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Stop sting journalism, now!

By Arvind Lavakare
January 03, 2006 12:40 IST
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Every adult Indian could well have exulted at the 11 members of Parliament being 'stung' out of their sinecure seats.

A similar fate awaiting those MPs 'stung' a little later by the commissions they took in the Local Area Development Scheme will probably result in a multiple orgasm for the nation's citizenry that has come to look upon the politician as vile and cancerous.

But who, pray, is looking at the morality and ethics of the intrusive, entrapping 'spy cam'?

Yes, there is morality and ethics involved in these 'sting' operations. And law as well.

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Right from 2001 when the tapes, having consumed some cricketers earlier, gobbled Bangaru Laxman, till a Bollywood 'villain' was similarly entrapped last year and our MPs the other day, the media, the political analysts, the legal eagles and human rights activists have failed to recognise that the uncontrolled and unregulated spy cam has the potential of becoming a kind of an unlawful MWD -- mini weapon of destruction – for the country's psyche.

This despite the fact that the searchlight on that aspect was thrown nearly five years ago by two highly respectable intellectuals associated with our intelligence operations -- M K Narayanan, a former chief of Intelligence Bureau and currently the national security advisor, and B Raman, a retired additional secretary handling the Research and Analysis Wing.

Both had reacted strongly at the Tehelka tapes on the defence 'purchases' in Operation West End.

In an article in The Asian Age dated March 26, 2001, Narayanan drew attention to several points, the most important of which were:

1. 'Between 'snaring' or 'tempting' people into accepting 'gifts' or 'bribes', where a cause of action does not exist, and exposing corruption regarding specific deals, a vast gulf exists. Not to recognise the significance of this difference would be a grievous mistake.'

2. 'No one has shown any concern about the ethics of the operation and whether stilted 'exposure' of this kind can improve the system or will damage it further. The motivation of those responsible for the 'sting' has been accepted without question and a gullible public has not explored whether a hidden game plan exists in all this.'

3. 'Most see it as the stuff of investigative journalism. Hardly any sees it as a potential time bomb.'

4. 'Sting journalism is an offence in countries like the United States but here it is being hailed as an opportunity for virtue to triumph over the forces of evil. Therein lurks the danger.'

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And what is that danger? Narayanan's answer is: 'Many foreign intelligence agencies are now adept at employing 'active measures.' Destabilisation of States and government has become both big business and also a conscious policy.'

Raman reinforced Narayanan's views by throwing light on America's approach to 'sting operations'.

In an Internet article dated March 21, 2001, on the Tehelka tapes expose, Raman recalled that, writing in Foreign Policy (Fall 1997), John Deutch, director of the Central Intelligence Agency, referred to the dangers of morphed images and messages being introduced into a country's radio and television systems, spreading lies and inciting the public to violence.

Raman also informed us that the US permits a sting operation only to the Federal Bureau of Investigation. No private individual, not even a journalist, has the freedom to do so.

Even the FBI's sting operations, he wrote, are subject to strict ground rules laid down over the years by departmental instructions and rulings of the judiciary.

Four such major rules are:

1. 'Sting operations are to be mounted only on persons against whom some evidence of criminality exists and a sting operation is considered necessary for getting conclusive evidence.'

2. 'Permission for sting operations must be obtained from appropriate courts or the attorney general. This safeguard has been laid down since those who mount a sting operation themselves commit the offence of impersonation, criminal trespass and making a person commit an offence.' (Remember that 'Cheating by Impersonation' is a crime under Section 416 of the Indian Penal Code.)

3. 'Where there is evidence of editing of tapes and films, there is an automatic presumption that the recording is probably not authentic.'

4. 'There must be a concurrent record in writing of the various stages of the sting operation. Strange as it may seem to our currently cock-a-hoop media, the US Supreme Court's sting guideline that 'an inducement to commit a crime should not be offered unless' was issued as long ago as December 31, 1980.'

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Raman also revealed that in many judgments, the US Supreme Court has condemned some FBI sting operations for taking advantage of the naivety, carelessness and negligence of the possibly innocent in order to make them possibly guilty. Even more importantly, we were told by him that Privacy International, a Washington-based non-governmental organisation, has since 1989 been drawing attention to the dangers of an uncontrolled use of clandestine video and audio equipment and closed circuit television.

Privacy International says, 'In a very short time, the systems have challenged some fundamental tenets of justice and created a threat of a surveillance society.' That is precisely why Privacy International had wanted appropriate legislation over the industry of miniaturised audio-visual technology.

In the United Kingdom, Part 2 of the Regulation of Investigatory Powers Act, 2000, governs undercover operations.

The Code of Practice on the Use of Covert Human Intelligence Sources provides a statutory regime for undercover operations so as to comply with the European Convention on Human Rights.

The principal consideration of the European Court of Human Rights is Article 6, that is whether the sting operation has been such as to affect the fairness of the proceedings. Indeed, the European Court is known to have held a person with no predisposition to commit offences as being denied of a fair trial if he became the victim of a 'sting'.

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The above critiques of Narayanan and Raman formed a part of this columnist's affidavit submitted to the Justice Venkataswami Commission of Inquiry appointed by the National Democratic Alliance government on Tehelka's Operation West End. The only purpose of deposing for some three hours before the battery of lawyers present at the hearings was to create grounds for a recommendation from the Commission that our judiciary regulate 'sting' operations.

When the United Progressive Alliance government buried that Commission, the wise views of two patriotic and experienced scholars in the field of national intelligence were also buried. Also buried lay the healthy, statutory practice of the European Union.


Tailpiece: In his Outside the Archive (pages 209-210, Sangam Books, 1984), Y D Gundevia, Prime Minister Nehru's last foreign secretary, recalls a Friday morning in December 1963, when Nehru held his customary free-for-all meeting with secretaries, joint secretaries, all deputy secretaries and some under secretaries.

There being no specific agenda that particular day, Gundevia asked Nehru what would happen to the civil servant if, after being attuned only to Congress policies so long, the Communists were, tomorrow, elected to power in New Delhi.

Nehru pondered long over the question and then said, 'Why do you ever imagine the Communists will ever be voted into power at the Centre?'

After a long pause, he said, spelling it out slowly and very deliberately, 'The danger to India, mark you, is not Communism. It is Hindu right-wing communalism.'

Towards the end of the meeting he repeated his thesis.

Can you imagine the chaos and communal holocaust that would have arisen if a spy cam had caught Nehru uttering and repeating what he did?

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Arvind Lavakare