Sting Operations

IN Press Laws Guide | 17/09/2012

1. Are sting operations legal? Is there any law that allows for sting operations?

Answer: Yes, Sting Operations are legal. In Aniruddha Bahal v. State ( 2010 172 DLT 269) theDelhi High Court held that “it is built-in duties that every citizen must strive for a corruption free society and must expose the corruption whenever it comes to his or her knowledge and try to remove corruption at all levels more so at higher levels of management of the State”. Thus, it said that conducting a sting operation is a legitimate exercise by any citizen.
Reasoning: There is no explicit law which allows conducting of sting operations. But the Court in the above stated case derived the right to conduct sting operation to expose corruption under Article 51A (b) of the Constitution of India. The Article provides that it is the duty of every citizen to cherish and follow the noble ideals that inspired the national struggle for freedom. The Court opined that for fulfilment of this duty there has to be corruption free India and if any sting operation is carried out exposing any corruption then it is allowed. 
Effect: Though there is no explicit law which allows sting operations but the same have been recognised by the Indian Courts as a means of exposing corruption in a number of cases. Thus, journalist can conduct such operations.
2. Is there any legal protection for a journalist who conducts a sting operation?
Answer: As there is no law on the Sting Operation there is no legal protection available to the journalist who conducts a sting operation. The journalist can be sued later on for defamation or any other offence.
Reasoning: The Press Council of India in the Norms of Journalistic Conduct provides guidelines for reporting of a sting operation. It provides that a newspaper proposing to report a sting operation shall obtain a certificate from the person who recorded or produced the same certifying that the operation is genuine and bonafide. Moreover, the decision to report the sting operation should be taken by the editor after satisfying himself of the public interest of the matter and ensuring that report complies with all legal requirements. Great care and sensitivity should be exercised to avoid shocking or offending the reader when the sting operation is reported through a print media as well as to ensure that the sting operation itself is not completely outside the bounds of criminal law.
Effect: A journalist should be careful before conducting a sting operation as the law affords him no protection. To avoid liability, he should adhere to the guidelines laid down by the Press Council of India. Still, he can be subject to defamation suit later on by the victim of the sting operation.
3. Can I be charged for abetting the crime that I’m conducting a sting operation against? If so, under what circumstances?
Answer: No, you cannot be charged for abetting the crime that you are conducting a sting operation against. Recently, the Delhi High Court has upheld the validity of Sting Operations. It also said that the journalists cannot be prosecuted for bribing the public officials under the Prevention of Corruption Act, 1988. (Aniruddha Bahal v. State 2010 172 DLT 269.)
Reasoning: The aim behind conducting a sting operation is to expose the corrupt public servants in front of the society. Therefore, they should not be prosecuted for offering bribe to a public official under the Prevention of Corruption Act, 1988. Section 12 of the Prevention of Corruption Act, 1988 states that any person who abets an offence of taking bribe or valuable things by the public servant is punishable with imprisonment. But Section 24 of the Act provides that if a person makes a statement against a public servant that he offered or agreed to offer any gratification or any valuable thing to the public servant, then that person will not be subjected to prosecution under Section 12. 
Effect: Therefore, a journalist cannot be prosecuted under the Prevention of Corruption Act, 1988 for offering bribe to an official while conducting a sting operation. This has been laid down in the Prevention of Corruption Act, 1988 as well as by the Delhi High Court.
4. Does a sting operation constitute legal entrapment?
Answer:  A sting operation can constitute legal as well as illegal entrapment. Legal entrapment is where the offence is already in course. On the other hand, an illegitimate trap is one where the offence has not yet been born and a temptation is offered to see whether an offence would be committed, succumbing to it, or not. (re M.S. Mohiddin AIR 1952 Madras 561.)
Reasoning: A sting operation can constitute a legal entrapment only in certain cases. An e.g. of a legitimate trap would be where the bribe has already been demanded from a man, and the man goes out offering to bring the money but goes to the police and brings them to witness the payment, it will be a legitimate trap.
On the other hand, where a man has not demanded a bribe, and he is only suspected to be in the habit of taking bribes and he is tempted with a bribe, just to see whether he would accept it or not and to trap him, if he accepts it will be a illegitimate trap. Such an act unless authorized by an Act of Parliament will be an offence on the part of the persons taking part in the trap. All such persons will be "accomplices" whose evidence will have to be corroborated by other evidence before the bribe taker can be convicted. (re M.S. Mohiddin AIR 1952 Madras 561, Rao Shiv Bahadur Singh v. State of Vindhya Pradesh AIR 1954 SC 322).
Effect: Sting operations can be either legal entrapment or illegal entrapment as illustrated above. However, in India the distinction between the two is not very clear. There is no law on the validity of sting operations hence the confusion persists.
5. When can it be said that I provoked the subject of my sting operation into committing a crime? What measures do I take to ensure that the operation I’m conducting retains its credibility?
Answer: When a person offers bribe to a public servant as a temptation to see whether he accepts it or not, it can be said that the subject was provoked. This means that he initiated the process of corruption and tried to trap the accused person in the same. This amounts to illegal entrapment and may not have evidentiary value.
Reasoning: In India, there is no demarcation between legal and illegal entrapment. But if it is proved that the accused was allured to take the bribe then the sting operation will not have any credibility. This is so because for a sting operation to be valid the wrongful act should be continuing and not initiated by the journalist himself.
Effect: If a subject is provoked to fall in the trap of sting operation then it would not have any value as evidence and it would not be considered by the Court if any case is filed against the subject. Thus, the journalist should take care that the sting operation should be on the continuing wrongful act. The subject should not be unfairly duped into committing an illegal act because of the actions of the journalist. A sting operation must, in this sense, be fair. 
6. Are the results of a sting operation valid evidence in a court of law?
Answer: Yes, the results of a sting operation are valid evidence in the Court. In Pushpadevi M. Jatia v.  M.L. Wadhawan  (1987) 3 SCC 367, the Supreme Court held that that court need not concern itself with the method by which the evidence in question was obtained.
Reasoning: The mode of entrapment should be given less importance while admitting a sting operation as evidence. Emphasis should be laid on the fact that offence has been committed which would have had been committed otherwise also if similar inducement was done not by the sting operation person but by any other person i.e. a public servant accepting bribe on an offer by the journalist conducting a sting operation, would have also accepted it if it was offered by any other person.
Effect: In the Indian context, the law has been unclear as to whether a sting operation involving a fictitious transaction could make the person exposed guilty of wrongdoing and whether the journalist using a sting operation is equally liable for prosecution.
The Gujarat High Court dismissed an application filed by a convict in the Godhra riots case demanding that additional evidence in form of a sting operation should be allowed to be brought on record during the hearing of appeal on 25 February 2012. Thus, a sting operation can be admitted as evidence in the Court.
7. Must I inform a public authority before I carry out a sting operation? What if such disclosure has the potential of negating the aim of the operation?
Answer: In Aniruddha Bahal v. State ( 2010 172 DLT 269) theDelhi High Court held that it is not necessary to inform the public authority before a sting operation is carried out.
Reasoning: It is not essential to inform a public authority before the journalist carries out a sting operation. If the journalist informs the authorities before the sting operation is carried out it may defeat the very purpose of the sting operation.
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