[dropcap]A[/dropcap] midst news about the sting operations conducted on multiple media houses that reveal their initial affirmative response to run Hindutva related content on their platforms in exchange of a handsome some of money, the questions regarding the legality of such sting operations are brimming. Are sting operations even legally permitted in the country? What is the evidentiary value of the information gathered through a sting? What happens if the person conducting the sting commits an offence as a part of it, can he be prosecuted for it?
Before we move to exploring the legality of sting operations, it is important to understand the concept of paid news which is associated with this particular sting operation. The Press Council of India, in its 2010 report said that paid news referred to “any news or analysis appearing in any media (print and electronic) for a price in cash or kind as consideration”. It further said that this could include exchanges in the form of accepting gifts on various occasions, foreign and domestic junkets, various monetary and non-monetary benefits, besides direct payment of money, or even private treaties signed between media entities and corporate houses.
A sting operation in general is a method that employs deceit and disguise to uncover certain information. The “deceitful” nature of this style of journalism stands on a grey area, especially when the medium of disseminating such information is the audio-visual and television. Where the Press Council of India, Norms of Journalistic Conduct (2010) provide certain standards to be followed when conducting and reporting on a sting or information gathered thereof. The television and the digital medium is not covered under the Press Council, and are therefore, bereft of these guidelines.
However, this medium is regulated through a self regulatory body called the News Broadcasters Association. It is important to note that their code of conduct and ethics does point that, “the broadcasters should ensure that they do not select news for either promoting or hindering any side of a public controversial issue. News shall not be selected or designed to promote any particular beliefs, opinions, or desires of any interest group.”
Overriding public interest
The Indian Supreme Court had the opportunity to clearly state the validity of a sting operation, when conducted on a sub judice matter, i.e. pending in the court of law, in the sting operation conducted on the two advocates of the BMW hit and run case. This sting, which was subsequently telecasted by NDTV, revealed the advocates from opposite sides colluding to bribe a witness. In a judgment that clarified the position of stings, the apex court, vide a three-judge bench in R K Anand v Registrar, Delhi High Court [2009 8 SCC 106], upheld the validity of such operations if the information sought to be revealed was of “overriding public interest”.
The doctrine of public interest has undergone substantial jurisprudential exploration by the courts for there to be enough direction on what would constitute an overriding public interest in a particular case.
In a poignant opinion, the Supreme Court held as follows:
“Looking at the matter from a slightly different angle we ask the simple question, what would have been in greater public interest; to allow the attempt to suborn a witness, with the object to undermine a criminal trial, lie quietly behind the veil of secrecy or to bring out the mischief in full public gaze? To our mind the answer is obvious. The sting telecast by NDTV was indeed in larger public interest and it served an important public cause.”
Culpability of the sting operator
The implicating information in a sting operation, at times, is gathered by committing an offence in itself. The Supreme Court in the case of Rajat Prasad v CBI [2014 6 SCC 495] addressed this issue, and acknowledged that “only in cases where the question reasonably arises whether the sting operator had a stake in the favours that were allegedly sought in return for the bribe that the issue will require determination in the course of a full-fledged trial”.
This was in response to the argument that prima facie prosecution of the sting operator would be an inhibition for journalists from undertaking such operations to expose corruption or other illegal acts, therefore, detrimental to public interest. Furthermore, the Supreme Court held that the “a crime does not get obliterated or extinguished merely because its commission is claimed in public interest”.
Whether the act by the sting operator was a journalistic exercise or if the operator had stakes involved in the act in question could not be assumed as public interest, but will be finally determined after perusing the facts and circumstances, and proper evidence.
In the course of a sting operation, if the evidence against the accused is gathered by inducing the person to commit the offence, can the accused still be prosecuted for the crime? This question has arisen in jurisdictions that permit law enforcement to conduct sting operations and gather information. The legal doctrine of entrapment nuances this concept.
However, India does not permit law enforcement to adduce evidence by this methodology, save and except under the Prevention of Corruption Act where a law enforcement officer is permitted to entrap by offering marked notes. In the United States, the usage of stings by law enforcement is a legal technique in producing evidence against offences of drug trafficking, political and judicial corruption, prostitution etc.
The dividing line between the legality of the sting operations is drawn at where the law enforcement “merely afford opportunities or facilities for the commission of the offense” and where the crime is the “product of the creative activity” of law-enforcement officials. If the actions of law enforcement officials qualifies as the product of creative activity, the suspected criminal can use the defence of entrapment to prove that the offence was not committed solely by the individual, but due to the explicit interference of law enforcement officials.
The Canadian jurisprudence on the subject provides a deeper perspective wherein the Supreme Court in R v. Mack [1988 2 SCR 903] has laid down factors for when the law enforcement provide more than an opportunity for commission of an offence. These factors include:
the persistence and number of attempts made by the police before the accused agreed to commit the offence;
whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;
the type of inducement used by the police including: deceit, fraud, trickery or reward;
the existence of any threats, implied or express, made to the accused by the police or their agents;
whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction
Evidentiary value and contempt of court
After having established the permissibility of a sting operation on the threshold of public interest, the question of the evidentiary value of the material so collected arises. In the case of R K Anand, prior to the matter reaching the Supreme Court, the Delhi High Court had studied the audio-visual clips of the sting operation, and taken suo moto cognizance of the matter, and issued a show cause notice of criminal contempt of court to the advocates concerned. The Delhi High Court, thus, took the information gathered in the course of the sting as evidence of obstructing the course justice under the Contempt of Courts Act, and called upon the advocates for a justification.
Sting operations in themselves did not deem as being an act of contempt of court, or an obstruction to justice, even when the information that was telecasted related to a pending case. The same would have to be adjudged by the courts on a case to case basis. Rightly upholding the freedom of the press, the Supreme Court in the case of R K Anand, also held that information did not require to be pre-screened by the trial court or high court before it was published as it would constitute as pre-censorship. Whilst the apex court did not hold NDTV in contempt for telecasting the sting operation, it did point out the omissions and excesses in their telecast, and cautioned about the manner of dissemination of sensitive information which may lead to trial by media.
Cobrapost sting is legitimate
The sting operation published by Cobrapost — “Operation 136” — revealed the backend dealings of media houses regarding buying news time in exchange of propaganda. This operation would be qualified under “public interest” owing to its legitimate purpose of uncovering the current structure of organisations that provide citizens with their information and have the onus of providing non partisan reportage of the events in the country. It was an act of conducting a check on the media houses, which are responsible for being the watchdog of democracy through their reportage. Much like the NDTV sting, this too was a legitimate exercise of journalistic prerogative and uncover extremely disturbing trends in the Indian mainstream media.