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As quoted by Abraham Lincoln
‘Democracy is the government of the people, by the people and for the people.’
Public opinion and informed citizens are the essences of democracy as they play the fundamental safeguards against the autocracy of the government leaders. Awareness is spread amongst citizens by virtue of the press and media, making it a pillar of democracy itself. The constituent assembly did not feel the need to exclusively make an article for the freedom of the press but it is covered under the fundamental right to speech and expression guaranteed under Article 19(1)(a) of the constitution, as ruled by the Supreme court1.
No democratic government can survive without accountability and the basic postulate of accountability is that people should be well informed about the functioning of the government2.
Ideally, democracy is structured upon the three pillars of the legislature, executive, and judiciary. The media, however, is regarded as the fourth pillar and a watchdog for democracy as it facilitates public scrutiny over the other three components.The public has always benefitted from fearless journalism as it bridges the lacuna between the public and the government. It also attempts to uncover the truth behind controversial issues by way of investigative journalism.Investigative journalism or sting operations or undercover journalism is one of the ways by which the media attempts to make the ends meet, this article aims at providing an in-depth analysis of media trials, their lacunas, and legality in India.
Investigative journalism refers to the unveiling of matters that are concealed either deliberately by someone in a position of power, or accidentally, behind a chaotic mass of facts and the analysis and exposure of relevant facts to the public3. As already stated, the primary objective of investigative journalism is to deliver to the public, information that it cannot attain on its own. The nature of this is deceitful, secretive, and predatory as it aims to trap individuals into disclosing sensitive information. Although it sounds highly controversial it is seen in furtherance of the public’s right to information and this was opined in the famous case of Romesh Thappar v. State of Madras4, where the Supreme court stated that:
“The public interest of discussion stems from the requirement that members of a democratic society should be sufficiently informed so that they may influence intelligently the discussions which may affect themselves. In some, the fundamental principle involved is the people’s right to know.”
Investigative journalism can be bifurcated into negative and positive investigative journalism. Positive investigative journalism refers to those operations that contribute to the welfare of the society as they disclose information in the public interest and negative investigative journalism refers to the operations that do not benefit the society instead, infringe the privacy of people, and cause damage to their reputation. Negative investigative journalism is highly unethical.
A sting operation is a practice that is usually considered to be a form of negative investigative journalism. A sting operation essentially is a way of rat trapping an alleged criminal by way of deception. It is an act that involves intensive planning and precise execution of the same. Although, some sting operations like the one initiated by the news website called Tehelka against corruption have yielded to be fruitful and ethical. Most sting operations end up surpassing their legal boundaries and violate the fundamental rights of individuals. Whilst exploring the legality of sting operations it can be found that there is no exclusive legislation that legalizes or regulates it as a whole but an individual can always approach the court in case of resultant breach of their privacy.
The Pre-natal Diagnostic Techniques Act (1994) legalizes sting or decoy operations in medical facilities that might be suspected of involving in illegal sex determination. Apart from that, though wiretapping is perceived as an essential part of a sting operation, it is regulated by The Telegraph Act of 18855. However, this is no absolute rule that determines the legitimacy of sting operations generally. In fact, there exists no legal validity of a sting operation unless the court decides otherwise. Whether sting operations and their findings are admissible in the court or not, largely depends on the nature of the case and the relevant facts. In the case of Raja Ram Pal v. Hon’ble Speaker, Lok Sabha and others (2007)6 the footage found in the sting operation was held as solid evidence. In another case of Aniruddha & Anr v. State 20107 where two journalists conducted a sting operation against corruption, the court held the sting operation to be valid and indispensable. Further, stating that sting operations fall within the ambit of the right to free speech. This right was derived from Article 51 (b) of the constitution of India, in furtherance of exposing corruption. This can also be seen as the court acknowledging the legal basis of the need for sting operations. However, this does not provide for the protection of the journalists who conduct these sting operations and so, they can be sued for defamation, breach of privacy, and any other offense attracted by such an act. The Press Council of India has formulated rules regarding the conduct of journalists and the reporting of the sting operations as it is expected to comply with the prescribed legal standards. In India, there is no clear distinction laid between legal and illegal entrapment but if the court finds that the journalists have provoked the suspect into committing the crime then, the findings of the sting operation would not have any evidentiary value. In support of the admissibility of the findings of a sting operation, the court in the case of Pushpadevi M. Jatia v M.L. Wadhawan8 stated that “The court need not concern itself with the method by which the evidence in question has been obtained.” In the case of R.K. Anand v. Registrar, Delhi High Court (2009)9 the court refused to enumerate guidelines for sting operations as it would interfere with the autonomy of the media further, interfering with the right to freedom of the press. Hence, for sting operations to fall within the ambit of legal procedures they must fulfill the basic regulation and be in furtherance of public interest.
