Sting Operations: Need for a Robust Regulatory and Enforcement Mechanism – By Aaditya Vijaykumar

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Introduction:

The turn of the century has brought about several 24X7 news channels and social media platforms trying to generate news. Unfortunately, with a view to increase television ratings and without really checking the accuracy of facts aired by it, news channels have aired ‘sensational’ sting operations to catch the viewers’ attention, although these sting operations have been found to be untrue and materially edited. The result is that the reputation of the person, who was dramatically allegedly caught on tape, is sullied irretrievably. Regulating the fourth pillar leads to a backlash with the media alleging that they are being gagged while not regulating this leads to several misadventures by the media, through these contrived sting operations. This catch-22 situation has to be resolved by finally belling the cat. 

Sting Operations have gone horribly wrong:

A sting operation is a deceptive operation carried out by a vigilante and designed to catch a person allegedly committing a crime. While some sting operations have exposed the truth and reflected corrupt practice, a majority of the sting operations have the propensity and potential to completely distort the truth. Some of the instances of sting operations where the truth has been completely distorted are as under:

(a) The Delhi High Court issued notices to the Delhi government and city police after taking suo motu cognisance of media reports with respect to 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. It was, however, subsequently revealed that the said sting was fake and distorted. 

(b) The Supreme Court issued notices to a private news channel and its reporter for carrying out a sting operation 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. The incident was also found to be completely false and erroneous. 

Does a statute regulate sting operations?

Before adverting to issues which sting operations raise, the question is whether a statute regulates sting operations. There are no specific rules, regulations, guidelines or statutes governing sting operations in India, at present, the regulations for telecasting of sting operations. A television channel thus only has to ensure that the programme does not contain anything obscene or does not incite violence or does not malign a certain individual or a certain group (1). The inefficacy of the above provisions have been criticized by the Law Commission, which recognized that there were television channels which had exceeded the “limits of decency” and had sullied the reputation of various persons irretrievably. 

Have the Courts stepped in?

In the absence of any regulations, which could effectively regulate sting operations, the courts had to naturally step in. After recognizing the gravity of the situation pursuant to a release of a sting operation by a news channel, the Supreme Court as also other courts have found that a sting operation could be subject to mistakes, slants, bias, distortion of truth, sensationalism and media trial (2), leading effectively to a situation “akin to a lynch mob”, with a remote chance of a fair trial (3).The courts recognized that the media, through these sting operations, was essentially acting as the complainant, the judge, jury and the executioner. Despite a significant passage of time, however, there has hardly been any development on this front. 

Legal Issues

Sting operations often raise several pertinent legal and ethical issues such as:

(a) Gross violation of the right to privacy: The media has always been at the forefront of enforcing its right to free speech, as envisaged under Article 19 (1) (a) of the Constitution of India. In the same breath, the press has also advocated for the right of privacy, especially during the hearings before the Supreme Court in respect of the Aadhar card issue. Multiple news channels, during the issue relating to Aadhar cards, were of the view that a person’s privacy cannot be infringed and impinged upon. However, when it comes to a sting operation, which is a gross invasion of privacy, the same media, which strongly advocated for the right of privacy, projects this sting operation as a right which was inconsequential to the individual in the first instance. The question, which begs an answer, is whether the two positions are irreconcilable? Why is it that the media is not called out on this hypocrisy? One of the gross instances of an invasion of privacy is clear from the fact that in 2008, the Delhi High Court took suo motu cognizance of a manipulated sting operation on a schoolteacher resulting in her suspension and assault by a mob.In 2012, a news channel aired the molestation of a girl in Guwahati, filmed by one of its reporters. 

At present, the News and Broadcasting Standards Authority (NBSA) has principles of self-regulation and a code of ethics. However, the regulations itself are toothless to state the least. The Regulations of NBSA provide for a complaint mechanism to the NBSA. Recently, the NBSA imposed a fine of Rs. 1 Lac on a television channel for broadcasting truncated footage of an incident involving young college students alleged to be drunk, observing that there was no verification of facts. The NBSA observed that there was no impartiality or objectivity in reporting the incident and that the broadcast intruded into the privacy of the students. The channel was also directed to air an apology for three days expressing regret over the telecast. Since the NBSA is not a statutory body, the scope of its regulation is limited as being restricted only to members. In 2009, a news channel withdrew its membership after being fined for violating guidelines. 

Additionally, EMMC under the Ministry of Information and Broadcasting has a set of self-regulatory guidelines for broadcast service providers including guidelines that channels should refrain from using material related to a person’s private affairs unless there is an identifiable larger public interest. However, this definition of public interest was never meant to include a position where the media itself takes law in its own hands, induces people to commit an offence and consequently projects this as an expose. Courts have deprecated this practice as well though once again, the media has been undeterred by these scathing observations of the courts. Unfortunately, sting operations are a fairly common occurrence and have now been given the tag of “investigative journalism”. 

Consequently, there is a growing need for such sting operations to be regulated within a specific regulatory framework to protect the right of privacy and right to fair trial, which are guaranteed fundamental rights of every citizen. 

(b) Question of Entrapment: Entrapment is a concept where the victim, who is otherwise innocent, is lured into committing a crime on the assurance of absolute secrecy and confidentiality of the circumstances. This raises the potential question as to how such a victim can be held responsible for the crime, which he would not have committed but for the enticement. 

In the United States of America, the defense of “entrapment” is recognized as a valid defense against indictment for an offence (4). Canada has also followed suit but with elaborate parameters in this regard (5).

