Whither the ethics?

Recent concerns about the casual and unsupervised nature of sting operations raise several larger issues. Sting operations are not only legally valid but have been hallowed by practice and use in other countries for a long time. Indeed, in places like the US, they are the established and accepted paradigm for busting drugs and money laundering operations.

Interestingly, several major sting operations in the US have been conducted with governmental participation. When the North Carolina Attorney General proudly announced that a sting operation would be conducted in his state to unearth telemarketing fraud, the US Bureau of Justice Assistance provided a substantial grant to the AG’s office for the operation. Similarly, the US Securities Exchange Commission, the counterpart of the Indian Sebi, helped agents set up a phony company with actual licences to catch Colombian drug-money launderers.

Public interest is writ large on such operations. They are filtered through an institutionalised web of safeguards, processes and hierarchical checks and balances that ensure objectivity and impartiality. The object of prevention of illegalities is ambiguous and clear.

Evidence collected from sting operations is admissible under the Indian Evidence Act, subject to the court being satisfied about its authenticity and the identity of the persons depicted. Unlike in the US, where the tainted evidence rule applies in some situations, Indian law permits even illegally procured evidence to be used in court, subject to the satisfaction of the court regarding its authenticity and veracity.

India’s vibrant and advanced view of freedom of the press has immeasurably expanded the constitutional letter, subjecting the press to only limited and controlled restrictions. All manners of collateral and subsidiary rights have been subsumed under the simple words of Article 19(1)(a) — from commercial free speech by way of advertisement to newsprint importation to the virtual right to defame public figures and public officials so long as no mala fide is present.

It is in this context that the responsibility of the media to self-regulate and introspect is proportionately enhanced. But despite all the preaching and the pontification, what have the media really done? Little, if anything. The government has issued a few regulatory guidelines for sting operations, to be voluntarily adopted by the media, failing which they are legally enforceable. However, these have to be followed sensitively and constructively.

Stings must either unearth an illegality or a matter of vital and genuine public interest. Showing consensual sex, for example, even if it involves public figures, may titillate, but does not qualify this test. Shakti Kapoor, the actor, did make a spectacle of himself when he was filmed in an instance of private, consensual sex. Howsoever wrong or right one may consider it, the incident involved absolutely no violation of any law. If anything was violated, it was Kapoor’s privacy, at the hands of the sting operators.

Secondly, a requirement that the service provider must fully satisfy itself regarding the authenticity of the sting, which it must itself conduct or commission, is equally reasonable. Mercenaries who conduct all kinds of stings and sell them to the highest bidder bring the very concept into disrepute. They are fundamentally vitiated by a conflict of interest which necessarily clouds objectivity. In the case of outsourced stings, at least the original idea is that of the media service provider. However, even that significantly dilutes the necessary safeguards.

Thirdly, standard guidelines stipulating the tests of not being offensive to public sentiment, not leading to disorder, not encouraging crime,  and maintaining accuracy and impartiality are neither novel nor unreasonable.

The Gavit incident is too recent and its potential repercussions too disastrous to leave this field as a free for all. It is also a telling lesson in how things can go grievously wrong. I was one

of the first persons to be approached by the channel concerned to give ‘expert comments’. A combination of Sunday ennui, good luck and some intuition led me to decline, despite very persistent importunings. That Sunday evening, I saw the diminutive and unsophisticated Gavit being pummeled and savaged by all and sundry for over two hours on Sunday prime time. The next morning, inside Parliament, I witnessed the unprecedented sight of the entire House rising as one man in support of the wronged Gavit. I thought to myself that but for his good fortune, Gavit would have been destroyed in one evening, and even if his innocence were proved later — which it would, inevitably — nothing would have compensated him for the loss of his reputation and esteem.

I have no doubt that neither civil society nor the organs of government are keen to subject the media to intrusive controls or harassment. History teaches us that in the long-run, such external controls are not policeable. The media should utilise this time to propose a voluntary code of conduct for sting operations, circulate it among civil society for a wider debate, and then promulgate its voluntary adoption with suitable consequences for the errant few who wilfully violate it. That alone will prevent a remedy worse than the disease.

Abhishek Singhvi is Senior Advocate, Supreme Court of India, and a Congress spokesperson.

Author Email: drams59@hotmail.com