Legality of Sting Operations

Anushaka Sharma [1]

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Introduction

A sting operation is an act put up by journalists and other persons in an attempt to be whistleblowers, to expose wrongdoings, or to gain insight into particular crimes. They have often been a weapon to expose various scams and scandals, entire governments and influential politicians. There is no governing law on the constitutionality of sting operations in India, so their reliability has always been debated and their admissibility as evidence for judicial scrutiny has been widely deliberated upon.

There exists, a pool of contrasting opinions around this thought as well. There has always been a debate on whether or not sting operations come under the realm of investigative journalism. This highlights the innate confusion that sting operations are accompanied with. This article addresses various aspects of sting operations and the issues surrounding it.

Two aspects of the sting operation in India

Sting operations have often been used in our country. On one hand, they have helped the Indian media become credible and influential, leading the government and many powerful authorities to be accountable for their actions. However, it has often been misused, resulting in the violation of some fundamental rights which we are all entrusted with, by virtue of the Constitution of India. The Indian Judiciary has witnessed both positive and negative consequences of these operations. We can study about both of these aspects under the following headings

· Positive Sting Operations

· Negative Sting Operations

Positive Sting Operations

In simple words, positive sting operations are operations that have always exposed the wrongdoings, scams, scandals and misuse of power. Some instances which reflect the nature of these sting operations are mentioned as follows-

Health Departments in Karnataka - The government of Karnataka set aside an amount of Rs.50,000 for conducting smooth sting operations on a crucial subject, i.e. the ultrasound centers which engaged in the unethical practice of revealing the identity of an unborn baby. This concern arose from the 2011 census that revealed the vast gap between the male and female population in Karnataka. Not only did the health department seek the support of the people of Karnataka and encouraged them to participate in this operation but it also bolstered the initiative by offering a financial investment.

In 2005, two journalists named Suhasini Raj and Aniruddha Bahal directed a sting operation aimed at disclosing malpractice between some Ministers of Parliament who charged money for engaging in questions in Parliament. In December 2005, this sting operation was revealed to the public and broadcasted by several news channels.

After this incident, Somnath Chatterjee, the then speaker of the Lok Sabha, formed a committee to look into the matter, specifically involving the Lok Sabha members who were accused of corruption through this sting operation. The Rajya Sabha also formed a committee to enquire into the matter. The Delhi Police, instead of holding the Ministers responsible for the act of corruption, held the journalists who conducted the sting operation, Suhasini Raj and Aniruddha Bahal, accountable and lodged FIRs against them on accounts of corruption and attempt to bribe the ministers . The Trial Court agreed with the charges against the journalists. On appeal, the case was heard by the High Court of Delhi where, the nature of the sting operation was explained to be an action exposing the widespread corruption. Justice Dhingra, who was the presiding of the case, gave a ruling focusing on the issue of whether the citizens of India have the right to expose the corruption in society by way of sting operations. Justice Dhingra ruled in favor of this contention and explained through his judgment that the citizens of India did have a right to do so. This right was conferred upon them by way of Article 51A of the Indian Constitution which says that every citizen has a duty to take inspiration from the ideals that helped India gain freedom, and not condoning corruption was one of them. Thus, Justice Dhingra said in his ruling that working towards a corruption-free society is every citizen’s duty and thus Bahal and Suhasini could not be convicted for the sting operation. Quoting Justice Dhingra’s remarks on this case that sheds light on the positive nature of sting operations- “In order to expose corruption at higher level and to show to what extent the state managers are corrupt, acting as agents provocateurs does not amount to committing a crime.”

The above instance fairly depicts what a positive sting operation is. An operation done with public interest in mind, which further leads to the revelation of practices and events that were detrimental to our society at large are positive sting operations.

Negative Sting Operations

In 2007, a famous news channel called Live India aired a massive sting operation. On the face of it, it looked like a whistleblower targeting our society’s menaces like forcing children into prostitution, but how the story progressed created some troubling concerns about the growing freedom of the media in India.

The sting operation conducted by a reporter, Prakash Singh, which revealed a girl’s confession who, in the video, posed to be a student of the New Delhi School. By the look of it, it seemed as if the girl was finally confessing to the horrendous activities done by Uma Khurana, a teacher in that school. As per what was revealed in this operation, Uma Khurana was involved in the act of forcing her female students to enter into prostitution. Following this sting operation’s broadcast, Uma Khurana was attacked both mentally and physically. The matter of the fact was that this entire operation was entirely staged and untrue. Uma Khurana owed money to someone who resorted to tarnishing her reputation by conducting this fake sting operation.

Now, in cases like this, we would like to be reminded how the Constitution of India has no rule per se on the legality of Sting Operations. Moreover, instead of being used as a tool that reveals the malpractices responsible for the sloth-like growth of our country, some people and organizations blatantly misuse this tool.

It is important to understand that every action has its own repercussions. However, something that has the potential to be an excellent tool of use for our democracy faces discouragement, because of few people who are too selfish and morally challenged to see the power of using the right tools in the right way.

