CHAPTER-IV

Media, e-Media and its Convergence:

Media trial
Chapter-IV Media, E-Media and its Convergence: Media Trial

4.1 a. Media and Human right

4.2 b. Media and Sting operation

4.3 Trial by Media

4.4 Fair Trial and Human Rights

4.4.1 Pre Trial Rights

4.4.2 Post Trial Rights

4.5 Media and Sting Operation

4.6 Electronic Media, Information Technology and its

Convergence

The emergence and convergence of various Media (Information and communication

technologies hereinafter referred as ICTs) such as radios, televisions, computers, the
Internet, telephones, cell phones, videos, multimedia, CD-ROMs, software and hardware
(ICT) constitutes both a challenge and an opportunity for developing countries. ICT alone
provides a powerful convergence of tools for handling information, from acquisition and
production to transmission, archiving and storage. Combined with space technology1, it
has an enormous impact on all aspects of life by reducing time, distance and the
information gap. It increases the scope for greater and faster interaction within different
groups of people from different societies and civilizations. Under favorable conditions,
ICT can be a powerful instrument for increasing productivity, generating economic growth
by facilitating trade, transport and financial issues, thus creating jobs and improving the
quality of life of all. ICT has brought e-commerce, e-learning, e health and e-
sustainability, and among many other things, the creation of an e-society. The emergence
of new ICTs has shaped and transformed today’s society, forming new social and political
structures.

1
Space technology, here mainly referring to satellite communications, remote sensing and geographic information systems (GIS), plays
both a complementary and a supplementary role to conventional technologies in the different types of applications. It has indeed been
instrumental in providing the means to extend the reach of ICT services to even the most remote and isolated regions.

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 ICT have become commonplace entities in all aspects of life. Across the past
twenty years the use of ICT has fundamentally changed the practices and procedures of
nearly all forms of endeavor within life, business and governance. The way these fields
operate today is vastly different from the ways they operated in the past.2 ICT created
virtual communicative space that known as Cyberspace3. It is not limited to the operation
of computer networks, but also encompasses all social activities in which digital
information and communication technologies are deployed. It thus ranges from
computerized reservation systems to automated teller systems and smart cards. With the
‘embedding’ of digital facilities in more and more objects (from microwave ovens to
jogging shoes), these acquire intelligent functions and communicative capacities and begin
to create a permanent virtual life-space. The issue of the governance of cyberspace
emerges in many current ICT-debates at different levels. There is the curb revolutionary
position that considers cyberspace4 a totally new and alien territory where conventional
rules do not apply. But, however attractive this approach may seem, if more people are to
use cyberspace this is likely to need public and corporate policymaking. This is equally the
case if cyberspace is to be protected against unprecedented opportunities for criminal
activity. Cyberspace is perceived by the digital settlers as the last ‘electronic’ frontier, but
cyberspace also colonizes our non-virtual reality and lest it totally controls daily life it
needs to be governed by norms and rules. A re-current question is whether cyberspace
gives rise to new forms of democratic [electronic] governance, which are less-territory
based, less hierarchical, more participatory, and demand new rules for political practice.
As for as Human Rights is Concern, in cyberspace the Human rights should not only be
articulated as individual rights, but should be recognized both as individual and as
collective rights.. Media plays a vital role in mold the opinion of the society and it is
capable of changing the whole viewpoint through which people perceive various events.

2
http://elrond.scam.ecu.edu.au/oliver/2002/he21.pdf visted on 5/4/2010
3
Thomas Ploug , Ethics in Cyberspace: How Cyberspace May Influence Interpersonal Interaction,Spiringer Pub.p.70
4
The ICT consists of segments as diverse as telecommunications, television and radio Broadcasting, computer hardware, software and
services and electronic media (for example, the Internet and electronic mail). Information and communication needs can be met byMore
traditional means, such as print media and fixed telephone lines, or by satellite technology, mobile phones and the Internet. Traditional
technologies continue to be important for large numbers of people around the world, particularly in rural areas. However, new
technologies have a vast potential for empowerment which needs to be fully exploited. The term ICT has been used to encompass
technological innovation and convergence in information and communication leading to the development of so-called information or
knowledge societies, with resulting changes in social interaction, economic and business practices, political engagement, education,
health, leisure and entertainment. Over the past decade, there has been a growing understanding that these technologies can be powerful
instruments for advancing economic and social development through the creation of new types of economic activity, employment
opportunities, improvements in health-care delivery and other services, and the enhancement of networking, participation and advocacy
within society. ICT also have the potential to improve interaction between Governments and citizens, fostering transparency and
accountability in governance.

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The media can be commended for starting a trend where the media plays an active role in
bringing the accused to hook. Especially in the last two decades, the advent of Electronic
media i.e. cables television, local radio networks and the internet have greatly enhanced
the reach and impact of the mass media. The circulation of newspapers and magazines in
English as well as the various vernacular languages has also been continuously growing in
our country. This ever-expanding readership and viewership coupled with the use of
modern technologies for newsgathering has given media organizations an unprecedented
role in shaping popular opinions. However, media freedom also entails a certain degree of
responsibility. In an increasingly competitive market for grabbing the attention of viewers
and readers, media reports often turn to distortion of facts and sensationalisation. The
pursuit of commercial interests also motivates the use of intrusive newsgathering practices
which tend to impede the privacy of the people who are the subject of such coverage. The
problem finds its worst manifestation when the media extensively covers sub judice
matters by publishing information and opinions that are clearly prejudicial to the interests
of the parties involved in litigation pending before the Courts.

However, sensationalized news stories circulated by the media have steadily gnawed at the
guarantees of a right to a fair trial and posed a grave threat to the presumption of
innocence. In recent times there have been numerous instances in which media has
conducted the trial of an accused and has passed the verdict even before the Court passes
its judgment. Some famous criminal cases that would have gone unpunished but for the
intervention of media, are Priyadarshini Mattoo case, Jessica Lal case5, Nitish Katara
murder case6 and Bijal Joshi rape case7. This phenomenon is popularly called as media
trial. Trial by Media it is the impact of television and newspaper coverage on a person’s
reputation by creating a widespread perception of guilt regardless of any verdict in a Court
of law. There is a heated debate between those who support a free press which is largely
uncensored and those who place a higher priority on an individual’s right to privacy and
right to a fair trial. The media exceeds its right by publications that are recognized as
prejudicial to a suspect or accused like concerning the character of accused, publication of
confessions, publications which comment or reflect upon the merits of the case,
photographs, police activities, imputation of innocence, creating an atmosphere of
prejudice, criticism of witnesses, It encompasses several other rights including the right to
5
Robert S. Fortner, P. Mark Fackler , The Handbook of Global Communication and Media Ethics,wiley Pub.
6
Abhinav Garg (31 May 2008). "Trial court sees Katara murder as honour killing". Times of India. Retrieved 2008-05-31
7
N Prabha Unnithan , Crime and Justice in India, Sage Pub.,p291

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be presumed innocent until proven guilty, the guilt is to be proved beyond reasonable
doubt and the law is governed by senses and not by emotions the right not to be compelled
to be a witness against oneself, the right to a public trial, the right to legal representation,
the right to speedy trial, the right to be present during trial and examine witnesses, etc.

In Zahira Habibullah Sheikh v. State of Gujarat8, the Supreme Court explained that
a “fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and
atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or
against the accused, the witnesses, or the cause which is being tried is eliminated.” Right
to a fair trial is absolute right of every individual within the territorial limits of India vide
articles 14 and 20, 21 and 22 of the Constitution. Needless to say right to a fair trial is
more important as it is an absolute right which flows from Article 21 of the Constitution to
be read with Article 14. Article 19(1) (a) of the Constitution of India guarantees the
fundamental right to freedom of speech and expression. In accordance with Article 19(2),
this right can be restricted by law only in the “interests of the sovereignty and integrity of
India, the security of the State, friendly relations with Foreign States, public order,
decency or morality or in relation to contempt of Court, defamation or incitement to an
offence.” So the right to freedom and speech and expression does not embrace the freedom
to commit contempt of Court. While freedom of expression remains an important
facilitator for widespread engagement within a democratic society, it must be balanced
against the right to a fair trial and the right to privacy. The Contempt of Court Act9 defines
contempt by identifying it as civil and criminal. Criminal contempt has further been
divided into three types: Scandalizing or prejudicing trial and hindering the
administration of justice. The provision of contempt has its origin to the principle of
natural justice i.e. every accused has a right to a fair trial along with the principle that
justice should not be done only but it must also appear to have been done. If media
exercises an unrestricted or rather unregulated freedom in publishing information about a
criminal case and prejudices the mind of the public and those who are to adjudicate on the
guilt of the accused and if it projects a suspect or an accused as if he has already been

8
(2004) 4 SCC 158,
9
The Contempt of Courts Act, 1971 Sec. 2. Definitions.—In this Act, unless the context otherwise requires,—(a) “contempt of court”
means civil contempt or criminal contempt;(b) “civil contempt” means wilful disobedience to any judgment, decree, direction, order,
writ or other process of a court or wilful breach of an undertaking given to a court;(c) “criminal contempt” means the publication
(whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act
whatsoever which—(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or(ii) prejudices, or
interferes or tends to interfere with, the due course of any judicial proceeding; or(iii) interferes or tends to interfere with, or obstructs or
tends to obstruct, the administration of justice in any other manner;

153
adjudged guilty well before the trial in Court, there can be serious prejudice to the
accused. In fact, even if ultimately the person is acquitted after the due process in Courts,
such an acquittal may not help the accused to rebuild his lost image in society. If excessive
publicity in the media about a suspect or an accused before trial prejudices a fair trial or
results in characterizing him as a person who had indeed committed the crime, it amounts
to undue interference with the “administration of justice”, calling for proceedings for
contempt of Court against the media. Other issues about the privacy rights of individuals
or defendants may also arise. The various excesses of media trial cannot be ruled out as
not hampering the fairness of trials concerned.

