A sting without public interest is a crime

In important remarks made in April, the Supreme Court said that if there is no public interest behind a sting operation, it is unjustifiable. A sting operation has serious legal implications. If it exposes the corruption of a public servant, the journalist or citizen journalist responsible for it wins popularity. If not, it exposes him/her to criminal charges. Many people are unaware that Article 19 (2) states that freedom of expression is not available when a person misuses it to incite a crime. Both bribe giving and taking are criminal wrongs.

In a sting operation where a person lures another to accept a bribe while secretly video recording the act, it is entrapment, which could be legal or criminal depending on the intention and motive of the bribe giver and all those who supported the operation.

The case that was before the Supreme Court last April needs to be understood by journalists for it lays out the legal implications and risks involved in a sting operation. The Supreme Court explained these issues in Rajat Prasad v CBI which involved a sting operation. A news item in the Indian Express on November 16, 2003 said that Dalip Singh Judeo, Union Minister of State for the Environment and Forests (deceased) accepted a bribe of Rs 9 lakhs.

After investigation it was stated that Amit Jogi, son of Ajit Jogi, former chief minister of Chattisgarh, had conspired to conduct this sting operation and released the clandestine recordings to the media. The accused argued that the sting was carried out to expose the murky deeds of those in power and that if a criminal intention was attributed to the sting operation, the public interest would be severely jeopardised and there would be no sting operations in future. Rajat Prasad, accused no. 6, was one of the co-conspirators who booked the hotel room in which the sting was carried out.

The prosecutor said the sting was an abetment to bribery and therefore a crime (under the Prevention of Corruption Act) as per Section 107 of the IPC because the sting’s motive was to disgrace a politician and to derive political mileage for Ajit Jogi. Therefore, the accused should be prosecuted for corruption, abetment and conspiracy.  

The Court explained the pros and cons of a sting operation. The origin of ‘sting’ as an expression goes back to the popular 1973 movie “The Sting” about two persons tricking a third into committing a crime. As an essentially deceptive operation, a sting operation raises moral 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 regarded.

The US and some other countries have recognized stings as a legal method of law enforcement. For instance, enforcement agencies use stings to apprehend suspected offenders involved in drug trafficking, political and judicial corruption, prostitution, theft, traffic violations etc.  

In India too, when an Anti-Corruption Bureau officer supports a bribe giver by handing over chemically powdered notes which change the receiver’s hand to red in colour, ie catching him ‘red handed’, it is accepted as ‘legal trapping’. Similarly, deploying a person who is under police supervision to bust a prostitution racket is also justified. 

But there is no specific legal provision which explicitly authorises a sting operation so the legality of a ‘sting’ is always subject to judicial scrutiny.

In the BMW hit-and-run case in Delhi of 1999, an advocate was recorded in a sting operation by a TV channel trying to bribe a prosecution witness and manipulate the evidence. When considering a challenge to the justifiability of the ‘sting’, the Supreme Court concluded it was in the public interest.  The advocate was penalized and debarred for some time.

The Supreme Court also approved a sting operation as being in the public interest in R.K. Anand vs. Registrar, Delhi High Court  (2009) 8 SCC 106. However, when dealing with the Judeo/Jogi case, it said that the decision in the R.K. Anand case could not be taken as justifying sting operations as an accepted method of law enforcement.

The concept of mens rea (Latin for guilty mind or criminal intent) is an essential ingredient of criminality. If ‘abetment’ or ‘conspiracy’ or ‘bribe giving’ are in the public interest, mens rea is absent, which makes it no crime. If the public interest is missing, it becomes either a conspiracy or an incitement to commit an offence with mens rea and this needs to be penalised.

In the Judeo/Jogi case, the sting was conducted not by the media but by a political person. It is true that stings are not the exclusive domain of media persons, as they are part of a wider expression of ‘citizens’ who have the right to freedom of speech and expression as per Article 19(1)(a) of the Constitution. The Supreme Court has refused to quash the charges and interfere with the trial of the accused, Rajat Prasad, who claimed that the ‘sting’, by exposing corrupt politicians, was in the public interest.   

