Special CBI Judge, Kanwaljeet Arora, has had the opportunity to pass judgment on the sanctity, and results, of the first major sting operation in India.
On April 27, 2012, he held the former BJP President, Bangaru Laxman, guilty of accepting bribe, when a spy cam used by the Tehelka journalists, posing as defence products agents, caught him taking wads of currency notes from one of them.
Terming the method used by the journalists as “objectionable”, the judge nevertheless condoned it almost in the same breath, as it was, according to him, adopted for a good cause. As a corollary, he chose not to hold the intrepid journalists guilty of the crime of offering a bribe.
Mr Kaushik Basu, the Chief Economic Advisor to the government, would have felt vindicated, because not too long ago he advocated immunity to bribe-givers so that they are encouraged to play the role of whistle-blowers.
The judgment needs to be analysed critically as it seems to give a thumbs-up to certain disquieting aspects:
entrapment is a valid ploy to apprehend a potential bribe taker;
bribe-giving may be objectionable, but not illegal if it is used to trap one with itchy palms;
anyone, and not necessarily the official investigative agencies, can take the law into his own hands, as it were; and
anyone can take upon himself the role of a moral police to test a person's character on the basis of a feigned transaction.
THE SITUATION ELSEWHERE
In the US, sting operations can be carried out only by the police, though they can rope in anyone from the public to bait the suspected criminal with what is called ‘honey trap'. In countries such as Sweden and the Netherlands, sting operations even by police are a strict no-no.
Even in the US, entrapment can be a defence for the accused if he can successfully plead that but for the allurement or coercion he would not have indulged in the illegal act, like, say, manufacturing and purveying of drugs.
IMPLICATIONS FOR INDIA
While the verdict would go up in appeal in all probability, for the time being, India would be perceived as practicing gung-ho activism, surpassing even the US in its overweening desire to nail the actual or potential violators of law. In its wake, an average Indian's morbid fascination to play the peeping Tom with a mission, with the aid of cellular phones with cameras, is bound to get a tremendous leg-up. In this connection, the differences between whistleblowers and sting operators must be understood carefully.
A whistleblower is witness to a brewing crime, and the society and the law expect him to rise to the occasion in the public and national interest.
To wit, the Companies Bill before Parliament expects the auditor, privy to the nitty-gritty of financial transactions, to blow the whistle at the first hint of any financial misdemeanour at the pain of a heavy penalty.
Despite its draconian features, the move at least has the merit of asking the auditor not to lay a trap but blow the whistle when the management is close to laying its hands in the till. A sting operator, on the other hand, could be a roving and raving self-righteous moralist, with or without malicious intent.
Just as whistleblower protection is desirable, protection of the good name of a victim of overzealousness should also be high on the agenda of any government. And the laws on defamation might prove to be woefully inadequate. Will the government pick up the tab in such cases?
The truth is that the issue transcends partisan politics, and therefore no one can afford to gloat at the present discomfiture of others, because some day it can well happen to him as well.
Investigative journalism certainly cannot be allowed to degenerate into testing the character of a person based on a fictitious transaction, because that would amount to giving a dog a bad name and hanging it. In any case, when the practice becomes rampant, people would be on their guard — like a maidservant not touching any object during her initial days in a household.
More seriously, what should weigh with the government is the distinct possibility of sting operations spinning out of control and becoming an instrument of vendetta and character assassination. The police, and police alone, should be empowered to carry them out.
(The author is a New Delhi-based