However, in the United Kingdom, the defence of entrapment is not a substantive defence. The courts have in fact have sought to follow a basic guiding principle that where the evidence which has been procured by way of an inducement, it ought to be excluded (6)

Though entrapment forms a significant part of the judicial system of various countries, similar principles have not been recognized under Indian law. This is especially disconcerting since audio and video recordings conducted in the sting operations form a part of the prosecutorial evidence in India. The courts have only deprecated this practice rather than developing entrapment as a defense to sting operations. Courts have also recognized that law protectors or citizens of the country should not be part of a criminal design and take law in their own hands to expose an alleged criminal (7). The courts further went on to hold that: 

Giving inducement to a person to commit an offence, which he is otherwise not likely and inclined to commit, so as to make the same part of the sting operation is deplorable and must be deprecated by all concerned including the media. Sting Operations showing acts and facts as they are truly and actually happening may be necessary in public interest and as a tool for justice, but a hidden camera cannot be allowed to depict something which is not true, correct and is not happening but has happened because of inducement by entrapping a person.”

(c) No Sanctity of Law: Such a sting is not a legal method in India, unlike the jurisprudence in the United States. No enactment recognizes the concept of investigative journalism as also the concept of sting operations. It becomes all the more dangerous when such operations are not recognized or regulated under the law. 

(d) Person carrying out the Sting Operation is equally liable in law: Under the Prevention of Corruption Act any person who makes any payment towards gratification to induce a public servant to do or forbear from doing any act in pursuance to the discharge of his public function is liable to imprisonment or fine or both. Unfortunately, the vigilante who offers such gratification, without taking recourse to the procedure established by law, is not treated on an even keel with the alleged perpetrator and is generally not arraigned as an accused in criminal proceedings. What makes matters worse is that the Chief Minister of Delhi, in several press releases, has categorically and clearly urged the general public, to capture purported offences of taking gratification on camera, by way of sting operations. It is the author’s understanding that merely because a vigilante has captured an offence on camera, without using the procedure established by law, cannot be reason enough to discharge him from criminal proceedings, especially since he/ she has offered gratification. 

(e) Question of Malice/ Editing and Media Trial cannot be ruled out: Sting operations are mostly used as a tool to arm twist and neither malice nor editing of the sting can be ruled out. This is seen from sting operations relating to cash for votes, the Shazia Ilmi sting, the sting relating to Mr. Arvind Kejriwal and such like stings. Clearly, most of the said stings are orchestrated out of malice and are motivated in nature in order to gain a political advantage. Media channels also carry out sting operations of public figures with a view to get mileage and increase their television ratings. By the time the alleged offender goes through trial, which may last for several years, the image of the alleged perpetrator is tarnished beyond redemption. 

Additionally, sting operations are often, for the purposes of broadcasts or sometimes even on account of malice, edited materially so as to paint a picture which was never contemplated at the time of commission of the alleged offence in order to sensationalize the issue. Media and other such agencies also show excerpts of such stings, instead of showing the complete sting. 

Need for regulatory mechanism:

From the above, there is a need for a regulatory mechanism for sting operations or for “investigative journalism”. Though this is the realm of the Legislature alone, the courts (8) attempted to fill the lacunae temporarily by holding that the law enforcement agency must maintain the original version of the actual sting operation and prevent any tampering of the tapes. The Courts have held that:

a. Deliberately present as true any unverified or inaccurate facts so as to avoid trial by media since a “man is innocent till proven guilty by law”;

b. Present facts and views in such a manner as is likely to mislead the public about their factual inaccuracy or veracity;

c. Mislead the public by mixing facts and fiction in such a manner that the public are unlikely to be able to distinguish between the two;

d. Present a distorted picture of reality by over-emphasizing or under-playing certain aspects that may trivialize or sensationalize the content;

e. Make public any activities or material relating to an individual’s personal or private affairs or which invades an individual’s privacy unless there is an identifiable large public interest;

f. Create public panic or unnecessary alarm which is likely to encourage or incite the public to crime or lead to disorder or be offensive to public or religious feeling.

The visual media, which seem to think it’s above these guidelines, have conveniently never complied by these parameters. There, therefore, needs to be a comprehensive set of guidelines, which should be brought about, to regulate these sting operations.  The guidelines set out by the court could be used as a template to develop a further and robust implementation and enforcement mechanism. 

The media cannot possibly get a free and unregulated run. 

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Aaditya Vijaykumar is a lawyer practicing in the Delhi High Court. His practice areas include arbitration, litigation relating to contractual disputes, consumer disputes, gaming laws, anti-trust issues, litigation before the Debt Recovery Tribunal, NCLT, litigation for and on behalf of the government and PSUs, as well as litigation relating to property disputes and election laws.

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1 Section 5 of the Cable Television Networks (Regulations) Act, 1995 and Rule 6 of the Cable Television Networks Rules;

2 Government of NCT of Delhi v. Jai Bhagwan, 172 (2010) DLT 163;

3 RK Anand v. Registrar, Delhi High Court (2009) 8 SCC 106, Tarun Tejpal & Anr. v. Jayalakshmi Jaitly, 2008 ILR 1 Delhi 35, Rajat Prasad v. CBI (2014) 6 SCC 495;

4 Sorrells v. United States, 287 U.S. 435 (1932), Sherman v. United States, 356 U.S. 369 (1958);

5 R v. Mack, (1988) 2 SCR 903;

6 Regina v. Loosely, [2001] UKHL 53;

7 Court of its own motion v. State 146 (2008) DLT 429.

8 Court of its own motion v. State & Ors. 151 (2008) DLT 695

Disclaimer: The views or opinions expressed are solely of the author.

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