Sting Operation : Ethicality and Legality

A sting operation is an investigative exercise undertaken by media to uncover

the malpractices prevalent in the society. It is an inseparable part of the modern
news casting, albeit with questionable moral issues included. These undercover
operations embark to disentangle the administrative procedures by an agent who
pretends to be a part of the game– by acting like a supplicant, a vulnerable
candidate, a support-searcher or a potential bribe supplier. Masterminding
somebody under the lawful drinking age to request that a grown-up purchase an
alcoholic beverage for them or conveying a snare auto (likewise called a honey
trap) to get a car thief and recording them on tape are certain examples. Another
example might be a journalist pretending to be an interested party looking to get
his work done in a government office by bribing the officials.

In India application of sting operation or undercover action to gather the

evidence without the knowledge and consent of such stung person has attracted
a lot of debate, due to- In the first case, it impacts privacy under Article 21 and
places an unreasonable constraint on freedom of speech pursuant to Article
19(1)(a) of the Indian constitution. Second, it can provide the law compliance
agencies with the ability to use secretive devices to apprehend the offenders by
catching them which in the law of evidence, the product is dubious and
unacceptable.

Positive sting operation

Positive sting operations are those which are conducted for the benefit of
society to render clear those incidents which should be put to the public domain
because they have been proven to be harmful to the needs of the community.
We can say positive stings are all in the view of the sincere concern for the
general population and designed to infiltrate the context of the government’s
work process.

Negative sting operation

Negative sting operations are in contravention of the personal liberties of the

individual. They do not function for the benefit of society and are injurious to
the person who has been caught in the camera. Negative stings may not benefit
the general public, but they are a sensationalized attempt to create an audience
in the age of ‘breaking news’ by encroaching on the dignity or sanctity of a
person or an entity

Laws governing sting operation in India

Sting operations are not mentioned specifically in any of today’s laws. There
are also no acts governing such operations. While there have been some judicial
rulings pertaining to specific incidents, yet no judge has laid down guidelines or
legislation governing these media acts. This does not mean that there is no
remedy available for the injured. An individual can present before the courts
under different regulations to secure his or her rights and independence.

Admissibility of sting operations as evidence

There is no legal validity of a sting operation unless the courts deem so. The
legality of sting operations varies from case to case. None of the courts in India
has laid down any regulations concerning the admissibility of sting operations
as evidence in a court of law.

Indian legislation on the evidentiary significance of sting operation is still in a

place of swirl. The work of law enforcement departments, themselves have not
been accepted as full concepts of Detection of criminality and evidence of
illegal conduct. Such operations by the compliance authorities are yet to be
evaluated and assessed in India and the formal recognition of these by our
judicial framework is not yet in force. 

However One might argue that this evidence has been acquired through
incitement or in a sense, even though fraud, and is therefore inadmissible. While
there are those who consider that, where there is substantial evidence against the
accused or the suspect, the same should be permissible regardless of the
approach by which it is acquired. The situation remains ambiguous as the Indian
courts have taken starkly different opinions. Earlier, the courts did not really
concern itself with the process from which the proof in dispute had been
collected. They were of the view that the evidence continues to remain evidence
even though the practices prescribed in civil procedure code weren’t really
conformed with.

Lately, the courts have viewed the evidence obtained through sting operations
with more caution as they tend to invade into the privacy of the aggrieved
person. Generally, the evidence is disregarded when it is obtained by
influencing the person in committing a crime, however in the case of Sri
Bhardwaj Media Pvt. Ltd. vs. State, W.P. The Indian court has gone beyond that
principle and upheld the validity of the evidence obtained through sting
operation keeping in mind the importance of public interest. 

In certain instances, evidence by means of undercover exercises has been

viewed as an extra-judicial disclosure and is thus permissible. An extra-judicial
confession cannot be the sole basis for recording the confession of the accused
unless the other circumstances surrounding the confession and the material
available on the record indicate his complicity.
In the case of State of Haryana vs. Ved Prakash, the Apex Court took a
conflicting view by holding that the recorded statements constitute inducement
and are therefore inadmissible.

To the extent sting activity by T.V. Channels is concerned, it has been endorsed
and even valued by the Supreme Court as a free crime exposure system on
account of Rajat Prasad vs. CBI case Supreme Court pronounced that:

1) The reason for news coverage and its job and duty in spreading data and
mindfulness stands it on better balance than capture stings led by enforcement
organizations in India. It is just in situations where the inquiry sensibly emerges
whether the sting activity had a stake in the favours that are purportedly looked
for as a return of the bribe that the issue will require assurance over the span of
a full judged trial and. At that point, just the sting activity or channel may need
to confront the trial for connivance under section 120B, IPC. 

2) Not just a columnist even a resident performs sting activity who has no
association with the consideration that is purportedly looked for in return for the
bribe, can’t be inputted with the fundamental aim to submit the offence of
abetment under Section 12 of Prevention of Corruption Act, or 2014 area 120 B
IPC.

Rajat Kumar’s case, in this way, allows the sting made by a journalist or
individual incited by want to uncover defilement in public without rationale to
look for any favour in return.

