The end and the means

Expose II from Tehelka raises serious questions about journalistic ethics and the validity of the evidence thus collected.

ON the face of it, the facts of the case were fairly simple. Journalists of tehelka.com, posing themselves as arms dealers, secretly videotaped Defence Ministry and Army officials accepting money from them. The journalists distributed gold chains and cash to these officials to show that fixing sensitive deals in the Defence Ministry was as easy as that. The bottom line was that political corruption was rampant in India.

What complicated matters then was the fact that Tehelka used professional sex workers to deal with three Army officers and secretly videotaped the acts. Tehelka Expose part II has gone beyond discussions on substantiative findings to the ethics of the methods used.

The question is no longer confined to ascertaining who occupies the high moral ground - Tehelka or the National Democratic Alliance (NDA) government. It is also about finding answers or unravelling the legal guidelines to confirm if criminal action can be taken against Tehelka and its Chief Executive Officer (CEO) and Editor, Tarun Tejpal. The debate has spilled over to questions of journalistic ethics. Does the end justify the means in this case?

Tehelka says it does. Tejpal said: "In the run of the story these sorts of demands kept being made. The idea was not to let them (the Army officers) realise that the people (Tehelka) might be fakes... to keep the story ticking."

Tejpal's argument got a beating when a section of the transcripts suggested that at least one of the three Army officers had not made such a demand and was in fact more than a little upset at the turn of events. Moreover, there is nothing in the transcripts which proves that the investigations would have failed if Tehelka had not arranged for sex workers. Worse, rather than establishing that the Army officers made forceful demands for women, the transcripts suggest that the Tehelka representatives were eager to offer them.

What has Tehelka's modus operandi established? It has removed the line of distinction between the investigator and the subject of investigation. It became clear when Tehelka said that it sought the help of former Samata Party treasurer R.K. Jain to arrange sex workers. The argument was that while Tehelka arranged sex workers for the officials for the larger goal of public interest, the Samata Party did it for money. To support its claim, Tehelka released the tapes and transcripts of a conversation its journalists had with Jain at his office in Connaught Place in New Delhi. The meeting, according to Tehelka, took place on January 3 and 4. Tejpal said: "He not only offered girls to our reporter, who was posing as an arms dealer, but also presented them to him (the journalist)."

Samata Party general secretary and spokesperson Shambhu Shrivastava said that the party held no brief for Jain. Shrivastava said that Jain was obviously "lured, enticed and trapped by Tehelka". Hence, the real issue was not whether the Samata Party leadership could occupy the high moral ground. Rather, it seemed that Tehelka had lost its stretch of the moral high ground.

The NDA government responded to the latest revelations by deciding to hold an inquiry into whether Tehelka had adopted "immoral and illegal methods" to expose corruption in defence deals. Parliamentary Affairs Minister Pramod Mahajan said: "While journalists have every right to gather news, they cannot do it by breaking the law. No one, including MPs or journalists, is above the law. And if it is found that they broke the rules, strong action would be taken against them."

Home Minister L.K. Advani met Delhi's Commissioner of Police Ajay Raj Sharma to discuss the options available to move against Tehelka.

Meanwhile, the Justice K. Venkataswami Commission, which is probing certain aspects of the Tehelka expose, clarified that the method adopted by Tehelka could also be investigated as it was well within its "scope of inquiry". At Vigyan Bhavan, where the commission holds its hearings, counsel for the commission Gopal Subramanium read out the terms of reference of the commission and pointed out that clause (d) empowered it to "inquire into all aspects relating to the making and publication" of the allegations by Tehelka. In a brief follow-up statement, Justice Venkataswami said: "There is no doubt that under clause (d) all aspects will be gone into." Except for passing strong strictures against the publication of scurrilous matter, the commission conducted its proceedings in the usual manner.

The Samata Party made use of the opportunity to attack Tehelka and demanded tough action against Tejpal and the Tehelka journalists. The party said that just an inquiry into Tehelka's methods was not enough and demanded that they should be booked under the Immoral Traffic (Prevention) Act. However, the Centre said that it was up to individual MPs to file a first information report (FIR) and it could only promise a probe by the Home Ministry into the methods used by Tehelka.

Minister of State for Home I.D. Swamy said: "We have to examine whether any offence has been committed and under what law and section of the IPC (Indian Penal Code), the offence has been committed. Once we get it examined, and if an offence has been committed, the Home Ministry will certainly take action."

