Why India needs democracy

Sansad Bhavan, parliament building of India.

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JUSTICE MARKANDEY KATJU IN THE TIMES OF INDIA

What is our national aim? To my mind, our national aim must be to make India a highly prosperous country for its citizens, and for that it is necessary to have a high degree of industrialization.

Even setting up and running a single primary school requires a lot of money, e.g. for buying land, erecting the school building and providing for the recurrent expenditure for salaries of teachers, staff, etc. We have to set up in our country not just one primary school, but hundreds of thousands of primary schools, tens of thousands of high schools and colleges and engineering colleges, technical institutes, medical colleges, scientific research centres, hospitals, libraries etc.

Where is the money for all these to come from? Money does not fall from the sky. It can only come from a highly developed industry, and it is industrialization alone which can generate the wealth we need for the welfare of our people. Today India is a poor country. Nobody respects the poor. It is for this reason that we do not have much respect in the world community (whatever we may think of ourselves). One proof of this is that we are not given a permanent seat in the U.N. Security Council, although we have a population of 1200 million, whereas Britain and France with populations of 60 million each have permanent seats.

It is industrialization alone which can abolish poverty and unemployment, which are the main causes of crime and terrorism, and get us respect in the world community. Also, when there is rapid industrialization, which should be our national target, millions of jobs will be created which will solve the problem of unemployment. For industrialization, development of science is absolutely necessary, and for that freedom is also absolutely necessary, freedom to think, freedom to write, freedom to discuss with others, freedom to explain, freedom to criticize and freedom to dissent.

The growth of science requires certain supportive values, particularly liberty. This is because the thought process cannot develop without freedom. The values of a scientific community viz., pluralism, tolerance, individual freedom and free flow of information are very similar to the values of a democratic society (see ‘Science and the Making of the Modern World’ by John Marks).

A democratic society permits freedom of speech and expression, freedom to practice one’s own religion, which is based on tolerance, and freedom to dissent and criticize. These are precisely the values of a scientific community. In other words, in scientific matters authoritarianism and dogmatism are wholly out of place. Scientists must be largely left free to govern themselves, and have large amount of freedom which is necessary for innovation and creativity. Hence, democracy and liberty go hand in hand with the growth of science because both are based on tolerance, individual freedom and free flow of ideas. In democracy, as in a scientific community, there is freedom to speak, freedom to discuss, freedom to criticize and freedom to dissent.

Justice Louis D. Brandeis, of the U.S. Supreme Court in Whitney vs. California 274 U.S. 357, writing in 1927 observed:

“Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law – the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed”

Similarly, Justice William O. Douglas in Terminiello vs. Chicago 337 US 1 (1949) observed: “….[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest… There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups”.

In our own country, in ancient times the method of Shastrarthas had been developed. These were debates in which the thinkers of those times had full freedom to speak and to criticize their opponents in the opponent’s presence, and also in the presence of a large assembly of people. There are hundreds of references to such Shastrarthas in our epics and other literature. It was this freedom to freely discuss and criticize in ancient India which resulted in tremendous growth of knowledge even in such ancient times, including not only in philosophy, grammar law, etc. but also scientific knowledge, e.g. mathematics, astronomy, medicines, etc. The names of Aryabhatt, Brahmagupta, Bhaskar, Sushrut and Charak are known to all. With the aid of science we had built mighty civilizations e.g. the Indus Valley Civilization when people in Europe were living in forests.

In this connection, we may also mention about modern European history. England was the first country in the world to industrialize and modernize. This economic process was accompanied with the political struggle for liberty and democracy in the 17th and 18th centuries, which was particularly a struggle between the King and Parliament. As we all know, Parliament won, and this laid the foundation of freedom and civil liberties in England, which was necessary to create the atmosphere which science requires to prosper.

Similarly, in France, before the French Revolution of 1789, the thinkers of the Enlightenment — Rousseau, Voltaire, Diderot, Holbach, etc. who attacked feudalism and religious dogmatism paved the way for the Revolution of 1789 which destroyed feudalism, and led to scientific progress. On the other hand, in Italy, Spain and some other countries the Inquisition stifled free thinking and thereby scientific growth. All scientific ideas which were not consistent with the Bible were regarded as crimes e.g. the theory of Copernicus which stated that the earth moved around the sun and not the sun around the earth. As a result, these countries were left far behind England and France, and remained in the feudal dark ages for centuries.