Through media trial, we have started to create pressure on the lawyers

even — to not take up cases of accused10, thus trying to force these accused to go to trial
without any defense. Is this not against the principles of natural justice? Every person has
a right to get himself represented by a lawyer of his choice and put his point before the
adjudicating Court and no one has the right to debar him from doing so. For an instance,
when eminent lawyer Ram Jethmalani decided to defend Manu Sharma, a prime accused
in a murder case, he was subject to public derision. A senior editor of a television news
channel CNN-IBN called the decision to represent Sharma an attempt to “defend the
indefensible”. This was only one example of the media instigated campaign against the
accused. As we all knew that in that case we had one of the best lawyers of the country,
Gopal Subramaniam, appearing for the state and the case of Manu was handed to some
mediocre lawyer. The media assumption of guilt clearly encroaches upon the right to legal
representation, a critical component of the right to fair trial and may also intimidate
lawyers into refusing to represent accused persons. Suspects and accused apart, even
victims and witnesses suffer from excessive publicity and invasion of their privacy rights.
Police are presented in poor light by the media and their morale too suffers. The day after
the report of crime is published; media says ‘Police have no clue’. Then, whatever gossips
the media gathers about the line of investigation by the official agencies, it gives such
publicity in respect of the information that the person who has indeed committed the
crime, can move away to safer places. The pressure on the police from media day by day
builds up and reaches a stage where police feel compelled to say something or the other in
public to protect their reputation. Sometimes when, under such pressure, police come
forward with a story that they have nabbed a suspect and that he has confessed, the

10
http://www.hrdc.net/sahrdc/hrfeatures/HRF164.htm accessed on 10th June 2009.

154
‘Breaking News’ items start and few in the media appear to know that under the law,
confession to police is not admissible in a criminal trial11. Once the confession is published
by both the police and the media, the suspect’s future is finished. When he retracts from
the confession muddle, Witness protection is then a serious casualty. This leads to the
question about the admissibility of hostile witness evidence and whether the law should be
amended to prevent witnesses changing their statements. Again, if the suspect’s pictures
are shown in the media, problems can arise during ‘identification parades’ conducted
under the Code of Criminal Procedure for identifying the accused. Subconscious Effect on
the Judge as one of the major allegations upon ‘media trial’ is prejudicing the judges
presiding over a particular case. As there is always a chance judges may get influenced by
the flowing air of remarks made upon a particular controversy. The media presents the
case in such a manner to the public that if a judge passes an order against the “media
verdict”, he or she may appear to many either as corrupt or biased.

Justification by Media:

We have a rich tradition of fiercely independent journalism. In fact, most of the big scams
were busted by the press. The law enforcers merely followed them up. The poorly paid
journalist must be credited for extracting those information’s which looked inaccessible
for the top vigilance teams of the country. That is how HDW ( Howaldtswerke-Deutsche
Werft GmbH ) marine case and Bofors hit the headlines. That is how we found out that
Narasimha Rao had bribed the Jharkhand Mukti Morcha12 MPs and Satish Sharma and
Buta Singh had brokered the deal. The media did us proud at every place of our political
juncture. There is increasing and intense public focus on Courts and the cases filed therein.
Now that the Courts have come under the media’s microscope, they are likely to remain
there forever. A Positive byproduct of changes spurred by the media and addressed by the
Courts is that more Indians are aware of their Constitution al rights than ever before. The
media strongly resents this sub judice rule and complains that Courts during the course of
a hearing tend to interpret the sub judice rule quite strictly to prohibit any discussion of the
issues before the Court even if they are engaging public attention. There is, therefore, an
urgent need to liberalize the sub judice rule, invoking it only in cases of an obvious intent
to influence the trial and not to any act that might have the remote possibility of

11
Trial by Media by Prejudicing the sub judice available at http://www.rmlnlu.ac.in/notice_pdf/devesh_article.pdf ,visited on 10 may
2010
12
http://indiatoday.intoday.in/story/jharkhand-mukti-morcha-bribery-scandal-in-1993-corruption-got-institutionalised-in-
india/1/192408.html,visited on22 May2013

155
influencing it. Another major constraint on stings and trials by media is the public interest.
If public interest is missing and self or manipulative interests surface, the media loses its
ground and invites the wrath of the Court. In such cases media reporting can swing
popular sentiments either way. It is, therefore, necessary to make a balance between the
Constitution al guarantee of free media on one hand and the individual right to fair trial on
the other.

The Judiciary and the Media are the third and fourth pillars respectively of a Democratic
set up. Both are indispensable for the smooth functioning of the system. While the former
should duly regard the Freedom and Right of the latter to cover and disseminate news
about Court proceedings in an open justice system, the latter on its part also ought to show
its due diligence and extreme caution while reporting the same so as to preserve the
sanctity of the former as well as for ensuring a free and fair trial. Any confrontation
between the two over Reportage of news in sub judice matters is indeed unwarranted. On
the contrary, they both rather ought to work in tandem respecting each other’s domain and
independence.

In Saibal Kumar vs. B.K. Sen,13 the Supreme Court tried to discourage the tendency of
media trial and remarked,

“No doubt, it would be mischievous for a newspaper to systematically

conduct an independent investigation into a crime for which a man
has been arrested and to publish the results of the investigation. This
is because trial by newspapers, when a trial by one of the regular
tribunals of the country is going on, must be prevented. The basis for
this view is that such action on the part of a newspaper tends to
interfere with the course of justice, whether the investigation tends to
prejudice the accused or the prosecution.”

Although our judicial system relies on the competence, impartiality and

fearlessness of the trial judge and one can argue for unrestrained media converge of Court
proceeding on the ground that it will not influence the judgment. But even in England
there has been divergence of opinion. In view of Lord Denning, a professional judge will
not be influenced by media coverage which affects only common man. This concept of

13
1961) 3 SCR 460

156
judicial superiority was not endorsed by Lord Dilhorne.14 Even in United States the
judiciary has been of the view that the Court cannot function properly if a reporting is
calculated to disturb the judicial mind. In John D. Pennekamp vs. State of Florida,15 it
was observed,

“No Judge fit to be one is likely to be influenced consciously, except by what

he see or hears in Court and by what is judicially appropriate for his
deliberations. However, Judges are also human and we know better than did
our forbears how powerful is the pull of the unconscious and how
treacherous the rational process—and since Judges, however stalwart, are
human, the delicate task of administering justice ought not to be made unduly
difficult by irresponsible print.”

It is correct that contempt of Court is one of the ground on which reasonable restriction
can be imposed on the freedom of speech. The Contempt Of Court Act defines contempt
by identifying it as civil and criminal. Criminal contempt has further been divided into
three types: Scandalizing or prejudicing trial and hindering the administration of justice.
The provision of contempt has its origin to the principle of natural justice i.e. every
accused has a right to a fair trial along with the principle that justice should not be done
only but it must also appear to have been done. There may be many ways to prejudice a
trial. If it is allowed, a person may be held guilty of an offence, which he has not actually
committed. No publication, which is calculated to poison the mind of a Judge, a witness or
a party or cerate an atmosphere in which the administration of justice would be difficult or
impossible, amounts to contempt. No editor has the right to assume the role of an
investigator so as to prejudice the Court against any person. But law of contempt can only
be attracted to prevent comments when the case is sub-judice. If the case is not pending in
the Court, it is of no avail. In our legal system, the Courts do not have any power to
impose prior restraints on the publication of prejudicial material during the pendency of
Court proceedings.

In M.P. Lohia vs. State of West Bengal16 the Supreme Court has strongly
deprecated the media for interfering with the administration of justice by publishing one-
sided articles touching on merits of cases pending in the Courts.

14
See Attorney General v. British Broadcasting Corporation, 1981 AC 303 (HL)
15
(1946) 328 US 331
16
(2005) 2 SCC 686

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 Pointing out that the article was a one-sided version of the case, N. Santosh Hedge
Justice said that the facts narrated therein are materials that may be used in the
forthcoming trial in this case and that this type of article appearing in the media would
certainly interfere with the administration of justice. He remarked-

“We deprecate this practice and caution the Publisher, Editor and the
journalist who are responsible for the said articles against indulging
in such trial by media when the issue is sub-judice. Others concerned
in journalism would take note of this displeasure expressed by us for
interfering with the administration of justice."

Restriction on media trial is necessary so that the people may not have a wrong perception
of the Administration of Justice System. Sometimes it is necessary to protect the privacy
of individual. But the major concerned is, and which is the core issue of this work is the
need to check prejudicial effect caused by a sensational reporting of a sub-judice matter.
So far as a criminal trial is concern media reporting has a more negative influence rather
than a positive effect. The media cannot be granted a free hand in Court proceedings. The
media has to be properly regulated. One way is the recourse to the Law of Contempt. But,
in the interest of democracy, it is better to have a self-regulated and self disciplined media
in comparison to a media regulated by the Court and the state

It is pertinent to note that May 2, 2008 proved to be a landmark day in the annals of
Indian Judiciary, when TV Cameras were allowed in Lok Adalat’s held within the
premises of the Supreme Court, which were presided over by the Chief Justice of India
K.G. Balakrishnan, Justice Ashok Bhan, Justice Arijit Prasayat and Justice Aftab Alam.
This was the first instance in India, wherein Cameras were allowed to record Court
proceedings. Nevertheless the Chief Justice K.G.Balakirshnan commenting on whether
TV Cameras would be allowed to cover the proceedings of the Supreme Court stated that
at the given juncture, it would not be feasible to do the same and in fact Lok Adalat17
proceedings could not be termed as Court proceedings. Elaborating further Chief Justice
stated that given the sensitivity of the matters that the Courts have to adjudicate upon, the
not common acrimonious exchanges that take place between the lawyers coupled with the
embarrassing moments that arise during Court proceedings, necessitate that TV Cameras

17
Lok Adalat is an Alternative Dispute Resolution Mechanism that has been evolved for speedier dispensation of Justice and many
Jurists are of the opinion that Lok Adalatproceedings are of a different nature that expend with the necessity of procedural
requirementsand formalities of a regular court.See generallyJUSTICEJITENDRAN. BHATT, A Round Table Justice Through Lok
Adalat (People’sCourt) – A Vibrant ADR In India (2002) 1 SCC (Jour) 11; JUSTICEK.A. ABDULGAFOOR, TheConcept of
Permanent Lok Adalat And The Legal Services Authorities Amendment Act,2002(2003) 5 SCC (Jour) 33.

158
should not be allowed in Court rooms.18 The broadcaster’s right to inform the public
through televising of Courtroom proceedings could be derived from Article 19(1)(a)
provided the time is right for it’s sustenance and it is not leading to a violation of a higher
right. In India it might not work so well because even in a developed country like America
the reare still repentances about the right.

