Media and Governance: The legality of Sting Operations in India

INTRODUCTION:

The Media has been rightly referred to as the fourth estate by Edmund Burke and Thomas Carlyle. The role of the Media today, as the ‘fourth power’ which exercises a check on and counterbalances the three organs of authority cannot be undermined. In order to ensure that there are no hindrances in the path of the Mass Media, so that it may function effectively, the freedom of press has been provided as an inherent right under Article 19 (1)(a) of the Indian Constitution. This has been upheld by several judgments as well, such as in the case ofRomesh Thapar v. State of Madras (1950 AIR 124), wherein it was stated by the apex court that freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation. Further, the freedom of press was again upheld in the landmark judgment of Bennett Coleman & Co. & Ors v. Union of India & Ors(1973 SCR (2) 757), as forming an important part of the freedom of speech and expression.

The reason as to why the Media has been granted such freedom is primarily because the citizen’s ‘right to know’ is an important element of the fundamental freedom of speech and expression. Thus, in order to ensure that there is free dissemination of information, it is necessary that we have free and fearless Mass Media in our country. In fact in the recent past, the importance of the Media has increased manifold because of which reliance is now being placed on the media to act as a watchdog in place of the opposition owing to general distrust and collapsing standards in public life.

This has increased particularly due to the emergence of audio and visual media which has a greater impact on the public than print media. The satellite revolution of the 1990s led to a significant increase in the number of television channels and other media. It may be seen that fierce competition between several media groups has in fact led to sensationalisation of information to attract public attention, for increase in TRP s. One of the many results of that is what is commonly known today as a ‘sting operation’.

What is a Sting Operation?

There is no precise definition of a sting operation. It is essentially a deceptive operation designed to catch a person in the act of committing a crime. It generally involves a law enforcement officer or any other cooperative member of the public who acts as an accomplice or victim of the suspect, so as to gather direct evidence incriminating the suspect. It is commonly found in countries like the United States and is not permitted in various other countries such as Sweden, the Netherlands, etc. In India, it is mostly seen in the form of sting operations being carried on by the Mass Media.

In order to understand the concept of sting operations better, it would now be imperative to discuss a few cases dealing with the same.

Sting Operations in the Past

(a) The Tehelka case

One of the biggest sting operations carried out in the country was that of Operation West End in 2001 which is popularly known as the Tehelka scam. This was a sting operation to expose corruption in the defense ministry, where reporters posing as arms salesmen approached the then Defence Minister, Mr. George Fernandes and Bharatiya Janata Party President, Mr. Bangaru Lakshman. The two were caught in the operation and it ultimately led to their resignation from their respective posts. Further, evidence was allegedly found against Mr. L.K. Advani as regards the Indo-Israeli deal to provide border fencing and communication systems but the same was apparently not disclosed. However, the Tehelka operation came under a lot of criticism particularly due to conflicting statements being made by the Tehelkachief and the journalist who carried out the operation, Mathew Samuel with respect to Mr. Advani’s involvement in the entire issue. Certain pertinent questions were raised such as –

  1. Why did two journalists who were part of the same investigation, report differently about the matter?
  2. The Tehelka chief reportedly stated that the two persons being taped first made disclosures before Mr. Samuel and thereafter replicated the same before him. What was the need to replicate such information? Was the former a mere camera rehearsal?
  3. What was the reason behind releasing only select portions of nearly 100 hours of tape? Was there actually some sort of hidden political agenda sought to be achieved by way of the tapes?
  4. The tapes exposed some of the top brass of the then government and the two major ‘victims’ of this operation have been speculated as having been caught as they were some of the biggest rivals of Mr. Advani at the time.

So, whether or not the operation was in fact the doing of a responsible media or a mere sham, we will never know.

(b) Cash-for-queries scam-

Another controversial issue which came up during a sting operation was the Cash-for-queries scandal in 2005. Also known as Operation Duryodhana, it came to the forefront when it was alleged that the UPA Government which was in power at the time bribed eleven Parliamentarians in return for asking questions. The operation led to the expulsion of the tainted members of the Parliament. It was also alleged that the journalists, Aniruddha Bahal and Suhasini Raj who had carried out the operation were driven by motives of profit. It was also ironical as to how the Police prosecuted the journalists despite the fact that Parliamentary committees found the members guilty of misconduct. Thereafter, the journalists appealed to the Delhi High Court which upheld the legality of the operation.

(c) MPLAD scam-

Another such scandal was the Members of Parliament Local Area Development (MPLAD) scam which was titled as Operation Chakravyuh. It occurred almost immediately after the Cash-for-queries scandal and exposed corruption in the allotment of work for the Members of Parliament Local Area Development Scheme. The scandal involved then Goa Chief Minister and Lok Sabha member, Churcil Alemao, BJP MP, Fagan Singh Kulaste and Samajwadi Party MP, Toofani Saroj, who was later proved to be honest. This scam however did not receive much media coverage owing to the Cash-for-queries scam.

Sting Operations and the Judiciary-

Certain important judicial responses in this aspect may further be studied so as to understand the concept better.

