ABSTRACT
A Sting Operation is an operation designed to catch a person committing a crime by means of deception. A complicated confidence game planned and executed with great care. The word "sting" derives its origin from the American usage to mean a police undercover operation designed to ensnare criminals. The word sting is synonymous for the expression "set a trap to catch a crook" and this article uses the term in that sense. In more refined terms, it can be called Investigative Journalism or Undercover Journalism. Sting Operation is an information gathering exercise; it looks for facts that are not easy to obtain by simple requests and searches, or those that are actively being concealed, suppressed or distorted.
Keywords: Concealed, Journalism, Media, Personal Freedom, Sting Operation.
INTRODUCTION
An informed citizenry the bedrock of a democracy, holding the government accountable through voting and participation requires investigative journalism which cannot sustain itself on asymmetric dissemination of information. In many cases, the subjects of the reporting wish the matters under scrutiny to remain undisclosed. Among the most popular programmes in India, are those reporting on corruption and misdeeds of politicians and government officials?
'Candid camera', report many stories of the day the bribe that the police inspector extracts from the victim of a crime before agreeing to investigate, the 'fee' that the government officer charges for his giving the order to make an electric connection, and the 'contribution' that a company pays a member of Parliament before bringing up a legislative concern in the Lok Sabha. For of all these things, do we really require Sting Operations? At the same time, where such investigative work involves the use of covert methods, it raises issues that tend to further blur the line between law and ethics. Is deception legitimate when the aim is to tell the truth?
Is any method justifiable no matter the working conditions and the difficulties in getting information? Can television reporters use hidden cameras to get a story? Can journalists use false identities to gain access to information? The critical question that surfaces is "to what extent can the media go and to what extent must a person be informed?"
STING OPERATIONS IN INDIA
Sting Operations are undertaken with a view to look
into the working of the government or to see whether the actions of an
individual are against public order. On the basis of purpose, sting operations
can be classified as positive or negative. Positive Sting Operation is one
which results in the interest of the society, which pierces the veils of
the working of the government.
It is carried out in the public interest. Due to positive sting operation society is benefited; as it makes government responsible and accountable. It leads to transparency in government and governance. On the other hand negative sting operations do not benefit the society, but they do harm the society and its individuals. They unnecessarily violate the privacy of the individuals without any beneficial results for the society. This type of stings, if allowed, hamper the freedom of the individuals and restrict their rights. Here are few examples which we can distinguish as positive and negative sting operations.
Positive Sting Operations
1. Sting operations on ultra-sound centers carried out by the Health officers in Karnataka for serious enforcement of Pre-Natal Diagnostic Techniques Act which bans sex determination of fetuses and consequent abortion of female ones to stop female foeticide.
2. The Ministry (by the Cable Television Networks
Regulation Act and Programme Code), has prohibited the transmission of Cine
world channel for 30 days for showing objectionable content, as it
"offended good taste and decency".
3. An operation by an online news site called Tehelka to catch top politicians and army officers taking bribe from journalists posing as businessmen.
4. An operation in which a journalist posing as a struggling actress met actor Shakti Kapoor, who promised in the televised footage that his secretary would introduce her to movie producers and directors.
Negative Sting Operations
Instances over the years have shown that though sting operations do expose corruption in some cases, sometimes they seriously violate the rules of journalism in the pursuit of profit and shortterm sensationalism.
1. The Delhi High Court, issued notices to the Delhi government and city police after taking Suo moto cognizance of media reports alleging that a sting operation carried out by a TV channel, which claimed to have exposed a sex racket run by a government school teacher Uma Khurana, for allegedly luring her pupils into prostitution has now been revealed to be completely fabricated and was fake and distorted.
2. The Supreme Court, issued notices to a private news channel and its reporter for carrying out a sting operation carried out in the year 2004, which allegedly showed a non-bailable warrant could be procured against any person by paying a hefty amount in the court.
These incidents are an example of how a sting operation can go wrong and become an exercise in trapping an innocent person. India TV's chief editor, Rajat Sharma, said that there was no violation of privacy in exposing such matters as political corruption or the trading of jobs for sex in Bollywood; a practice known in movie and theatrical business lore as the casting couch.
DO WE REALLY NEED STING OPERATIONS?