The struggle to establish the scientific outlook was not an easy one. Scientific ideas initially were condemned because they were regarded as opposed to religious dogma. Voltaire and Rousseau had to fly for their lives to other countries. The Church persecuted the greatest scientists with blind cruelty, burning them at the stake (e.g. Bruno), torturing them (e.g. Galileo), and forbidding or destroying their works. As recently as in 1925 the teaching of Darwin’s theory of evolution was forbidden in the state of Tennessee in U.S.A., and a teacher John Scopes was tried in the famous ‘Monkey Trial’ for teaching that theory. For centuries the Church in Europe played an extremely reactionary role and fought pitilessly against the scientific conception of the world, and against the democratic movements. In India, if we are to progress and rise as a world power, we have to spread the scientific outlook to every nook and corner in our country, and destroy superstitions, e.g. the belief in astrology and palmistry, and the feudal ideas of casteism and communalism.

Science is that knowledge by which we can understand nature (and human society) and use this knowledge for our benefit. For doing so, the scientists rely on reason, observation and experiment. This obviously cannot be done on the dictates of anyone (though the government can certainly create the atmosphere where these can flourish). Science and democratic values go hand in hand.

In science, there is no final word, unlike in religion. Science questions everything and does not take anything for granted. Obviously, this approach is not permitted in an undemocratic society, e.g. feudal society (which is governed by religion) or fascist society (in which there is a dictator). Thus, Hitler, with his Nazi racial philosophy, caused an enormous setback to science in Germany by persecuting Jewish scientists and banning their works (e.g. Einstein).

Indeed, in India, after the Constitution was adopted in 1950, there was an atmosphere of liberal freedom in view of the fundamental rights guaranteed by the Constitution e.g. the right to free speech (Article 19), liberty (Article 21), equality (Articles 14 to 17), religious freedom (Article 25), etc. This helped growth of science and technology in our country, because it created an atmosphere of freedom where people including the scientists, could freely discuss and dissent. If we compare our country with the neighbouring countries, there were no such freedoms in those countries and hence those countries lagged far behind in economic growth.

Apart from the above, the advanced sections of society who want to take the country forward, and have the knowledge to do so, must have a lot of freedom to discuss, debate and criticize each other. They are the pioneers and are often entering into a new field, much of which is unknown. Hence, they must have freedom to think, discuss and criticize.

As pointed out by John Stuart Mill in his celebrated essay ‘On Liberty’, all progress, advancement of knowledge and progressive change and improvement of old ways of thinking, and the consequent old behaviour-patterns, habits, customs and traditions can come about only from free individual dissents and dissentions, innovations, etc. which are at first usually resisted by inert or conservative people (who are usually the vast majority), and by a free competition between the old and new ideas. As pointed out by Mill, in any society ordinarily the majority shares old thoughts and traditions, and there is a strong tendency to insist on conformity and collective unity or solidarity, to repress dissents and innovations, and to tolerate only what the majority agree with. This inevitably works to prevent any progress and to thwart the creative impulses of the more creative and original minds. Extensive freedom to dissent and innovate, in all spheres of life, activity, culture and thought in all directions, including expressing ideas initially thought strange and often disliked by the conservative tradition-bound majority are indispensable for progress. The intellectually advanced and creative individuals are often in the minority, and are regarded as non-conforming eccentrics and deviants, and there is often a tendency to suppress them. This is why liberal democracy, i.e. majority rule but qualified and limited by firm protection of minorities, and individual rights and liberties, even as against the governing majority, is essential for progress. The majority often consists of mediocre persons who wish to continue in the old ways of thinking and practices. Hence the liberties and rights have to be guaranteed to the often powerless tiny minorities and lone individuals so that scientific progress can take place.

As Justice Oliver Wendell Holmes of the U.S. Supreme Court in his dissenting judgment in Abrams vs. United States, (1919) observed : “…The best test of truth is the power of the thought to get itself accepted in the competition of the market…”

The importance of the judiciary in India in this connection must also be highlighted in this country. In this connection reference may be made to two decisions of the Supreme Court delivered by me viz., Govt of A.P. and others vs. P. Laxmi Devi [2008 (4) SCC 720, JT 2008 (2) 639 and Deepak Bajaj vs. State of Maharashtra and others [JT 2008 (11) SC 609]. In these cases, I emphasized the importance of liberty for progress, and have observed that the judiciary must act as guardians of the liberties of the people, protecting them against executive, or even legislative arbitrariness or despotism. I have also in my judgments spoken out against honour killing, fake encounters, dowry deaths, etc. India needs democracy and scientific knowledge, and that means patiently spreading scientific ideas amongst the vast masses, raising their cultural level and involving them actively in the task of nation building.