The question that has to be decided in a trial is whether the sting was done to explore a public cause or whether it was motivated by private interest, ie mens rea, to disgrace a political rival?  The court rightly refused to quash the charges and thus allowed the trial to ascertain the issue of criminal intention vs public interest.

Criminal jurisprudence differentiates between “the trap for the unwary innocent and the trap for the unwary criminal” (Chief Justice Warren in Sherman vs. United States [356 US 359 (1958)] and approves situations where government agents “merely afford opportunities or facilities for the commission of the offence” and censures situations where the crime is the “product of the creative activity” of law enforcement officials (Sorrell vs. United States [287 US 435 (1932)]

In the latter type of cases, the defence of entrapment is recognised as a valid defence in the US. If well-founded, such a defence could defeat the prosecution. A similar defence of entrapment in a sting operation has been developed to some extent in Canada [R vs.Regan [2002] 1 SCR 297], where such a defence was available under specified conditions and, if established, could lead to a “stay” or a termination of the prosecution.    

In R vs. Mack ([1988] 2 SCR 903), it has been explained by the Canadian Supreme Court that entrapment occurs when (a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry, and, (b) although having such reasonable suspicions or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and actually induce the commission of an offence.

The Canadian Court listed ten factors that determine whether the police have done more than provide an opportunity to commit a crime:

(1)   The type of crime being investigated and the availability of other techniques for the police detection of its commission;

(2)  Whether an average person, with both strengths and weaknesses, in the position of the accused would be induced to the commission of a crime;

(3)  The persistence and number of attempts made by the police before the accused agreed to commit the offence;

(4)  The type of inducement used by the police including deceit, fraud, trickery or reward;

(5)  The timing of the police conduct, in particular whether the police have instigated the offence or become involved in ongoing criminal activity;

(6)  Whether the police conduct involves  an exploitation of emotions such as compassion, sympathy and friendship;

(7)  Whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;

(8)  The proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;

(9)  The existence of any threats, implied or express, made to the accused by the police or their agents;

 (10) Whether police conduct undermines other constitutional values.  

In the United Kingdom, the defence of entrapment is not a substantive defence as observed in R vs. Sang [1980] AC 402. However, a shift in judicial reaction appears to be emerging which is clearly discernable in R v. Loosely ([2001] UKHL 53) where the House of Lords found: “A prosecution founded on entrapment would be an abuse of the court’s process. The court will not permit the prosecutorial arm of the state to behave in this way.”

Noting these judgements, the Indian Supreme Court has observed that ‘sting operations conducted by the law enforcement agencies themselves in the above jurisdictions were not recognized as absolute principles of crime detection and proof of criminal acts. Such operations by the enforcement agencies are yet to be experimented and tested in India and legal acceptance thereof by our legal system is yet to be answered. Nonetheless, the question that arises in the present case is what would be the position of such operations if conducted not by a state agency but by a private individual and the liability, not of the principal offender honey trapped into committing the crime, but that of the sting operator who had stained his own hands while entrapping what he considers to be the main crime and the main offender’.

A journalist or any other citizen who has no connection, even remotely, with the favour that is allegedly sought in exchange for the bribe offered, cannot be imputed with the necessary intent to commit the offence of abetment under Section 12 or that of conspiracy under Section 120B of the IPC. If he or she is connected with any private benefit arising out of the operation, it amounts to mens rea. (criminal intent.)

Whether the mens rea was to cause disgrace or whether it was to expose corruption for the sake of the public interest, has to be decided by a full-fledged trial. Thus the apex court allowed the prosecution to go ahead by rejecting the plea of Rajat Prasad in the Judeo/Jogi case. This judgement has reiterated that the public interest continues to be the lone factor that justifies a sting operation by a journalist or citizen or entrapment by the police.

Related link

Public Interest validates media trial