Is it justified to commit an offence to expose an offence?
*Published in CNN, Vol. 3, No. 9, September 2005, pp. 39-41
The advent of miniaturized audio and video technology, specially the pin-hole camera technology, enables one to clandestinely make a video/audio recording of a conversation and actions of individuals. In India, the Media has been first to grab this state of the art technology to conduct ‘sting operations’ to expose an offence before the police or the Judiciary takes the cognizance of the matter. The phrase ‘sting operation’ illuminates the impact of secret media coverage on a person’s reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. Thus the media, the supposed fourth pillar of our democracy, usurps the role of the executive and the judiciary. This is not only a sheer violation of state’s substantive and procedural penal laws but a hit on the face of the entire Constitutional framework as well.
There is no check on using the hidden cameras in one’s own house or office, but, in many countries, it is illegal to use them covertly against another person in his or her house or office. In UK there is a heated debate between those who support a free press which is largely uncensored and those who advocate an individual’s right to privacy regardless of what wrong they have done. In US, only the law enforcement agencies and police-licensed private detectives are allowed to use them under certain circumstances, that too under carefully controlled conditions. Licensed private detectives can use them for the collection of evidence, but not in a sting operation. Except the FBI, no private individual, not even a journalists can mount a sting operation. In India, in the absence of law regulating the sting operations, the media has violated and distorted the rules of natural justice and particularly the basic fundamental rights enshrined under Article 20 and 21 of the constitution.
As video cameras and their digital successors and CCTV become wider spread, this type of ‘caught on camera’ incident become more and more common. The use of unauthorized and unauthenticated camouflaged cameras poses real problems for the penal procedural laws as the evidence they provide may be inadmissible for numerous reasons like the probabilities of editing, lack of clear audio and video imaging, unavailability of exact dates, times and places etc.
There have been complaints from US human rights organization that a number of FBI sting operations have caused serious harm to innocent citizens who were the accidental victims of the make-believe criminal organizations set up by the bureau. They have pointed out that an even bigger risk, associated with sting operations aimed at public corruption, is the destruction of the public’s confidence in Government institutions.
The investigative journalism and publicity of pre-mature, half-baked or even presumptive facets of investigation either by the media itself or at the instance of Investigating Agency have almost become a daily occurrence whether by electronic media, radio or press. They chase some wrong-doer, publish material about him little realizing the peril it may cause as it involves substantial risk to the fairness of the trial. It can well lead to miscarriage of justice. Unfortunately we are getting used to it. Again it cannot be excluded that the public becoming accustomed to the regular spectacle of pseudo trials in the news media might in the long run have nefarious consequences for the acceptance of the Courts as the proper forum for the settlement of legal disputes.
The media is supposed to make the people aware of crimes, not to punish criminals. It is in no one’s interest to incite to and create misdeed for the sole purpose of prosecuting and punishing it. After all one cannot be permitted to commit an offence to expose an offence as has been noted in a number of cases ranging from Tehelka case to Shakti Kapoor/Aman Verma exposure to the present Sale Tax and Tihar Jail bribery cases. The issuance of warrants against the President and the Chief Justice of India is a blatant example of abatement of crimes by the electronic media. It is to be understood while there are those who harbour an actual criminal predisposition, the reality is that the majority do not fit this description. These sting operations are constructed so as to take advantages of the fact that everyone makes mistakes. Such a gross abuse of authority and freedom given for spreading awareness, not for generating criminals, deserves the severest condemnation
The view gaining currency is that "invasion of privacy" cannot be condoned and the Government ought to have some mechanism to address such cases. It is heartening to note that the Union Information and Broadcasting Ministry is considering a regulatory mechanism to protect the privacy of individuals. Still under consideration, the view firming up in the Ministry apparently favours the introduction of a clause to address "sting operations" in the proposed Broadcasting Bill.
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© Praveen Kumar Jain
There is no check on using the hidden cameras in one’s own house or office, but, in many countries, it is illegal to use them covertly against another person in his or her house or office. In UK there is a heated debate between those who support a free press which is largely uncensored and those who advocate an individual’s right to privacy regardless of what wrong they have done. In US, only the law enforcement agencies and police-licensed private detectives are allowed to use them under certain circumstances, that too under carefully controlled conditions. Licensed private detectives can use them for the collection of evidence, but not in a sting operation. Except the FBI, no private individual, not even a journalists can mount a sting operation. In India, in the absence of law regulating the sting operations, the media has violated and distorted the rules of natural justice and particularly the basic fundamental rights enshrined under Article 20 and 21 of the constitution.
As video cameras and their digital successors and CCTV become wider spread, this type of ‘caught on camera’ incident become more and more common. The use of unauthorized and unauthenticated camouflaged cameras poses real problems for the penal procedural laws as the evidence they provide may be inadmissible for numerous reasons like the probabilities of editing, lack of clear audio and video imaging, unavailability of exact dates, times and places etc.
There have been complaints from US human rights organization that a number of FBI sting operations have caused serious harm to innocent citizens who were the accidental victims of the make-believe criminal organizations set up by the bureau. They have pointed out that an even bigger risk, associated with sting operations aimed at public corruption, is the destruction of the public’s confidence in Government institutions.
The investigative journalism and publicity of pre-mature, half-baked or even presumptive facets of investigation either by the media itself or at the instance of Investigating Agency have almost become a daily occurrence whether by electronic media, radio or press. They chase some wrong-doer, publish material about him little realizing the peril it may cause as it involves substantial risk to the fairness of the trial. It can well lead to miscarriage of justice. Unfortunately we are getting used to it. Again it cannot be excluded that the public becoming accustomed to the regular spectacle of pseudo trials in the news media might in the long run have nefarious consequences for the acceptance of the Courts as the proper forum for the settlement of legal disputes.
The media is supposed to make the people aware of crimes, not to punish criminals. It is in no one’s interest to incite to and create misdeed for the sole purpose of prosecuting and punishing it. After all one cannot be permitted to commit an offence to expose an offence as has been noted in a number of cases ranging from Tehelka case to Shakti Kapoor/Aman Verma exposure to the present Sale Tax and Tihar Jail bribery cases. The issuance of warrants against the President and the Chief Justice of India is a blatant example of abatement of crimes by the electronic media. It is to be understood while there are those who harbour an actual criminal predisposition, the reality is that the majority do not fit this description. These sting operations are constructed so as to take advantages of the fact that everyone makes mistakes. Such a gross abuse of authority and freedom given for spreading awareness, not for generating criminals, deserves the severest condemnation
The view gaining currency is that "invasion of privacy" cannot be condoned and the Government ought to have some mechanism to address such cases. It is heartening to note that the Union Information and Broadcasting Ministry is considering a regulatory mechanism to protect the privacy of individuals. Still under consideration, the view firming up in the Ministry apparently favours the introduction of a clause to address "sting operations" in the proposed Broadcasting Bill.
*************************************************
© Praveen Kumar Jain