To my mind, harsh and draconian laws will curb liberty, and that will not only violate the right to liberty granted by Article 21 of the Constitution, but will also lead to great evils e.g. increase in corruption in the police and other law enforcing agencies, which will have much more opportunities to extort money from the citizens, apart from impeding scientific and economic growth, which is vital for our country.

I have gone into some detail on this subject because I wished to clarify that I am a strong votary for liberty and have been misunderstood. However, liberty cannot be equated with licence to do anything one wishes. Should one be given the liberty to spread superstitions, to fan caste/or communal hatred, or put over emphasis on film stars, pop music, fashion parades and cricket in a poor country like ours? I think not. All freedoms are coupled with responsibilities, and no freedom is absolute. It is for this reason that I believe that while ordinarily issues relating to the media should be resolved by the democratic method of discussion and dialogue, in rare and exceptional cases (which may not be more than 5 per cent) harsh measures may be required, but that too not by the government but by any independent statutory authority e.g. the Lokpal.

(Justice Markandey Katju is the Chairman of Press Council of India)

http://timesofindia.indiatimes.com/home/opinion/edit-page/Why-India-needs-democracy/articleshow/10857038.cms

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SC judges: Most sign off with grace, others remain Lordships

Supreme Court of India

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

Between the first Chief Justice of India Harilal Jekisundas Kania and present CJI S H Kapadia, there have been 36 others who held the top judge’s post. How many do we remember for their contribution to make judiciary a better institution and lift it a notch higher in public esteem? Few CJIs lasted in public memory after they retired. Fewer etched their names in the annals of judicial history as harbingers of changes. A still fewer number of Supreme Court judges are remembered after retirement. For, most do their constitutional job, reach the sunset of their career and sign off without disturbing the discipline they learnt in judicial melancholy. But there are exceptions. Justice Markandey Katju is one. When he was a sitting judge and presiding over a Bench, he had the power to dismiss a petition without assigning a reason while lecturing lawyers on how to prepare arguments. He got attention of the public and press for speaking his mind. His views, as distinguished from his judgments, were based sometimes on law and common sense but mostly on purely personal knowledge.

He did not encounter much criticism as a sitting judge. For, most were apprehensive of the contempt power vested with a judge. After retirement, he changed little and continued expressing his views on all and sundry without moderation. Shorn of his contempt powers, the retired judge soon found himself being questioned. On a daily basis, he was seen either making statements supporting his views, issuing clarifications on distorted versions of his earlier statements or e-mailing the list of his growing band of supporters. What he probably missed in the din of self-created cacophony was that he has ruptured the tranquility of melancholic judicial discipline. He kept harping on the misuse of freedom of expression by the press with impunity.

If anyone abuses the right to freedom of expression, he would be dealt with by the aggrieved party, for every journalist is aware that he enjoys no immunity from the process of defamation, libel or contempt laws just because he works for a newspaper or a TV channel. In C K Dapthary vs O P Gupta [1971 SCR 76], the Supreme Court more than 40 years back had said, “Freedom of press under Constitution is not higher than that of a citizen and, that there is no privilege attaching to the profession of press as distinguished from the member of public. To whatever height the subject of general may go, so also may the journalist, and if an ordinary citizen may not transgress the law, so must not the press.”

If some among us in the profession harbour a misconception about enjoying some special status before law, we must know that many senior journalists have faced the rigour of defamation, libel and contempt laws. What about the judges? Justice Ruma Pal, the third woman judge of the Supreme Court appointed in its golden jubilee year, reflected on the attitude of judges of high courts and the Supreme Court with a soul searching speech on November 10 at the V M Tarakunde Memorial Lecture.