Concerned problems with the sting operations 

Inducement to commit the crime

A sting operation has real legal implications. In case the defilement is

uncovered that leaves the person Susceptible to felony offences.
A sting operation broadcast by ‘Live India,’ illustrated by Ms Uma Khurana, a
teacher,  who allegedly intended to drive a female woman into prostitution. In
the confusion that followed, Some men violently attacked her, even ripped her
clothes. The Court took suo-motu’s understanding of the case and initiated
hearings where the Court found that the perpetrator was innocent and a portion
of the sting operation had been orchestrated dramatically. The court held that
media in its efforts

Revealing the facts of the public interest does not need to go too far by moving
to an entanglement of any individual.

If the charges are false, sting operations may act as a trap for responsible public
officials as well. The problem is that of public morality, that is, first, you
encourage an individual to commit a crime by giving him a bribe for violating
the rule, and then you hold him responsible for taking the bribe. Many sting
operations include having individuals perform offences that they would not
have done otherwise and are thus unethical. This is opposed to public morals
and justice and thus comes under the meaning of Article 19(2).

Invasion into privacy

Notwithstanding the fact that the right to privacy was not explicitly lauded in
Indian  Constitution, the protection of the Right to life pursuant to Article 21,
has granted protection to the Right to privacy by means of different frames of
reference set out in the various case laws that have been introduced. It has also
been articulated as an essential item for a cheerful existence.

An individual who is the subject of sting operation has his or her personality,
reputation, or career torn to the ground after such a media exposure. His
fundamental right to live with dignity and respect and the right to privacy
guaranteed by Article 21 of the Constitution is infringed.

Dire consequences of a sting operation to reputation

A perfect representation of this should have been Uma Khurana’s case where
the court found the sting operation to be false. Although the accused was
acquitted after the sting resulted in her termination and the protesting mob
attacked her.45 This case shows how sting operations can harm an innocent
person and harm his reputation.

Various courts and law commissions report all around the world has seconded
this view that “Media trials do tend to influence judges. Subconsciously a
pressure is created and it does have an effect on the sentencing of the
accused/convict”.

Repercussions of Sting Operation on a fair trial

We are all aware of the phrase ‘Seeing is believing’, which is what most takes
place in trials conducted on the evidence gathered through sting operations. The
moment a sting operation is disclosed in front of the public, the target becomes
stamped forever. Media nowadays with technological advancement and
professional skills conducts such operations with great finesse and the purported
crime is painted vividly in front of the public giving the target no scope to prove
that he/she has been trapped unknowingly. 

The judge can also be manipulated with the sting operation because visuals,
without a doubt, are far more convincing than oral evidence. The broadcasting
of the operation sets forth a prejudice in the minds of the public as well as the
presiding judge. The negative sentiments created in the minds of the people and
the public opinion generated against the accused make it hard for the judge to
make an objective decision. The accused is pronounced guilty by way of the
public even before the complete trial takes place. In criminal law, a person is
considered innocent unless proven otherwise. This facet of criminal law is
completely ignored when the trial is influenced by the outcome of a sting
operation. Our constitution provides us with the right to a free and fair speedy
trial, the prejudice against the accused clashes with this right. The courts must
be vigilant enough to avoid such prejudices and develop progressive measures
to overcome the same. 

In August 2007, a government school teacher, Uma Khurana was the victim of

a sting operation by a private news channel that showed her being ‘supposedly’
involved with a sex racket. When the sting operation came into light, her
reputation was charred and she was even attacked by a mob once. The
government of Delhi also sacked her from her job. When the court took suo
moto cognizance of the matter, it was revealed that the sting operation was fake
and there were no incriminating facts to convict her. She sued the news channel
but later on withdrew the case and settled it amicably. Her reputation, however,
was possibly forever tarnished.  

Do we really need sting operations

We have discussed the pros and cons of the sting operation and its moral and
ethical aspects. It does help create accountability and keep people informed. In a
country like India where corruption is widely prevalent in public life, it helps
create fear within the minds of corrupt public servants and people’s
representatives. But the practice is prone to misuse, can be used for ulterior
motives and is a clear transgression of the privacy of an individual. I would,
therefore, opine that if sting operation is really needed, it should be covered by
standard operating procedures. Either the Supreme Court should come out with
clear guidelines or the State should frame suitable legislation in this regard. One
cannot expect that every news channel or media house would be responsible in
conducting sting operations and would respect the privacy and freedom of
people, more so in the present time when the race for ‘breaking news’ has
become a part of journalism. 
Such guideline or legislation, if framed, should address the following specific
areas:

1. The agency conducting the sting operation should see to it that it is being
done in public service and there should be elaborate mechanisms to
ensure the same.

2. Every sting operation should address the issue of individual privacy and
freedom of the individual.

3. Strict penal provisions should be there for punishing individuals and

agencies that conduct sting operations with political and ulterior motives
or for the purpose of increasing viewership of any channel or readership
of a newspaper.

4. Similarly, penal provisions should also be there if it is found out that a

sting operation has been conducted with the sole purpose of tarnishing the
image and reputation of an individual.

5. There should be a regulatory body within the media fraternity to control

all aspects of sting operations. Since any outside regulation would
amount to the interference of freedom of the press, it is desirable that
either the Press Council of India or any other body be entrusted with this
responsibility.

6. Information collected from sting operations should be made admissible in

court but only if it is found that the said information is not concocted and
not gathered for an ulterior motive.

Cases
1. Operation Duryodhan
2. BMW cases
3. Other Sting Operations