The media plays an important role in a democratic society. It acts as the fourth institute outside the government. Sting operations are methods of uncovering information. Although, the Indian constitution does not expressly mention the liberty of the press, it is evident that the liberty of the press is included in the freedom of speech and expression under Article 19(1) (a). Various constitutions have guaranteed free press or media as a fundamental right. Freedom of press is a special right under Article 19(1) (a) of the constitution of India, 1950, but it has certain restrictions. The democratic credentials are judged by the extent of freedom the media enjoys in a particular state. Further the media has a right to impart the information to the public. Freedom of speech includes freedom to communicate, advertise, publish or propagate ideas and the dissemination of information. Furthermore Article 19(1) also incorporates within itself right to receive information about any event, happening or incident.
In Romesh Thappar v. State of Madras, court observed,"...The public interest of freedom of discussion (of which the freedom of press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed so that they may influence intelligently the decisions which may affect themselves."
This concept of people's right to know which was found so essential for democracy was located by the court in Article 19(1) (a) in Bennett Coleman and Co. v. Union of India observing thus, "Although Article 19 (1) (a) doesn't mention freedom of press, it is the settled view of the court that freedom of speech and expression includes freedom of the press and circulation."
The court held," Press has a fundamental right to express itself; the community has a right to be supplied with information; and the government has a duty to educate the people within the limits of its resources."
Justice Mathews ruled in the case of State of Uttar Pradesh v. Raj Narain, " the people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. Their right to know is derived from the concept of freedom of speech."
In S.P. Gupta v. Union of India,"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."
In Prabha Dutt v. Union of India, the Supreme Court upheld the right claimed by the press to interview prisoners that the right claimed by the Press was not the right to express any particular view or opinion but right to means of information through the medium of interview of the prisoners.
WHY NO TO STING OPERATIONS?
With great power comes great responsibility, therefore the freedom under Article 19(1) (a) is correlative of the duty not to violate any law. Every institution is liable to be abused, and every liberty, if left unbridled, may lead to disorder and anarchy. Television channels in a bid to increase their TRP ratings are resorting to sensationalized journalism. Sting Operations have now become the order of the day. The carrying out of a sting operation may be an expression of the right to free press but it carries with it an indomitable duty to respect the privacy of others.
Article 19(2) - An Exception to Article 19(1): It is however pertinent to mention that, freedom of speech and expression of the press is not absolute but is qualified by certain clearly defined limitations under Article 19(2) in the interests of the public.
In Romesh Thappar v. State of Madras,8 and Brij Bhushan v. State of Delhi,9 the court firmly expressed its view that there could not be any kind of restriction on the freedom of speech and expression other than those mentioned in Art 19(2) and thereby made it clear that there could not be any interference with that freedom in the name of public interest even when Clause (2) of Article 19 was subsequently substituted under the constitution (First Amendment) Act, 1951 by a new clause which permitted the imposition of reasonable restrictions on the freedom of speech and expression of media.
Against Right to Privacy
The individual who is the subject of a press or TV item has his or her personlaity, reputation or career dashed to the ground after the media exposure. He too has a fundamental right to live with dignity and respect and a right to privacy guaranteed to him under Article 21 of the constitution. The Supreme Court in Kharak Singh v. State of Uttar Pradesh,10 held that the right to privacy is inherent under Article 21. The Delhi High Court observed that right to privacy that flows from Article 21 cannot be invoked against private entities. It cannot be denied that it is of practical importance that a precarious balance between the fundamental right to expression and the right to ones privacy be maintained.
The right to privacy is an alleged human right, which may restrain both government and private party action that threatens the privacy of individuals. It has been recognized as a fundamental right by the Supreme Court under article 21.
The Supreme Court in R. Rajagopal and Another v. State
of Tamil Nadu and Others11 are true reminiscence of the limits of freedom of
press with respect to privacy, "A citizen has a right to safeguard the
privacy of his own, his family, marriage, procreation, motherhood,
child bearing and education among other matters. No one can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy."
Against Public Morality
There is the classic ethical problem that haunts all sting operations: can you hold somebody responsible for a crime that he would not have committed if you hadn't encouraged him? The essence of all entrapment is that you promise a man a reward for breaking the law and then, apprehend him when he takes the bait. All sting operations involve making people commit crimes that they would not otherwise have committed and are therefore immoral. It is against the public morality and decency and hence falls within the purview of Article 19 (2). The 17th Law Commission in its 200th report has made recommendations to the Centre to enact a law to prevent the media from interfering with the privacy rights of the individuals.
