August 20, 2009 | Undercover reporters: scam busters or abettors?

Use Sting Operations Sparingly: Rajdeep Sardesai

By Vivian Fernandes with K G Parvathy of Times School of Journalism

New Delhi, August 20, 2009: The case filed against sting reporters Aniruddha Bahal and Suhasini Raj of Cobrapost.com for allegedly bribing law makers to ask questions in Parliament provided the context for a debate on sting operations at India International Centre, the sixth in a series since December, arranged by the Foundation for Media Professionals.

All the speakers disagreed with the police action except former Delhi High Court judge R S Sodhi who said the undercover reporters must establish their good intentions and justify the use of hidden cameras to the trial court.

Vivian Fernandes delivering the welcome address

Manoj Mitta

For human rights lawyer Prashant Bhushan it was a ‘cut and dry” case. Guilty intent has to be proved under both the Prevention of Corruption Act and Indian Penal Code. He did not see a misreading of the Rajya Sabha advice in police action. It was in sync with the attempt by the judiciary to muzzle string operations. Chief Justice K G Balakrishnan’s response in the cash for warrants scam was “far from heartening,” he said. The Supreme Court view on the sting operations on R K Anand and I U Khan was an aberration. The failure of the judiciary, the Central Bureau of Investigation and the Central Vigilance Commission to check rampant corruption justified the use of hidden cameras, Bhushan said.

(In 2004, Zee News reporter Vijay Shekhar had done a sting to show how fake bailable warrants could be obtained on payment. He had obtained such warrants in the name of then President A P J Abdul Kalam, then Chief Justice V J Khare and two others. In November 2007, Chief Justice K G Balakrishnan ordered the reporter to apologise unconditionally because he had bribed a lawyer, which is not a lawful act. But in July 2009, a three-judge bench of the Supreme Court held a May 2007 NDTV sting that had exposed defence lawyer R K Anand offering money to influence a prosecution witness in the BMW hit-and-run case, as being in the public interest.)

Justice R S Sodhi

Justice R S Sodhi justified the Delhi police move. A conspiracy did not need a meeting of minds and the law did not make a distinction between legal or illegal means employed to do an illegal act. (In September 2007, Justice Sodhi had convicted four Mid-day journalists for contempt of court for exposing alleged corruption by former chief justice Y K Sabharwal.)

Rajdeep Sardesai

“I have not seen the perfect sting operation,” said Rajdeep Sardesai, editor-in-chief of CNN-IBN and President of the Editors Guild of India. For him, the 2001 Tehelka sting operation on former Samata Party President Jaya Jaitly and disgraced BJP President Bangaru Laxman was a “fishing expedition,” It provoked a vigorous defence from Shoma Chaudhary , executive editor of Tehelka, who said that undercover operation into bribery in the defence establishment was a fishing expedition in the sense that the reporters did not know who they were after. There was no intention to trap former defence minister George Fernandes, Jaya Jaitly or Bangaru Laxman. “There is so much inane journalism. Is that reason to stop inane journalism?” she asked rhetorically, to justify the use of stings in exceptional cases.

Endorsing Chaudhary’s point, Madhu Trehan of FMP and author of a book on the Tehelka sting on defence deals said corruption is very well protected, and arms dealers have smokescreens so thick they leave no visible traces.

Shoma Chaudhary

Tehelka’s sting on Gujarat riots helped make a case before the Supreme Court for setting up a special investigative team to probe the complicity of state officials and political activists, Chaudhary said. And another Tehelka sting showed that Zahira Sheikh had been coerced and bribed into changing her testimony in Ahmedabad’s 2002 Best Bakery carnage.

Like the death penalty, stings should be done in the ‘rarest of rare cases,” Sardesai said, because journalists are increasingly operating in a normless world. Unlike CNN-IBN, many channels do not have a strict policy on stings. They can be greatly damaging as revealed by the Live India TV sting on a school teacher, who was almost lynched by a mob, after being wrongly accused of getting her girl students involved in prostitution. Sardesai however said the police had erred in charging Bahal and Raj because they were acting in manifest public interest.

Madhu Trehan

CNN-IBN had put the policy in place after getting flak for not broadcasting the sting in which lawmakers were allegedly bribed to vote for the ruling UPA during the 2008 confidence vote on the nuclear deal. Sardesai said the channel had not completed the investigation and did not want to play into the hands of the BJP. But it was accused of batting for the Congress party.

Jaya Jaitly

“All journalists claim chuthi from the law in the national interest, but who defines national interest,” asked Jaya Jaitly in denunciation of sting operations. She said her life has become a torment since the 2001 Tehelka expose. There is no evidence against her, except the video tapes. Before the Venkataswamy Commission she was treated like an accused, unlike the undercover reporters, who were allowed to pick holes in her submissions, when it should have been the other way round. Even after the 13^th visit to the trial court in eight years, she has not been able to have her say. “Journalism is going wrong,” she said. “It must have some norms.”

“If they (Bahal etc) escaped in the earlier case, why are they being chargesheeted now,” asked Jaitly. “Not only is the law an ass but people riding it do not know which way they are going.”

Arvind Kejriwal

Magsaysay award winner and Right to Information activist Arvind Kejriwal lamented that stings did not cleanse the system. Despite 82 Delhi sales tax officials being suspended after Aaj Tak’s 2006 hidden-cam expose of bribe-taking, corruption in the department has not ended. Kejriwal said the people he had spoken to were in favour of stings. He said there should be norms, caution was warranted as sting could ruin reputations, but they are necessary in an opaque society like ours.

In his concluding remarks, Mitta said mature democracies had well-defined safeguards against entrapment, whether by state agencies or media organizations. The US has laid down the “pre-disposition test” which requires the undercover reporter to give proof of prior intention, for instance, on the part of the targeted person to take money. The UK requires stings to pass the “unexceptional opportunity test,” meaning the inducement offered should not be extraordinarily tempting.

The consensus at the meeting was that the Indian too could do with some norms on sting operations. If the media does not take initiative in this regards, it may pave the way for state intervention.

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