PARLIAMENTARY PRIVILEGES UNDER CONSTITUTION AND PRESS

Constituent Assembly:

The freedom of press, as one of the members of the Constituent Assembly said, is one of the items around which the greatest and the bitterest of constitutional struggles have been waged in all countries where liberal constitutions prevail. The said freedom is attained at considerable sacrifice and suffering and ultimately it has come to be incorporated in the various written constitutions. James Madison when he offered the Bill of Rights to the Congress in 1789 is reported as having said: ‘The right of freedom of speech is secured, the liberty of the press is expressly declared to be beyond the reach of this Government’. ‘(See 1 Annals of Congress (1789-96) p. 141).

Halsbury’s Law of England “Any act or Omission which obstructs any member or officer of the House in the discharge of their duties, or which has a tendency to produce such a result would constitute contempt of legislature”

Earl Jowitt, (Lord Chancellor of Great Britain since 1945-51) defines the privilege in the following words, “An exceptional right of advantage, an exemption from some duty, burden or attendance to which certain persons are entitled, from a supposition of the law that the stations they fill or the offices they are engaged in, are such as require all their care, and that therefore, without this indulgence, it would be impracticable to execute such offices so advantageously as the public good requires”.

In his book ‘Law Custom and Constitution’ Anson points out that, “The rules of which they (the privileges) consists are not readily ascertainable, for they obtain legal definition when they are cast in statutory form, or when a conflict between the House and the Courts have resulted in some questions of privilege being settled by judicial decisions”.

Unlike England where privileges are uncodified in India its codified in the Constitution in Article 105 and 194. However what constitutes breach is uncodified.

“A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected, with Madison who was “the leading spirit in the preparation of the First Amendment of the Federal Constitution,” that “it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits.”: [Quoted in Near v. Minnesotta]

Blackstone in his Commentaries, “the liberty of the press consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to say what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press.”

Fundamental Rights vested under Constitution of India

Amongst others inter-alia the Fundamental Rights relating to Freedom of Speech and Liberty are enshrined in Articles 19 to 22.

Right to Freedom (Articles 19 – 22)

Freedom is one of the most important ideals cherished by any democratic society. The Indian Constitution guarantees freedom to citizens. The freedom right includes many rights such as:

  • Freedom of speech
  • Freedom of expression
  • Freedom of assembly without arms
  • Freedom of association
  • Freedom to practice any profession 
  • Freedom to reside in any part of the country

However these are  subject to general restrictions and certain conditions of state security, public morality and decency and friendly relations with foreign countries

Let us now study provisions of the constitution regarding parliamentary privileges.

105. (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.

 (2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.

(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, [shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.]

(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.

194. (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State.

 (2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings.

 (3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, 1 [shall be those of that House and of its members and committees immediately before the coming into force of section 26 of the Constitution (Forty-fourth Amendment) Act, 1978].

(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature.

Privileges of Parliament :

  1. Right to exclude strangers :

The right of the House to exclude strangers from the House is a necessary concomitant of the privilege of freedom of speech on the floor of the House. In a deliberative body like Parliament, privacy of debate is no less important for free and fair discussion than is the immunity from legal proceedings.

  •  Right to prohibit the publication of its proceedings: It is another important privilege which has been enforced by the Parliament on various occasions with a specific intention, only to prevent malafide publication of any inaccurate report or expunged portions of any proceeding
  • Power to Commit for Contempt: One of the most important privileges available to Parliament is the power to commit for its contempt and also defined as the ‘keystone of Parliamentary privilege’

Procedure in case of Breach

https://rajyasabha.nic.in/rsnew/rs_rule/questionsprivileges.asp

What constitutes a breach of this privilege? While the Constitution embodies special privileges and powers to parliamentarians and legislators to maintain the dignity and authority of the Houses, these powers and privileges are not codified.

  • Thus, there are no clear, notified rules to decide what constitutes a breach of privilege, and the punishment it attracts.
  • Any act that obstructs or impedes either House of the state legislature in performing its functions, or which obstructs or impedes any Member or Officer of such House in the discharge of his duty, or has a tendency, directly or indirectly, to produce such results is treated as a breach of privilege.
  • It is a breach of privilege and contempt to print or publish libel reflecting on the character or proceedings of the House or its Committees or on any member of the House for or relating to his character or conduct as a legislator.

