Why the Citizen Stings Being Propagated by the AAP Are Unconstitutional and Anarchic

Last year, on 6 January 2014, a little more than a month before Arvind Kejriwal abandoned his post as the chief minister of Delhi, he took a decision that vindicated his stance of zero-tolerance against corruption. Acting on the footage of a sting operation conducted by Headlines Today, a television channel, he immediately suspended three officials from the Delhi Jal Board—the government agency responsible for the supply of potable water to the national territory of Delhi—and directed the Anti Corruption Bureau (ACB) to start criminal proceedings against them. Manish Sisodia, the deputy chief minister in the current dispensation, who was then the minister for the Public Works Department, said that the swift action was aimed at sending out a clear message to the populace to reiterate that the government would not brook any dishonesty from its employees. Interestingly, despite the fanfare with which the government announced its initial action, there has been little information in the public domain to ascertain the fate of those three officials since then.

In his second stint as the chief minister of Delhi, it would appear that Kejriwal continued from where he had left off. On 2 April 2015, reports surfaced of a mobile phone application that was being developed under the aegis of the state government to facilitate sting operations. This app, which will be launching in a month, reportedly enables anyone with a smartphone to record videos without being detected. Furthermore, lest the footage get destroyed or lost, one can immediately link it to a secure government server where it can be stored and used for future action. Thus, in Kejriwal’s second term, sting operations would no longer be the prerogative of the media, or certain spirited crusaders for a transparent and clean government, but a general law-enforcement tool.

There are only a few precedents in the Indian legal system that apply directly or indirectly to the legality of sting operations, and almost none that apply directly to sting operations carried out by private citizens who have the active backing of the state. But even the few precedents that do exist about sting operations in general point to how the Delhi government's proposed use of stings can be counter-productive. Such operations not only risk diluting the privacy and inalienable right of the accused to the due procedure of law, they could also end up incentivising the use of unscrupulous methods to expose such officials under the guise of acting in public interest.

A sting operation is essentially a form of entrapment, where an agent provocateur lays a trap, and waits for an avaricious and unsuspecting person to walk right into it. Such traps are a common modus operandi for anti-corruption agencies run by the government, such as the ACB, the Cenrtal Bureau of Investigation, and the Enforcement Directorate. In every such case, the concerned organisation is mandated by internal standing operational procedures to ensure that due care is taken to verify the reasonable authenticity of a complaint against a concerned official. Before accepting either a video or a complaint that might lead to a sting operation, the agencies conduct preliminary enquiries to determine that no sting is launched on the basis of malicious complaints that have been lodged to settle personal scores. For instance, if an individual submits an incriminating video recording of a government official to any of these agencies, it is subjected to forensic analysis in the Central Forensic Science Labs of the government to make sure that it has not been doctored.

In the United States, where only the Federal Bureau of Investigation (FBI) and its allied agencies are authorised to carry out sting operations, there is a rich body of jurisprudence to determine the constitutionality of such potentially intrusive government actions. However, there is neither a specific legislation, nor a substantial body of case law and precedent in India that can be relied upon to strike a balance between such anti-corruption operations and a citizen’s fundamental right to a legal procedure free of governmental caprice. In fact, the rulings that have been released by courts on this account have been conflicting. More importantly, there is no decision, either by the Supreme Court or by any High Court, on stings as law enforcement measures used by the government, let alone as the mass citizens’ tool that the present Delhi government envisages them to be.

The latest and the most pertinent ruling is that of the Supreme Court in Rajat Prasad v CBI, delivered on 24 April last year. The court was to decide if those who ensnared a political opponent could be prosecuted for bribery as well as for abetting a public servant to commit a criminal offence. The case stemmed from an incident in 2005 in which Amit Jogi, the son of Chhattisgarh chief minister, Ajit Jogi, had conspired to lure Dilip Singh Judeo—then the minister of state for Environment and Forests and one of Ajit Jogi’s biggest political rivals—into a trap wherein Rajat Prasad, a journalist and one of the conspirators behind the sting, secretly filmed Judeo accepting a bribe, and used that recording to discredit him on the eve of the Assembly elections in Chhattisgarh. Prasad contended that public interest should be the only consideration in deciding whether to impose criminal liability on the sting agent. His argument was that since the undisputed footage showed Judeo giving in to temptation and accepting the bribe, only he deserved to be punished. The court noted that accepting this contention and ignoring the motivations for such a sting would be abhorrent to the tenets of criminal jurisprudence. The liability, the judges reasoned, had to be reasonably apportioned, between the one who held out the bait, and the one who fell for it.