Fair trial has been recognized as a fundamental right under Article 21 of the Indian
Constitution and the first imperative in the dispensation of justice.19An open Court is
occupies one spot in a constellation of requirements for a fair trial. The primary values and
interest addressed while holding a public trial is fairness in the administration of justice.
Now in certain circumstances if a public trial itself creates certain damaging effects on the
trial, then conducting of such trials should be precluded. In India there are statutory
provisions20 wherein the Court can conduct trials in camera, that is, when the hearing takes
place with closed door, at the exclusion of the public. This is also a way of ensuring a fair
trial and is inactive of the fact that if there is a conflict between the right of the pubic to
know and the right of the press to inform about a trial’s proceedings on the one hand and
the right of the accused to a fair trial on the other hand, then the latter should be given
precedence over the former. Recently, even Chief Justice K.G. Balakirishnan, the Chief
Justice of India, speaking at a Workshop on “Reporting of Court Proceedings by Media
and Administration of Justice”21commented that no matter to what extent the fourth estate
while covering the Court proceedings tries to be accurate, the margin for a slip-up
creeping in cannot be discounted. Since, administration of justice is regarded to be one of
the most sanctimonious jobs ever undertaken, such slipups, however small, can dilute the
faith that an ordinary Indian reposes in the Judiciary. The Chief Justice laid stress on the
fact that with the advent of mass media, trials by media instead of giving a helping hand to
the Judiciary’s endeavour to ensure justice for all are impinging upon the elementary right
of the accused to get a fair trial. These media trials always ride on the wave of public
sentiment and usually pronounce the guilt of the accused in sub-judice matters. This acts
as a prejudice to the accused that has a right to a fair trial. As an offshoot to this, the re
arises a possibility that general public could feel let down by the institution of judiciary

18
SC Lets Camera Crew Film Lok Adalat Session, The Times of India, 4 May 2008
19
Commissioner of Police Delhi v Registrar, Delhi High Court, New Delhi, AIR 1997 SC 95.
20
Section 14 of the Indian Official Secrets Act, 1923; Section 22(1) of the Hindu MarriageAct, 1955, Section 327 (proviso) of The
Code of Criminal Procedure, 1973; Section 153 B(proviso) of The Code of Civil Procedure, 1908
21
This Workshop was held at Vigyan Bhawan, New Delhi on 29thMarch and 30thMarch 2008.
This workshop was jointly organized by the Supreme Court Legal Services Committee,
Press Council of India, Indian Law Institute, National Legal Services Authority and Editors
Guild of India.

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when a determination going against the media verdict is made by the Court.22 The
Supreme Court of India in Naresh Shridhar Mirajkar v State of
Maharashtra23observed that the public has a right to be present in Court and to watch the
proceedings conducted there, however the same is a right given to the public at large only
in the interests of the administration of justice and is not a fundamental right of the public.
The Court observed that, as a judicial decision purports to decide the controversy between
the parties before the Court and nothing more, a judicial verdict pronounced by the Court
in relation to a matter brought before it for its decision would not affect the right of
citizens under Article 19(1).24Though this observation would hold water with regard to
civil suits, in criminal trials the justification would differ to a great extent because crime is
considered to be an offense against the whole society and not against one individual
alone.25Hence, it might be argued that the citizens would have right to know and right to
receive information26about a criminal trial which is a matter of public concern. But even in
criminal trials, the citizen’s right to know is not absolute. In the past, Courts have
excluded the public in order to safeguard a witness against possible reprisal or prevent
embarrassment and emotional disturbance to the witness and such orders have been upheld
as valid discretionary decisions made in part to ensure that the Courtroom atmosphere
does not inhibit a witness from fully disclosing his or her information. The primary
purpose of criminal trials is to provide an impartial forum to the parties in a trial.
Moreover, it is of fundamental importance that justice should not only be done but should
manifestly and undoubtedly be seen to be done.27Thus the paramount concern in any trial
ought to be the administration of justice enabled by emergence of truth and truth will
emerge only if the witnesses are forth coming in their testimony, the judge has control
over the Courtroom and the integrity of the trial is maintained. The presence of cameras in
Courtrooms could cause serious threats to the emergence of truth. A public trial is a means
of ensuring a fair trial, wherein the accused is not prosecuted or convicted in secret
proceedings. It is an endeavour to protect the right of the accused and not to provide a
spectacle to the community. The operative right in the judicial system is the right of the
accused to a fair trial28and not that of the public to see it on television. Therefore an open

22
CJI for Caution against Trial by Media, The Hindu, Mar. 31, 2008, http://www.thehindu.com/holnus/000 200803310305.htm
23
AIR 1967 SC 1
24
Article 19(2) - Nothing in sub-clause (a)of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent
the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or
morality or which undermines the security of, or tends to overthrow, the State.
25
L ARORA, Law of SpeedyTrial in India 17 (2006).
26
State of U.P. v Raj Narian AIR 1975 SC 865.
27
R v Sussex (1924) 1 KB 256.
28
Nancy T. Gardner, Cameras in the Courtroom: Guidelines for State Criminal Trials, 84MICH. L. REV. 475 1985).

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Court implies that there ought to be an opportunity with the public to attend the trial, and
such opportunity is enough to avert any danger of an unfair trial, further whether or not the
opportunity is taken by the public is irrelevant.29Although cameras in Courtrooms would
imply that more people would have access to judicial proceedings, but such access rather
than ensuring a fair trial, might just endanger the right to fair trial. Even in the absence of
any unambiguous scientific proof of imminent danger to a fair trial, in the event of
televising Court room proceedings, the mere knowledge from the American experience
that presence of cameras could detract from the business of the trial and jeopardize a fair
trial should be sufficient to warrant the exclusion of cameras from Indian Court rooms. To
assure the impartial accomplishment of justice would not lead to an abridgement of
freedom of speech and expression or the freedom of the press.30The Fundamental Rights
provided in Part III of the Indian Constitution occupy a transcendental position and are
necessary for the development of human personality.31 The Supreme Court has recognized
that a peripheral or concomitant right which facilitates the exercise of a named
fundamental right or gives it meaning and substance or makes it effective, is not itself a
guaranteed right included within the named fundamental right.32Fundamental rights
themselves have no fixed content; most of them are empty vessels into which each
generation must pour its content in the light of its experience.33Whenever a concomitant
right is read into a named fundamental right, it must be ensured that the former can be
adjusted with the society at the existing stage of development.

In pursuance of the democratic ideals underlying Article 19(1)(a), the Supreme Court
of India at various instances has read freedom of press as a part of the right to free speech
and expression.34The press has now assumed the role of the public educator making formal
and non-formal education possible on a large scale particularly in the developing
world.35Article 19(1)(a) also guarantees the right to receive and impart information which
can be achieved through word of mouth, in writing or in print, inthe form of art or through
television, radio etc.36

29
Josephja ConelliI, Open Justice- A Critique of the Public Trial 23 (2002)
30
Reliance Petrochemicals Ltd. v Proprietors of Indian Express Newspapers, Bombay Pvt.
Ltd. and Ors AIR 1989 SC 190.
31
I.C. Golak Nath v Union of India. AIR 1967 SC 1643
32
All India Bank Employees Association v National Industrial Tribunal, AIR 1962 SC 171.
33
Keshavananda Bharti v State of Kerala (1973) 4 SCC 225.
34
Sakal Newspapers v Union of India AIR 1962 SC 305; Bennett Coleman & Co. v Union of
India AIR 1973 SC 106
35
Indian Express Newspaper (Bombay) Private Ltd. Ors v Union of India and Ors AIR 1986SC 515.
36
Secretary, Ministry of Information and Broadcasting v Cricket Association of Bengal AIR
1995 SC 1236; Association for Democratic Reforms v Union of India AIR 2001 Del 126

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There is little doubt that broadcasting freedom is implicit in the freedom of speech and
expression.37However Article 19(1)(a) does not confer any right on the press to have an
unrestricted access to means of information.38 From the standpoint of Article 19(1)(a),
The Supreme Court has further emphasized that the freedom of press is not so much for
the benefit of the press as for the benefit of the general community because the community
has a right to be supplied with information. Freedom of press extends to include a right to
publish a faithful report of Courtroom proceedings witnessed and heard by the
journalist.39Thus when it comes to televising of Courtroom proceedings the effective right
to be considered is the right of the general public of India, who are to be the viewers of
these proceedings. However there can be instances wherein the attendance of the press is
banned in the Courtrooms or the press may be prohibited from publishing the trial or any
part of it thereof in order to ensure a fair trial. The question that arises for consideration is
whether the public has an absolute right to know about the proceedings of a trial and
therefore, the press has the right to televise Courtroom proceedings?

Televising of Courtroom proceedings is considered to be a means of ensuring open justice.

Cameras in Courts, it is believed, would prevent the abuses that can take place in closed
proceedings, provide opportunity to the public to become better educated about the
judicial process and ensure the level of public access needed to build genuine public
support for the justice system. Section32740of The Code of Criminal Procedure Code, 1973
and Section 153B41of The Code of Civil Procedure (CPC) prescribe open Courts for
criminal proceedings and civil proceedings respectively. Public trials in open Court
subject to public scrutiny and gaze naturally act as a check against judicial caprices or
vagaries, and serve as a powerful instrument for creating confidence of the public in the
fairness, objectivity and impartiality of the administration of justice.42

37
Broadly speaking, broadcasting freedom can be said to have four facets, (a) freedom of the broadcaster, (b) freedom of the
listeners/viewers to a variety of view and plurality of opinion, (c) right of the citizens and groups of citizens to have access to the
broadcasting media, and (d) the right to establish private radio/TV stations
38
Smt Prabha Dutt V. Union of India AIR 1982 SC 6
39
Jagdish Swarup, Constitution of India 684 (Dr. L.M. Singhvi ed., 2006)
40
The Code of Criminal Procedure, 1973 Section 327.Court to be open - The place in which may Criminal Court is held for the purpose
of inquiring into or trying any offence shall be deemed to be an open Court, to which the public generally may have access, so far as the
same can conveniently contain them.Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any
inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain
in, the room or building used by the Court
41
The Code of Civil Procedure, 1908 Section 153 B. Place of trial to be deemed to be open Court. - The place in which any Civil Court
is held for the purpose of trying any suit shall be deemed to be an open Court, to which the public generally may have access, so far as
thesame can conveniently contain them. Provided that the presiding Judge may, if he thinks fit, order at any stage of any inquiry into, or
trial of, any particular case, that the public generally, or any particular person, shall nothave access to, or be or remain in, the room or
building used by the Court
42
Naresh Shridhar Mirajkar v State of Maharashtra AIR 1967 SC 1

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4.2 HUMAN RIGHT AND TRIAL BY MEDIA

The right to a fair trial on a criminal charge is considered to start running not
“only upon the formal lodging of a charge but rather on the date on which
State activities substantially affect the situation of the person concerned.43” This could
obviously coincide with the moment of arrest, depending on the circumstances of the
case. Fair trial guarantees must be observed from the moment the investigation
against the accused commences until the criminal proceedings, including any appeal,
have been completed. The distinction between pre- trial procedures, the actual trial and
post trial procedures is sometimes blurred in fact, and the violation of rights during one
stage may well have an effect on another stage. However the most relevant articles of
the ICCPR can be loosely divided into those three categories and the separation is
sometimes helpful for the purposes of identifying which issues will be of
particular interest during different time periods of the trial process44.