Procedure followed in cases of an alleged breach

  • The Legislative Assembly Speaker or Legislative Council Chairman constitutes a Privileges Committee consisting of 15 members in the Assembly and 11 members in the Council.
  • The members to the committee which has quasi-judicial powers are nominated based on the party strength in the Houses.
  • The Speaker or Chairman first decides on the motions.
  • If the privilege and contempt are found prima facie, then the Speaker or Chairman will forward it to the Privileges Committee by following the due procedure.
  • At present, there is no Privileges Committee in either House of the state legislature.
  • The Committee will seek an explanation from all the concerned, will conduct an inquiry and will make a recommendation based on the findings to the state legislature for its consideration.

What is the punishment for this?

  • If the Committee finds the offender guilty of breach of privilege and contempt, it can recommend the punishment.
  • The punishment can include communicating the displeasure of the state legislature to the offender, summoning the offender before the House and giving a warning, and even sending the offender to jail.
  • In the case of the media, press facilities of the state legislature may be withdrawn, and a public apology may be sought.

English Law:

Cockburn, C. J., in Wasan v. Walter(1) forcibly pointed out the irrelevance of the privilege claimed in the modern democratic set up. At page 89, the learned Chief Justice observed : ” The fact, no doubt, is, that each house of Parliament does, by its standing orders, prohibit the publication of its debates. But, practically, each house not only permits, but also sanctions and encourages, the publication of its proceedings, and actually gives every facility to those who report them. Individual members correct their speeches for publication in Hansard or the public journals, and in every debate reports of former speeches containing therein are constantly referred to. Collectively, as well as individually, the members of both houses would deplore as a national misfortune the withholding their debates from the country at large. Practically speaking, therefore, it is idle to say that the publication of Parliamentary proceedings is prohibited by Parliament. The standing orders which prohibit it are obviously maintained only to give to each house the control over the publication of its proceedings, and the power of preventing or correcting any abuse of the facility afforded.”

Jennings in his book on ” The British Constitution states at page 82 thus: ” All this assumes, of course, that the House debates in public. Government and Opposition speak to each other, but for the education of the people. The criticisms brought against the Government are the criticisms of ordinary individuals; the answers of the Government are formally answers to the Opposition, but substantially they are replies to the questions raised in the factory, the railway carriage and the office. The members of the House of Commons were not elected for their special qualifications, but because they supported the policies which the majority, of their constituents were prepared to accept. They have no authority except as representatives, and in order that their representative character may be preserved they must debate in public. Secret sessions were suited to the oligarchic government of the eighteenth century. They are the negation of democratic principles. No doubt there are exceptional occasions when secrecy is justified.”

Court View on Parliamentary Privileges

In series of cases the courts have decided the question whether a particular privilege claimed by a House exists or not on the basis whether the House of Commons had enjoyed the same in January 26, 1950.

First of such case was Pandit M. S. M. Sharma vs Shri Sri Krishna Sinha And Others 1959 AIR 395

The  petitioner, the Editor of the English  daily  newspaper Searchlight  of Patna, was called upon by the  Secretary  of the  Patna  Legislative Assembly to show  cause  before the Committee  of  Privileges of the  Assembly  why  appropriate action should not be taken against him for the  breach  of privileges of the Speaker and the Assembly for publishing in its entirety a speech delivered in the Assembly by a  member thereof,  portions of which were directed to be expunged  by the  Speaker.  It was contended on behalf of the  Petitioner that  the  said  notice   and  the  proposed  action  by  the Committee  were in violation of his  fundamental  right  to freedom of speech and expression under Art. 19(1)(a) and  of the protection of his personal liberty under Art. 21 of  the Constitution, and that, as an editor of a newspaper, he  was entitled  to all the benefits of the freedom of  the  Press.

