Chetan Sharma sting operation: Right to privacy vs public interest

Chairman of Indian men's cricket team Chetan Sharma giving out classified information sparks debate

The incident of Chairman of the Senior Selection Committee of men’s cricket, Chetan Sharma, who was caught in a controversy on Tuesday after he revealed classified selection matters during a sting operation by a TV channel, has once again sparked a debate on the legality of sting operations.

Legal experts said in cases of entrapment and sting operations, a right balance needed to be achieved between the right to privacy and public interest. Though sting operations are not mentioned specifically in acts and regulations, judicial opinion on the subject has surfaced time and again.

In the case of People’s Union for Civil Liberties versus The Union of India, the Supreme Court laid down the comprehensive directions that the government must follow if it intends to use wiretaps.

On the other hand, in RM Malkani versus the State of Maharashtra, the Supreme Court upheld the admissibility of a tape recording on the telephone. The court even went on to state that no provision under the Indian Evidence Act empowers the courts to exclude evidence that is illegally or improperly secured.

However, this doesn’t mean there are no constraints on such operations. “Sting operations have not been explicitly stated to be illegal but in cases where a crime is committed pursuant to the operation, then punishment under the Indian Penal Code is attracted,” said Anushkaa Arora, Principal & Founder, ABA Law Office.

In 1983, the Law Commission of India in its 94th Report recommended that the legislature should amend the Indian Evidence Act to confer on the court discretion to exclude evidence obtained illegally or improperly if the admission of such evidence will bring the administration of justice into disrepute. “To date, no such law has been passed. There are no hard and fast rules to determine the legitimacy of a sting operation and under which circumstances will it be considered as evidence under law,” said Supreme Court advocate Tushar Agarwal.

The Pre-natal Diagnostic Techniques Act (1994) is perhaps the only legislation in the country that talks about sting or decoy operations in medical facilities that might be suspected of illegal sex determination. Sting operations undertaken under this Act are legitimate and regulated.

In some cases, the courts have even upheld the legality of sting operations. The Delhi High Court in Raja Ram Pal versus Hon’ble Speaker, Lok Sabha and Others (2007) upheld the legality of sting operations that brought to light the misconduct of 11 MPs and led to their removal. It was a ‘cash for query’ case and laid down the parliamentary privileges in India.

But are there any guidelines issued by legal systems in the country? Responding to this query, Parag Khandhar, partner at DSK Legal, said, “There are guidelines by the News Broadcasters Association (NBA) that need to be kept in mind. There is a requirement to balance the right to a fair trial and the right to privacy of an individual and the freedom of speech and expression.”

A request to frame guidelines for sting operations again came up in the ‘BMW hit-and-run case’. In the case, a young man from an influential family, driving at a reckless speed ran over six people, including three policemen, in an inebriated state. The lawyers representing the accused were seen meeting the prime witness of the case and influencing him not to testify. The Delhi High Court declared them guilty and the Supreme Court upheld the decision and refused to lay down guidelines for the media conducting sting operations, which was requested in the case. It said doing so would tamper with the autonomy of media. “A few isolated incidents of misuse do not justify a complete ban on this manner of investigative journalism,” the court had said.

However, this opens up a dialogue on the fine thread between sting operations and entrapment (defence to criminal charges, based on the interaction between police officers and the defendant before, or during, the alleged crime). A typical entrapment scenario arises when law enforcement officers use coercion and other overbearing tactics to induce someone to commit a crime.

Explaining this, Agarwal said, “There are two kinds of entrapments in India, one where any statute authorises the state agencies to carry out an entrapment and second where the entrapment does not derive its legality from any legislation.”

For example, the ACB or CBI is authorised by the Delhi Special Police Establishment Act, 1946, to create fictional scenarios to “trap” corrupt public servants. However, where law enforcement officers act arbitrarily and are unauthorised by a specific statute, there are bound to be violations of constitutional and human rights.

According to Faisal Sherwani, partner at Luthra and Luthra Law Offices India, judicial sentiments have largely leaned in favour of the legality of sting operations, while certain pronouncements have in a limited context questioned such actions raising concerns of privacy and/ or entrapment.

“Take for instance, the 2007 pronouncement of the Delhi High Court in SB Media Pvt Ltd versus State, where the court accepted the legality of a recording from a supposed sting operation that captured Members of Parliament taking bribes, in the larger public interest,” he said.

“A blanket bar on the admissibility of the entrapment or sting operation in evidence, may affect the rights of the victim. However, the right to privacy also has to be protected from the unregulated and arbitrary attempts by state agencies, media or any stranger indulging into unauthorised entrapments,” Agarwal said, adding it is the need of the hour for a specific and detailed legislation dealing with the legality and admissibility of the Entrapments and Sting Operations.

Background

Chetan Sharma allegedly said former Indian cricket captain Virat Kohli tried to defame then BCCI President Saurav Ganguly as he felt the latter was responsible for him losing the ODI captaincy. Sharma said the tussle between Kohli and Ganguly was the case of “two egos clashing”.

News agency PTI reported that the BCCI is looking into the matter, as national selectors are bound by contract and are not supposed to speak to the media. “It will be (BCCI secretary) Jay’s (Shah) call as to what will be Chetan’s future. The question is whether T20 skipper Hardik Pandya or ODI and Test captain Rohit Sharma would like to sit with Chetan in a selection meeting knowing that he has let out internal discussions,” PTI quoted a senior BCCI official.