PRE-TRIAL RIGHTS

1. The Prohibition on Arbitrary Arrest and Detention

2. The Right to Know the Reasons for Arrest

3. The Right to Legal Counsel

4. The Right to a Prompt Appearance before a Judge to Challenge the

Lawfulness of Arrest and Detention

5. The Prohibition of Torture and the Right to Humane Conditions during

Pre-trial Detention

6. The Prohibition on Incommunicado Detention

THE HEARING

1. Equal Access to, and Equality before, the Courts

43
Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary (N.P. Engel, Arlington: 1993),p.

44
Lawyers Committee for Human Rights ,What is fair trial, Basic Guide to Legal Standards and Practice,march 2000This guide was
originally prepared by Jelena Pejic in 1995. It was updated by Vanessa Lesnie in 1999

163
 2. The Right to a Fair Hearing

3. The Right to a Public Hearing

4. The Right to a Competent, Independent and Impartial Tribunal

Established by Law

5. The Right to a Presumption of Innocence

6. The Right to Prompt Notice of the Nature and Cause of Criminal

Charges

7. The Right to Adequate Time and Facilities for the Preparation of a

Defense

8. The Right to a Trial without Undue Delay

9. The Right to Defend Oneself in Person or through Legal Counsel

10. The Right to Examine Witnesses

11. The Right to an Interpreter

12. The Prohibition on Self- incrimination

13. The Prohibition on Retroactive Application of Criminal Laws

14. The Prohibition on Double Jeopardy

POST-TRIAL RIGHTS

1. The Right to Appeal

2. The Right to Compensation for Miscarriage of Justice

4.3 Trial by Media

While freedom of expression remains an important facilitator for widespread

engagement within a democratic society, it must be balanced against the right to a

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fair trial and the right to privacy. Unfortunately, rules designed to regulate
journalistic conduct are inadequate to prevent the encroachment of civil rights.

Article 19(1) (a) of the Constitution of India guarantees the fundamental right to
freedom of speech and expression. In accordance with Article 19(2), this right can
be restricted by law only in the “interests of the sovereignty and integrity of India,
the security of the State, friendly relations with Foreign States, public order,
decency or morality or in relation to contempt of Court, defamation or incitement
to an offence.”

The Indian Supreme Court has concluded that the fundamental rights to privacy
and a fair trial flow out of the broader right to life contained in Article 21 of the
Constitution. In Kharak Singh v. State of Uttar Pradesh, the Supreme Court
held that the right to privacy was an “essential ingredient of personal liberty”
which is “a right to be free from restrictions or encroachments”.

The right to a fair trial is at the heart of the Indian criminal justice system. It
encompasses several other rights including the right to be presumed innocent until
proven guilty, the right not to be compelled to be a witness against oneself, the
right to a public trial, the right to legal representation, the right to speedy trial, the
right to be present during trial and examine witnesses, etc. In Zahira Habibullah
Sheikh v. State of Gujarat, the Supreme Court explained that a “fair trial
obviously would mean a trial before an impartial Judge, a fair prosecutor and
atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for
or against the accused, the witnesses, or the cause which is being tried is
eliminated.”

However, sensationalized news stories circulated by the media have steadily

gnawed at the guarantees of a right to a fair trial and posed a grave threat to the
presumption of innocence. What is more, the pervasive influence of the press is
increasingly proving to be detrimental to the impartial decision-making process of
the judiciary. Such news stories cannot easily be defended under the auspices of
freedom of expression.

Impact of pre-trial publicity

165
 Sensationalised journalism has also had an impact on the judiciary. For example,
in upholding the imposition of the death penalty on Mohammed Afzal for the
December 2001 attack on the Indian Parliament, Justice P. Venkatarama Reddi
stated, “the incident, which resulted in heavy casualties, had shaken the entire
nation and the collective conscience of the society will only be satisfied if the
capital punishment is awarded to the offender.”

A ‘media trial’ began almost immediately after Afzal’s arrest. Only one week after
the attack, on 20 December 2001, the police called a press conference during the
course of which Afzal ‘incriminated himself’ in front of the national media. The
media played an excessive and negative role in shaping the public conscience
before Afzal was even tried.

Similarly, S.A.R. Geelani, one of Afzal’s co-defendants in the Parliament attack

case, was initially sentenced to death for his alleged involvement despite an
overwhelming lack of evidence. Large sections of the Indian media portrayed him
as a dangerous and trained terrorist. On appeal, the Delhi High Court overturned
Geelani’s conviction and described the prosecution’s case as “at best, absurd and
tragic”. ayendra Saraswati, head abbott of Kanchi Kamakoti, was accused of
killing two mill-workers as sacrifice, based solely on newspaper reports. The
Andhra Pradesh High Court in Labour Liberation Front v. State of Andhra
Pradesh held that the writ petition filed to force the authorities to investigate
relied upon incorrect facts that should have been verified. The Court observed that
“(o)nce an incident involving prominent person or institution takes place, the
media is swinging into action and virtually leaving very little for the prosecution
or the Courts…”

It is becoming a pernicious media practice to blame the accused in a crime even before the
judiciary is ruling. To stop this, the Courts would be right in issuing a gag order for cases
that are sub-judice.
News paper and TV channels have picked up on the death penalty awarded to Santosh
Singh in the Priyadarshini Matto case and are according it a priority in their coverage.
People are celebrating it, and are hoping that justice will be done in the Jessica Lal case as
well. None of us know whether Santosh had actually committed the rape and murder, but

166
we all believe that — and believed so right from the beginning — that he indeed
committed the crime. How did the people come to this conclusion? Isn’t it because this is
what they were told and shown by the media?

Similar is the case with Manu Sharma, the accused in the Jessica Lal case, and other
accused persons in many other high-profile cases. Right after the incident, the media trial
begins and all media entities — print or electronic — more or less have similar focus in
their stories. Worse, they even pronounce their judgment, which usually goes against the
accused or the suspect.

With almost a propaganda-like zeal, the story is presented to the viewers as if the accused
is really the culprit. In cases where the charge is not proved in the Court, there are SMS
campaigns, blogging outrages, candle-lit processions, and rallies to mobilize the citizens
against the “injustice” done by the Courts and to put the pressure on the appellate Court.45

I don’t know whether Santosh is the culprit or Manu Sharma has done anything
or not, but so is the case with these hundred thousands of people who have been
campaigning in the Jessica Lal and Priyadarshani Matto cases. If we are celebrating this
new trend of holding anyone guilty by the media and the common people, then why do we
have the judiciary and the criminal justice system? Let’s start having ballot boxes and put
the name of all the suspects of a case for voting and ask common people to cast their vote,
send SMSes and the suspect who would get the maximum SMSs and votes shall be held
guilty and shall be punished. This will ensure speedy trial with cent-percent conviction
rate. Is this what we are moving towards? Is this what we want?

In the criminal justice system, the guilt is to be proved beyond reasonable doubt and if it’s
not proved, then the person has to be set free. That’s the system we have been following.
Law is governed by senses and not by emotions. While displaying our emotions, the media
and the masses forget that it puts tremendous pressure on the judge presiding over the
case. How can we expect a fair judgment from a judge who is under such tremendous
pressure from all sections of the society?

45
Vikas Upadhyay,Trial by media: Stop the menace ,http://www.merinews.com/article/trial-by-media-stop-the-menace/123650.shtml
visited on 11june 2010

167
A person is presumed to be innocent unless he is held guilty by the competent Court, but
here the trend, which has started and which is growing day by day, is to declare a person
guilty right at the time of arrest.

The trial by media is a very serious thing and must be stopped before it takes a more
vicious form. The media is there to report facts or news and raise public issues; it is not
there to pass judgments. The media has a responsibility towards the society; it’s not for
making money.

These big business houses running and controlling the major media players are showing
anything that sells in the market, totally unconcerned about their responsibility. Media has
an important role to play, but if that’s the direction in which they are headed, the Courts
need to take a bold step and issue a gag against them on matters that are sub-judice.

A couple of days back, a big hue and cry was created when Ram Jethmalani accepted the
brief for Manu Sharma. I am not able to understand that what do we want? In that case we
have one of the best lawyers of the country, Gopal Subramanium, appearing for the state
and we want the case of Manu to be handled by some mediocre lawyer. Why can’t
Jethmalani handle the case? Don’t we want to give equal opportunity to the defence to
prove its case, or have we lost faith in the judiciary?

Through media trail, we have started to create pressure on the lawyers even — to not take
up cases of accused, thus forcing these accused to go to trial without any defence. Is this
not against the principles of natural justice? Being a lawyer, I believe that every person
has a right to get himself represented by a lawyer of his choice and put his point before the
adjudicating Court and no one has the right to debar him from doing so. The media have to
understand their limit before it becomes too late. Freedom of speech and expression is one
thing and its abuse is another. One has a maryada, which is to be honored.

The Law Commission in its 200th report, Trial by Media: Free Speech versus Fair Trial
under Criminal Procedure (Amendments to the Contempt of Courts Act, 1971), has
recommended a law to debar the media from reporting anything prejudicial to the rights of
the accused in criminal cases, from the time of arrest to investigation and trial. The
commission has said, "Today there is feeling that in view of the extensive use of the
television and cable services, the whole pattern of publication of news has changed and
several such publications are likely to have a prejudicial impact on the suspects, accused,

168
witnesses and even judges and in general on the administration of justice". This is criminal
contempt of Court, according to the commission; if the provisions of the Act impose
reasonable restrictions on freedom of speech, such restrictions would be valid. It has
suggested an amendment to Section 3(2) of the Contempt of Courts Act. Under the present
provision such publications would come within the definition of contempt only after the
charge sheet is filed in a criminal case, whereas it should be invoked from the time of
arrest.
In another controversial recommendation, it has suggested that the high Court be
empowered to direct a print or electronic medium to postpone publication or telecast
pertaining to a criminal case. 46On November 3, 2006, former chief justice of India Y K
Sabharwal expressed concern over the recent trend of the media conducting 'trial' of cases
before Courts pronounce judgments, and cautioned: "If this continues, there can't be any
conviction. Judges are confused because the media has already given a verdict".
According to law an accused is presumed to be innocent till proved guilty in a Court of
law, and is entitled to a fair trial. So, it is legitimate to demand that nobody can be allowed
to prejudge or prejudice one's case? Why should judges be swayed by public opinion? In
the US, the O J Simpson case attracted a lot of pre-trial publicity. Some persons even
demonstrated in judges' robes outside the Court, the trial judge. Yet, Simpson was
acquitted. The judge was not prejudiced by media campaign or public opinion. The
Supreme Court has ruled in many cases that freedom of the press is a fundamental right
covered by the right to freedom of expression under Article 19 (1)(a)of the Constitution.
But the right to fair trial has not explicitly been made a fundamental right. That does not
mean that it is a less important right. More than a legal right, it is basic principle of natural
justice that everyone gets a fair trial and an opportunity to defend one self. The NHRC, in
its special leave petition filed before the Supreme Court against acquittal of the accused in
the Best Bakery case, contended that the concept of a fair trial is a Constitutional
imperative recognized in Articles 14, 19, 21, 22 and 39-A as well as by the Cr P C. If there
is a clash between the two rights — freedom of expression and fair trial — which should
prevail? It is true that contempt of Court is a ground for restricting the freedom of speech,
but the media has not tried to lower the dignity of the judiciary by exposing loopholes of
the investigation and the prosecution.