The  respondents relied on Art. 194(3) of  the     Constitution and  claimed that the proceedings in the House as  those  in the  British House of Commons were not usually meant  to  be published,  and  in no circumstances was it  permissible  to publish the parts of a speech which were directed to be expunged  and,  therefore, formed       no part of the official report and such     publication was in clear breach of the privileges of the Assembly.

The points for determination were:

(1)  Could  the British House of Commons  entirely  prohibit the publication of its proceedings or even of such  portions of them as had been directed to be expunged ?

(2)  Assuming  that  the British House of Commons  had such power  and consequently the State Legislature also had such power  under  Article 194(3), could the  privileges  of the Legislature under that Article prevail over the fundamental right guaranteed by Art. 19(1)(a)?

The  Bihar  Legislature not having admittedly made  any law governing  its powers and privileges under Entry 39 of List II of the Seventh Schedule to the Constitution, the question naturally  was as to what were the powers,  privileges  and immunities   of   the  British  House  of  Commons   at the commencement of the Constitution.

Held: the petitioner’s fundamental right under Art. 19(1) is preserved despite the provisions of Art. 194(3) of the Constitution, that the petitioner is entitled to succeed. I am further of the opinion that even if Art. 194(3) of the Constitution excludes the operation of Art. 19(1), the petitioner in the circumstances of the present case would not be in a worse position. That apart, the charge as disclosed either in the notice served on the petitioner or in the enclosures annexed thereto does not impute any mala fide intention to the petitioner. The notice only says that the Committee of Privileges, on the basis of the publication of the news item in the ” Searchlight “, found that a prima facie case of breach of privilege has been made out against the petitioner. The resolution enclosed therein indicates that the petitioner committed a breach of privilege by printing the expunged portion of the speech of Maheshwara Prasad Narayan Singh and thereby published a perverted and unfaithful report of the proceedings. Other documents enclosed with the notice contained a motion moved in the House by another member charging the petitioner for publishing the expunged portion of the speech. The petitioner in his petition states that till May 31, it was not known to any member of the staff of the ” Searchlight “, including the petitioner, that any portion of the debate in question had been expunged from the official record of the Assembly. Though in the official record of the proceedings, portions of the speech reported have been expunged, no order of the Speaker expunging any portions of the speech made on May 30, has been produced. Admittedly there was no order of the Speaker prohibiting the publication of the expunged portion of the speech. In the counter-affidavit filed by the respondents, they did not allege any mala fides to the petitioner but they took their stand on the fact that the Legislature had the privilege of preventing the petitioner from publishing the expunged portion of the speech. In the circumstances, neither the notice nor the documents enclosed with the notice disclose that the petitioner published the speech, including the expunged portion mala fide, or even with the knowledge that any portion of the speech was directed to be expunged. As I have pointed out, the Legislature has the privilege of preventing only mala fide publication of the proceedings of the Legislature and, as in this case the petitioner is not alleged to have done so, the Legislature has no power to take any action in respect of the said publication.

The question whether courts can interfere with the power of a House to commit for its contempt emerged most dramatically in 1964 in the Keshav Singh  vs Speaker, Legislative Assembly : it was observed that , “Where a person has been convicted and sentenced for contempt by the Legislative Assembly, his production before a magistrate would be absolutely futile. The magistrate would have no power either to release such a person on bail or to make any other order or provision regarding his custody. The Constitution-makers could never have intended that an empty formality should be gone through which would serve no useful purpose. Article 22(2) was not intended to apply to a case of detention following conviction and sentence by the Legislative Assembly. We accordingly hold that the detention or the petitioner is not violative of the provisions of Article 22(2) of the Constitution.”

Indian judicial expression and Liberty of Press :

Bennett Coleman & Co. & Ors vs Union Of India & Ors  1973 AIR 106, 1973 SCR (2) 757  “The liberty of press”, it said, “remains on ‘ark of the covenant’ in every democracy. Steel will yield products of steel. Newsprint will manifest whatever is thought of by man. Newspapers give ideas. Newspapers give the people the freedom to find out what ideas are correct. Therefore, the freedom of the press is to be enriched by removing the restrictions on page limit and allowing them to have new editions or new papers…Newspapers have to be left free to determine their pages, circulation and their new editions.”