She said judges were afflicted with “multitude of sins”, but culled out seven deadly ones — brushing under the carpet, hypocrisy, secrecy, plagiarism and prolixity, intellectual arrogance or dishonesty, judicial indiscipline and nepotism. It gladdens no one to be aware of the sins afflicting judges, but one must admire Justice Pal for the plain speak. One would have loved to hear from her about the life of judges who on retirement suddenly end their intrinsic association with judiciary. Well, we are not talking about the lucky few among retired Supreme Court and HC judges who land post-retirement assignments and shift from a judge’s quarters to a bungalow allotted by the government as chairman of a tribunal or a statutory council.

http://timesofindia.indiatimes.com/india/SC-judges-Most-sign-off-with-grace-others-remain-Lordships/articleshow/10720362.cms

UNDERCOVER/STING OPERATIONS- JOURNALISTIC ETHICS- A LAW COMMISSION OF INDIA CONSULTATION PAPER

india media compilation

Image by 350.org via Flickr

BY 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 24th 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.

10. The Law Commission of India, in view of sharp and divergent views with emotive and logical pleas that are raised regarding permissibility of SO, is eliciting suggestions from the public, including the media representatives, the NGOs, academia, professional bodies, social activists, officials and elected representatives on a set of Questionnaire prepared mainly regarding: whether there is necessity to control the misuse of SO by way of a regulatory law? what should be the nature and extent of that regulation to check unwarranted invasion of right to privacy?   what kind of mechanisms has to be put in place to prevent publication/broadcasting of the content of SO so as to control fabricated versions of the SO and to protect larger public interest?

11. The response to this questionnaire can be sent to the e-mail address given in the website of the Commission or to the postal address of the Commission by 30th November, 2010.

Questionnaire:

1.           The media led SO that expose corrupt and criminal activities of a person accused in a case create a widespread public perception of the guilt of the accused and the regular broadcast on a television/internet medium strengthens such public perception and might influence a trial court judge who has to independently conduct a trial in an atmosphere free from pressures and inhibitions. In order to have a fair and objective trial by courts, should the State prohibit or regulate the broadcast /publishing of SO expose in such a case?

2.           In R.K. Anand’s case, the Supreme Court observed that the media is not free to publish any kind of report concerning a sub-judice matter or to do a sting as it pleases in a pending trial matter.  It was also observed that a sting based on deception would attract the legal  restrictions with far greater stringency.  More or less on similar lines, the Supreme Court commented in a recent case related to Manu Sharma that the distinction between trial by media and informative media should always be maintained. Trial by media should be avoided particularly at a stage when the suspect is entitled to the constitutional protections. Invasion of his rights is bound to be held impermissible. Do you suggest therefore regulation of a SO in a sub-judice matter by restricting its broadcast/publication or placing a complete ban thereof in a sub-judice matter?

3.           Should a restraint be placed on SO where a special machinery is created under the Statute like the Prevention of Corruption Act, the Narcotics Drugs and Psychotropic Substances Act, etc to unearth and investigate specific crimes under those Acts?

4.           (a) With a view to expose corruption or anti-social activities prevalent in society, and without any other ulterior/objectionable motive, a person (including a media representative) conducts a SO against a public servant or a middleman. Should he/she enjoy immunity against possible prosecution for the illegal acts committed in the course of such SO?

b.           It was observed in a case decided by the Delhi High Court that the immunity to the bribe giver is available in a case where he/she is unwilling to pay the bribe and approaches the police in order to get the public servant trapped. Whether the scope of immunity, provided under section 24 of the Prevention of Corruption Act, should be extended further so that the journalists etc. undertaking SO are protected?

5.           It has been observed that some of the SO(s) make considerable intrusion into private lives of people without serving any public interest and such operations are conducted by the television channels solely to increase their viewership. In this context, would a sting qualify as investigative journalism when firstly, there was no obvious relevance of the sting to the public and secondly, if there was clear ensnarement to commit the offence?

6.           If SO turns out to be manipulated or distorted or is published in a misleading or reckless manner, should it be treated as a distinct offence? If so, what punishment should be appropriate? What other sanctions do you suggest?

7.           It is said that a proper balance should be struck between the right to privacy of an individual and public interest likely to be served by SO.  What suggestions do you make in ensuring that SO does not substantially impinge on the right to privacy and thus the intrusion of the same is reduced to minimal? What restrictions could be imposed by law in this regard? What according to you may constitute unwarranted and palpable invasion of the right to privacy?