46
Sudhanshu Ranjan, Jan 26, 2007, 12.00am IST,Media on trial, available at
http://timesofindia.indiatimes.com/articleshow/1460248.cms on 11june 2010

169
And if judicial decisions also appear to be arbitrary, they must be subjected to ruthless
scrutiny. It will be dangerous to gag the press in the name of contempt of Court. If the
appellate Court feels that the media publicity affected fair trial, it can always reverse the
decision of the lower Court.

In the US, in 1965, Sam Sheppard was convicted for the murder of his pregnant wife in
their Cleveland suburban home. As this case received an enormous amount of pre-trial
publicity, the US Supreme Court ruled that Sheppard's Sixth Amendment rights were
violated and overturned the trial Court's decision. In the 1970s and 1980s, the US supreme
Court began focusing more on the media's First Amendment rights — the right to freedom
of the press. The Supreme Court's pronouncement in Rajendra Sail case, though given in
context of criminal contempt, provides the proper guideline: "For rule of law and orderly
society, a free press and independent judiciary are both indispensable".

Impact on the right to legal representation

There has been extensive media coverage of police investigations of ‘serial-killings’ in

Noida in the outskirts of New Delhi. The owner of the house where the corpses were
found, Mohinder Singh Pandher, and his domestic help Surendra Kohli, are suspected of
having committed these crimes. Influenced by media coverage, much of it proclaiming that
the two men had already confessed to the killings, the local Bar Association announced
that it had decided that no advocate from Noida would defend Pandher and Kohli in Court.

Likewise, when eminent lawyer Ram Jethmalani decided to defend Manu Sharma, a prime
accused in a murder case, he was subject to public derision. A senior editor of the
television news channel CNN-IBN called the decision to represent Sharma an attempt to
“defend the indefensible”. This was only one example of the media-instigated campaign
against the accused. The media assumption of guilt clearly encroaches upon the right to
legal representation — a critical component of the right to fair trial — and may also
intimidate lawyers into refusing to represent accused persons.

Regulatory measures

The Press Council of India (PCI) was established to preserve the freedom of the press
and to improve the standards of news reporting in India. Under the Press Council Act

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1978, if someone believes that a news agency has committed any professional misconduct,
the PCI can, if they agree with the complainant, “warn, admonish or censure the
newspaper”, or direct the newspaper to, “publish the contradiction of the complainant in its
forthcoming issue.” Given that these measures can only be enforced after the publication of
news materials, and do not involve particularly harsh punishments, their effectiveness in
preventing the publication of prejudicial reports appears to be limited.

Along with these powers, the PCI has established a set of suggested norms for journalistic
conduct. These norms emphasis the importance of accuracy and fairness and encourages
the press to “eschew publication of inaccurate, baseless, graceless, misleading or distorted
material.” The norms urge that any criticism of the judiciary should be published with
great caution. These norms further recommend that reporters should avoid one-sided
inferences, and attempt to maintain an impartial and sober tone at all times. But
significantly, these norms cannot be legally enforced, and are largely observed in breach.

Lastly, the PCI also has criminal contempt powers to restrict the publication of prejudicial
media reports. However, the PCI can only exercise its contempt powers with respect to
pending civil or criminal cases. The limitation over the extent to which pre-trial reporting
can impact the administration of justice.

Modern democracy and the media are intrinsically related. In modern democracies
the media are the link between those who govern and those who are governed. Media need
democracy because it is the only form of government which respects freedom of speech,
expression and information, and the independence of the media from the state Political
ideas and initiatives, in turn, is disseminated among citizens by the media, and individual
opinion making and voting are largely based on political information provided by media.
From a normative perspective, the media have three specific democratic functions to meet:

(a) Safe guarding the flow of information;

(b) Providing a forum for public discussion about diverse, often conflicting political ideas;

(c) Acting as a public watchdog against the abuse of power.

Mass media and democracy are obviously closely related. However, democracy is not
one‐dimensional. In principle, there are as many concepts of democracy as there are
democratic countries. Several views about what characterizes democracy give way to a

171
multitude of concepts of democracy. Although, drawings on recent overviews of
democratic theory make a difference between a few basic concepts of democracy, which
can be classified on a continuum from minimalist to maximalist variants:

The ‘elitist democracy’, is based on a minimalist conception,

The ‘participatory democracy47’ is based on a mid‐range concept, while

The ‘deliberative democracy’48 stands on a broader understanding of democracy.

The minimalist perspective assumes, that every political system is ruled by political elites
capable of making public decisions and protecting individual liberty. The broader public
has neither the adequate ability nor the interest to govern itself. However, citizens are
nevertheless seen as the final instance which chooses by election the representatives that
will govern for a predefined period of time. This view assumes thus active political elites
on the one hand and reacting citizens on the other hand. According to the elitist
democracy, the basic requirement to the media is the provision of citizen with reliable
information. In order to choose between competing political elites, people need
information and knowledge about political issues and actors.

In Participatory democracy understands democracy as a value‐laden system where a strong

ethos, political equality and tolerance play a crucial role. Democracy is sustained by
dedicated citizens: “The more people are politically interested, the more they engage in
associations and civic organizations, the more they vote, the more they develop attitudes
and norms of generalized reciprocity, the better”. Therefore, democracy can never be built
or sustained from elected skilled elites, it has to be built and sustained by the actions of a
large number of people.

Three fundamental principles correspond to these three prototypes of democracy: freedom,

equality and control. These principles originate from the ‘Age of Enlightment’ and the
great democratic revolutions of the 18th and 19th century. They are the principles that
democrats in all time and places have struggled for and which accompanied the
development of modern states freedom can be understood as consisting of three types of
rights: political, civil, and social rights. Freedom rights are based on the idea of people’s
freedom to act (e.g. freedom of opinion, freedom of association, freedom of information).

47
http://dictionary.reference.com/browse/participatory+democracy,visited on 23 April2014
48
http://www.britannica.com/EBchecked/topic/1918144/deliberative-democracy,visite on 23 April 2014

172
In their widest sense, freedom rights should thus be viewed as protecting people’s ability
to act independently and with self‐determination, in political, economic, social and cultural
terms. Of central importance for people’s freedom is the protection against infringements
by the state. “Over time, the list of negative freedom rights has grown and the protection
and guarantee of these rights have become one of the minimal conditions for democratic
regimes.” Beyond this protection, conditions must be created to ensure that people are able
to develop freely and live a self‐determined life. From this perspective, political liberties
are seen as preconditions for citizens to actively influence political decisions. This implies
that the state must protect freedom rights.

Freedom as a principle in civil society has often been defined in terms of

communication rights to hold opinions and to receive and impart information: “Political
communication in democracy is connected with the idea of freedom. Freedom of
expression and opinion building as individual basic rights, and as institutional guarantees
for an independent media system are part of very core of democracy, and they are
constitute for a democratic order. In this view, freedom of expression is both, a crucial
individual right and an indispensable social good. The media’s communication function
which derives from freedom is the information function. Media can meet this function due
to their specific capabilities to collect and process large amounts of information and to
distribute it to all participants of the political process. Equality, understood as political
equality proclaims the equality of all citizens in and before the law and in the political
process. Thus, equality means equal treatment of all citizens by the state, and equal rights
to participate in politics ‐ i.e. citizens’ preferences have the same weight in political
decisions.

Control is essential for democracy and its political institutions. This principle
demands that citizens control their representatives in the government in order to secure
their own freedom and equality: “In a good democracy the citizens themselves have the
sovereign power to evaluate whether the government provides liberty and equality
according to the rule of law” This also implies that citizens, their organizations and parties
participate and compete to hold elected officials accountable for their policies and actions.
Moreover, they monitor the efficiency and fairness of the application of the laws as well as
the efficacy of government decisions. Control as a principle in relation to communication
and power assumes that the mass media should act on behalf of the public as a watchdog

173
holding government officials accountable. In order to preserve the conditions for the
enjoyment of civil rights and political liberties, the mass media should act as an
independent, fair and impartial critic of powerful interests and inform about abuses of
political and economic power. This implies that mass media should not just be informing
in an unfiltered way and without critical analysis of political messages. Some liberal
authors consider the watchdog function as even more important than the information
function. “We have distinguished two political roles of free press in classical liberalism:
the watchdog and the democratic [i.e. information] functions. And we noted that for
advocates of limited government, the first is by far the more important .The media’s
communication function which follows from control is a watchdog function against the
abuse of all sorts of power. The functions the media and communication processes must
meet in order to promote the three fundamental democratic principles are (1) a guardian of
the flow of information, (2) a public forum for public discussion of diverse, often
conflicting political ideas, (3) a public watchdog against the abuse of all sorts of power.

The media concentration and deregulation have weakened their position in most European
countries and probably world‐wide. They do not fit well in an information world where
speed succeeds over accuracy and where corporate interests prevail over the public
interest. News and information changes originate in the personalized Internet realm rather
than in large and sometimes inflexible public institutions. Nonetheless, democratic
societies depend on active citizenry who participate in public life. Public issues concern
people, interested in reaching their personal objectives or common goals. These active
groups of democratic societies require media services that go beyond what commercial
and participatory online media are able to deliver. PSM are best placed to respond to this
demand. Information, interest mediation and watchdog control are public service virtues
that are more and more neglected by other types of mass media. Internet related forms of
public communication can only partially fulfill democratic requirements.