Indian Express Newspapers  vs Union of India & Ors 1986 AIR 515, 1985 SCR (2) 287 The Parliamentary privileges is one of the most sensitive area where a journalist has to act cautiously.

Sakal Papers (P.) Ltd. v. Union of India A.I.R. 1926 S.C. 305, the Supreme Court said that it had there been held that “the freedom of speech could not be restricted for the purpose of regulating the commercial aspects of activities of the newspapers”. The freedom of a newspaper to publish any number of papers or to circulate it to any number of persons had been held to be an integral part of the freedom of speech and expression. This freedom was violated by placing restraints upon it or by placing restraints upon something which was an essential part of that freedom.

Incidents where breach of privilege was invoked and decided:

Constable of Delhi Police obtaining CDR details of Opposition Leader:

The Rajya Sabha Committee of Privileges stated in its report that the unauthorised access of call detail records of Arun Jaitley, when he was leader of the Opposition, by a constable of Delhi police was not a breach of privilege as it did not involve seeking information pertaining to his parliamentary functions or was done with the intent to impede his work.

However, the Committee said that it was of the view that this “should be accepted with the caveat that if unauthorised collection of CDR of a sitting Members of Parliament causes any hindrance or obstruction in their Parliamentary functions it would tantamount to breach of privilege besides being a breach of privacy under the criminal law”.
Shobha De vs Chairman, Secretariate Maharashtra where petitioner had tweeted on separation of Mumbai from Maharashtra controversy was erupted and Privilege Notice was issued. However it was rejected by Hon. Chairman, Legislative Assembly, State of Maharashtra.

Subhash Chandra Agarwal vs Lok Sabha Secretariat & Anr.  The petitioner, being a citizen of the country, challenges order dated 20.02.2013 made by the Central Information Commission (“CIC”, for short) dismissing the second appeal preferred by him and order dated 26.03.2013 made by the Secretariat, Lok Sabha, thereby denying certain information sought on the ground that furnishing it would amount to “breach of privilege‟ of Parliament and is therefore exempt under section 8(1)(c) of the Right to Information Act, 2005 (RTI Act, for short).

Held: The consultation and communications between the Leader of the Opposition, the Leader of the House and the Speaker in relation to the extension of the Secretary General’s tenure did not pertain to their role in any proceedings in Parliament; nor did it partake of the character of legislative i.e. the law- making function of the said three persons. Disclosure of such consultation and communications would not, by any stretch of imagination or reasoning, hinder, impede or interfere with the participation of the Leader of the Opposition, Leader of the House and/or the Speaker in any proceedings of the House; and did not have the potential to distort, obstruct or threaten the integrity of the legislative process in any manner. The disclosure would not be prejudicial to the core legislative function of the House.

Freedom of Speech and Expression- Constitution of India and role of Judiciary:

Romesh Thappar vs The State Of Madras

the Constitution, in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in article 19 (1), has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it, and made their prevention the sole justification for legislative abridgement of freedom of speech and expression, that is to say, nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression, while the right of peaceable assembly “sub-clause (b)” and the right of association “sub-clause (c)” may be restricted under clauses (3) and (4) of article 19 in the interests of” public order,” which in those clauses includes the security of the State. The differentiation is also noticeable in Entry 3 of List III (Concurrent List) of the Seventh Schedule, which refers to the “security of a State” and “maintenance of public order” as distinct subjects of legislation. The Constitution thus requires a line to be drawn in the field of public order or tranquility marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differences in kind.

Brij Bhushan And Anr. vs The State of Delhi

There can be little doubt that the imposition of pre-censorship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by Art. 19(1)(a).

English stare decisis on Freedom of Speech and Liberty and sedition during British Rule

the Federal Court had, in defining sedition in Niharendu Dutt Majumdar v. The King Emperor, held that “the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency”, but the Privy Council overruled that [1942] F.C.R. 38.

The view expressed in Bal Gangadhar Tilak’s case to the effect that “the offence “consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small “King Emperor v. Sadashiv Narayan Bhalerao Deletion of the word “sedition” from the draft article 13 (2), therefore, shows that criticism of Government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State.