In this ruling, the court cited the approach laid down in the United States Supreme Court’s 1958 verdict in the Sherman case. The case revolved around a covert operation during which an undercover agent from the Drug Enforcement Agency had approached Sherman, who was enlisted in a narcotics de-addiction treatment, and enticed Sherman into supplying him with some drugs, claiming that they would help him deal with withdrawal symptoms. Initially, Sherman resisted, but the agent’s persistent entreaties made him acquiesce, and he procured narcotics for him on several occasions. Subsequently, the agent revealed his identity, and Sherman was arrested and convicted. On appeal, a five-judge bench of the Supreme Court acquitted him of all charges. While doing so, the court drew a sharp distinction between individuals who would unwarily submit to such persuasion and indulge in bribery, as opposed to those who had been lured into such an act through an inducement that was calculated to overwhelm. It was held that in case of the latter, the man in the dock would have a valid defence of “entrapment,” and hence would make it incumbent upon the government to satisfy the court regarding the propriety and integrity of its actions.

In the context of using sting operations in India as an implement for citizens to expose nefarious acts and their perpetrators, there exists a similar dilemma. Should the focus be on the conduct of the accused who has been trapped by a sting, or on the means that have been employed by the government to do so?

Admittedly, even if it is in public interest to identify corrupt individuals, this process should not entail the dilution of inalienable rights, the most important of which is being tried according to due process, or procedure established by law. There is no ruling on this in India yet, but the United States Supreme Court, in Jacobson v. United States (1992) stated that “in their zeal to enforce law, law protectors must not originate a criminal design, implant in an innocent person’s mind a disposition to commit a criminal act, and then induce commission of the crime so that the government may prosecute.” The illegal violation or breach of the right to privacy is another pressing concern. There is a need to devise a framework that takes into account, for instance, the possibility of citizen sleuths who may exploit a particular vulnerability or take advantage of the emotions of sympathy and compassion, which may manifest into granting favours that are extrajudicial. This is important, because under Indian law, corruption isn’t limited only to the acceptance of illegal gratification; it also includes the misuse of one’s position or abuse of authority.

A citizen who is either overzealous or just frustrated by the system, could record a conversation and send it to the government, which, in turn, eager to prove that it means business, could immediately launch departmental proceedings or criminal prosecution (recall Kejriwal’s refrain of “we shall send the corrupt to jail”) without caring for mandatory safeguards. It is not impossible to predict that a misguided vigilante might decide to, for instance, zero in on a particular government servant, especially one who might be preceded by a reputation, or suspected of indulging in graft, “set up” a conversation, record it, and then go to town with it. Incontestable video footage can still manipulate the truth, reduce the context and distort justice.

Even if the person caught in the sting is exonerated and acquitted at the end of protracted legal and administrative proceedings, his or her reputation and career records would have suffered an irreparable blow. Taking the government and the reckless complainant to court for compensation would only prolong the ordeal, without any definite hope of getting justice.

This dilemma gets more problematic if one takes into account the fact that reasonable suspicion must form the basis of any sting operation. This standard, which was laid down by the Supreme Court of Canada in R v Mack (1988), and quoted in the Rajat Prasad case, is higher than that of a belief based on reasonable and probable grounds. In the eyes of the law, reasonable suspicion must have some factual foundation, and a link to the reasonable possibility of an offence being committed. It is different from belief, even if such belief is strong and honestly held.

Delhi has been the epicentre of the AAP’s anti-corruption movement, and its population has shown, through its votes, overwhelming support for Kejriwal’s crusade of dismantling what he termed as the corrupt regime that was in power for the last ten years. In such an environment, it is not entirely improbable that even a bona fide delay or bottleneck in the delivery of services would be perceived to be an act of corruption. With the chief minister himself suggesting that it is a better solution for people to record instances of bribery than it is to refuse to participate in such acts, this situation now stands at a potentially explosive turning point.

Before it proceeds with its agenda, it is imperative for the Kejriwal government to acknowledge that this move is not motivated by ill-considered enthusiasm about combating corruption energetically, but a mandatory constitutional and legal requirement that necessitates the incorporation of concrete measures to prevent abuse of process. After all, as Kejriwal knows only too well, motivated stings, wantonly used, can cause lasting damage.