Sting operations cannot be allowed to be tools for malicious prosecution

Voices Friday, April 17, 2015 - 05:30
By Saurav Datta Way back in 1972, the Governor of New York State passed an Executive Order authorising prosecutors to employ all means- hidden decoys, undercover agents, and sting operations to clean up the rot which had set into the police and criminal justice system. This was based on the firm belief and strong assumption that contrived cases were the only way to expose the corruption in the well-insulated and procedurally complex government system. The specially appointed Accountability Prosecutors went for the jugular and made many arrests. But when the cases were taken to court, the prosecution earned swift judicial condemnation- the courts held that "such a perversion of the criminal justice system is foul, illegal and outrageous." Delhi CM Arvind Kejriwal's much-publicised smartphone application, which the aam aadmi can use to conduct sting operations on government servants is still in the works, but once it is launched by the end of April (as promised) and put into use, the consequences will, in all probability, mirror those of the anti-corruption measures in New York. They might possibly be more disastrous, because of multiple factors, the most important of which is the absence of a legal regime to govern sting operations. Till date, only the media has been at the forefront of sting operations, and hence the handful of judgements have centred around the freedom of the press- especially protecting the Fourth Estate's right to expose the powerful and corrupt. For instance, on 24 December 2010, the Delhi High Court lauded then Tehelka journalist Aniruddha Bahal's use of a sting to net MPs who had demanded cash for raising questions in Parliament. Observing that a venal political class could undermine the very goals of the freedom struggle, the court held that "public interest" would justify the use of clandestine recordings to catch red-handed the dishonest and greedy. Neither did the court define public interest, nor did it lay down any safeguard(s) against manipulation and abuse. Due process In the crusading zeal for nailing the corrupt, essential procedural aspects of stings, which have a direct bearing on the liability of parties, are always ignored. The agent provocateur cannot simply claim some nebulous ideal of public interest in order to absolve himself of charges of bribing public servants, both under the Indian Penal Code and the Prevention of Corruption Act. Then comes the question of mens rea, or criminal intention, one of the essential ingredients of an offence. Suppose, a person knows that a particular government servant or bureaucrat is habitually into corruption, but he wants to fix him not because of serving the polity, but because he has a personal axe to grind. Then, even if this corrupt fellow is caught demanding and taking a bribe, or abusing his position of power and authority, the complainant doesn't have spotless hands, does he?  No human being is infallible so it's a fallacy to contend or believe that one would be totally impervious to temptation. However, that doesn't mean the law puts every act of surrendering to this temptation on an equal platform. A person who initially hesitates, or strenuously resists the ingratiating entreaties of a trap agent, but then finally gives in is considered a lesser offender than one who jumps at the chance of pocketing a bribe, or getting some undue and illegal favour. Moreover, the means employed by the sting agent are also pertinent. Providing reasonable opportunity is fine, but an inducement is impermissible. In case it is proved that one has been compelled by an inducement, he can take the defence of "entrapment" and  away with an acquittal or a reduced sentence. All these principles form a core part of the jurisprudence and procedure of sting operations in Britain, US and Canada, and confer certain non-derogable rights on citizens. These are conspicuous by their absence in India, and must be put into place before any government plans to use sting operations as a regular law-enforcement tool. Dangerous enthusiasm But Kejriwal wants to make stings a free-for-all for citizens, without sparing any thought about essential checks and balances which are so crucial to prevent abuses of process. As of now, there's no plan to verify either the credentials of those who would conduct a sting, or the authenticity of the video footage. One isn't sure whether the mention of undertaking a forensic analysis of the recording before any action is taken, got drowned in the din for "swift action". But, here's a cautionary note from 2007 which indicates almost everything that could go wrong. On 14 December, the Delhi High Court on its own motion, came to the rescue of Uma Khurana, a schoolteacher who was falsely implicated in a case of flesh trade. An unscrupulous journalist from a nondescript television channel, who wanted to settle scores with her, was the culprit. The court held that although stings are necessary tools for public interest and justice, the government or string agent must prove beyond reasonable doubt that the target had a predisposition to commit the offence before being approached. Mere suspicion of a person being "corrupt" wouldn't hold up in a court of law. Most important of all was the stipulation that a sting be carried out only after an independent committee, preferably quasi-judicial, has given the go-ahead. Quite similar to how presently the government is legally permitted to mount surveillance. The anti-corruption crusader would do well to be wary of the potential illegalities of his tool for "empowering" citizens.  Disclaimer: The opinions expressed in this articles are the personal opinions of the author. The News Minute is not responsible for the accuracy, completeness, suitability or validity of any information in this article. The information, facts or opinions appearing in this article do not reflect the views of The News Minute and The News Minute does not assume any liability on the same.