8.           (a) Please offer your views as to which test – ‘public interest’ or ‘infringement of privacy’ – should be the predominant test for judging the legality or permissibility of the SO. Which of them may be given more consideration by a regulatory law, if enacted? Even if the test of public interest is broadly satisfied, should the regulatory law should still consider the permissible extent and degree of invasion to the right of privacy as a relevant factor?

b.           Do you think that the means and modalities of expose should be irrelevant wherever public interest is served in some degree or the other?

9.           In the false SO of a School Teacher case, the Delhi High Court observed that the Court trusts that all TV channels/Media will take steps and prohibit its reporters from producing or airing any programmes which are based on entrapment or fabricated and intrusive. The court also observed that TV reporters and editors should take steps for drawing up a self-regulatory code of conduct. It implies that such Code of Conduct should be one capable of being enforced effectively.  Do you think that the NBSA set up by News Broadcasting Association is adequate and effective enough to put in check on the undesirable practices associated with SO and to restrain the publication/exhibition of objectionable contents of SO?

10.        In the said case, the Delhi High court disapproved of the tactic of using a budding journalist eager to make a name in the media world to pass off as a student of school to trap school teacher in a motivated SO. It relied on the US Supreme Court decision and article by a well known TV journalist to justify the use of hidden cameras when it is for capturing the event that would take place whether or not the camera was there and deploring the practice of entrapment to induce commission of crime so that the Government may prosecute. The High Court approvingly referred to the observations in the US Supreme Court judgment that the Government should not play on the weakness of an innocent party and beguile the party into committing a crime which the party otherwise would not have attempted. The State must not punish an individual for an alleged offence which is the product of the creative activity of its own officials. The High Court held that this can be applied in the Indian context also to the media.  Do you agree with the above suggestion that SO should only be used for capturing what is already going on and should not create a scoop by testing individuals by putting them through inducement test?

11.                   In its judgment rendered on 14th December 2007, the Delhi High Court issued guidelines to be followed when undertaking a sting and observed that the Ministry of I&B may consider their incorporation in the proposed law – the Broadcasting Services Regulation Bill of 2007. What are your suggestions in this regard? According to these guidelines:

1. A channel proposing to telecast a SO shall obtain a certificate from the person who recorded or produced the same certifying that the operation is genuine to his knowledge.

….

3. Permission for telecasting a SO be obtained from a committee appointed by the Ministry of Information and Broadcasting. The said committee will be headed by a retired High Court Judge to be appointed by the Government in consultation with the High Court & two members, one of which should be a person not below the rank of Additional Secretary and the second one being the Additional Commissioner of Police. Permission to telecast SO will be granted by the committee after satisfying itself that it is in public interest to telecast the same. This safeguard is necessary since those who mount a SO themselves commit the offences of impersonation, criminal trespass under false pretence and making a person commit an offence.

4. While the transcript of the recordings may be edited, the films and tapes themselves should not be edited. Both edited and unedited tapes be produced before the committee.

7. The Chief Editor of the channel shall be made responsible for self regulation and ensure that the programmes are consistent with the Rules and comply with all other legal and administrative requirements under various statutes in respect of content broadcast on the channel.

8. The subject matter of reports or current events shall not:

(a) Deliberately present as true any unverified or inaccurate facts so as to avoid trial by media since a “man is innocent till proven guilty by law”;

11. Infringement of privacy in a news based/related programme is a sensitive issue; therefore, greater degree of responsibility should be exercised by the channels while telecasting any such programmes as may be breaching privacy of individuals.

12.                   By capturing the evidence of a criminal activity through SO against a person not yet accused of an offence and publishing the same in print/electronic media, the chances of tampering or suppressing the evidence might diminish. At the same time, such publication has the tendency to defame a person whose version is not available. Could it be yet another reason to regulate the publishing of SO through law?

13.                   Where the SO covers a crime or a gory incident concerning a child victim or a juvenile accused, what restrictions ought to be placed on the media publicity details of SO?

14.                   What should be the procedure to ensure that an expose by private entity or media led SO is not used for taking undue advantage? Who will regulate its transmission/ publication/ withholding? With whom this expose should be deposited? Should there be an independent statutory body to grant permission, monitor and take custody of all the materials collected by a SO?

P.N: It is clarified that the Commission is not contemplating to go into the issues concerning mode of proof of material obtained by way of SO, their evidentiary value and the defences that may be open to the accused in a trial.