By Shalini Tyagi
In society today sting operations have become the order of the day. A sting operation is a well-planned scheme used by law enforcement agencies to entrap a criminal. It usually involves a lot of undercover work. Satellite, remote-control cameras and high-fidelity sound equipment that can pick up conversations in a room from outside can now spy upon an individual.
A person does not really have any privacy that he can be sure of. Sting operations carried out by so-called private spying agencies are a blatant violation of an individual’s privacy. Miniaturized audio and video technology, especially pinhole cameras, enables one to clandestinely make video/audio recordings of conversations and actions of individuals.
There are various ways of hiding the camera, inside a briefcase, pager, cigarette lighter, cellular telephone, fountain pen, smoke detector, or even the frame of sunglasses or other spectacles. Most of these gadgets have either a self-activation mechanism or one which has to be activated manually.
Watergate is a famous example of a President leaving office in disgrace and his lieutenants being jailed for trying to have recording equipment clandestinely fixed inside the office of a political adversary.
The only exceptions in the US are law-enforcement agencies and police-licensed private detectives, who are allowed to use such devices under certain circumstances and carefully controlled conditions. Licensed private detectives can use them for collection of evidence, but not in a sting operation. Only the FBI can mount a sting operation. No private individual, not even a journalist, can.
Scope and Purpose
The purpose of a sting operation is to catch the corrupt and spy on those involved in illicit or anti-national activities. Miniature audio-video technologies, including pinhole cameras, make it easy for anyone to clandestinely record a conversation or some dubious action.
A camera can be concealed inside briefcases, pagers, cigarette lighters, cell phones, fountain pens, smoke detectors or even spectacle frames.
Faced with disquiet among media-watchers over sting operations using hidden cameras, the Union Information and Broadcasting Ministry was considering a regulatory mechanism to protect the privacy of individuals. A section of the media views sting operations as a legitimate way of showing the truth, but the Ministry planned to distinguish between stories amounting to an invasion of privacy and those exposing corruption or having political implications.
The view gaining currency is that invasion of privacy cannot be condoned and the Government ought to have some mechanism to address such cases.
A TV channel recently entrapped actor Shakti Kapoor in conversation with a reporter posing as a girl seeking a role in a film. There may be truth in the episode, but such operations are definitely an invasion of privacy.
Privacy is a human right as well as a legal right. What is public life and what is private are two separate entities, even though there can be borderline instances. The media has no business to expose what transpires behind closed doors between consenting adults, even if the adults happen to be public figures.
The link between the media and one’s right to privacy is important. A sting operation of this kind is not only an intrusion on privacy but also indecent and disgusting. Indian democracy has much to learn from the Tehelka episode. Indian governance is wrapped up in corruption, which has not spared even issues relating to national security. But the more stinging truth is that it is virtually impossible to discover the real state of affairs through normal methods of investigation.
There have been huge debates on whether Tehelka-style stings are ethical in terms of invasion of privacy, breach of normal methods, use of women as part of the sting and unorthodox interviews.
Comparison with Position in U.S.A.
In the US, there are set rules against the use of hidden cameras without prior permission. Only investigating agencies are permitted to film persons who are proven offenders. Legal sanction is needed before undertaking a sting, and there are strict guidelines.
- Sting operations can be mounted only against those against whom some evidence of criminality already exists and a sting operation is considered necessary for obtaining conclusive evidence.
- Permission for sting operations must be obtained from the appropriate courts or the Attorney General.
- Those who mount a sting operation may themselves commit offences of impersonation, criminal trespass under false pretences and making a person commit an offence.
- While the transcript of recordings can be edited, the films and tapes themselves should not be erased or altered.
The US Supreme Court has also defined what amounts to inducement in a sting: an inducement to commit a crime should not be offered unless there is a reasonable indication, based on information developed through informants or other means, that the subject is engaging, has engaged or is likely to engage in similar illegal activity, or the opportunity has been structured so that there is reason to believe that the persons drawn to it are predisposed to engage in the contemplated illegal activity.
Indian Position
There is considerable outrage in India every time a sting or expose is done. Some call it the moral right of journalists to publish the wrongdoing of an individual or group. On the other hand, many find it an intrusion of privacy.
Not only is the police ill-equipped to handle this new-age crime, but the laws are also inadequate. There is also an issue of whether such exposes should be confined to issues of national importance and not deal with the personal lives of celebrities. There are no laws or guidelines for conducting sting operations in India.
Officially, the anti-corruption agencies of the Government conduct sting operations to catch the corrupt. In such cases, numbered and chemically treated currency notes are given to officials demanding a bribe. This money does not come from the Government but from the complainant and is the investigating agency’s property till the final verdict is delivered on the case.
Thus, the use of Government money for the conduct of such sting operations is generally frowned upon because it means encouraging corruption.
Legal experts define sting operations as entrapment, as inducement or persuasion. This is based on the premise that a person is entrapped when he or she is induced or persuaded to commit a crime that he or she had no previous intent to commit. The law as a matter of policy forbids conviction on such a case.
There is no law against entrapment in India, although cyber laws have specific clauses prohibiting sting operations that intrude into an individual’s privacy.
The Government, which was quick to act in the case of cyber law by enacting legislation to prevent its misuse, has not acted promptly enough in the case of sting operations or telephone tapping.
This requires action as these sensitive areas are no more the monopoly of the public sector and many private players have entered the field. The authority which can authorize such operations must be specified and the reasons for ordering such a probe must be specified.
Private agencies should be debarred from indulging in the same and stiff punishments, including closure of their operations, should be made mandatory where they are found guilty of undertaking such activities.
It is strange that the mushroom growth of detective agencies and security agencies, indulging in illegal methods to recover bank loans, is being allowed without any legislation to govern their working.