PROBLEMS WITH STING OPERATIONS
The classic ethical problem that haunts all sting operations: - can you hold somebody responsible for a crime that he would not have committed if you essence of all entrapment is that you promise a man a reward for breaking the law and then, apprehend him when he takes the bait. A defence that can be taken by the accused that the act had been committed as a result of inducement, and which he (the accused) did not intend himself to commit, or, in cases where lack of consent constitutes the offence, such as rape, that accused, the impression given was that an offence had not been committed. Fundamental rights cannot be enforced against the individual or private entity: When Maneka and a Little Ma because of this lack of legislation that we have numerous Sting Operations taking place almost daily thereby obtruding upon individual privacy. However, despite the growing invasion of privacy, there is no Indian legislation that directly protects the privacy rights of individuals against individuals.
Conflict of Laws
Although on one hand, the constitution confers the fundamental right of freedom of the press, Article 105 (2) provides certain restrictions on the publications of the proceedings in Parliament. In the famous Searchlight Case,13 the Supreme Court held that, the publication by a newspaper of certain parts of the speech of members in the House, which were ordered to be expunged by the Speaker constituted a breach of privilege. Another major problem which we face today is against whom the sting operation is allowed?
Some are of the opinion that it must be allowed against the public servants. The definition of occurs that whether we can have sting operation against the public servants when they are not in their course of duty? There are so many problems which may arise because of the reason that we do not have a proper legislation. We can say the root of all these problems is the lack of legislation.
POSITION OF STING OPERATION IN INDIA
In India we have no specific law which governs such operation; also, we have no judicial pronouncements which may guide such operations or the acts of the media. A person can go to the court under different laws to protect his rights and freedom. We have wiretapping which is a part of sting operation is regulated under the Telegraph Act of 1885. In the 1996 decision, The court also laid out guidelines for wiretapping by the government, which provides for who can tap phones and under what circumstances. Only the Union Home Secretary, or his counterpart in the states, can issue an order for a tap. The government is also required to show that the information sought cannot to be obtained through any other means. The court mandated the development of a high-level committee to review the legality of each wiretap. Tapped phone calls are not accepted as primary evidence in Indian courts.
Apart from the common law, the Supreme Court has recognized a constitutional origin as well. So, firstly, a private action for damages may lie for an unlawful invasion of privacy under the Law of Torts. These sting operations also violate right to privacy which according to the Supreme Court is guaranteed under Article 21- right to life and personal liberty. As the freedom of expression guarantee in Article 19(1) (a) is not absolute, as the constitution provides for Article 19(2) which protects the public interest morality and decency. A person who welcomes media interest in his life will not be able to claim a right to privacy as easily the onus of proving that a particular publication was in public interest lies with the media house.Undoubtedly, the jurisprudence of the Supreme Court will certainly influence interpretation; with a genuine motive to create awareness of wrongdoing, cannot be proscribed or prohibited.
FINAL REMARKS
The Union Information and Broadcasting Ministry must favour the introduction of a clause to make a clear distinction stories with political implications shall be allowed, as any attempt to proceed against them would be seen as an effort to stifle the media.
What journalists and editors need to determine is who will benefit as a result of the reporting. If journalism is committed to democratic accountability, then the question that needs to be asked is whether the public benefits as a result of specific investigative reports. Does the press fulfill its social responsibility in revealing wrongdoing? Whose interests are being affected?
Whose rights are being invaded? Is the issue at stake
a matter of legitimate public interest?
What the regulatory body will need to determine is who
will benefit as a result of the reporting.
Is the issue at stake a matter of legitimate public
interest? These are some questions which need to be answered when going
for a sting operation or going for making legislation on it.
The legislation must govern the conduct of the media and must define the extent media can it is only the federal government and the FBI alone that has the right to use a hidden camera and go for sting operation. In India too somebody like CBI or any other body must only be legalized to perform sting and their conduct must be regulated through the legislations. This body must not be immune to any legal proceedings. There must be a proper authority like court or Attorney General, whose permission must be sought on proper proof against the subject of the sting. The subject of the sting must have the evidence of criminality.
Court should take observations about the same. Problem with the media is that it only campaigns for cases which appeal to its market and its imagination, which may result in its good reputation in front of the society.
To avoid falling into that trap, the sting operations need a code of conduct. Laws too, should be strengthened in this regard. Sting operations are completely justified if they are carried out with the protocol that has been talked about.
SOURCE:http://www.ijli.in/assets/docs/DeevanshuShrivastava.pdf
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