Essentially a trial refers to a court proceeding in furtherance of delivering justice to the aggrieved and involved parties of a given case. The two sides represented are that of the petitioner, who is the aggrieved party, and the respondent who is the accused party. It is the primary component of justice and so, it is extremely important for the trial to be fair. In the court of law, no accused is acquitted until he or she is found to be guilty beyond reasonable doubt and is presumed to be innocent until proven guilty.
As already known media is considered to be an essential pillar of democracy and thus, plays an extremely vital role in shaping the perspective and opinion of the public in a said matter. The right to freedom of speech and expression has been enumerated under article 19 (1)(a) of the Indian Constitution and is a fundamental right guaranteed to all the citizens of India. The freedom of the press is an indispensable right enshrined under the right to freedom of speech and expression. An important aspect of this is that news channels as a whole cannot claim the rights conferred under Article 19(1)(a) of the constitution as they are regarded as artificial persons and not citizens of India10. however, the shareholders of a company are entitled to challenge the constitutional validity of a law on the grounds of infringement of the rights under article 19 if their individual rights have been infringed11, and in such a proceeding the company may be joined as a party12. So, press editors and managers are all citizens and when they write in newspapers, they are exercising their individual right of expression13. This remains a very controversial stand as the court has also ruled that a legal entity created by law is separate from its participants and the Citizenship Act expressly excludes artificial persons from the benefits of citizenship rights14. Hence, it is a very subjective matter. In furtherance of deriving power from these controversial rights, the media is actively involved in what is commonly called media trials. A media trial involves investigative reporting as an attempt to unveil the underlying truth in issues of great sensitivity and deliver its perspective to the public at large. This often lingers into propagating fake news and negatively impacting the actual judicial proceedings of a case. These media trials are more viewership-centric than actually acting in the public interest. The case of Priyadarshini Mattoo15 marks the premier milestone in the history of blatant media trials but did not prove to be very fruitful as an aid to attaining justice instead, was forgotten once the uproar was over. In the case of Bhima – Koregaon the court held that ” The use of electronic media by the investigating arm of the state which performed the task of influencing the public opinion during the pendency of the investigation completely subverts the fairness of the investigation”. The case of Dr. Rajesh Talwar & anr v. Central Bureau of Investigation16 was another example of the media overstepping its limits. The media continuously breached the privacy of the teenage girl and had spread false information and news about the facts of the case. This highlights that viewership is of prime importance to the media and authenticity of the information is secondary. Section 2 of The Contempt of Courts Act of 1971 defines the crime of contempt of court which is inclusive of publication of any matter which prejudices or interferes in any way in the judicial proceedings or administration of justice .
Though, this does not bar judicial or legislative criticism. Section 228 of The Indian Penal Code forbids the disclosing of the identity of the survivor and the media has violated this rule in countless cases. It is not a very remote realization that the media through such acts creates a false image in the minds of the public and puts extensive pressure on the judiciary to act in a certain way.
The Bombay High Court prescribed guidelines stating that the media ought to avoid reports touching upon an ongoing investigation and present facts which are in the public interest rather than what, according to the media, the public is interested in. to sum it up, the idealistic view of the role of the media in facilitating democracy seems to be quite legitimate, however, the actual involvement and whereabouts of the media in regard to investigative journalism is highly unethical and controversial. Though, the media is a watchdog for democracy it must be kept on a leash when it starts to chase viewership.
Right to privacy
The right to privacy was declared to be a fundamental right under part III of the constitution of India in the case of Puttaswamy v. Union of India17. It was seen to be an integral and indispensable facet of the right to life and liberty. It safeguards individuals from being scrutinized by the state in their house, of their choice of partners, food habits or their movements, etc. it is also the right to be left alone. But, it is not an absolute right as it is subject to reasonable restrictions that are:
- The existence of a law that justifies an encroachment on privacy.
- Pursuit of a legitimate state aim ensures that the law doesn’t suffer from manifest arbitrariness.
