Law Commission Of India

1. Technology is offering many ways to invade private and professional lives. The media with the help of private entities is making effective use of such technological opportunity to carry out the sting operations (for short, SO) to expose corruption, immorality, exploitation, flouting of the rule of law by those holding public offices, influential persons and businessmen. However, it is noticed that in some high profile criminal cases, the media by conducting SO and broadcasting the same on TV channels regularly, have been prompted by a motive to play up the emotions and sensationalise the events for a commercial purpose. It has a tendency to generate public opinion in a particular direction much to the embarrassment of law enforcement agencies. Instances are not lacking where instant SMS polls have been held to decide between guilt and innocence. Such parallel proceedings by media in a criminal case pending before a court of law can create a forceful impression on the public minds about guilt and might affect a fair trial and uninhibited verdict which is a part of constitutional guarantee.

2. On one hand, SO serves the public interest by strengthening the democratic framework by disseminating information about facts of vital interest to society that are not easy to obtain by simple requests or efforts. The records from the world over show that without the use of SO, public would have never learnt about many economic and political wrong doings. On the other hand, some recent incidents prove the misuse of SO by media and private entities to increase the channel viewership, settle political scores, harm corporate interests, malign reputation etc. Such SO that are carried on with ulterior motives not only harm the person and the institution trapped in the sting, but has the potential to shake people’s faith in the institutions and create a general atmosphere of cynicism in the society.

3. The only law we have at the moment is the Cable Television Networks (Regulation) Act, 1995 and the Rules framed thereunder. This Act and Rules being a product of era when SO had not arrived on the television scene, do not have any direct provisions related to the SO. At the same time, some provisions of this Act may be applied to check malpractices associated with the SO because Sections 3 and 5 read with the Programme Code referred to in Section 6 lays down that no programme can be transmitted/re-transmitted on any cable service which contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths.

4. However, some TV channels were found flouting these provisions. In the recent past, instances of Television channels exceeding the limits of decency by using SO as a tool for the on-going reality shows to expose waywardness or infidelity of a spouse, boyfriend, etc. have been noticed. Such SO showing private life of common man and woman are not conducted for exposing public wrongs and do not serve any public interest or public purpose. Further, manipulated and fabricated SO noticed in several instances have sullied the image of media and damaged the reputation of targeted persons irretrievably. These kinds of SO are exploiting technology available to intrude private space thereby violating the right to privacy and taking the civilization backward.

5. There is therefore need felt to evaluate whether TV channels are fulfilling their social responsibility in revealing private wrongdoing? Whose interests are served by such expose? How far they can be allowed to invade the right to privacy, when expose does not serve a legitimate public interest? Even if SO serves public interest in some way, how far the undercover operators can go? Can they themselves become party to crime to unearth the crime?

6. The Committee on Petitions of Rajya Sabha in its report dated 12.12.2008 made the following pertinent observations:

“The Committee feels that the electronic media should not air information gathered though SO unless and until there is ample evidence to conclusively prove the guilt of the alleged accused; if it is required in public interest, the version of the alleged accused should also be aired simultaneously and with equal prominence…Where a SO is found to be false and fabricated, the media company ought to be given stringent punitive punishment commensurate with the damage caused to the innocent individual… The Committee is of the view that freedom of the press is essential for healthy functioning of democracy; however, democracy comes with responsibility. Freedom of the press case responsibility on media as well. The Committee therefore expects the media to contribute to success of democracy by protecting the freedom of individual including his/her right to privacy. The Committee observes that even though the right to know takes precedence over the right to privacy, the right of privacy should not be encroached upon, under the garb of freedom of the Press unless prompted by genuine public interest. Therefore the Committee advocates following of a middle path approach between both the rights, to meet the ends of justice.”

6.1 The Committee of Ethics too in its proceedings dated 24^th Feb 2006 concerning the SO – ‘Operation Chakravyuh’ stressed the need to evolve a regulatory mechanism for undercover operations which have the potential of encroaching upon the right to privacy of an individual and further observed that the Committee feels that the electronic media should also put in place a self regulatory mechanism to ensure justice and fair play in their functioning.