In Court On Its Own Motion v. State, (146(2008) DLT429), certain guidelines were given by the Delhi  High Court as regards sting operations after there was false reporting of a school teacher, Uma Khurana’s involvement in a prostitution racket. These include the following-

  1. The Court argued against the entrapment of a person even if it was to further the ‘public interest.’ The right to privacy of a person is to be respected unless there is a larger interest involved.
  2. A channel proposing to telecast a sting operation had 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.
  3. The channel has to obtain permission from a committee appointed by the Ministry of Information and Broadcasting to telecast the sting operation.
  4. While the transcript of the recordings could be edited, the films and tapes cannot be edited. Both edited and unedited tapes have to be produced before the Committee.
  5. The chief editor of the channel is responsible for self regulation and he has to ensure that all statutory requirements have been adhered to.
  6. Reports or current events cannot deliberately be presented as true and any unverified or inaccurate facts must be avoided, so as to prevent trial by media so that the public does not get misled.
  7. Deliberately overplaying certain parts while underplaying others is also not to be allowed.
  8. Reports should not be such as to create alarm or panic or amount to incitement to commit any crime.
  9. Media to observe general standards of decency, having regard of the sentiments of viewers, particularly that of children.

Another important issue at the Delhi High Court as regards such operation was the Cash-for-queries scam as has been seen earlier. 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. The Delhi Police had previously charged the journalists under the Prevention of Corruption Act for seeking to bribe the MP s. 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. It was also stated that this fundamental duty is linked with every other duty enshrined in Article 51A and more importantly, it is necessary to protect the sovereignty, integrity and unity of the country. Thus, what needs to be seen is that the judge equated the rights of these journalists to that of ordinary citizens, thereby entitling the protection of law to every citizen in such case. 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. Further, the journalists deposed truthfully before the Parliamentary committees investigating the matter and the same must be considered.

The journalists have now filed a caveat in the Supreme Court, in case the Delhi Police decides to file an appeal.

A recent case dealing with sting operations is the judgment given by the Supreme Court inRaja Ram Pal v The Hon’ble Speaker, Lok Sabha & Others, ((2007)3SCC184) concerning the Cash-for-queries scandal and the MPLAD scandal. In this case, certain members of Parliament had challenged their expulsion by way of writ petitions before the apex court. The expelled members contended that the journalists who had carried out the ‘sting operation’ had admitted to have received monetary and other benefits from the same. It was thus argued on behalf of the tainted MPs that these journalists were driven by motives of self and profit. However, the court held that irrespective of the fact as to whether or not there was any motive to extract money from such operations, the expulsion of the members is not invalid due to the conduct which they had exhibited.

However, it is not just the executive or the legislature which has come under the Media’s eye. The Supreme Court in its judgment in Vijay Shekhar v. Union of India, ((2004) 4 SCC 666) discussed about corruption in the judiciary and upheld 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. It was argued that these warrants had been fraudulently obtained. In fact, the then Chief Justice of India, Mr. K.G. Balakrishnan asked the journalist who had conducted the operation to tender an unconditional apology. A question would thus arise herein as to whether the judiciary was in fact trying to protect its own members while delivering such a judgment. Further, taking into consideration the principle of independence of the judiciary, was the Chief Justice entitled to hear a case in which he was probably interested himself?

Another case was the Judeo case which dealt with a sting operation which showed former environment minister Dilip Singh Judeo receiving a bribe from an Australian firm for mining rights in Chhatisgarh. This case came before the Supreme Court after Justice Markenday Katju of the Delhi High Court opined that such sting operations are essential to bring issues such as corruption to light. It was argued on behalf of the journalists that the media act as ‘whistleblowers’ in public life and thus cannot be prosecuted. However, the CBI on the other hand contended that even journalists involved in such sting operations may be prosecuted where there is active inducement to commit a crime by such persons or where there are other vested interests involved and not just public interest. The premier investigating agency of the country argued that law enforcement is solely within the ambit of the powers of the government. Others can merely assist the government, but they cannot take the law into their own hands. The CBI was of the opinion that any person carrying out such operations may be prosecuted under the Prevention of Corruption Act. The journalists in the instant case, they said, should have informed law enforcement agencies either prior to or immediately after carrying out the operation. Thus, it was reiterated that though the media acts as a guardian of the fundamental rights of citizens, it must do so responsibly.

Evidentiary issues-

It may hence be seen that the Media has to surpass various hurdles while carrying out such operations and the right to privacy of persons and the extent to which the media may assume the role of the police is not the only issue involved here. 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 was obtained. This was also upheld inPushpadevi M. Jatia v. M.L. Wadhawan, (AIR 1987 S.C. 1748.)

However, the question still remains as to whether evidence may be admitted against a person who was lured into committing an offence. In Sri. Bhardwaj Media Pvt. Ltd. v. State,(W.P. (Crl.) Nos. 1125 and 1126/2007), it was upheld that there would definitely be an increase in corruption where people who help unravel acts of corruption in an institution are prosecuted. Thus, the ‘factum of entrapment’ may be ignored keeping in mind the larger public interest.

