STING operations which the media, print and electronic, conduct, are an offshoot of investigative journalism. Stings exposed corruption among some MPs in Britain and in India. But the police in India want to send to jail journalists who expose wrongdoing by sting operations.
On March 13, 2001, the website tehelka.com caught the Bharatiya Janata Party's president Bangaru Laxman receiving tainted money. Other exposures at the same time compelled Defence Minister George Fernandes to resign. Tehelka was persecuted mercilessly thereafter.
It is, therefore, most reassuring that in a landmark judgment very recently, Justice S.N. Dhingra of the Delhi High Court upheld the legitimacy of stings as a right that belongs to all citizens. He squarely posed this question of “whether a citizen of this country has a right to conduct such sting operation to expose corruption by using agents provocateurs and to bring to the knowledge of the common man corruption at high strata of society” and answered it in the affirmative.
The facts were simple. In 2005 two journalists Aniruddha Bahal and Suhasini Raj conducted a sting operation to expose the practice of some MPs of taking money for asking questions in parliament. Television channels telecast footage of the operation on Dec 12, 2005. Neither the MPs' identity nor their misconduct was in doubt. Each house of parliament set up a committee to inquire into the conduct of its member.
The Delhi Police did not prosecute them. Instead, a year and a half later, they registered a case of abetment of bribery against them and a court of law issued summons against the journalists on July 6, 2009. They moved the high court which quashed the charge-sheet and the summons.
The police argued that the journalists ought to have reported the matter to the Central Bureau of Investigation (CBI).
The judge dismissed the plea with these scathingly realistic words “I have no doubt in my mind that if the information would have been given by the petitioners to the police or the CBI, the respective MPs would have been given information by the police beforehand and would have been cautioned about the entire operation.”
The journalists did their duty by deposing truthfully before the committees of parliament. The point is that but for the sting the MPs' business would have continued to flourish. This is the justification of stings which the court upheld.
“In order to expose corruption at higher level and to show to what extent the state managers are corrupt, acting as agents provocateurs does not amount to committing a crime. The intention of the person involved is to be seen and the intention in this case is clear from the fact that the petitioners, after conducting this operation, did not ask police to register a case against the MPs involved but gave information to people at large as to what was happening.”
In Britain the issue was decided in favour of the press in 1994 on almost identical facts by the British Press Complaints Commission. It was set up as a self-regulatory measure by the press to enforce a code of conduct formulated, not by the commission, let alone the government, but by the press itself.
A committee of editors, under the chairmanship of the editor of the News of the World , Patricia Chapman, drew up the code. Editors are represented on the commission.
Paragraph seven of the code reads thus: “Misrepresentation — (i) Journalist should not generally obtain or seek to obtain information or pictures through misrepresentation or subterfuge. (ii) Unless in the public interest, documents or photographs should be removed only with the express consent of the owner. (iii) Subterfuge can be justified only in the public interest and only when material cannot be obtained by any other means.”
Paragraph 18 defines the expression “the public interest” as used in paragraph seven, besides other provisions such as paragraph five which says: “Unless justified by public interest, journalists should not obtain or publish material obtained by using clandestine listening devices or by intercepting private telephone conversation.” But what constitutes “the public interest”?
Paragraph 18 says: “Clauses 4 [privacy], 5, 7, 8 [harassment], and 9 [payment for articles] create exceptions which may be covered by invoking the public interest. For the purpose of this code that is most easily defined as: (i) detecting or exposing crime or a serious misdemeanour; (ii) protecting public health and safety; (iii) preventing the public from being misled by some statement or action of an individual or organisation.”
Paragraph 7 of the code was applied in The Sunday Times case. On July 10, 1994, the paper published a story under the headline “Revealed; MPs who accept Â£1,000 to ask a parliamentary question”. Within hours, two Conservative MPs, David Tredinnick and Graham Riddick, were suspended from their jobs as parliamentary private secretaries.
On July 17, the Press Complaints Commission gave its ruling: “In all the circumstances of this case, the commission considers that the subterfuge used was justified as the only effective investigative tool available by which the information concerned could be obtained.”
There is another aspect to it. The fundamental right to free speech includes the right to know. The media's sting helps the people to know.
The writer is an author and a lawyer.