Anonymity and Journalism

Jai Parkash Aggarwal vs Vishambhar Dutt Sharma And Ors 1986 (3) Crimes 60, 30 (1986) DLT 21, 1986 (11) DRJ 121

Press does not have an absolute privilege not to disclose the source of information on the basis of which the news item has been published. The journalists or the information media have no absolute immunity or obligation to disclose their source of information in court when asked for to do so. However, it is not in every case that the Press must be asked to disclose the source Before the Court directs the disclosure of source it must satisfy itself that it is in the nature of justice and is not against the public interest It will necessarily depend on the nature of the case and the offending item of the news published

Sting Operations international view:

Canada:

In R v. Mack (1988) 2 SCR 903, it has been explained by the Canadian Supreme Court that entrapment occurs when (a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry, and, (b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence. The following factors determine whether the police have done more than provide an opportunity to commit a crime.

(1) The type of crime being investigated and the availability of other techniques for the police detection of its commission.

(2) whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;

(3) the persistence and number of attempts made by the police before the accused agreed to committing the offence;

(4) the type of inducement used by the police including: deceit, fraud, trickery or reward;

(5) the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;

(6) whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;

(7) whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;

(8) the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;

(9) the existence of any threats, implied or express, made to the accused by the police or their agents;

(10) whether the police conduct is directed at undermining other constitutional values”.

England

In United Kingdom the defense of entrapment is not a substantive defense as observed in R v. Sang (1980) AC 402 by the House of Lords:

“The conduct of the police where it has involved the use of an agent provocateur may well be a matter to be taken into consideration in mitigation of sentence; but under the English system of criminal justice, it does not give rise to any discretion on the part of the judge himself to acquit the accused or to direct the jury to do so, notwithstanding that he is guilty of the offence”.

However, a shift in judicial reaction appears to be emerging which is clearly discernible in R v. Loosely (2001) UKHL 53 wherein the House of Lords found that:

“A prosecution founded on entrapment would be an abuse of the court’s process. The court will not permit the prosecutorial arm of the state to behave in this way. (para 16) Entrapment is not a matter going only to the blameworthiness or culpability of the Defendant and, hence, to sentence as distinct from conviction. Entrapment goes to the propriety of there being a prosecution at all for the relevant offence, having regard to the state’s involvement in the circumstance in which it was committed. (para 17)”

Investigating Journalism and Stings – Judicial precedents in India

The expression ‘sting operation’ seems to have emerged from the title of a popular movie called “The Sting” which was screened sometime in the year 1973. The movie was based on a somewhat complicated plot hatched by two persons to trick a third person into committing a crime. Being essentially a deceptive operation, though designed to nab a criminal, a sting operation raises certain moral and ethical questions. The victim, who is otherwise innocent, is lured into committing a crime on the assurance of absolute secrecy and confidentiality of the circumstances raising the potential question as to how such a victim can be held responsible for the crime which he would not have committed but for the enticement. Another issue that arises from such an operation is the fact that the means deployed to establish the commission of the crime itself involves a culpable act.

Unlike the U.S. and certain other countries where a sting operation is recognized as a legal method of law enforcement, though in a limited manner as will be noticed hereinafter, the same is not the position in India which makes the issues arising in the present case somewhat unique. A sting operation carried out in public interest has had the approval of this Court in R.K. Anand vs. Registrar Delhi High Court (2009) 8 SCC 106 though it will be difficult to understand the ratio in the said case as an approval of such a method as an acceptable principle of law enforcement valid in all cases. Even in countries like the United States of America where sting operations are used by law enforcement agencies to apprehend suspected offenders involved in different offences like drug trafficking, political and judicial corruption, prostitution, property theft, traffic violations etc., the criminal jurisprudence differentiates between “the trap for the unwary innocent and the trap for the unwary criminal” (per Chief Justice Warren in Sherman vs. United States) approving situations where government agents “merely afford opportunities or facilities for the commission of the offense” and censuring situations where the crime is the “product of the creative activity” of law-enforcement officials (Sorrell vs. United States[287 US 435 (1932)]

In the latter type of cases the defense of entrapment is recognized as a valid defense in the USA. If properly founded such a defense could defeat the prosecution.