- The means adopted by the legislature in furtherance of a proportionate aim that is sought to be fulfilled by law.
Media is the sword arm of democracy. It acts as a watchdog to protect the public interest against malpractice and create public awareness. But a lot of times, it fails to perform its duty and violates people’s right to privacy. As already mentioned, the Supreme Court has expressly held that the “right to privacy” is guaranteed under Art.21 of the Constitution.18A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right of the person concerned and would be liable in an action for damages.in most cases where sting operations are conducted on baseless grounds and the findings are published without the consent of the individual such an act amounts to violation of privacy. As the basis for such a sting operation is to expand the TRP evaluation or to intrigue the general population as opposed to the public interest. Grave mishandling of innovative progress and the unhealthy rivalry in the field of news coverage has brought about the pulverization of the standard sense of duty expected in the noble profession19. Moreover, as soon as a sting operation takes place, the media transforms itself into a public court. A person is innocent until his guilt is proven in a court of law. Media trials completely ignore this ideal notion and the person against whom the sting operation is conducted is exhibited as the convict.
This is more prevalent when the media tries to investigate high-profile cases such as that of the Bollywood celebrities. A trial run by media does not only add prejudice against the accused but also does severe damage to the person’s reputation, after his acquittal. A classic example of this would be Uma Khurana’s case20 where the court found that the sting operation was false. As a result, it caused grave damage to the reputation of Uma Khurana, who was a government school teacher and was alleged to be involved in a prostitution racket.
Fake sting operations also attract charges for defamation as they damage the reputation of the alleged target. Uma Khurana had filed a suit for defamation too, but the matter was settled amicably between the news channel and Uma Khurana, and the suit for defamation was withdrawn by Uma Khurana.
India being a democratic country largely facilitates public involvement in matters of reforms and governance. This involvement is fostered by the efforts of the media as it is seen as a medium for information to flow between the government and the public at large. The media initiates its efforts in numerous ways, some of which are extremely controversial. Though the legal framework of India does not exclusively acknowledge the importance of media trials it has always seen investigative journalism in light of its potential to promote democracy. However, due to a lack of legal perspective, the media often surpasses its ethical boundaries and such breaches are not pardoned leniently by the courts. It can be seen that the judiciary in its decisions has always attempted to balance protection of individual rights, freedom of press, and integrity of the legal framework. Each time the actions of the media in chase of viewership have caused damage to individuals, the court through its judgment has redressed the aggrieved party and each time the media has acted in the furtherance of public interest, the court has upheld the freedom of the press. Further, the ideal and prescribed role of the media is substantially authentic but, the reality of the media’s involvement in India is far from ideal and so, there is no white and black when it comes to deciding the legitimacy of media trials as it is a highly subjective issue.
1. Bennett Coleman & Co. & Ors vs Union Of India & Ors, 1973 SCR (2) 757
2. S P Gupta v Union of India AIR 1982 SC 149, 1982 2 SCR 365
3. Investigative Journalism, available at: https://en.unesco.org/investigative-journalism
(last visited on 2o October,2021)
4. 1950 AIR 124
5. People’s Union of Civil Liberties v. Union of India and Anr (1996)
6. (2007) 3 SCC 184
7. ( 2010 172 DLT 269)
8. (1987) 3 SCC 367
9. (2009) 8 SCC 106
10. Barium Chemicals vs Co. Law Board, AIR 1967 S.C 295
11. R.C. Cooper vs UOI, AIR 1973 S.C 106; 1973(2) S.C.R 757
12. Bennet Coleman vs UOI AIR 1973 S.C 106; 1973 (2) S.C.R 757
13. B.R. Ambedkar, VIII CAD 726
14. State Trading Corporation of India Ltd. & Ors vs CTO, Vishakapatnam & Ors
15. Santosh Kumar Singh vs. State through CBI- ( 2010) 9 SCC 74
16. 2013 (82) ACC 303
17. Justice K.S.Puttaswamy(Retd) vs Union Of India on 26 September (2017) 10 SCC 1
18. R. Rajagopal vs State of Tamil Nadu (1994) 6 S.C.C 632
19. Labour Liberation Front vs State of AP (2005) A.L.T 740
20. Court On Its Own Motion v State 146 (2008) DLT 429
Author: Priya Singh, Army Law College Pune
Editor: Kanishka Vaish, Senior Editor, LexLife India.