'In this paper we analyze and compare the procedures established in the United
States and India with regards to sting operations. We also look at the question
of admissibility of evidence procured through sting operations in India and USA.
The motive of analyzing and comparing the procedure in the United States with
the one established in India is to find the various positives and negatives in
the two distinct procedures and to use the one established in United States to
suggest more effective methods and procedures for conducting sting operations in
This will also allow us to analyze the flaws in the procedure established in
United States and then make suggestions that will help prevent India from making
the same mistakes. To understand procedures established in both countries we
will use various judgements and regulations that have been passed over the
years. Once we have a fair understanding of the procedure established, we will
analyze and compare the two procedures.
The justice system in India, USA and around the world, quiet heavily relies on
evidence in order to ensure that truth prevails and justice is delivered.
Evidence helps the court in ascertaining whether the alleged facts are the truth
or not? Now in India the procurement and presentation of evidence is governed by
the India evidence act, 1872 while in the USA procurement and presentation of
evidence is governed by Federal rules of evidence.
Now, out of the various means and methods through which evidence can be
procured, sting operations are probably the most infamous. The admissibility of
evidence procured through sting operations has divided legal scholars in India
and the USA for years. On the one side we have scholars who believe that sting
operations are an effective means to the end.
The end being serving justice while there are others who believe that sting
operations infringe upon the right to privacy of the people who are subjected to
it. In this paper we will partake in a comparative analysis between India and
USA to try and analyze various statues and judicial opinions to ascertain
whether or not admissibility of evidence procured through sting operations is
considered good in law in both the countries.
A sting operation is a method of using deceptive means by investigative agencies
and media houses to lure a criminal to commit a crime in order to catch them red
handed. Now there are two kinds of sting operations positive and negative.
Positive sting operations are conducted in the light of legitimate concern for
overall population and planned to penetrate the cover of government's working
procedure, On the other hand negative sting operations are not conducted for the
benefit of the public.
Negative stings are a petty approach used by media to increase their viewership
by infringing upon the right to privacy of individuals that was bestowed upon
them by the Constitution in India and the 4th Amendment of the United states
Constitution in the United states.
Procedure Established In India
Now in terms of Indian context a thorough reading of section 5 of the Indian
Evidence Act and the theory of relevancy that it tries to encapsulate shows that
admissibility of evidence depends on its relevancy i.e. whether the evidence is
relevant or not. However, now the question that arises here is that does the
relevancy of evidence supersede the need to procure that evidence through lawful
Now in the case of Kuruma v R,
1955, it was held that if the evidence
is admissible it does not matter how it was obtained, however the privy council
as a word of caution also stated that judges have the discretion to disallow
evidence in a criminal case if strict rules of admissibility would operate
unfairly against the accused. Further this view was upheld by the Supreme court
in Pooran Mal v Director of Inspection
,1974, wherein it was held that
the test of admissibility lies in its relevancy and not the manner in which it
was obtained, unless the Constitution or some other statute bars the admission
of such evidence.
Now, when we talk about sting operations, it infringes upon right against
self-incrimination covered under Article 20(3) of the Indian constitution and
right to privacy. Right to privacy as per Justice K.S. Puttaswamy (retd.)
v Union of India
, 2017, is covered by Article 21 of the Indian
However, it is important to note here that in the case of Umesh Kumar v State of
A.P., 2013, the Supreme Court stated that it had always repelled the
contention that obtaining evidence illegally by using tape recordings and
photographs offended Article 20(3) and Article 21 of the Indian Constitution.
Now the problem here is that on the one hand Supreme court has interpreted
Article 21 of the Constitution to include right to privacy but at the same time
in its prior judgements it has allowed violation of this fundamental right in
order to procure evidence.
The problem with sting operations is that sometimes it is used by media houses
to increase their ratings and in their pursuit for ratings they often use
concocted sting operations at the behest of an innocent individual whose
personal life and liberty is left in shambles in the aftermath of the sting
A classic case to enunciate this point is the Uma Khurana case
Live India aired a sting operation which showed Uma compelling a young student
into prostitution, however, later the court held that the accused was innocent
and that a piece of sting operation was arranged dramatically.
Now, one might say that media houses should not be given enough liberty to
infringe upon people's private lives. However, it is widely considered that
media is the fourth pillar of democracy, which is given the task of bringing
information to people. Further in the case of Bennett Coleman & Co. v Union
, 1973, the court held that even though Article 19(1)(a) does not
mention freedom of press it is settled view of the court that freedom of speech
and expression includes freedom of press and circulation further it was held
that press should not be deprived of the fundamental right to express itself,
further, the community has a right to be supplied information.
Now, in Rajat Prasad v CBI
, 2014, the Supreme court held that where a
man draws another to acknowledge a payoff while covertly recording the
demonstration, it is ensnarement, which could be legitimate or criminal relying
upon the goal and thought process of the bribe supplier. Hence, what this means
is that if the intention of the bribe supplier was to achieve public good it
would be a legitimate sting but if his motive was to defame someone for ratings
or revenge etc. then it would be criminal.
