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By: Manisha Chauhan, Advocate​

The practice of conducting sting operations has recently become very popular with the media, who have justified its use on the grounds of exposing the corrupt practices of the people holding important positions in society. They contend that it is a part of investigative journalism and, hence, should be protected under the freedom of the press. There is, however, a lack of clarity as far as the legal aspect of the practice is concerned; the primary issue definitely revolves around the question as to whether such sting operations are an invasion of privacy or an act of defamation and thus should be proscribed in law or they could be condoned on the pretext of public interests and freedom of the press.

Freedom of the press, which is enshrined in Article 19(1)(a) of the Constitution, is a  fundamental tenet of democracy. The importance of freedom of speech and expression in a democracy cannot be discounted, as it is this very freedom which is the basis of criticism and constitutes the difference between a democracy and a totalitarian rule. It is primarily through this freedom that the press, which is deemed to be the fourth estate, exercises its control over the other three estates, i.e., the legislature, the executive and the judiciary. Thus, any act which tends to limit or inhibit the freedom of speech and expression of the press is an act in contravention of democracy itself and, therefore, must be condemned. 

The sting operations are mainly criticised on the grounds that they are an invasion of privacy. In order to explore the details of the contention, it is essential to throw some light on the source of proper privacy under Indian law. The Supreme Court, in the famous  Aadha Case judgment, has stated that the right to privacy is inherent in Article 21 of the  Constitution and, hence, is a part of the fundamental rights of the citizens; thus, the Courts are duty-bound to protect it. It is, however, worth mentioning that in the Maneka Gandhi vs Union of India case of 1978, the Supreme Court has already stated that the claims under  Article 21 are subject to the test of justice, equity and good conscience. This suggests that if the claims of the right to privacy are pitted against any action conducted with good conscience in the more significant public interest, it is quite possible that such claims would be rejected by the Court Now since most of the acts of sting operations are claimed to have been performed in furtherance of public interests in good conscience, me they are likely to be protected by the Court against claims of right to ds privacy. 

Furthermore, sting operations are criticised on the ground that it is an act of defamation, as the details of such processes are widely shared with the public at large through various mediums of communication. The press contradicts this argument by resorting to the exceptions listed under Section 499 of the IPC. Section 499 of the Indian  Penal Code, which deals with defamation, contains several exceptions to the offence, and one of them says, “It is not defamation to impute anything true concerning any person if it is for the public good that the imputation should be made or published.  Whether or (a) not it is for the public good is a question of fact.” This language clearly indicates that if the imputation amounting to defamation is made in the public good and it is a statement of truth, the offence of libel is not constituted. Similar exceptions are available against the conduct of public servants for their acts in an official capacity.  Now, since most of the sting operations offer allusions to the behaviour of the people against the tenets of public morality and the procedures also carry with them evidence of their being truthful imputations, such sting operations n should be rendered immune from any criminal obligations, including se defamation.

Another point which resonates in favour of this argument is the renewed focus of the  Court on transparency, particularly in the government sector, especially after the RTI  Act 2005 was passed. Section 24 of the RTI Act clearly states that even security and intelligence organisations need to disclose information on corruption and human rights violations. Further, Section 8(2) mandates the government to disclose information “if public interest in disclosure outweighs what comes to the fore is the importance of larger  Supreme Court, while hearing the public interests which arguments on Rafale case observed internet could prove to be the trumping factor when it comes to addressing the larger debate around sting operations and invasion of privacy.” the importance of transparency in serving sizeable public interest. 

The contention of the press, justifying its act under Article 19(1)(a), is mainly criticised on the grounds that the privileges offered under Article 19(1)(a) are curtailed under  Article 19(2) of the Constitution Article 19(2) states, “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise. of the right conferred by the said sub-clause in the interests of the sovereignty and the integrity of India, the security of the State, friendly relations with foreign States, public order, decency of morality or in relation to contempt of court, defamation or incitement to an offence”. Thus, Article 19(2) clearly talks about the grounds on which the freedom of speech and expression could be curtailed; therefore, if any sting operation could be found to be in contravention of the listed aspects, it could not be protected under the provisions of article 19(1)(a)

This aspect of the law was also emphasised in the Aadhar case wherein the Court held that the provisions of the Act, which enables any private organisation to exploit the personal biometric data of an individual for commercial purposes, should be held unconstitutional. Therefore, the Court, in the Aadhaar case, went on to the extent of curtailing even the powers of the State to make laws which are expected to be in contravention to ‘public order, decency and morality, something which is an important part of Article 19(2). Furthermore, the importance of ‘public order, decency or morality  finds resonance even in the language of the exceptions under the defamation law,  wherein it clearly states under exception 1 of Section 499 that “whether or not it is for the public good is a question of fact”.

Therefore, what comes to the fore is the importance of more extensive public interests, which could prove to be the trumping factor when it comes to addressing the more considerable debate around sting operations and invasion of privacy. First, there cannot be any one answer to this question, and such instances should be dealt with on a case-to-case basis. In all of such cases, however, the point of deliberation has to be as to whether the impugned sting operation could be held to be genuinely conducted in the more significant public interests and for serving the larger public good. Such evaluation shall be conducted based on available evidence, including circumstantial evidence, which should be accorded due importance. Lastly, it has to be ascertained as to whether the commercial advantages which the concerned entity is likely to reap outweigh the public good it claims to be serving. If the answers to these questions are obtained, any case can be decided as to whether it is an invasion of privacy or not.