Monday, September 17, 2007

Stings and Public Purpose: some random thoughts

The ‘sting’ debate: Where and how to draw the lakshman rekha? We all agree that stings must have a larger “public interest” to serve. In the Uma Khurana affair, if the facts as alleged in the original telecast were true, then the public interest was clearly there. It was only when the facts were found to have been distorted by the sting operators, it became obvious that the public interest was a cover to carry out a private operation by the reporter. Therefore, both the means and the ends must matter in any sting. The means must be clearly vetted both by an in-house media and an external media agency or ombudsman to rule out the kind of lack of ethics that we witnessed in the Uma Khurana affair.

Having said that, let me clarify that my attitude to stings – its legality, morality etc. – differs from case to case, and to some extent, has been evolving.

On the TEHELKA expose in 2001, I clearly believed that there was a larger public purpose of exposing corruption in high places, and therefore, the use of hidden camera by the reporter was justified, even though the ethics of the use of call girls for the purpose was debatable. Corruption in defence deals would compromise the security of the nation, and therefore, the public interest was crystal clear. Tehelka, more or less, passed both the means and the ends test. The Defence Ministry, at least, sought to make the process of defence procurements transparent, even though it cannot be said that it is still above board.

On the cash-for-query scam involving 11 MPs, I felt that the issue had bordered on entrapment. The “public interest”, this expose served, was debatable. Members of public do not want to raise questions in Parliament through MPs. If the purpose was to show to the voters how their MPs behaved in Parliament, was the purpose served? The same MPs are free to contest elections, and even get elected. If the purpose was to warn MPs, that they could face expulsion if they posed questions for cash, then again, this was wrong, because sting journalist could not have assumed that Parliament would act swiftly to expel these MPs.

Did the sting instill a confidence in voters that their MPs would henceforth not take cash to pose questions? They may still do so, and take extra precautions to avoid being trapped by sting operators. It certainly satisfied the viewer interest, as people were told that evidence was now available that their MPs were corrupt. It would have certainly strengthened the general atmosphere of cynicism against the political class.

While the subsequent act of expulsion of these MPs by Parliament might have sent a message that the sting had served a purpose, the expulsion left in its wake a debate about whether it was a right remedy to a disease. Here, some MPs were shown the door for receiving money for posing fictitious questions (even though they believed it to be a genuine one). No private party stood to benefit by the act of posing the question by the concerned MP. Parliament was not prepared to examine the process of putting questions by an MP, to carry out systemic reforms, to minimize scope for similar misconduct. Expulsion was a symbolic response, albeit influenced by growing cynicism against the political class. (On the merits of expulsion, see my article here)

It is debatable whether acceptance of consideration by an MP for tabling a question would constitute an offence, inviting penal action under the law - as even the ad hoc committee constituted in 1951- against H.G.Mudgal M.P. who had received money by cheque for genuine professional work - had not concluded so.

However, two of the committee members - Vaidya and Shah - held that if any monetary consideration was accepted by any member even for professional services in connection with matters coming up before Parliament for disposal, then it would not be in accordance with the conception of the standards of conduct to be expected of MPs. In the Mudgal case, there was just a remote suggestion that the money was paid to him by a business association in expectation that he would raise questions in Parliament which would be of interest to it. The committee did not even find a quid-pro-quo, but still Parliament expelled him, because Jawaharlal Nehru took an uncompromising stand on the issue. The link to my article on this precedent is here.

On the actor Shakthi Kapoor sting, shown by India TV, the larger public interest seemed to override objections on invasion of privacy, but bulk of the media considered it otherwise. The link to my article is here.

The Supreme Court has said as early as 1964, in Kharak Singh and others v. State of Uttar Pradesh, that nothing is more deleterious to a man's physical happiness and health than a calculated interference with his privacy. In 1975, in Govind v. State of Madhya Pradesh, the Supreme Court expounded the law on this subject thus: "Privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior."

In the United Kingdom, the Calcutt Committee on Privacy and Related Matters (1990) opined that the revelations about the private life of a public figure are justified only to protect the health or safety of the public; or to expose crime or seriously anti-social conduct; or if his private life adversely affects his public duties or is so hypocritical that the public is likely to be seriously misled.

Trapping someone accepting a bribe is not an offence. IPC clearly makes an exception in this regard, to facilitate police investigations into corruption cases. But this right to trap someone accepting a bribe is not available to others who are not responsible for law enforcement.

To evade the stigma of entrapment, it is important for the journalist to show that the accused was predisposed to commit the offence. In the cash for query scam, the accused MPs apparently knew that they were being given cash for posing questions. The word “predisposition” would mean that the accused was inclined beforehand to commit the offence.
Under S.161 IPC, police officers laying a trap can make an honest attempt to secure really independent and respectable witnesses so that the trap may inspire confidence in the mind of the Court. They should treat the notes with phenolphthalein powder so that the Court does not have to depend only on oral testimony which is not always foolproof.

Under this section, an offence is born when the officer demands a bribe. The police simply try to collect evidence to bring the offender to book.

The trap witnesses (the decoy, or spy)being naturally interested in the success of the case are in the nature of partisan witnesses and in an appropriate case the Court may refuse to convict the accused unless their testimony is corroborated by other evidence.

You may notice that a reporter who uses a sting is not exactly similar to the policeman who uses a trap. A policeman uses a trap only when there is a reasonable suspicion that the official demands a bribe. A reporter who uses a sting very often indulges in a fishing expedition. In the cash-for-query scam, there were two MPs, who firmly rejected the offers of the reporters, and their names have not come into the public domain. The fact that there were two such MPs clearly shows, that the journalists chose their targets at random, or with ulterior motives, rather than on the basis of some reasonable suspicion that they do demand bribes to put questions.

However, it needs to be asked why journalists are not interested in doing a sting as any underdog just to report on their suffering? A sting as a vagabond, as a beggar, as a sex-worker or as a slum-dweller could reveal a lot about the struggle for existence of these unfortunate people.
Post a Comment