to increase the publicity and TRP’s of TV Channels, media conducts sting operation in almost every case. On the one hand where it brings out the corrupt government officials in front of the public, on the other hand it violates the privacy of an individual and harms the reputation of an innocent people. It also creates a problem in the administration of justice, by conducting sting operation which results in the conviction of an accused. Media has been guaranteed Freedom of Press under article 19(1) (a) of Indian Constitution, but now it is misusing its power by conducting sting operation to increase the TRP.
We can see many cases where sting operation is conducted by the media and before the judiciary announces its decision, media already held the accused ‘guilty’, because of which pressure is created on the Judge by the people to held accused “guilty”. Hence, there is a possibility that an innocent may get convicted because of this operation.It is high time to make strict legislation that can regulate and guide sting operations and can punish those who conduct such type of operations which can harm the reputation and privacy of an individual. A law should be made so that media can be prevented from interfering into the personal space of an individual. There is an urgent need to draw a thin line between exercising of Freedom of Press and Right to Privacy and take appropriate measures to regulate the matter.
1. 2nd-Year, B.A.LL.B. (Hons.), Institute of Law, Nirma University
2. 2nd-Year, B.A. LL.B., Lloyd Law College
3. http://dail.yessayandarticle.blogspot.com/2011/07/role-and-importance-of-media-in-our.html 4 https://medium.com/nyaaya/rights-of-press-
7. Case no. BA097211.
9. Manu Sharma v. State (NCT of Delhi),(2010) 6 SCC 1. 10.BijalRevashanker Joshi v. State of Gujarat,(2005) 6 SCC 1.
11. https://docs.manupatra.in/newsline/articles/Upload/F02F6FB8-9560-4F94-BE8E-EC9DC6D82B7C.2- D Media%20and%20Communication.pdf.
12. https://docs.manupatra.in/newsline/articles/Upload/F02F6FB8-9560-4F94-BE8E-EC9DC6D82B7C.2- D Media%20and%20Communication.pdf.
15. Express Newspapers v. Union of India, A.I.R. 1958 S.C. 578.
16. A.I.R. 1950 S.C. 124
17. Cable Television Networks (Regulation) Act , 1995
18. Conception and Pre Natal Diagnostic Techniques Act, 1994
20. A.I.R. 1982 S.C. 149
21. A.I.R. 1973 S.C. 106
22. A.I.R. 1975 S.C. 865
23. (2010) 172 D.L.T. 269
24. The Constitution of India, Art 51 (1950)
25. R.K. Anand v. High Court of Delhi, (2009)8 S.C.C 106
26. The Constitution of India, Article 21 (1950)
27. United Nations Declaration of Human Rights, Article 12(1948) 28.International Covenant on Civil and Political Rights,1988
29. International Covenant on Civil and Political Rights, 1988
31. Ethics of Media Sting Operations, I.A.S. G.S., (April 5, 2017), www.iasgs.com/2017/04/ethics-of-media- sting operations
32. Pre Conception and Pre Natal Diagnostic Techniques Act, 1994
33. Sakal Papers Ltd v. Union of India, A.I.R.1962 S.C.305
34. Raja Ram Pal v. Hon’ble Speaker,LokSabha, (2007) 3 SCC 184.
35. The Constitution of India, Art 21 (1950) 36. P.C. Sen (In Re), A.I.R. 1970 S.C. 1821.
37. 200th Law Commission Report on Media Trial, 51-57. 38. I.L.R. (2008) 2 Delhi 44
39. The Constitution of India, art 19(1) (1950)
40. HamdardDawakhana v. Union of India, AIR 1960 S.C. 554
41. The Constitution of India, art 21 (1950)
42. Govind v. State of M.P. (1975)2 SCC 148, AIR 1975 S.C. 1378
43. The Constitution of India, art 19(2) (1950) 44. AIR 1962 S.C. 305
45. Kharak Singh v. State of U.P., A.I.R. 1963 S.C. 1295; Govind v. State of M.P., A.I.R. 1975 S.C. 1378
46. Labour Liberation Front v. State of A.P., (2005) 1 A.L.T. 740
47. The Telegraph Act (1885)
48. P.U.C.L. v. Union of India, A.I.R. 1997 S.C. 568
49. K.S. Puttuswamy v. Union of India, 2017 S.C.C. Online 996
50. Madhubhushi Sridhar, A Sting Without Public Interest is a Crime, THE HOOT, (July 30, 2014), http://www.thehoot.org/media-watch/law-and-policy/a-sting-without-public-interest-is-a-crime-7672.