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16 December, 2007

An ill-advised move by the judiciary to curb media excesses

In an apparent attempt to set the parameters for “decent” investigative journalism, the Delhi High Court on Friday prohibited inducing of a person to commit an offence, which he is not known or likely to commit, and shooting it on camera as a "sting operation".

It also asked the government to consider the setting up of a panel, with members drawn from the government and the police, to clear stings before telecast.The told media houses to prohibit reporters from producing or airing any programme, which is based on entrapment of an individual or "fabricated, intrusive and sensitive".

"The media is not to test individuals by putting them through what one might call the 'inducement test' and portray it as a scoop that has uncovered a hidden or concealed truth," a Division Bench comprising Chief Justice M. K. Sharma and Justice Sanjeev Khanna said."No doubt the media is well within its rightful domain when it seeks to use tools of investigative journalism to bring us face to face with the ugly underbelly of the society..." the court said.”However, it is not permissible for the media to entice and try to actively induce an individual into committing an offence which otherwise he is not known and likely to commit."

In this context, the court referred to an instance of "inducement"drawn from mythology: "Sage Vishwamitra succumbed to the enchantment of Maneka".

The bench was giving its ruling on suo motu cognisance of a fake sting done on a government teacher, Uma Khurana, by Live India news channel in August 2007, which led to mob violence and physical violence against her.The court wanted the Press Council of India to take the initiative todraw up a "self-regulatory code of conduct" in this regard until the Ministry of Broadcasting finally draws up a statute.

"False and fabricated sting operations directly infringing upon a person's right to privacy should not recur because of desire to earn more and to have higher TRP ratings," it observed. "Regulation of electronic media has always invoked sharp and divergent views with emotive and logical pleas and counter arguments. We are informed that the Ministry has invited suggestions from the general public, including the media on a proposed Broadcasting Bill and Code of Conduct. A decision in this regard has to be taken by the government," the court noted.It directed the Ministry to consider a series of 12 guidelines recommended by A. S. Chandhok, who had assisted it as amicus curiae, while drafting the law to provide for prior grant of permission to a media house or channel from a committee appointed by the Ministry of Information and Broadcasting.

"Permission to telecast sting operation will be granted by the committee after satisfying itself that it is in (the) public interest to telecast the same. This safeguard is necessary since those who mount a sting operation themselves commit the offences of impersonation, criminal trespass under false pretence and making a person commit an offence," the court quoted from the guidelines submitted by the amicus.The panel, as per the guidelines, will be headed by a retired High Court Judge to be appointed by the government in consultation with the High Court and two members, one of which ought to be a person not below the rank of Additional secretary and second one being the Additional Commissioner of Police. In case of persons other than employees of the channel or media houses conducting the sting, the guidelines propose that the telecaster should obtain a certificate from the person who recorded the sting certifying that the operation was genuine to his knowledge.

In the particular case, the bench said Khurana, who was dismissed from government service as a fall-out of the sting, had "enough grounds and material to file a case for causing damage to her reputation" against the news channel. "Damages in accordance with the law can be awarded by the court in case of defamation and loss of reputation," it said, adding that it was left open to the Delhi Government to reconsider through an appropriate forum her dismissal from service.

The following are the amicus curiae's suggestions:

•If sting is outsourced, get certificate saying contents authentic

•Maintain record in writing on sting

•Committee headed by ex-HC judge to clear sting

•Unedited, edited tapes to be submitted to panel

•Avoid shocking, offending audience

•Chief Editor of channel to be responsible for self-regulation

•Compliance with Cable Television Network (Regulation) Act, 1995

•Should not invade personal or private affairs, or create public panic or offend religious feelings.•Ensure accuracy

•Observe community standards of decency

The Editors Guild of India said the High Court’s suggestions would introduce “a draconian, judicially-backed Emergency by the back door”. While expressing total agreement on the need for stringent pre-telecast self-regulatory and internal checks in news organizations, it said the remedy suggested by the court was a deadly one.

The High Court’s ruling is ill-advised. There is certainly need to regulate sting operations. This must be done by the media itself. Intrusion of any external agency in the area will be an infringement of media freedom. The Live India story, as we know, was not based on a genuine sting operation. It involved breach of the law, and must be dealt with as such.

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