The demand for Tejpal's arrest sparked a legal debate on whether criminal action could be taken against the portal and its CEO. According to Clause 5 of the Immoral Traffic (Prevention) Act, 1956, any person who procures induces or takes a person for the sake of prostitution is punishable. Former Additional Solicitor-General of India Dr. Abhishek Singhvi told Frontline that it was doubtful if Tehelka can be booked under the law. He said: "Since Tehelka already had its sting operation without the use of sex workers, clearly such use was unethical. However, Tehelka's criminal liability is a matter of grave doubt. Under the Act, some employee of Tehelka may be held criminally liable only if several technical conditions are fulfilled. These are: They procured a woman; that the woman provided services in exchange for money; that the event occurred in a public place; and there were some elements of mens rea. Only if these conditions are established by evidence and beyond doubt will conviction be possible. In this case, it would be difficult to establish all the ingredients."

The problem lies in ascertaining whether the women were indeed sex workers. Succeeding in that would mean establishing that they were rendering their services for a "consideration". To prove that Tehelka procured the sex workers for a "consideration" during its operations, the women would have to be identified and interrogated.

Some legal experts said that only pimps could be prosecuted. Former Union Law Minister Ram Jethmalani said: "Tehelka's conduct does not amount to an offence. What is an offence is living on the earnings of prostitution. And if a prostitute is used to find out the chinks in the armour of the defence forces, it is not earning a living out of prostitution." Jethmalani was referring to Clause 4 of the Act, which made a person liable for punishment if he or she lived on the earnings of prostitution.

Kamini Jaiswal, a lawyer, said: "Tehelka's conduct may be immoral but it cannot be termed illegal. Tejpal was obviously not using the prostitutes for commercial purposes."

However, some others disagreed. Said lawyer Rajeev Dhawan: "It is true that under the Immoral Traffic (Prevention) Act we might not have all the ingredients that could nail Tehelka. However, prima facie there is a need to investigate this case. The persons who procured the commercial sex workers and the persons who used them are, in fact, all liable for action. A case should be made for investigation to see what the chances of prosecution are." Dhawan said that an investigation was essential because Tehelka's Expose II raised the question of journalistic ethics. "If you universalise what Tehelka has done, you would be creating a reign of journalistic terror. Journalism is not limitless. Unfortunately, the Press Council (of India) does not cover Tehelka's recent conduct. Therefore, if no action is taken then the message would go down the line that anybody can do what Tehelka has done. What Tehelka would end up doing is to set a norm for other journalists to follow," Dhawan said.

Another important point is whether the gathering of evidence through illegal means - here the officers did not know that their acts were being videotaped - can be termed as a gross violation of their rights. If the answer is yes, can this be used as the basis for action against Tehelka? Dhawan said: "Of course, on the face of it, their human rights have been violated. What Tehelka has done is not permissible, especially in the context of the human rights of the officers and the sex workers concerned."

Singhvi said: "India, unlike the U.S., does not follow the tainted evidence exclusionary rule. Evidence collected even by impervious means is not automatically excluded but is liable to be examined by the court and dealt with at the discretion of the Judge. However, although the evidence may be used against the person from whom it has been recovered illegally, the person may have a separate right to compensation against the person who collected it illegally. On that basis a compensation case against Tehelka cannot be ruled out."

However, the revelations have given the NDA government an opportunity to shift the focus away from the conduct of its leaders. But if George Fernandes thought that the discrediting of Tehelka tapes would facilitate his early return to the Union Cabinet, he was quickly disabused.

Sources in the NDA said that Fernandes was on the look-out for an opportunity to return to the Cabinet and was trying to build a pressure group to achieve his aim. His meetings with various leaders of NDA constituents - a visit to Mumbai in early August to meet Shiv Sena chief Bal Thackeray; a visit to West Bengal on August 9 to attend a Trinamul Congress rally; and a chat with Andhra Pradesh Chief Minister and Telugu Desam Party leader N. Chandrababu Naidu on August 10 - were interpreted as attempts to stage a comeback.

Although the consensus within the NDA was to allow the Venkataswami Commission to complete its work, Fernandes reportedly wanted it disbanded. There is a possibility that action may be initiated against Tehelka on the basis of the complaints filed by individual MPs. Yet the NDA would have to figure out how it can keep certain tainted individuals, like former Bharatiya Janata Party president Bangaru Laxman, out of the scope of such action.

However, it is not clear if Prime Minister Atal Behari Vajpayee would be willing to take the risk of bringing Fernandes back into the Cabinet before the Venkataswami Commission submits its report.

Hence, a lot depends on the findings of the commission. Notwithstanding the recent revelations, Tehelka's initial findings did expose some glaring lacunae, the least of which was how easy it is for a couple of journalists posing as arms dealers to penetrate the Defence Ministry. The NDA government cannot claim that it stands vindicated until the commission comes out with its report.