Does public interest utility of sting operation outweigh right to privacy?

Does public interest utility of sting operation outweigh right to privacy?

Dhananjay Mahapatra





Being A Deceptive Action, Sting Operations Raise Certain Moral And Ethical Questions

Sting operations are a decade and-a-half old in India. In 2000, sting pioneer Tehelka did one on cricketers to throw light on how matches were fixed. In 2001, their `Operation Westend' was on middlemen in defence deals and bribes taken by politicians . And in 2007, `Operation Duryodhan' caught 11 MPs taking bribes to put dictated questions in Parliament.

Justice Ranjan Gogoi, writing the judgment for a three-judge bench in 2014 in the case Rajat Prasad vs CBI, had informed us that the expression `sting operation' seemed to have emerged from the name of a popular 1973 American movie `The Sting', which was based on a complicated plot hatched by two persons to trick a third person into committing a crime.

That judgment discussed the legal issues involved in sting operations. Justice Gogoi had said, “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 is sue 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.“

Though sting operations have been around, it was Aam Aadmi Party and its chief Arvind Kejriwal who sharpened it as a weapon in the mobile phone-wielding hands of the public to catch the corrupt.AAP and Kejriwal relentlessly exhorted people to sting officials who demanded illegal gratification.

The stings streamed in, catching both the big and the small. The latest one doing the rounds is the one on Kejriwal himself. A private conversation secretly recorded has become the hot topic of public debate.

A person has a right to privately hold a particular view about another person, a view which might be completely different from what he expresses in public. Others cannot force him to share that private view.

Is one entitled to make public a view which was conveyed to him in private and in strict confidence?
Does it not violate a person's right to privacy, which the Supreme Court has held to be intrinsic to right to life?
The first brick in the `Right to Privacy' legal castle was laid by eminent American lawyers Charles Warren and Louis Brandeis.Through a joint article titled `The Right to Privacy' published in the Harvard Law Review of December 15, 1890, they attempted to defined modern notions of individual's right to privacy.

In Bachhittar Singh vs State of Punjab [1962 SCR Supl. (3) 713], the SC had held that a decision taken in the privacy of a minister's chamber, which was not communicated to the party and which was reversed without ever being communicated, was of no effect at all.

Right to privacy got a clearer picture through judicial pronouncement in Kharak Singh case [AIR 1963 SC 1295]. The SC said, “If physical restraints on a person's movements affect his personal liberty , physical encroachments on his private life would affect it in a larger degree. Indeed, nothing is more deleterious to a man's physical happiness and health than a calculated interference with his privacy . We would, therefore, define the right of personal liberty in Article 21 as a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures.“

In 1975, the court in Govind case [1975(2) SCC 148] explained why a person needs privacy and why it was sacrosanct. It said every individual needs the sanctuary of privacy because it was only there that he could “drop the mask, desist for a while from projecting on the world the image they want to be accepted as themselves, an image that may reflect the values of their peers rather than the realities of their nature“.

Sanctity attached to personal privacy of a person was expanded by the SC in two subsequent judgments -Malak Singh vs State of Punjab [1981 (1) SCC 420] and R S Sodhi vs Union of India [1983 (1) SCC 140].

Despite the verdicts, conflict between sting operations and privacy will continue to remain a contentious point in future too. But what Warren and Brandeis wrote 125 years ago still sounds reasonable and acceptable.

They had said, “Once a civilization has made a distinction between the `outer' and the `inner' man, between the life of the soul and the life of the body , between the spiritual and the material, between the sacred and the profane, between the realm of god and the realm of Caesar, between church and state, between rights inherent and inalienable and rights that are in the power of government to give and take away , between public and private, between society and solitude, it becomes impossible to avoid the idea of privacy by whatever name it may be called-the idea of a `private space in which man may become and remain himself '.“

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