It is most likely that those trend‐setting mass media become less interested in
comprehensive information on policy processes and democracy. By this development
private commercial and internationalized mass media erode their relevance to national and
transnational policy institutions and policy processes. Thereby, a window of opportunity
opens for public service media that are less exposed to these trends than private
commercial mass media. Consequently, the relevance of public service media for the

174
democratic process and the policy discourse increases. However, the larger and more
commercial corporate media become, the less they are interested to enable and fulfill these
essential democratic requirements. Public service media with their remit gain strength and
relevance in return. Democratic policy making requires specific forms of media coverage
that is not offered by commercial transnational corporate media. Public service media are
well placed to fill this important vacancy official networks, the whole blogosphere,
Internet fora, second life, and other forms of computer‐aided communication enable
citizens to exchange opinions bypassing traditional mass media. One of the main functions
of mass media is at stake: Groups of citizens can communicate to one another without the
interpretation of journalism provided by corporate media. Without over‐emphasizing this
change, digital technology and smart online applications have opened new communication
spaces.

4.4 FAIR TRIAL AND HUMANRIGHTS

The right to a fair trial is a norm of international human rights law designed to
protect individuals from the unlawful and arbitrary curtailment or deprivation of other
basic rights and freedoms, the most prominent of which are the right to life and
liberty of the person. It is guaranteed under Article 14 of the International Covenant on
49
Civil and Political Rights (ICCPR), which provides that “everyone shall be entitled
to a fair and public hearing by a competent, independent and impartial tribunal
established by law.”

The fundamental importance of this right is illustrated not only by the extensive
body of interpretation it has generated but, most recently, by a proposal to include it in the
non- derogable rights provided for in Article 4(2) of the ICCPR.50 The right to a fair
trial is applicable to both the determination of an individual's rights and duties in a suit
at law and with respect to the determination of any criminal charge against him or her.

49
International Covenant on Civil and Political Rights, UN General Assembly resolution 2200A (XXI), December16, 1966,
entered into force March 23, 1976 [hereinafter ICCPR].
50
See Draft Third Optional Protocol to the ICCPR, Aiming at Guaranteeing Under All Circumstances the Right to a Fair
Trial and a Remedy, Annex I, in: “The Administration of Justice and the Human Rights of Detainees, The Right to a Fair
Trial: Current Recognition and Measures Necessary for Its Strengthening,” Final Report, Commission on Human
Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities,46th Session,
E/CN.4/Sub.2/1994/24, June 3, 1994 [hereinafter The Final Report], at 59-62.
http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/d8925328e178f8748025673d00599b81,visited on 25 May 2014

175
The term “suit at law” refers to various types of court proceedings—including
administrative proceedings, for example—because the concept of a suit at law has been
interpreted as hinging on the nature of the right involved rather than the status of one of
the parties.51

The standards against which a trial is to be assessed in terms of fairness are

numerous, complex, and constantly evolving. They may constitute binding obligations
that are included in human rights treaties to which the state is a party. But, they may also
be found in documents which, though not formally binding, can be taken to express the
direction in which the law is evolving. The right to a fair trial on a criminal charge is
considered to start running not “only upon the formal lodging of a charge but rather
on the date on which State activities substantially affect the situation of the person
concerned.”52

4.4.1 PRE-TRIAL RIGHTS

The prohibition on arbitrary arrest and detention

Article 9(1) of the ICCPR provides that “everyone has the right to liberty and
security of person.” The liberty of a person has been interpreted narrowly, to mean
freedom of bodily movement, which is interfered with when an individual is confined to a
specific space such as a prison or a detention facility. Security has been taken to mean
the r i g h t to be free from interference with personal integrity by private persons.
Under Article 9(1) “No one shall be subjected to arbitrary arrest or detention” and “No
one shall be deprived of his liberty except on such grounds and in accordance with such
procedure as are established by law.” The principle of legality embodied in the latter
sentence both substantively (“on such grounds”) and procedurally (“in accordance with
such procedure”) mandates that the term “law” should be understood as referring to an
abstract norm, applicable and accessible to all, whether laid down in a statute or forming
part of the unwritten, common law.

51
See Dominic McGoldrick, The Human Rights Committee, Its Role in the Development of the International

Covenant on Civil and Political Rights (Clarendon Press, Oxford: 1994), at 415
52
Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary (N.P. Engel, Arlington:

1993) [hereinafter Nowak Commentary], at 244

176
 1. The right to know the reasons for arrest

Article 9(2) of the ICCPR53 provides that “Anyone who is arrested shall be
informed, at the time of arrest, of the reasons for his arrest and shall be promptly
informed of any charges against him.” These provisions have been interpreted to
mean that anyone who is arrested must be informed of the general reasons for the
arrest “at the time of arrest,” while subsequent information, to be furnished
“promptly,” must contain accusations in the legal sense. However there must be
sufficient information to permit the accused to challenge the legality of his or her
detention. A written arrest warrant is not unconditionally required, but the lack of a
warrant may, in some cases, give rise to a claim of arbitrary arrest.

2. The right to legal counsel

The right to be provided and communicate with counsel is the most

scrutinized specific fair trial guarantee in trial observation practice, because it has
been demonstrated to be the one that is most often violated. Principle 1 of the
Basic Principles on Lawyers states that “[a]ll persons are entitled to call upon
the assistance of a lawyer of their choice to protect and establish their rights
and to defend them in all stages of criminal proceedings.” This right is particularly
relevant in case of pre-trial detention.54

3. The right to a prompt appearance before a judge to challenge the lawfulness

of arrest and detention
The rights of a person arrested or detained on a criminal charge, which “shall be
brought promptly before a Court or other officer authorized by law to exercise
judicial power and shall be entitled to trial within a reasonable time or to release.”
In this context it should be noted: (i) that the term “court” signifies not only a

53
See also European Convention, Article 5(2); American Co nvention, Article 7(4); Body of Principles, Principle 10; 1992
Resolution on the Right to Recourse Procedure and Fair Trial of the African Commission on Human and Peoples’ Rights
[hereinafter African Commission Resolution], Paragraph 2(B) (http: //www1.umn.edu/humanrts/africa/achpr11resrecourse.html
)
54
The Human Rights Committee has stated that “all persons who are arrested must immediately have access to counsel.”
(Concluding Observations of the Human Rights Committee, Georgia, UN Doc. CCPR/C/79 Add.75, April 1, 1997 para 27).
See also the Report of the Special Rapporteur on the Independence of Judges and Lawyers regarding the Mission of the
Special Rapporteur to the United Kingdom, UN Doc E/CN.4/1998/39/Add.4, March 5, 1998, para 47

177
 regular court, but a special court, including an administrative, constitutional or
military court as well55

4. The prohibition of torture and the right to humane conditions during pre-
trial detention
Article 7 of the ICCPR prohibits torture 56—or cruel, inhuman or degrading
treatment or punishment—and is a norm of customary international law that also
belongs to the category of jus cogens. Article 10 of the ICCPR provides in
paragraph 1 that “All persons deprived of their liberty shall be treated with
humanity and with respect for the inherent dignity of the human person.”

5. The prohibition on incommunicado detention

The incommunicado detention may violate Article 7 of the ICCPR which prohibits
torture, inhuman, cruel and degrading treatment.
B. THE HEARING

Article 14 of the ICCPR is undoubtedly the most relevant to this

review. It specifically provides for equality before the courts and for the right to a fair
and public hearing by a competent, independent and impartial tribunal established by
law, regardless of whether a criminal trial or a suit at law is involved (paragraph 1).
The remainder of its provisions— paragraphs 2 to 7—contains a catalogue of
“minimum [procedural] guarantees” belonging to an individual in the determination of
any criminal charge against him/her. The following section elaborates the meaning of the
rights set out in Article 14 in the order in which they arise.

5555
the European Court in Chahal v United Kingdom (70/1995/576/662, 15 November 1996, paras 130 -133) which decided
that an advisory panel which did not disclose its reasons for decision, had no binding decision-making power and which did
not permit legal representation did not satisfy Article 5(4) of the European Convention., Report of the Human Rights
Committee, Vol II, UN Doc.A/45/40, at 99 -100), which states that the opportunity of an asylum-seeker to appeal to the
Ministry of the Interior does not satisfy Article 9(4) of the ICCPR. Re garding advisory panels.
56
The definition of and protection against torture was elaborated in the 1984Convention against Torture:

Art 1(1): … the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an
act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for
any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising
only from, inherent in or incidental to lawful sanctions.

178
1. Equal access to, and equality before, the courts

The first sentence of Article 14(1) provides that “All persons shall be equal
before the courts and tribunals” and has been interpreted to signify that all
persons must be granted, without discrimination, the right of equal access to a
court. The second sentence of Article 14(1) relates to the right to a fair and public
hearing by a competent, independent and impartial tribunal established by
law. It includes the basic components of due process of law which is, in
criminal cases.

2. The right to a fair hearing

The right to a fair hearing as provided for in Article 14(1) of the ICCPR
encompasses the procedural and other guarantees laid down in paragraphs 2 to
7 of Article 14 and Article15. However, it is wider in scope, as can be
deduced from the wording of Article 14(3) which refers to the concrete
rights enumerated as “minimum guarantees.

3. The right to a public hearing

Article 14(1) of the ICCPR57 also guarantees the right to a public hearing, as one
of the essential elements of the concept of a fair trial. However, it also permits
several exceptions to this general rule under specified circumstances. The
publicity of a trial includes both the public nature of the hearings—not, it
should be stressed, of other stages in the proceedings— and the publicity of the
judgment eventually rendered in a case. It is a right belonging to the parties, but
also to the general public in a democratic society

4. The right to a competent, independent and impartial tribunal established by law

The basic institutional framework enabling the enjoyment of the right to a fair
trial is that proceedings in any criminal case (or in a suit at law) are to be

57
See , European Convention, Article 6(1)

179
 conducted by a competent, independent and impartial tribunal established by
58
law.

5. The right to a presumption of innocence

According to Article 14(2) of the ICCPR “Everyone charged with

a criminal offense shall have the right to be presumed innocent until proved

guilty according to law.”69 As a basic component of the right to a fair trial,

the presumption of innocence, inter alia, means that the burden of proof in a
criminal trial lies on the prosecution and that the accused has the benefit of
the doubt. The presumption of innocence must, in addition, be maintained
not only during a criminal trial vis á vis the defendant, but also in relation to
a suspect or accused throughout the pre-trial phase. It is the duty of both the
officials involved in a case as well as all public authorities to maintain the
presumption of innocence by “refraining from prejudging the outcome of a
trial.

