The Telegraph
Wednesday , April 30 , 2014
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Remember Kamla? This 1985 film, based on a real life incident of Indian Express journalist Ashwini Sarin, showed Marc Zuber purchasing a girl from a Madhya Pradesh village market for Rs 2,300. Sarin was lauded across the country for exposing a nefarious flesh trade, and the film became a hit. Thirty years later, acts of such daring whistleblowing have become difficult in India, thanks to a Supreme Court judgment on April 24 that is seen to put the right to privacy ahead of exposing social evils.

The ruling by a three-judge bench headed by Chief Justice of India P. Sathasivam has made sting operations almost impossible for the media. Anyone who decides to conduct a sting operation can do it only at his own risk as he can also be made an accused in the case by the investigating agency and face trial under Section 12 of the Prevention of Corruption Act for abetment to commit an offence.

The bench in its ruling said: “Being essentially a deceptive operation, though designed to nab a criminal, a sting operation raises certain moral and ethical questions. The victim, who is otherwise innocent, is lured into committing a crime on the assurance of absolute secrecy and confidentiality of the circumstances, raising 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. Another issue that arises from such an operation is the fact that the means deployed to establish the commission of the crime itself involves a culpable act.”

It further states that sting operators cannot merely get away with such acts on the pretext of exposing corruption for the greater public interest. Whether there is a criminal intent or not has to be established through a trial.

Whether in sports, entertainment or politics, sting operations in the recent past have successfully exposed corruption for the sake of the larger public interest. BJP chief Bangaru Laxman’s resignation after the sensational sting by Tehelka in March 2001 where he was shown accepting money from fake arms dealers is still considered an act of political cleansing. In the absence of any rules regulating sting operations, the Supreme Court ruling, many feel, might discourage such operations to expose corruption in the corridors of power. “Honest journalists blowing the lid off corruption will be more apprehensive and discouraged from taking proactive steps,” says criminal law expert Kaushik Gupta, who practices in the Calcutta High Court.

“I hope that the judgment doesn’t act as a damper on journalists and whistleblowers. The danger is only from malicious prosecution wherein if some journalists do some story against powerful politicians or other vested interests, some trumped up charge could be levied by some agency and then they may have to undergo the rigours of a whole trial even though prima facie there would be nothing. I hope the courts will keep this in mind when judging petitions. In a country like India malicious prosecution is perhaps easy to arrange,” says Aniruddha Bahal, editor, CobraPost and co-founder of Tehelka. It was Bahal who conceived and carried out a sting operation which caught on camera members of the Indian Cricket team accepting bribes to throw matches. Bahal is also known for his part in Operation West End, another sting operation. In 2005 Bahal conducted Operation Duryodhana (also known as the “Cash for Questions” scandal), in which the team managed to film several members of the Indian Parliament accepting cash in return for asking questions in Parliament.

Experts feel the ruling will have far-reaching implications and goes slightly in favour of the state, which might take advantage of this and stifle any kind of sting operations which might ruffle the feathers of the powerful. “The most interesting aspect of the ruling is that the journalist is being treated as an abettor of crime or corruption. The responsibility for investigation lies with the state, or police, and not the media. This would, in a way, deter investigative journalism to some extent,” feels Debashish Banerjee, lawyer, Calcutta High Court.

Kallol Basu, lawyer, Calcutta High Court, demurs. “The judgment doesn’t preclude the press from forming any opinion with regard to a public issue and as such it’s not violative of Article 19 of the Constitution which deals with the right to form an opinion or association. I feel the court has given a correct verdict,” he says.

Many also feel that unbridled sting operations are increasingly encroaching upon the private lives of the common man. Some media professionals feel that often a journalist ends up with some information apparently exposing corruption, which later turns out to be incorrect or is politically motivated. “There are good and bad sides to it. While stings help society at large by exposing scandals, many a time they are misused to settle personal scores or out of anger, and also at times are politically motivated,” says Biswa Majumdar, editor-in-chief, Focus Bangla, a regional news channel.

In 2008, Majumdar was the news editor of news channel NE Bangla, when a sting operation was done on the CPI MLA from Nandigram, Mohammad Ilyas. Ilyas was shown accepting a bribe of Rs 10,000 from reporters posing as NGO workers. In return, Ilyas promised to raise questions in the state Assembly. The furore following the sting forced Ilyas to resign from his post and led to his suspension from the party.

“I value the right to privacy above exposing corruption because the right to privacy had been upheld by the Supreme Court in earlier judgments to be a part of the right to life under Article 21 of the Constitution which is a fundamental right,” says Gupta.

“There should be regulations for sting operations. Editors, too, should be choosy and discreet before airing anything brought by reporters,” says Majumdar.

The only silver lining in the entire judgment, according to law experts, is that if a journalist is not remotely connected with the favour that is sought in exchange for a bribe, he cannot be accused of abetment. “But even then, the person can be made to go through the trial and in most cases it drags for at least 4-5 years. So anyone can take advantage of the particular provision of this ruling,” says Banerjee.