Law is not well established that no major penalty can be imposed without holding oral inquiry. In the present case, proceedings are founded on sting operation. Rajat Prasad Vs CBI (2014) 6 SCC 495

Court of its own Motion vs States Delhi High Court

Sting operation by NDTV

The views of various scholars, based on the law in some other countries, lead us to conclude as follows:

1. A sting operation by a private person or agency is, by and large, unpalatable or unacceptable in a civilized society. A sting operation by a State actor is also unacceptable if the State actor commits an offence so that an offence by another person is detected.

2. A State actor or a law enforcement agency may resort to hidden camera or sting operations only to collect further or conclusive evidence as regards the criminality of a person who is already suspected of a crime.

3. The law enforcement agency must maintain the original version of the actual sting operation. Tampering with the original video or audio clips of a sting operation may lead to a presumption of the spuriousness of the entire operation.

4. A sting operation cannot be initiated to induce or tempt an otherwise innocent person to commit a crime or entrap him to commit a crime.

5. Normally, if a private person or agency unilaterally conducts a sting operation, it would be violating the privacy of another person and would make itself liable for action at law.

6. A sting operation must have the sanction of an appropriate authority. Since no such authority exists in India, and until it is set up, a sting operation by a private person or agency, ought to have the sanction of a court of competent jurisdiction which may be in a position to ensure that the legal limits are not transgressed, including trespass, the right to privacy of an individual or inducement to commit an offence etc.

In another case of Govt of Nct of Delhi and ors  vs Jai Bhagwan Delhi High Court  held that, “In our opinion, it is reasonably practicable to conduct the departmental enquiry in the present case of sting operation. The department could have proved the charge against the respondent by examining the witnesses from NDTV who carried out the sting operation. We are further of the view that conducting of the departmental enquiry in sting operation is all the more necessary in order to rule out the possibility of any motivated action in sting operation. Whether such a sting operation was genuine or not has to be proved by cogent evidence and for this, it is not difficult to produce the material witnesses.”

Praveen Sahni and Another  vs State of Uttarakhand Nainital High Court held that : Sting operation is a way of bringing the truth before the society. Sting operation does not require any permission from any Court of law. If sting operation is put to rest in the country then so many corrupt practices prevailing in the society will not come in public domain.

State of U.P. Through Prin. Secy. vs Sailesh Kumar Shukla & Another

“14. Thus, sting operations conducted by the law enforcement agencies themselves in the above jurisdictions have not been recognized as absolute principles of crime detection and proof of criminal acts. Such operations by the enforcement agencies are yet to be experimented and tested in India and legal acceptance thereof by our legal system is yet to be answered. Nonetheless, the question that arises in the present case is what would be the position of such operations if conducted not by a State agency but by a private individual and the liability, not of the principal offender honey trapped into committing the crime, but that of the sting operator who had stained his own hands while entrapping what he considers to be the main crime and the main offender. Should such an individual i.e. the sting operator be held to be criminally liable for commission of the offence that is inherent and inseparable from the process by which commission of another offence is sought to be established? Should the commission of the first offence be understood to be obliterated and extinguished in the face of claims of larger public interest that the sting operator seeks to make, namely, to expose the main offender of a serious crime injurious to public interest? Can the commission of the initial offence by the sting operator be understood to be without any criminal intent and only to facilitate the commission of the other offence by the “main culprit” and its exposure before the public? These are some of the ancillary questions that arise for our answer in the present appeals and that too at the threshold of the prosecution i.e. before the commencement of the trial”.

Sting by Private Person

Delhi District Court Under Section : 7/13 (I) (D) (Ii) Of vs . on 17 July, 2015

A sting operation by a private person or agency is, by and large, unpalatable or unacceptable in a civilized society. A sting operation by a State actor is also unacceptable if the State act commits an offence so that an offence by another person is detected.

Shruti Desai

23rd September,2020

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