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Between the lines

A blanket ban on sting operations would be unconstitutional. No Indian court will ignore the material in support of the sting, writes AG Noorani.

india Updated: May 17, 2008 02:14 IST
AG Noorani

The sting operation has come to stay in India. Tehelka’s expose on March 13, 2001, led to the resignations of the then defence minister, George Fernandes and the former BJP president, Bangaru Laxman. In December 2005, 11 MPs were caught on camera by Aaj Tak taking cash for asking questions in Parliament. They were forced to resign. Now, a television channel has rendered a service to the probity of the criminal justice system by its expose of two lawyers in the BMW hit-and-run case: R.K. Anand for the defence and I.U. Khan, the prosecutor who has resigned since then.

They were shown allegedly influencing a prosecution witness, Sunil Kulkarni. The telecast suggested a prima facie case of professional misconduct by the lawyers. It is a case that has caused concern, not least because the allegations reflected a practice, which was widely suspected to exist in high-profile cases.

In recent months, many people have attacked sting operations. They are called subterfuges or misrepresentations in legal parlance. Before any minister goes about drafting a law to suppress it or a judge decides to censure it, some reflection is required. For, the sting is protected by the Constitution. The fundamental right to freedom of speech and expression, guaranteed by Article 19(1)(a) includes, as the Supreme Court has held, press freedom and all that is necessary to ensure it; for example freedom of circulation. It also includes the right to know, the court has repeatedly ruled citing US and UK cases. The US Supreme Court has ruled that it includes a “right to gather information” and, further, that “without some protection for seeking out the news, freedom of the press could be eviscerated.” The press enjoys a preferential right to attend courts to report trials. “In a sense this validates the media claim of functioning as surrogates for the public.” That is the test. Article 19 (2) permits on the right only “reasonable restrictions” by law only on specified grounds. A blanket ban would be unconstitutional. No Indian court would ignore the formidable material in support of the sting. No Information and Broadcasting minister should either. As far back as 1885, W.T. Stead made news for the Pall Mall Gazette when he exposed prostitution by buying a 12-year-old girl. It led to a change in the law. No judge would send him to prison today as one did then.

The Pentagon Papers were, in law, stolen government property. The US Supreme Court upheld the New York Times’ right to publish them because, as Justice Hugo Black, said: “Paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign forces and foreign shot and shell... The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for the Republic.”

The British Press drew up a Code of Conduct to be enforced by the Press complaints commission set up by the Press itself. The Code drew on the report of the Committee on Privacy (1990) headed by Sir David Calcutt, Q.C. and a later report by Sir David himself. It was not a self-serving document drawn up by the media in its own selfish interests.

Its first major test was in the Sunday Times case in 1994. On July 10, 1994, the paper published a story: “Revealed: MPs who accept Pound 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. The Sunday Times revealed the details of its investigative work over six months, following a tip in January by a businessman that he had paid MPs to table parliamentary questions. On July 17 — note the dispatch — the Press Complaints Commission gave its ruling: “The newspaper contended that the use of subterfuge was the only method by which the matter could be investigated. The Commission accepts the newspaper’s explanation for their behaviour. The subject matter of the article raised issue of serious public interest, which the newspaper had a right to pursue. 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”. The same holds good for the TV channel and its predecessors.

Relevant paragraphs of the code as revised in 2003 read thus: “3(i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual’s private life without consent; (ii) the use of long lens photography to take pictures of people in private places without their consent is unacceptable. Note — private places are public or private property where there is a reasonable expectation of privacy.

“8. Journalists must not obtain or publish material obtained by using clandestine listening devices or by intercepting private telephone conversations. (i) Journalists must not generally obtain or seek to obtain information or pictures through misrepresentation or subterfuge; (ii) Documents or photographs should be removed only with the 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”.

The last paragraph says “there may be exceptions to these paragraphs where they can be demonstrated to be in the public interest”.

It next defines what it is: 1. “The public interest includes: 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; 2. In any case where the public interest is invoked, the Press Complaints Commission will require a full explanation by the editor demonstrating how the public interest was served.” This exception alone makes the curbs “reasonable restrictions”. In each case the court will weigh the gravity of the exposure and the enormity of the wrong uncovered against the methods used. The test in each case will be “the public interest” and whether the “material cannot be obtained by any other means”.

In 2001, the US Supreme Court held that a radio broadcaster had the right to play a tape of an intercepted telephone conversation in which the caller, a teachers’ union negotiator, had discussed the timing of a proposed strike with the head of the local union. The Court accepted that the interception was unlawful. The broadcaster had not been involved in illegality. He was aware that the tape had been acquired in that way. His acquisition of the tape was lawful. The discussions between the union officials were of public interest to the community. So, he should be free to broadcast them, irrespective of the interceptor’s illegal conduct.

It is vain to expect any help from the Press Council. Leading figures in the media, print and electronic, should themselves draw up a code of conduct as a yardstick by which the public could judge their conduct. They might well set up a voluntary Court of Honour to monitor observance of their code.

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