Sting Operations: Scope and Limitations
“When it comes to privacy and accountability, people always demand the former for themselves and later for everyone else” - - David Brin
The Delhi High Court on 24/09/2010 delivered a judgment on controversial Anirrudh Bahal v State, and made sting operations legal. Anirrudh Bahal and Suhasini Raj, conducted a sting operation of some Members of Parliament, in which they were offered money for asking questions in Parliament and the act was caught in the camera. Soon after the operation was over it was aired on television to expose this practice to the public.
But the pity was that after this entire incident no First Information Report (FIR) was filed by the Delhi Police against those corrupt politicians. The first FIR was filed one and half year later after this entire episode in which both of the journalists were charged as an accomplice for abetting the offence under Section 12 and 13 of the prevention of corruption act.
This raised a pertinent question before the court that: Whether a citizen of this country has right to conduct sting operations to expose the corruption by using agent provocateurs and to bring to the knowledge of common man, corruption at high strata of society?
The Court considered it to be the fundamental duty of an ordinary citizen under Article 51A(b), 51A(h) & 51A(j) to expose such practices prevailing in the system and thus for this purpose any such act or operation conducted, with the intention of doing public good is justified. The court refused to consider agent provocateurs as accomplice in such cases.
Therefore the utility of conducting sting operations (as has been described in the judgment) is to expose any practice of public officials (not only corruption), related to his official duty, which are against public interest and which if exposed will do larger public good. In all such cases a public official cannot make claim for his right to privacy.
The law with regard to such exposition of unauthorized acts of public officials is also very clear. The honorable Supreme Court of India in R. Rajgopal v State Of Tamil Nadu (1994) 6 SCC 632, has even held that in case of infringement of privacy of public officials, they have no remedy or damage available, if the act or conduct is associated with their official duty. However the Court further held that in matter not relevant to his official duty a public official enjoys the same protection as any other citizen.
The concept not only applies to public officials but equally applies to other persons as well if the gravity and impact of conduct is high as for e.g. cases dealing with scams and scandals, sedition, offences related to elections, waging of war against the State etc. In all such cases if the exposition of the acts will do larger public good than the tool of sting can be used by overriding the privacy of an individual.
Limitations: Professor Siras case
But where authority comes it should be coupled with responsibility because authority without responsibility leads to abuse of authority. The act or conduct in questions here are the private acts or conducts and thus it is very crucial to identify their association with the official conduct of the person. Any misjudgment will lead to a disastrous consequence as was met by Aligarh Muslim University Professor Srinivas Ramchandra Siras.
A gay professor (Siras) whose homosexual act was captured in camera and was exposed to university authorities, after which he was suspended from the university. In this entire course of event my only concern is with regard to the act of ‘sting operation’ conducted, which raises two issues:
Firstly just because he was a gay and the stand of the Supreme Court is not clear over gay rights, after the controversial NAZ foundation judgment of the Delhi High Court, gives any one the right to enter into their private area and expose the act of consensual sex which a normal prudent man (of any sexual orientation) would not want to get exposed to any third party? Obviously the answer is NO.
Secondly was the act or conduct in any manner associated with his official duty? Was the act or conduct in any manner was affecting his efficiency as a professor? Were his conduct in public sphere was such which was objectionable to other students or staff of the University?
Irrespective of whether the answer to the above questions is YES or NO, the act of sting operation cannot be justified. The act of homosexuality is a punishable offence under section 377 of the Indian Penal Code, 1860 due to the moral turpitude of the Indian society which consider such kind of acts to be immoral. These are a victimless offence which does not victimize anyone and are carried out in utmost secrecy, with the consent of both the partners. Therefore even if the objection is to be raised it should be based on circumstantial evidence which leads to irresistible conclusion that the homosexual act would have been performed and not by conducting sting to give a direct evidence. It is highly unethical to capture the compromising position of two consenting adults.
However the matter would have been different if there would have been a trap to expose unlawful forced sex or molestation.
Secondly if the act of sting is justified on ground that it will maintain the morality of the society than it’s nothing more than an empty euphoria. The prohibition on such kind of acts will only develop ground for such kind of acts to be carried out in secrecy and victimization of actors as is evident from the present case. In other words no regulation can stop the continuance of these activities in the society.
What public good than the act of sting operation served? Instead it brought the shame and disrepute, which forced the Professor to commit suicide. Just because he was a gay does not justify the sting, where the opinion of Indian judiciary is also changing with respect to gay rights.
Therefore it is very essential to deal with the matter in a cautious manner. Identifying the relevancy of conducting stings with due respect to the privacy of an individual should be determining the extent up to which it is feasible to enter into the private sphere of any individual.
As has been mentioned earlier, great power comes with great responsibility and therefore it is very essential to identify the manner in which it is to be used so that it does not create any nuisance to the other members of the society. For this one should identify one’s limits over others rights like privacy, which is mainly dealt in such kind of operations.
The pity is that both legislature and judiciary is silent on the subject. Where there is an urgent need of a law or any guidelines from the lawmakers of our country, they are standing as a mute spectator as if they do not have any responsibility to determine how exactly and in what circumstances the citizens of the country should exercise their freedom of speech and expression in this form.
Therefore it is urged that the matter should be taken up in manner so that both right to freedom of speech and expression under Article 19(1) (a) and right to privacy under Article 21 of the Constitution of India are addressed in a balanced manner.
The author can be reached at: firstname.lastname@example.org