Sting is legal

The Delhi High Court exonerates two journalists accused of bribing in the cash-for-questions scam.

in New Delhi

BY holding that a sting operation by any citizen is a legitimate exercise, Justice Shiv Narayan Dhingra of the Delhi High Court resolved, on September 24, a key dilemma of journalists intending to use sting as a means of exposing corruption. Justice Dhingra, in his order, quashed the charge sheet and the summons against two journalists, Aniruddha Bahal and Suhasini Raj, who had conducted a sting operation in 2005 against Members of Parliament (MPs) in order to expose their corrupt ways. The Delhi Police, instead of prosecuting the corrupt MPs, charged Bahal and Suhasini Raj under the Prevention of Corruption Act (PCA), for seeking to bribe the MPs.

A sting operation, by implication, involves a bargain to commit an offence by a public servant in exchange for monetary or other benefits so that the person who carries out the sting will be able to capture the offence on his or her camera by subterfuge. This raised the issue of invasion of the privacy of the official being exposed, but it was mostly justified in terms of the larger public interest involved if the public servant being exposed was predisposed to corruption, and if the sting operator had the larger public interest in mind. But the legal question of whether the sting operator might be guilty of abetment to the offence committed by the public servant remained to be resolved.

In 2005, Bahal and Suhasini Raj conducted a sting operation to expose the practice, among some MPs, of taking money for asking questions in Parliament. This practice, Justice Dhingra said, had been known to the public for quite some time but had not been brought to the notice of the public at large with credible proof. Bahal and Suhasini Raj took upon themselves the responsibility of exposing such MPs with documentary proof. Television channels broadcast footage of this sting operation on December 12, 2005, which showed how some MPs accepted money for asking questions.

Following this, the then Lok Sabha Speaker, Somnath Chatterjee, constituted a committee to inquire into the allegations of the conduct of those members of Lok Sabha who were shown to have received money. The Rajya Sabha also constituted such a committee to inquire into the conduct of a Rajya Sabha member. However, it took one and a half years for the Delhi Police to register cases of corruption against these MPs. Ironically, the police made the two journalists who conducted the sting operation the prime accused in the case. Not only did the police register first information reports (FIR) against them, but the trial court took cognisance of the case against them and issued summons against them as accused on July 6, 2009.

Bahal and Suhasini Raj challenged this order of the trial court in the High Court by arguing that they conducted the sting operation to expose corruption and not to commit any crime. The police, instead of calling them as witnesses, made them the accused with the sole aim of killing the case, they contended. During the hearing, Justice Dhingra gave an opportunity to the police and the Central government to use the services of the two journalists as witnesses and seek their discharge from the case. But the government refused to do so.

Justice Dhingra posed the question to be decided in the petitions filed by Bahal and Suhasini Raj as follows: 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? He reasoned that such a right flowed from certain fundamental duties of citizens listed under Article 51A (b) of the Constitution. This Article provides that it is the duty of every citizen to cherish and follow the noble ideals that inspired the national struggle for freedom.

To Justice Dhingra, one of the noble ideals of our freedom struggle was to have an independent and corruption-free India, and it is imperative to remove corruption in order to fulfil another fundamental duty enshrined in the Constitution to protect the sovereignty, unity, and integrity of the country.

Justice Dhingra then explained how the duty to expose corruption is linked with every other duty under Article 51A be it the duty to defend the country, or to develop a spirit of inquiry and reforms, or to strive towards excellence in all spheres. Taking judicial note of the fact that there is widespread corruption, Justice Dhingra posited that it is the fundamental right of citizens to have a clean, incorruptible judiciary, legislature, executive and other organs of government and in order to achieve this right, every citizen has a corresponding duty to expose the corruption, if possible, with proof. This, he suggested, would make people reject corrupt representatives at the hustings and also compel the state to take action against them.

Stating that journalists carrying out a sting operation cannot be considered as accomplices in the commission of the crime, Justice Dhingra rejected the contention of the police that in order to become witnesses, the journalists who carried out the operation should have reported the matter to the Central Bureau of Investigation (CBI).

Justice Dhingra remarked: I need not emphasise that in cases of complaints against persons in power how the CBI and the police act . 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.

Justice Dhingra also rejected the contention that Bahal and Suhasini Raj had offered bribes to the MPs and thereby committed an offence under the PCA. He held as follows: 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.

Justice Dhingra indicted the conduct of the police in not registering an FIR soon after the telecast of the sting. The police seem to have acted again as his master's voice' of the persons in power when it registered an FIR only against the middlemen and the petitioners and one or two other persons, sparing a large number of MPs whose names were figured out in the tapes, he wrote in his order.

One remarkable feature of Justice Dhingra's judgment is that he equated journalists with other citizens with a duty to expose corruption. Thus any other citizen could have carried out the sting and still be entitled to the protection of the law. He considered that the duties prescribed by the Constitution for the citizens permitted them to act as agents provocateurs to bring out, expose and uproot corruption.

Justice Dhingra felt that Bahal and Suhasini Raj not only aired on television channels the tapes relating to the sting operation, but also deposed truthfully before the two committees of Parliament. The two committees did not doubt the genuineness of the tapes or the intention of the petitioners, Justice Dhingra said. Under these circumstances, charging the petitioners with the offence under the PCA would amount to travesty of justice and shall discourage the people of this country from performing their duties enjoined upon them by the Constitution as well as Criminal Procedure Code, Justice Dhingra held.

Justice Dhingra's order is in contrast to the manner in which the Supreme Court treated journalists involved in another sting operation in 2004. In this case, a television reporter had obtained bailable warrants from an Ahmedabad court against four prominent persons including the then President A.P.J. Abdul Kalam and the then Chief Justice of India Justice Y.K. Sabharwal. The objective of the sting operation was to expose the malpractices in the judicial administration in the subordinate courts in Ahmedabad.

The Supreme Court quashed the warrants as illegal and went on to examine whether the sting operation was legal. During the hearing of the case, Vijay Shekhar vs Union of India, the then Chief Justice of India, K.G. Balakrishnan, insisted on an unconditional apology from the reporter. Observers wonder whether Justice Dhingra's landmark order could influence the outcome of this case, which remains inconclusive.

Meanwhile, Bahal has filed a caveat in the Supreme Court lest the Delhi Police seek to appeal against the verdict. If the Delhi Police, and the Central government under which it functions, decide to appeal against it, it will only confirm their contempt for a citizen's duty to expose corruption.