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Thursday, June 04, 2020

Where the camera can’t go

The rules governing sting operations need to be written up....

Written by Jaya Jaitly | Published: April 10, 2010 2:28:58 am

The Honourable Supreme Court is currently engaged in a matter with the CBI on legal issues concerning those engaging in sting operations. For some time now,sensational media stories based on sting operations with hidden video cameras have become somewhat passé or have become mired in legal grey areas. They have also lost an element of credibility. It is now almost 10 years since the first major so-called exposé on defence deals was shown to the world as evidence of corruption in the purchase of defence-related equipment. It was a media and political tamasha where heads rolled but never really got broken. Hidden cameras were a new phenomenon at that time,and the number of channels to choose from for entertainment were also fewer. No one knew then the technical and legal questions that must come into play if people are secretly filmed,supposedly committing an illegal act or saying something that could be construed as incriminating.

Words like HI8 tapes,linear and analogue systems,even forensic examinations of electronically generated material,were not part of everyday parlance,let alone in the purview of what judges and even the police could claim to be familiar with. No one had thought of forensics for video tapes,and it can safely be said that the already overloaded and understaffed Central Forensics Laboratory in Hyderabad had no infrastructure to provide state-of-the-art methodologies,know-how or equipment for the examination of video tapes in the beginning of the 21st century. We were still in the era of Keystone Cops where editing meant someone sat with scissors and snipped off inches of film. It was not common knowledge then,except amongst sophisticated cameramen,film makers and computer geeks that one could simply switch off the camera during recording if any part of the conversation was considered unsuitable. It was also a new discovery that copying on to a HI8 tape from a linear tape would make the new material impervious to discovery of tampering. All this was much too complicated for lawyers let alone elderly judges.

Technology also became attached to legal issues and brought up a series of questions that had no ready answers because no thought had been given to them. There were no laws or regulations in place in a country that claimed to be racing ahead to be a super power and were champions of information technology and repositories of all kinds of wisdom. There was the matter of privacy. Can persons from any profession or walk of life enter and film a person covertly,irrespective of what the person was doing? Some would say yes,and others may disagree,but if a person has a right to privacy,whether he/she was a public servant or not,an office room recording today could easily move to a bedroom recording tomorrow. The question to stop and ask ourselves is whether any civilised country would condone such intrusions into a person’s private life,irrespective of the public importance of that person.

Creating a situation where a person is urged or misled into committing a crime is termed entrapment. Law and order agencies in mature democracies do not allow this form of “discovering” criminal activity by those outside their administration. Even they have to ensure that there is already prior knowledge of,or evidence of,criminal activity and that the perpetrators finally only need to be caught in the act. Otherwise,only tin pot dictatorships or undemocratic rulers employ such techniques when political opponents have to be framed,tried and “disrobed” in public. Indian law makers and administrators have not cared to consider this issue. They do not realise that such lackadaisical attitudes can lead to not just fake media sensationalism,but dangerous vigilantism,defamation and damage of a person’s reputation,career and family life. It is an issue that needs to be addressed urgently and not played with because anyone can use it to destroy opponents when it suits them.

The law is blind,although in India occasionally official agencies will tweak material to suit whoever is standing before it seeking justice. However,there is no separate law for journalists who justify breaking the law in order to expose crime. Only a policeman with permission and authority can engage in subterfuge to disarm a criminal,and traffic cops with sirens can go through red lights to catch a speedster. Even VVIPs are actually breaking the law when their escorts go through red lights to give them an advantage in traffic. It is another matter that no one stops them.

Bribe-giving and bribe-taking are two parts of the same crime of corruption. The “giver” cannot be let off because his/her intentions may,in certain circumstances,be deemed honourable. The intention has to be tested in court during a trial so that the taker and giver have an equal right to a fair hearing. Is any kind of public activist a public servant or should they be termed as such only if they take a salary from the public exchequer? If any two common boasters with no role in government have a conversation about how each can influence important government decisions through whomsoever it may be,can they be booked for indulging in corruption just because some third unofficial party video-recorded them? Wrongdoing and loose talk are two different things,but we are happy to confuse one with the other.

For journalists to juggle with the law is a tricky matter,especially on acts claiming to have been done in “national interest”? When a media agency recorded and disseminated visuals of a “crime” by paying bribes and crossing various other legal lines,they defended their questionable actions as being in national interest. Perhaps,but they also earned a hefty profit by selling the material to a television channel rather than go to law enforcement agencies. When parliamentarians are accused of taking cash for questions in a sting operation,MPs could similarly say asking questions in Parliament was part of national interest and profiting monetarily was simply a side advantage.

The writer is a former Samata party president. She was

subject to a ‘Tehelka’ sting operation in 2000,regarding

alleged corruption in defence deals

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