6. The right to prompt notice of the nature and cause of criminal charges

In the determination of any criminal charge against him/her everyone

shall be entitled, in full equality “to be informed promptly and in detail in a
language which he understands of the nature and cause of the charge against
him.59

7. The right to adequate time and facilities for the preparation of a defense

Article 14(3)(b) of the ICCPR provides that in the determination of any

criminal charge against him or her everyone is entitled “To have adequate time
and facilities for the preparation of his defense and to communicate with counsel
of his own choosing.” The right to adequate time and facilities for the

58
Article 14(1)ICCPR

59
ICCPR ,Art.14(3)(a)

180
 preparation of a defense applies not only to the defendant but to his or her
defense counsel as well60 and is to be observed in all stages of the proceedings.

8. The right to a trial without undue delay

In the determination of any criminal charge against him/her, everyone shall

be entitled “To be tried without undue delay”61

9. The right to defend oneself in person or through legal counsel

The right to counsel is clearly linked to the right to a defense during trial as
set out in Article 14(3)(d) of the ICCPR. The provision states that everyone
shall be entitled, in the determination of any criminal charge against him/her
“To be tried in his presence, and to defend himself in person or through legal
assistance of his own choosing; to be informed, if he does not have legal
assistance, of this right; and to ha ve legal assistance assigned to him, in any
case where the interests of justice so require, and without payment by him in any
such case if he does not have sufficient means to pay for it.” This provision
includes the following specific rights:
(i) the right to be tried in one's presence62
(ii) to defend oneself in person;
(iii) to choose one's own counsel;
(iv) to be informed of the right to counsel; and

(v) to receive free legal assistance.

10. The right to examine witnesses

In the determination of any criminal charge against him/her, everyone is entitled
“To examine, or have examined, the witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions as
witnesses against him” 63

60
Basic Principles on the Role of Lawyers, Principle 21
61
ICCPR,Article 14(3)(c)
62
. This is one of the more controversial rights in terms of its interpretation. A literal reading would not permit trials in absentia,
which is a view consistently held by most international human rights NGOs and, more recently, supported by the Statute of the
International Criminal Court.
63
ICCPR,Article 14(3)(e)

181
11. The right to an interpreter

Everyone is entitled “To have the free assistance of an interpreter if he cannot

understand or speak the language used in court” 64

12. The prohibition on self-incrimination

In the determination of any criminal charge against him/her, everyone is entitled

“Not to be compelled to testify against himself or to confess guilt” 65
13. The prohibition on retroactive application of criminal laws

The retrospective Law is applicable in Criminal law and criminal justice.66

14. The prohibition on double jeopardy

No one shall be liable to be tried or punished again for an offence for which he has
already been finally convicted or acquitted in accordance with the law and penal
procedure of each country”67 The prohibition of ne bis in idem or of double jeopardy
is aimed at preventing a person from being tried—and punished—for the same crime
twice.

4.4.2 POST-TRIAL RIGHTS

1. The right to appeal

“Everyone convicted of a crime shall have the right to his conviction

and sentence being reviewed by a higher tribunal according to law”68 . The right
to appeal is aimed at ensuring at least two levels of judicial scrutiny of a case,
the second of which must take place before a higher tribunal.

64
ICCPR,Article 14(3)(f)
65
ICCPR ,Article 14(3)(g)
66
Article 15(1) of the ICCPR which embodies the principle nullum crimen sine lege (a crime must be provided for by law).
67
ICCPR,Article 14(7), See also Article 4 of Protocol 7 to the European Convention and Article 20 of the ICC Statute.
Note that Article 8(4) of the American Convention is different in that the prohibition applies only if the accused has been
previously acquitted , but then the prohibition is not limited to retrial on the same charge—no charge arising out of the same facts
(“the same cause”) may be pursued.
68
ICCPR,Article 14(5)

182
 2. The right to compensation for miscarriage of justice

When a person has by a final decision been convicted of a criminal offence

and when subsequently his conviction has been reversed or he has been pardoned on the
ground that a new or newly discovered fact shows conclusively that there has been a
miscarriage of justice, the person who has suffered punishment as a result of such
conviction shall be compensated according to law, unless it is proved that the non-
disclosure of the unknown fact in time is wholly or partly attributable to him”. 69

Media and Human right

It is widely accepted that a vibrant and flourishing media is essential to democracy
and development. The freedom of the media is essential for the full and effective exercise
of freedom of expression and an indispensable instrument for the functioning of
representative democracy, through which individuals exercise their right to receive, impart
and seek information. Media is a social instrument that is powerful enough to mould a
society, to develop and destruct it. It is a force that could be put to much constructive use
in the right hands. Every democracy gets the government it deserves and every society, its
media. In a country with as robust and multi-faceted a freedom of expression as India,
media plays a very significant role in balancing interests of public and exercise its powers.
The Implementation of Information and Communication Technology (ICT) in Indian
Judiciary and in Indian Courts needs rejuvenation. The successful use of e-governance for
Indian e-judiciary model requires a techno-legal e-Court framework. We need ICT
Training and e-Courts training for Indian Judicial System as soon as possible. Further, e-
Courts in India must also be supported by active use of online dispute resolution (ODR) in
India to reduce backlog of cases. It really wishes to encase the benefits of Information and
Communication Technology (ICT) for effective, speedier and Constitutional justice
delivery system. . Information and Communication technology (ICT) can be a panacea for
the dying judicial system of India. We can effectively use ICT for establishment of E-
Courts in India so that E-Judiciary in India can be a reality.

4.5 Media and Sting Operations: Scope and Limitations

“When it comes to privacy and accountability, people always demand the former for
themselves and later for everyone else”. David Brin
69
ICCPR,Article 14(6)

183
 The Delhi High Court delivered a judgment on controversial Anirrudh Bahal v
State,70 and made sting operations legal. Anirrudh Bahal and Suhasini Raj, conducted a
sting operation of some Members of Parliament, in which they were offered money for
asking questions in Parliament and the act was caught in the camera. Soon after the
operation was over it was aired on television to expose this practice to the public.
But the pity was that after this entire incident no First Information Report (FIR) was filed
by the Delhi Police against those corrupt politicians. The first FIR was filed one and half
year later after this entire episode in which both of the journalists were charged as an
accomplice for abetting the offence under Section 12 and 13 of the prevention of
corruption act. This raised a pertinent question before the Court that: Whether a citizen of
this country has right to conduct sting operations to expose the corruption by using agent
provocateurs and to bring to the knowledge of common man, corruption at high strata of
society?
The Court considered it to be the fundamental duty of an ordinary citizen under Article
51A71 (b), 51A (h) and 51A (j) to expose such practices prevailing in the system and thus
for this purpose any such act or operation conducted, with the intention of doing public
good is justified. The Court refused to consider agent provocateurs as accomplice in such
cases.
Therefore the utility of conducting sting operations (as has been described in the
judgment) is to expose any practice of public officials (not only corruption), related to his
official duty, which are against public interest and which if exposed will do larger public
good. In all such cases a public official cannot make claim for his right to privacy.

The law with regard to such exposition of unauthorized acts of public officials is
also very clear. The honorable Supreme Court of India in R. Rajgopal v State Of Tamil
Nadu72 has even held that in case of infringement of privacy of public officials, they have
no remedy or damage available, if the act or conduct is associated with their official duty.
However the Court further held that in matter not relevant to his official duty a public
official enjoys the same protection as any other citizen. The concept not only applies to
public officials but equally applies to other persons as well if the gravity and impact of

70
Manu/ DE/2461/2010,24/09/2010
71
The Constitution of India ,Article,51A, Fundamental duties It shall be the duty of every citizen of India, (b) to cherish and follow the
noble ideals which inspired our national struggle for freedom;(h) to develop the scientific temper, humanism and the spirit of inquiry
and reform;(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher
levels of endeavour and achievement.
72
(1994) 6 SCC 632,

184
conduct is high as for e.g. cases dealing with scams and scandals, sedition, offences
related to elections, waging of war against the State etc. In all such cases if the exposition
of the acts will do larger public good than the tool of sting can be used by overriding the
privacy of an individual.

Limitations: Professor Siras case73, where authority comes, it should be coupled with
responsibility because authority without responsibility leads to abuse of authority. The act
or conduct in questions here are the private acts or conducts and thus it is very crucial to
identify their association with the official conduct of the person. Any misjudgment will
lead to a disastrous consequence as was met by Aligarh Muslim University Professor
Srinivas Ram Chandra Siras. A gay professor (Siras) whose homosexual act was captured
in camera and was exposed to university authorities, after which he was suspended from
the university. In this entire course of event my only concern is with regard to the act of
‘sting operation’ conducted, which raises two issues: Firstly just because he was a gay and
the stand of the Supreme Court is not clear over gay rights, after the controversial NAZ
foundation74 judgment of the Delhi High Court, gives any one the right to enter into their
private area and expose the act of consensual sex which a normal prudent man (of any
sexual orientation) would not want to get exposed to any third party? Obviously the
answer is NO. Secondly was the act or conduct in any manner associated with his official
duty? Was the act or conduct in any manner was affecting his efficiency as a professor?
Were his conduct in public sphere was such which was objectionable to other students or
staff of the University?

Irrespective of whether the answer to the above questions is yes or no, the act of
sting operation cannot be justified. The act of homosexuality is a punishable offence under
section 377 of the Indian Penal Code75, 1860 due to the moral turpitude of the Indian
society which consider such kind of acts to be immoral. These are a victimless offence
which does not victimize anyone and are carried out in utmost secrecy, with the consent of

73
http://www.ndtv.com/india-news/gay-amu-professor-found-dead-suicide-suspected-414740,visited on 10 April2011
74
(2014) 1 SCC 1
75
Chapter XVI Section 377 in The Indian Penal Code,1860, Unnatural offences.—Whoever voluntarily has carnal intercourse against
the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to
constitute the carnal intercourse necessary to the offence described in this section. The section was declared unconstitutional with
respect to sex between consenting adults by the High Court of Delhi on 2 July 2009. That judgement was overturned by theSupreme
Court of India on 12 December 2013, with the Court holding that amending or repealing Section 377 should be a matter left to
Parliament, not the judiciary.

185
both the partners. Therefore even if the objection is to be raised it should be based on
circumstantial evidence which leads to irresistible conclusion that the homosexual act
would have been performed and not by conducting sting to give direct evidence. It is
highly unethical to capture the compromising position of two consenting adults. However
the matter would have been different if there would have been a trap to expose unlawful
forced sex or molestation. Secondly if the act of sting is justified on ground that it will
maintain the morality of the society than it’s nothing more than an empty euphoria. The
prohibition on such kind of acts will only develop ground for such kind of acts to be
carried out in secrecy and victimization of actors as is evident from the present case. In
other words no regulation can stop the continuance of these activities in the society.