Evidence received by way of sting operations may also be treated as being extra judicial confessions and thereby admissible in certain cases. Extra judicial confessions may sometimes even not require any corroboration. (Piara Singh v. State of Punjab, (1977) 4 S.C.C. at p. 459) However, the contrary view was held in Makhan Singh v. State of Punjab, (A.I.R. 1988 S.C. 1705), where confession to a witness for the purpose of seeking his help to save the accused was not accepted as evidence.

Law Commission Paper and Government proposals-

The Law Commission recently released a paper as regards sting operations in India and discussed the possibility of enacting a statute with respect to the same. The only statute in existence is probably the Cable Television Networks (Regulation) Act, 1995 which clearly provides that “no programme can be transmitted/re-transmitted on any cable service which contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths.” The Commission also highlighted the views of the Committee on Petitions of the Rajya Sabha which had earlier stated that a sting operation must be aired only where there is conclusive proof as regards the guilt of the accused. However, where public interest is shown, the version of the accused or suspect must also be aired simultaneously. The Committee on Petitions had also stated that punitive action must be taken against any party who makes available any false or fabricated information by way of such operation. It was opined that public interest must be balanced with the right to privacy of the individual and the latter must not be encroached upon. The Committee on Ethics too in the case of Operation Chakravyuh stated the same.

It must be noted that a regulatory authority known as the Broadcasting Regulatory Authority of India (BRAI) has been proposed to be established by the Union Government under the Broadcasting Services Regulation Bill, 2007. A Content Code, revised in 2008 regulating content of news was however opposed by the media. Thereafter, the Information and Broadcasting Ministry has proposed setting up of a National Broadcasting Authority under statute. However, the same would not regulate content of news. The Ministry has also decided to come up with certain informal guidelines to check objectionable publications. Recently, the News Broadcasting Association and the News Broadcasting Standard Authority have been established which promote self regulation and have come up with a definite code of ethics.

Keeping in mind the fact that the judicial pronouncements so far have not explicitly dealt with the law relating to sting operations, the Law Commission has come up with a questionnaire in order to elicit public opinion as regards the issue at hand. The questionnaire puts forth important questions as regards immunity afforded to journalists who conduct such operations, the applicability of laws such as the Prevention of Corruption Act in such cases, the need of legislation, etc.

Problems faced-

However, this is not sufficient. One of the major problems that we face today is that there is no definite legislation or regulation specifically dealing with sting operations. The case law available is also very unclear on the subject. Another problem is as regards ascertaining the intention of the journalist conducting the operation, which was seen in the recent controversy surrounding the Radia tapes. There may be times when the operation is being carried out merely to advocate certain political propaganda.

Further, whether or not journalists are completely immune from prosecution under other laws is a debatable issue. It has often been asked as to whether such journalists may be held for making defamatory statements which may even ruin the reputation of an innocent person if such operations are not conducted cautiously as was seen in the case of Uma Khurana, the Delhi school teacher falsely caught on tape for trafficking of minor school girls.

Generally, only select portions which will attract more TRP s are broadcasted and the true story is not revealed.  Stiff competition in the market leading to sting operations being used as a major public attraction, causes decrease in actual news. In the entire process of tussle between rivaling media houses, public awareness on issues of greater importance gets affected. Thus there is a negative impact on the right to know of the people of the country, a freedom which must ideally be protected by the Media.

Conclusion- What is the solution to this problem?

So are there any possible solutions for these issues? Legislation would probably be the best answer to this problem. 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 admissibility of evidence in such cases, keeping in mind the facts and circumstances. The Police force and other authorities must not be allowed to unnecessarily harass and prosecute media persons. A chance to be heard must be given to all and for that purpose, the version of the suspect must also be allowed to be broadcast simultaneously, so that the public gets a true picture of the entire situation. Further, care must be taken to minimise encroachment on the right to privacy of an individual even where public interest is involved. Defamatory material dealing with the private life of a person must as far as possible be regulated.

A code of conduct and self-regulation must be followed by every news agency and other media. Efforts must be made to ensure individual compliances at all levels and such a code must also be periodically reviewed. Punitive measures must be laid down in case any false or fraudulent sting operation is carried out, so that journalists may work cautiously and this would also create a sense of deterrence. The Journalist carrying out the operation must be made to sign an undertaking stating that the information being broadcast is true to the best of his knowledge. A statutory body may also be created to which the media shall give information as regards such operations either before or immediately after the completion of the operation. The concerned media house must also be required to obtain a license from the Information and Broadcasting Ministry in this regard.

However, it is not just important that such solutions be proposed. It must be ensured that these measures are in fact carried out. The right to know of the public must be protected both by the media as well as the government. It must be seen that public awareness is created as regards such issues and each person is given a fair opportunity to state his case. Ultimately what must be highlighted is not growing TRPs or illegally obtained profits. In fact, in stead of playing the blame game, the government and its organs, the Media being the fourth must be both responsive as well as responsible where such issues are involved.