7. The Government of India proposed to set up an independent regulatory authority viz., the Broadcasting Regulatory Authority of India (BRAI) under a proposed law – the Broadcasting Services Regulation Bill 2007. The accompanying Content Code revised in March 2008 lays down in detail what content can be aired and what cannot be, but, it has met strong opposition from the media agencies and channel owners who favour self

regulation. According to the very recent newspaper reports, the Hon’ble Minister of I&B stated that a National Broadcasting Authority – a statutory body will be set up, but it will not regulate the content. However, the I&B Ministry has devised certain non-statutory and informal guidelines and machinery to check objectionable publications/exhibitions. For instance, the Electronic Media Monitoring Center has been set up to undertake monitoring of content of various FM and TV channels for any violation of Programme Code, Advertisement Code and the provisions of Cable TV Networks Regulation Act etc.

7.1 While so, the News Broadcasting Association (NBA) have been formed to put in place a self-regulatory mechanism and accordingly the News Broadcasting Standard Authority (NBSA) was set up in October 2008. The NBSA consists of an eminent retired Judge, eminent editors associated with broadcasting and eminent persons having special knowledge in the fields of law, education, medicine, literature, public administration etc. It has formulated a Code of Ethics and Broadcasting Standards governing the broadcasters and television journalists. ‘Broadcaster’ is defined to mean any association of persons/organization or corporate entity being member of NBA who owns, manages and controls a satellite or cable T.V. channels that comprises exclusively news and current affairs contents or capsules as part of its programming and the said term includes the editor. The said Authority, on the basis of a complaint or otherwise, can proceed to hold an inquiry into the alleged violation of code of conduct and after giving an opportunity of hearing to the broadcaster concerned, may for reasons recorded in writing, warn, censure or impose a fine upon the broadcaster and or recommend the concerned authority for suspension/revocation of license of such broadcaster. The avowed purpose of the principles of self regulation is stated to be “to empower the profession of Television Journalism by an abiding set of values, which will stand the test of time and ensure that balanced and comprehensive journalism flourishes to strengthen India’s democracy”. As regards sting operation, it is stated thus in paragraph 9 of the Code of Ethics:

“As a guiding principle, sting and undercover operations should be a last resort of news channels in an attempt to give the viewer comprehensive coverage of any news story. News channels will not allow sex and sleaze as a means to carry out sting operations, the use of narcotics and psychotropic substances or any act of violence, intimidation, or discrimination as a justifiable means in the recording of any sting operation….. News channels will as a ground rule, ensure that sting operations are carried out only as a tool for getting conclusive evidence of wrong doing or criminality, and that there is no deliberate alteration of visuals, or editing, or interposing done with the raw footage in a way that it also alters or misrepresents the truth or presents only a portion of the truth.”

7.2 Whether such a self-regulatory mechanism has proved to be adequate and effective and whether it would obviate the need for a statutory mechanism to regulate the contents of broadcasting including SO and taking appropriate action under law, is a matter of debate.

8. In the UK, the Broadcasting Standards Commission exists as the statutory body for regulating both standards and fairness in text, cable and digital services broadcast over television and radio, both terrestrial and satellite. Established by the Broadcasting Act, 1996 it has to: (i) produce codes of conduct relating to standards and fairness; (ii) consider and adjudicate on complaints; (iii) monitor, research and report on standards and fairness in broadcasting. It has power to require recordings of broadcast material and written statements. It may also hold hearings. Its decisions are published regularly and broadcasters must report any action they have taken as a result. It is accountable to the Parliament and each year publishes a full report of its work. It is financed by the Government and broadcasters and its accounts are subject to scrutiny by the National Audit Office.

9. The decided case law from Courts on the subject of SO has not laid down any clear cut principles or uniform approach on the legality and extent of permissibility. However certain broad principles are discernible such as the considerations of public interest, the need to recognize the fundamental rights of the targeted persons including the right of privacy and liberty. Also, the illegality inherent in the publication/exhibition of fabricated and misleading content obtained by SO which is universally condemned, is recognized by the courts in India.