Explained: Tale of the sting

In July 2014, former Aam Aadmi Party MLA Rajesh Garg recorded Kejriwal purportedly proposing a plan to break six members from the eight-MLA Congress, and getting them to support formation of an AAP government. This recording surfaced on Wednesday, as the crisis in the AAP continued to unfold.

Is this development significant?

Only to the extent that it underscores the irony of a politician who advocates stinging as a policy to fix the “corrupt”, being himself stung by a fellow-traveller. Given AAP’s massive majority in the Delhi Assembly, and Kejriwal’s strong control over the party, this is unlikely to cause any greater damage.

How does AAP see sting operations?

As integral to its philosophy of politics and governance. Twice, after taking oath as CM, Kejriwal has exhorted citizens to never refuse a bribe, but rather do a “setting” — that is, induce the bribe-taker to make his demand while secretly recording the audio or video on cellphones, to be subsequently passed on to the authorities. He has announced telephone helplines to guide citizens through the process of carrying out stings. In January 2014, then Education and Urban Development Minister Manish Sisodia told The Indian Express that the “right to sting” was, along with the right to vote and right to information, one of the key powers that the common man in a democracy must enjoy.

Is that legal?

There are clear laws that govern the tapping of phones, a key manoeuvre employed in any undercover operation. But there is no specific statute or provisions to define or regulate sting operations as such. Taping private conversations by private individuals, on the other hand, has more to do with ethics and the right to privacy. It would be reasonable to assume that a person would speak differently if he knew he was being recorded. Rajesh Garg, who stung Kejriwal, has said that he records every conversation he has on his phone through an app, “just like journalists do”.

Have courts taken a position on this?

They have on several occasions declined to admit recordings of conversations tapped by government agencies as evidence in a case. Stings as an issue have frequently reverberated in courtrooms, and judges have been generally disapproving.

In their judgment delivered in a matter involving the BMW case and lawyer R K Anand, a Delhi High Court bench comprising Justices Manmohan Sarin and Madan B Lokur said in August 2008: “A sting operation by a private person or agency is, by and large, unpalatable or unacceptable in a civilised society. A sting operation by a state actor is also unacceptable if the state actor commits an offence so that an offence by another person is detected.”

In December 2007, the Delhi High Court in the matter of the TV sting that purported to show the involvement of a Daryaganj schoolteacher in a porn racket, ruled: “Giving inducement to a person to commit an offence, which he is otherwise not likely and inclined to commit, so as to make the same part of the sting operation is deplorable and must be deprecated by all concerned… ”

So where does the issue stand legally?

In terms of specific cases in Delhi, after Kejriwal resigned in 49 days, action on recordings made by people during the first AAP government went into limbo after being referred to the Anti-Corruption Branch (ACB). The current AAP government has yet to start its helpline.

More generally, the Supreme Court has been seen as putting the right to privacy ahead of the need to expose social evils. A three-judge bench of the Supreme Court held in April 2014 that those behind such operations could not get blanket immunity from criminal prosecution if their actions showed that they had, prima facie, committed a crime. Their acts shall not stand obliterated only by a clamour that what they did was in the larger public good, the court noted.