Hence, the need here is to stop stings that are not conducted with the motive of
achieving public good. Further it has been seen that where the sting is not
fabricated and where it works towards achieving public good the courts in India
allow the admissibility of such evidence in a case. This can be seen in the case
of Raja Ram Pal v Hon'ble Speaker, Lok Sabha & others
, 2007, where
the Delhi High court upheld the legality of sting operations that brought to
light the misconduct of 11 MPs and led to their removal.
Moreover, in the case of Aniruddha Bahal & another v State
wherein two journalists who conducted a sting operation exposing MPs who took
bribes were made prime accused in the case, in the case the issue was whether
someone can offer bribes to trap and expose a public officer.
The court here held that as per Article 51A(b) it is necessary to uphold the
ideas of freedom struggle to cherish our free nation, hence the sting conducted
in this case was necessary and valid and the right to conduct sting comes under
right to free speech.
In the aforementioned cases we have clearly established two things:
- first, illegally obtained evidence is admissible in India if it is
relevant to the case at hand and
- secondly, evidence procured through sting operations is admissible and
such an admissibility is not considered unconstitutional provided that the
evidence procured through sting operations is such that it benefits the
'However, there is a growing concern with regards to the authenticity of sting
operations, which in turn has led many legal scholars to question its
Procedure Established In The USA
Now when we talk about the United States of America, it is important to note
that while there are no express statutes made by the Congress that govern sting
operations, there are however, a number of guidelines that do so. In USA sting
operations are governed by Attorney General's Investigative Guidelines, Domestic
Investigators and Operations Guide (DIOG), Guidelines on the use of confidential
human resources etc.
Now while sting operations are considered legal in the USA, entrapment can be
used as a valid defense in such cases. As per section 645 of the Criminal
Resource Manual when government agents implant in an innocent person's mind the
disposition to commit a criminal act and then induce commission of the crime so
that government may prosecute is called entrapment.
Further in the case of Jacobson v United States
,1992, it was held
that entrapment defense has two related elements: 1) government inducement of
crime and 2) the defendants lack of predisposition to engage in criminal
conduct. Hence, these two elements create a clear distinction between a legal
sting operation and entrapment. Further it is important to note that unlike the
Indian Justice system, the US justice system does not consider illegally
obtained evidence as admissible even if it is relevant to the case.
This view was upheld in the case of Davis v Mississippi
it was held that evidence obtained by virtue of an illegal search or seizure
violates the citizen's constitutional rights and is not admissible. This
effectively makes evidence procured through entrapment illegal.
One of the first cases to establish entrapment as illegal was the case of
Sorrells v United States
, 1932, wherein it is the officials of the
government who have implanted in the mind of an innocent the disposition to
commit the offense and have induced its commission in order that they may
prosecute, it would constitute as entrapment and hence, any evidence procured
through it would be illegal.
Now as mentioned earlier there are no explicit statutes drafted by the congress
in the United States with regards to sting operations, however, the Congress has
been cognizant about the importance of sting operation for security agencies to
maintain peace and integrity of the nation. Hence they have dedicated specific
sections with regards to sting operation in particular statutes, in order to
create a framework within which a sting operation should be conducted. One such
example is sec 18(3)(C) of U.S. Code, 1956- Laundering of monetary instruments
the relevant part of which allows for representation made by law officer or by
another person at the direction of or with the approval of federal official
authorized to investigate or prosecute violations of this section.
However, it is important to note that, while there are various guidelines and
specific sections governing the conduct of sting operations in USA, there is
however, no oversight with regards to the sting operations. Now what I mean by
this is that even though when the matter comes to court the conduct of the sting
operation is scrutinized by the court. however, when the sting is being
conducted there is no such scrutiny taking place, this gives security agencies
the room to cross certain legal boundaries while conducting the sting.
This lack of sufficient independent headquarter oversight was also pointed
out by the Office of inspector general. By looking at the above case laws,
guidelines and sections we can clearly establish two things firstly unlike India
illegally obtained evidence is not admissible as per the United States justice
system secondly, sting operations are valid in the United States and that there
a specific guidelines and sections put in place to ensure that they are
conducted in a more structured manner.
Now, when we compare the admissibility of sting operations in both the
countries, we have seen that the justice system in both the countries allows for
a sting operation. However, the procedure governing sting operations varies in
both countries. Firstly, at the very basic level Indian Justice system does not
consider an evidence inadmissible just because it was procured illegally, while
the law in the United States holds the same to be inadmissible.
Now it has also been established that the United States has clear guidelines
pertaining to sting operations that provide the security agencies with a clear
framework that they need to follow while conducting such stings. India, however,
has no such guidelines or explicit sections in the statute governing the same.
However, it is important to note that a positive step was taken in this
direction by the Indian law makers as well as the judiciary, when it came to
wiretapping which is considered an important part of sting operations.
