Is Sting Operation an Invasion of Privacy? | HPSC Preparation: All subjects - HPSC (Haryana) PDF Download

Introduction

‘Sting” originates from American usage, referring to a police undercover operation to catch someone on the wrong side of the law. The more refined expression for the sting is Investigative Journalism or Undercover Journalism.
Democracy has its basis in an informed citizenry; for the government elected by a universal adult, suffrage is accountable to it. Democratic participation permits investigative journalism. It cannot sustain itself on asymmetric dissemination of information. Several reality TV programmes expose corruption and misdeeds of politicians and government officials. The camera never lies. It captures all—the investigating officer takes the bribe from the victim of the crime, the ‘fee’ charged by the electricity department staffer for making an electric connection, the ‘contribution’ paid by a vested interest to a legislator for raising an issue in the Lok Sabha. But do we really require a Sting Operation for any of these? At the same time, since it involves the use of covert methods, it raises issues that tend to further blur the line between law and ethics.

Purpose of Sting Operation

The purpose of a Sting Operation can be either positive or negative. The former is one that is in the larger interest of society. It is designed to expose the flaws in the government machinery to affect future transparency. It is aimed at making the government responsible and accountable. On the other hand, a negative sting operation, often targeted at maligning someone’s reputation, amounts to an unethical violation of an individual's privacy without any beneficial results for society. On the contrary, it spreads hatred in society.
Sting operations on ‘ultrasound scan’ centres are an example of a positive sting operation. The Health officers carried these out in several states. Their purpose was “serious enforcement’’ of the Pre-Natal Diagnostic Techniques Act. This act bans the sex determination of foetuses and consequent abortion. That is how female foeticide can be brought to an end.
A TV programme on sting operations against corrupt politicians and officers by an online news site called Tehelka became quite controversial. Journalists posed as businessmen to expose bribe seeking army officers or as a struggling actress who would be promised an introduction to movie producers and directors to uncover the ‘casting couch’ phenomenon in the film industry. These positive sting operations can be said to be in the larger interest of society. India TV’s chief editor, Rajat Sharma, said that there was no violation of privacy in exposing such matters because “If you are serious about exposing certain social evils, there is no other option but to use sting operations.”
On 7th September 2007, the Delhi High Court issued notices to the City police and the Delhi government taking suo moto cognisance of media reports on a sting operation conducted by a TV channel that claimed to have exposed a sex racket run by a government school teacher Uma Khurana. The report based on the sting operation was later found to be completely fabricated with malicious intent. This is an example of a negative sting operation. It shows how a sting operation can go wrong and become an exercise in trapping an innocent person.

Role of Media

The role of the media is critical in a democratic society. It stands with the judiciary, legislature, and executive as the fourth pillar of democracy. The Indian Constitution, like many other countries, grants its citizens the freedom of speech and expression under Article 19(1) (a). Its several dimensions include freedom to communicate, advertise, publish or propagate ideas and disseminate information. Furthermore, Art. 19(1) also incorporates the right to receive information about any event, happening or incident, etc. So, the media enjoys the right to information for the public good. “The heart of journalism has to be public interest,” and Sting operations serve the public interest.
In Romesh Thapar v. the State of Madras, the Court said, “…. The public interest of freedom of discussion (of which the freedom of the press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed to influence intelligently the decisions that may affect themselves. ….In sum, the fundamental principle involved here is the peoples’ right to know.”
Peoples’ right to know is an essential tenet of democracy. The court in Bennett Coleman and Co. v. Union of India observed, “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 UP 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”.

Ethical Problem with Sting Operation

Can media interfere with the privacy of individuals? The answer to it may be found in the 200th report of the 17th Law Commission. The commission has made recommendations to the Centre to enact a law to prevent the media from interfering with the privacy rights of the individuals.
There is a classic ethical problem associated with sting operations. It can be framed as the following question: Can you hold somebody responsible for a crime they may not have committed had you not encouraged them? It is a kind of entrapment. Its essence is that you promise a man a reward for breaking the law! When he takes the bait, you entrap him. Defence by the accused is easy— that the act wasn’t voluntary but a result of inducement; and that the accused had not intended to commit the crime. In cases where lack of consent constitutes the offence, such as rape, the defence could easily be that consent had been implied by the inducement, where because of the ‘trap’ laid down for the accused, the impression given was that there was no offence involved!

Conclusion

We may ask, what is the legal source of a sting operation? It is clearly the lack of legislation on the right to privacy. It is well established that fundamental rights cannot be enforced by law. Let us take Maneka Gandhi's case, who sued Khushwant Singh over certain unpalatable references to her in his autobiography “Truth, Love and a Little Malice”. She claimed that it was a violation of her right to privacy. It was natural that she lost the case; there existed no legal provision to support her claim. It is precise because of this lack of legislation that sting operations are brazenly carried out. Several of these operations intrude upon individual privacy. Unfortunately, there is no Indian legislation that directly protects the privacy rights of an individual.
The Supreme Court has ruled in the context of AADHAR that “The right to privacy is protected as an intrinsic part of the right to life and personal liberty,” but concrete law needs to be enacted in this regard. Sting operations can, however, be justified in cases they are carried out with protocol to expose corrupt practices.