The Judicial Perspective in India

Through various landmark judgments, today, we have varied perspectives on sting operations in India. Many judges, by their rulings, have changed our understanding of this subject.

The judicial perspective on the same was exhibited in the landmark judgment of Indian Express Union vs Union of India & Ors 1986 AIR 515. To summarize the facts of this case, the petitioner was the Indian Express Union who, in their writ petition, claimed that the rising import duty on newsprint under Section 12 of the Customs Duty Act, 1962 coupled with Section 2 of the Customers Tariff Act, 1975 along with duty imposed under the Finance Act, 1985 was restricting the freedom of media considering how vital the role of newspapers were when it came to the subjects of accountability and administration. The Union of India defended its tax impositions by terming it as an act done keeping the public interest in mind, and to collect revenue for the government. The ruling in the case was given by Justice E.S. Venkataramiyah who held that, under Article 19 (1)(a) of the Indian Constitution, freedom of speech and expression is entrusted to all the citizens of India and the freedom of the press is implicitly included under this article. Justice Venkataramiyah ruled against the massive tax imposition on the newsprint and was quoted saying, “With a view to checking malpractices which interfere with free flow of information, democratic constitutions all over the world have made provisions guaranteeing the freedom of speech and expression laying down the limits of interference with it.”

We can see from the judgment above that the freedom of the press has been regarded to be of very high importance. Justice E. Venkataramiyah, while giving his ruling in this case, put forth a significant point about the media being a bridge between the administrative bodies and the people of India meaning, any obstruction is detrimental to the democracy that India is. Thus, we can now understand that, with all the potential sting operations have of being misused by the media itself, we cannot overlook how it can sometimes lead the government to feel accountable for its actions to the people who elected it.

Justice Rajiv Sahai supported the use of sting operations to bring forth the realities of people and organizations who indulge in malpractices in the case of Indian Potash Ltd. vs Media Contents And Communication. The plaintiff, Indian Potash Ltd., claimed damages for defamation from the defendant, Media Content and Communications, for defaming it through a sting operation broadcasted by the defendant which alleged that the plaintiff company was engage in the sale of adulterated/synthetic milk.

The plaintiff claimed that the sting operation had damaged the company’s reputation. The sting operation included the conversation with Mr. A.K. Shrivastav, who was an employee at the plaintiff’s company which revealed the use of chemicals and sale of adulterated milk in the plaintiff’s company. The plaintiff argued that since Mr. A.K. Shrivastava was a junior employee at the company, his experience cannot imply the involvement of the entire company in this activity. The defendant on the other hand, argued that the sting operation was not conducted to defame but rather, to bring into light the wrongdoings to make the society more aware. The judgment in this case, was in favour of the plaintiff. The presiding judge commenting on the sting operation said, “The only way to bring the same in the public glare is through such sting operations which even though may not result in punishing the guilty but at least has the effect of stopping or suspending the misdeeds, even if for a short time.”

Therefore, the Indian Judiciary has never implied a straight-jacket formula when it comes to the constitutionality of sting operations. The legality of sting has been decided on a case to case basis and acts which are done in the interest of the public are often seen for what they are and are not considered illegal by the Judiciary.

Are Sting Operations Violative of Article 21?

In the case of Uma Singh, as read by us above, we witnessed a misuse of the tool that has been given to all of us to expose the wrongdoings we witness. Even though, in the said case, the reporter who staged the entire operation was punished, it would still not give the lost reputation and respect back to Uma Singh. This is something that has been made possible by the lack of constitutional provisions setting out strict provisions for the corrupt use of sting operations. Article 21 of the Constitutions talks about how a life of dignity and freedom is one of our rights. This article also incorporates the Right to Privacy. Sting operations have the potential to reveal a lot about the person’s life without any prior consent for the same. Hence, self-regulated operations that are done with a mala fide intention are often a direct violation to the right to privacy (which is intrinsically mentioned under Article 21 of the Indian Constitution) of the person who suffers the aftermath.

Conclusion

Sting operations in India do not have a dedicated law however, they are assumed and interpreted according to the fundamental rights mentioned under Article 21 and Article 19(1)(a) of the Indian Constitution. However, if the focus is more on deciphering the aim of the conducted operation, sting operations can work in favour of developing a more transparent democracy and an influential media and press. This can be achieved, provided this tool is not misused for defaming a person or an organization or to fulfil personal interests. The Indian Judiciary has continued not to use a blanket law when it comes to sting operations because very often, these operations have acted as whistle-blowers for the benefit of the society.

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[1] Anushaka Sharma is a law undergraduate from Jindal Global Law School. For any discussion related to the article, she can be contacted via mail: anusharma1999arman@gmail.com.

Preferred Citation – Anushaka Sharma, “Legality of Sting Operations in India", Syin & Sern Law Review, Published on 16th November, 2020.

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