This was done by adding regulations pertaining the wiretapping in the Telegraph
Act, 1885, and in the case of people's union of Civil Liberties v Union of
India and Another, 1996, wherein the court held that wiretaps are a serious
invasion of privacy of an individual, further the court also went ahead and laid
down certain guidelines for the government, which gave the power to Union Home
Secretary and its counterpart in the state to allow wiretapping, further it also
ordered that as per the guidelines the order must be sent to the review
committee within a week. Now, India building up on the law established for
wiretapping can take a step further and create a framework for the entire
process of sting operations similar to what the United states has done.
However, it is also important that India learns from the shortcomings of the
United States justice system and goes ahead to create an independent body which
approves and oversees the conduct of sting operations conducted by both the
security agencies as well as media. The reason I say this is because while the
judiciary does scrutinize the conduct of the sting when it presented before
them, the scrutiny is often delayed, hence, if at all there is a gross violation
of the rights of an individual subjected to the sting, the person has to wait
till he's presented in front of the judge, who will then decide whether or not
the sting was conducted without any gross violations.
Further I would also suggest that like the United States, India should also
create a clear distinction between entrapment and sting operations, this would
make it easier for the judiciary to adjudicate cases.
Further I would also suggest that a system should be set wherein approval from
high ranking authorities of the judiciary should be taken by the police as well
as media before conducting sting operations. I would also like to suggest that
since a large portion of legal scholars believe that sting operation violate the
fundamental right enshrined under Article 21, it would be feasible and logical
if sting operations are focused primarily on exposing corrupt officials and that
such stings should only be conducted when they are working as public servants
and the stings should not spill over into their personal lives.
The reason I say this is because government officials are primarily public
servants and their job is to work in consonance with the idea of public good and
till the time they are on duty, every action that they take has far reaching
ramifications on public good, hence, since, we have seen through various
judgements the India judiciary has given the utmost regards to public interest
even over fundamental rights of private individuals, hence at a time when the
official is doing his duty and the expectation from him is that he is working in
furtherance of public good at that time a sting operation will act as a check
and balance to ensure that the official is conducting himself with the utmost
integrity and sincerity.
Now, when it comes to private individuals in criminal cases, a much higher
standard should be put in place to allow a sting operation one such suggestion
would be to allow a sting operation only when such strong evidence is found
against the accused that in the eyes of the court it is more likely than not
that the accused has committed the crime and that such sting only supplements
the evidence already procured by the officials. Further the government should
ensure that a sting is only broadcasted after it has been properly vetted by a
competent agency and that there is no doubt in the mind of such agency with
regards to the authenticity of such sting.
In conclusion, we have compared the procedure for sting operations followed in
both India and United states, now while it is important to note that procedures
in both the nations suffer from their own lapses and loopholes the procedure
followed in the USA are much more structured and defined.
Hence, the Indian justice system can refer to the procedure established by the
United States to form a better more structured procedure that is suitable to the
Indian Justice system. This I believe will help the judiciary ensure that the
fundamental rights of an innocent individual are not violated by security
agencies or TRP hungry media houses.
It is true that sting operations have the ability to bring forth irrefutable
evidence as it catches the accused red handed committing the very act he is
accused of, however, we need to remain cognizant of the fact that there is a
dire need to create specific legislations governing sting operations so as to
ensure that there are no gross violation of rights of innocent individual
citizens all in the name of public good.
- Stings the quintessential of a flawed legal framework.
- Section 5, Indian Evidence Act, 1872.
- Kuruma v R, 1955 AC 197 (PC).
- Pooran Mal v Director of Inspection (1974) 1 SCC 345.
- Article 20(3), the India Constitution, 1950
- Justice K.S. Puttuswamy (retd.) and another v Union of India, (2017) 10
- Umesh Kumar v State of A.P., (2013) 10 SCC 591.
- Court on its own motion v State, 146 (2008) DLT 429.
- Bennett Coleman & Co. & Ors. V Union of India & Ors, 1973 AIR 106.
- Rajat Prasad v CBI (2014) 6 SCC 495.
- Raja Ram Pal v Hon'ble Speaker, Lok Sabha (2007) 3 S.C.C.
- Aniruddha Bahal v State, 2010 172 DLT 269.
- Are Federal Sting Operations in U.S. Counterterrorism cases legal?
- Section 645, Criminal Resource Manual.
- Jacobson v United States, 503 U.S. 540, 548 (1992).
- Sarkar: Law of Evidence, 18th Edition.
- Davis v Mississippi, 394 U.S. 721 (1969)
- Sorrells v United States, 287 U.S. 435 (1932)
- Section 18(3)(C) U.S. Code, 1956 Laundering of Monetary Instruments.
- Are Federal Sting Operations in U.S. Counterterrorism cases legal?
- Section 5, Telegraph Act, 1885.
- people's union of Civil Liberties v Union of India and Another, AIR 1997
- Stings the quintessential of a flawed legal framework. https://www.legalserviceindia.com/legal/article-3674-stings-the-quintessential-of-a-flawed-legal-framework.html