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Comparative Analysis of Admissibility of Sting Operation in India and USA

'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 India.

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.[1]

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.[2] However, now the question that arises here is that does the relevancy of evidence supersede the need to procure that evidence through lawful means.

Now in the case of Kuruma v R, 1955,[3] 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,[4] 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.[5] Right to privacy as per Justice K.S. Puttaswamy (retd.) v Union of India, 2017,[6] is covered by Article 21 of the Indian Constitution.

However, it is important to note here that in the case of Umesh Kumar v State of A.P., 2013,[7] 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 operation.

A classic case to enunciate this point is the Uma Khurana case wherein 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.[8]

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 of India, 1973,[9] 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,[10] 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,[11] 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, 2010,[12] 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:'
  1. first, illegally obtained evidence is admissible in India if it is relevant to the case at hand and
  2. 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 larger public.
'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 admissibility.

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.[13]

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.[14]

Further in the case of Jacobson v United States,1992,[15] 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.[16]

This view was upheld in the case of Davis v Mississippi,1969,[17] wherein 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,[18] 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.[19]

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.[20] 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,[21] and in the case of people's union of Civil Liberties v Union of India and Another, 1996,[22] 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.[23]

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.

  1. Stings the quintessential of a flawed legal framework.
  2. Section 5, Indian Evidence Act, 1872.
  3. Kuruma v R, 1955 AC 197 (PC).
  4. Pooran Mal v Director of Inspection (1974) 1 SCC 345.
  5. Article 20(3), the India Constitution, 1950
  6. Justice K.S. Puttuswamy (retd.) and another v Union of India, (2017) 10 SCC 1
  7. Umesh Kumar v State of A.P., (2013) 10 SCC 591.
  8. Court on its own motion v State, 146 (2008) DLT 429.
  9. Bennett Coleman & Co. & Ors. V Union of India & Ors, 1973 AIR 106.
  10. Rajat Prasad v CBI (2014) 6 SCC 495.
  11. Raja Ram Pal v Hon'ble Speaker, Lok Sabha (2007) 3 S.C.C.
  12. Aniruddha Bahal v State, 2010 172 DLT 269.
  13. Are Federal Sting Operations in U.S. Counterterrorism cases legal?
  14. Section 645, Criminal Resource Manual.
  15. Jacobson v United States, 503 U.S. 540, 548 (1992).
  16. Sarkar: Law of Evidence, 18th Edition.
  17. Davis v Mississippi, 394 U.S. 721 (1969)
  18. Sorrells v United States, 287 U.S. 435 (1932)
  19. Section 18(3)(C) U.S. Code, 1956 Laundering of Monetary Instruments.
  20. Are Federal Sting Operations in U.S. Counterterrorism cases legal?
  21. Section 5, Telegraph Act, 1885.
  22. people's union of Civil Liberties v Union of India and Another, AIR 1997 SC 568.
  23. Stings the quintessential of a flawed legal framework.
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