What public good than the act of sting operation served? Instead it brought the
shame and disrepute, which forced the Professor to commit suicide. Just because he was
a gay does not justify the sting, where the opinion of Indian judiciary is also changing
with respect to gay rights. Therefore it is very essential to deal with the matter in a
cautious manner. Identifying the relevancy of conducting stings with due respect to the
privacy of an individual should be determining the extent up to which it is feasible to
enter into the private sphere of any individual. The Freedom of the media is indeed an
integral part of the freedom of speech and expression; and an essential requisite of a
democratic set up. The Indian Constitution has guaranteed this freedom by way of a
Fundamental Right. The media, which is obligated to respect the rights of individuals, is
also expected to work within the framework of legal principles and provisions so that the
right to privacy of an individual is not unnecessarily infringed at any cost whatsoever.
The increased role of the media in today’s globalized and tech-savvy world was aptly put
in the words of Justice Hand of the United States Supreme Court when he said, "The
hand that rules the press, the radio, the screen and the far spread magazines, rules the
country. Democracy is the rule of the people, a system which has three strong pillars -
the executive, the legislature and the judiciary. But as Indian society today tries to
stabilize on its three pillars, the guarantee of Article 19 (1) (a) has given rise to a fourth
pillar i.e. media. It plays the role of a conscience keeper, a watchdog of the functionaries
of society and attempts to address to the wrongs in our system, by bringing them to the
knowledge of all, hoping for correction. It is indisputable that in many dimensions the
unprecedented media revolution has resulted in great gains for the general public. Even
the judicial wing of the state has benefited from the ethical and fearless journalism and

186
 taken suo moto cognizance of the matters in various cases after relying on their reports
and news highlighting grave violations of human rights. The criminal justice system in
this country has many lacunae which are used by the rich and powerful to go scot-free.
Figures speak for themselves in this case as does the conviction rate in our country which
is abysmally low at 4 percent. In such circumstances the media plays a crucial role in not
only mobilizing public opinion but also bringing to light injustice which most likely
would have gone unnoticed otherwise.

The advent of sophisticated information communication, specially the pin-hole

camera technology, enables one to clandestinely make a video or audio recording of
a Conversation and actions of individuals.76 In India, the Media has been first to grab this
state of the art technology to conduct ‘sting operations’ to expose an offence before the
police or the Judiciary takes the cognizance of the matter. The electronic media
77
particularly TV Channels, in order to hype their TRP by showing innovation and
a difference, highly publicize the exposure. This results in unwarranted, illegal and
immoral use of technology -the so called ‘Trial by Media'. The phrase ‘Trial by
Media’ illuminates the impact of media coverage on a person’s reputation by creating a
widespread perception of guilt regardless of any verdict in a Court of law. Thus the media,
the supposed fourth Pillar of our democracy, usurps the role of the executive and the
judiciary. This is not only a sheer violation of state’s substantive and procedural penal
laws but a hit on the face of the entire Constitutional framework as well.78.

There is no check on using the hidden cameras in one’s own house or office, but, in many
Countries, it is illegal to use them covertly against another person in his or her house or
Office. In UK there is a heated debate between those who support a free press which is
largely uncensored and those who advocate an individual’s right to privacy regardless of
what wrong they have done. In US, only the law enforcement agencies and police
licensed private detectives are allowed to use them under certain circumstances, that too
under carefully controlled conditions. Licensed private detectives can use them for the
collection of evidence, but not in a sting operation. Except the FBI, no private individual,
not even journalists can mount a sting operation.79 In India, in the absence of law

76
http://www.legalserviceindia.com/articles/fre_pre_v.htm,visited on 20 may2013
77
Television Rating Point (TRP)
78
Jain,Praveen Kumar ;Sting Operations – An Invasion of Privacy,CNN, Vol. 3, No. 9, September 2005, pp. 39-41
79
https://www.ncjrs.gov/pdffiles1/Digitization/146908NCJRS.pdf,visited on30 June 2013

187
regulating the sting operations, the media has violated and distorted the rules of natural
justice and particularly the basic fundamental rights enshrined under Article 2080 and 2181
of the Constitution.

The use of unauthorized and unauthenticated camouflaged cameras poses real problems
for the penal procedural laws as the evidence they provide may be inadmissible for
numerous reasons like the probabilities of editing, lack of clear audio and video
imaging, unavailability of exact dates, times and places etc. Moreover, it is the era of
technology. Through computer generation techniques one could create make-believe
picture of something, which is far from what actually happened. It is said that in the
spectacular scenes of the film "Gladiator", only 30 per cent of the shots were actually
taken with a camera; the rest were computer-generated.

There have been complaints from US human rights organization that a

number of FBI sting operations have caused serious harm to innocent citizens who were
the accidental victims of the make-believe criminal organizations set up by the
bureau. They have pointed out that an even bigger risk, associated with sting
operations aimed at public corruption, is that the people may lose faith in the
Government institutions. There is every possibility that foreign intelligence agencies
may use such covert and computer generated techniques to destroy the citizen’s
confidence in their political leadership and administration. During high publicity Court
cases the media is often accused of provoking an atmosphere of public hysteria akin to a
lynch mob which not only makes a fair trial nearly impossible but also causes
irreparable, irreversible and incalculable harm to the reputation of a person and
shunning of his family, relatives and friends by the society. He is ostracized, humiliated
and convicted without trial. Recent instance of such a trial is of Punjabi Pop singer Daler
Mehandi, whose discharge was sought in a human trafficking case few of days after his
humiliation and pseudo trial through media as the police could not find the
evidence sufficient even for filing the charge sheet.

80
Article 20 of Constitution Of India, : Protection in respect of conviction for offences(1) No person shall be convicted of any offence
except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty
greater than that which might have been inflicted under the law in force at the time of the commission of the offence(2) No person shall
be prosecuted and punished for the same offence more than once(3) No person accused of any offence shall be compelled to be a
witness against himself.
81
Article 21 of The Constitution Of India 21. Protection of life and personal liberty No person shall be deprived of his life or personal
liberty except according to procedure established by law

188
 All this is done in the interest of freedom of communication and right of
information little realizing that right to a fair trial is equally valuable. There is
nothing more incumbent upon Courts of justice to preserve their proceedings from
being misrepresented than to prejudice the minds of the public against persons concerned
before the cause is finally heard. The streams of justice have to be kept clear and pure.
The investigative journalism and publicity of pre-mature, half-baked or even presumptive
facets of investigation either by the media itself or at the instance of Investigating Agency
have almost become a daily occurrence whether by electronic media, radio or press. It can
well lead to miscarriage of justice. The media is supposed to make the people aware of
crimes, not to punish criminals.

In the Jacobson vs U.S. case of 1992 relating to child sex, the US Supreme Court
cited the following guidelines of the US Attorney General on FBI sting operations issued
on Dec 31, 1980: "...an inducement to commit a crime should not be offered unless:
There is a reasonable indication, based on information developed through in
formants or other means, that the subject is engaging, has engaged, or is likely to engage
in illegal activity of a similar type, or the opportunity for illegal activity has been
structured so that there is reason for believing that the persons drawn to the
opportunity, or brought to it, are predisposed to engage in the contemplated illegal
activity. "

Functions of sting operations 82

Operations are emphasized and analyzed: One is the informational, or investigatory,

function of identifying individuals who are engaged in (or likely to engage in) criminal
activity. The second is the behavioural function of deterring individuals from engaging in
(independent) criminal activity: the threat of being caught in a sting may scare individuals
away from genuine criminal opportunities that would otherwise seem appealing. Though
complementary in some respects, these functions are also in some tension with each other.
A sting operation that does not serve informational purposes may be good for deterrent
purposes, and vice versa.

82
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189
Rationales and Hazards of Sting Operations

Normally a sting operation is carried out by agents acting undercover, that is, concealing
the fact that they work for the authorities83. The critical feature is that the agent is
authorized to somehow promote or facilitate (using those terms broadly) the unlawful
activity of others, who then are penalized for that crime (including attempted crime). We
will use the terms “target” or “sting victim84” to refer to the individuals who are thus
caught and charged. ng operations come in two basic types.85The first type has the agent
pose as a participant in unlawful activity, such as a buyer or seller of illegal goods or
services.86In India Sting operations are also undertaken to establish adultery. Such
Operations can also be useful in the arrest of terrorists and anti-national elements. The spy
camera of media caught 11 members of the Parliament accepting bribe for asking
questions in the Parliament. When the media gets all the evidence against the corrupt and
the wrongdoer and the aim is public interest, why do media not file a case in the proper
Court and submit these as proof? This will lead to punishing of these wrongdoers. Or,
even after getting such evidences, why no information is given to public authorities so as
to make them take appropriate actions? But, there exists an opposite view. Such cases
cannot be filed in Courts with these tapes- audio or video recording- as evidence or proof
because Courts do not consider these as credible evidence and proof. Moreover, as the
Government machinery is not functioning the way it should function, that is why instances
of sting operations are on the increase. In such circumstances, what is the point in taking it
to the public authorities? On the other hand, when this is exposed by media, the general
public becomes aware of the illegal business going on inside the “Government
machinery”. There is a pressure on the government agencies concerned to act. The news
Broadcasters Association (NBA) justified Sting Operation as “legitimate journalistic tool”.
The correspondents who telecast sting operations argue that Sting Operation take place in
public interest and where public money is involved. According to them Sting Operations
are carried out in hospitals which bring out the problems of paucity of doctors in hospitals,
absence of medicines and medication. But, it can easily be made out that one of the basic
reasons to carry out Sting Operation is to increase the so called Television Rating Point

83
http//: scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3652...mlr,visited on 23 Aug.2014

84
http://lawinfowire.com/articleinfo/legality-sting-operations,visited on25 May 2014
85
Most of the examples to follow are drawn from newspaper articles and judicial case reports.
86
Among the best known recent cases are Abscam, in which members of Congress took bribes in exchange for influencing immigration
authorities, Operation Greylord, in which Chicago judges took bribes in exchange for fixing cases.

190
(TRP) or in other words to ‘interest the public’ rather than ‘in public interest’. In view of
this, the 17th Law Commission in its 200th87 report has made specific recommendations to
the centre to bring a comprehensive legislation to prevent the media from interfering with
the privacy rights of the individuals.

Role of Judiciary in Maintaining Check and Balances

Since there is no comprehensive law to deal with the subject and the media
is yet to evolve a code of conduct of its own, the judiciary is bound to play the role of an
umpire. It is worthwhile to mention that all Sting Operations, even though carried out in
the purported exercise of right under Article 19 (2), do violate Right to Privacy, as
guaranteed by the Constitution , to a certain extent because during such Sting Operation,
in nearly all cases, the person being filmed is not aware of the presence of a hidden
camera. Thus the consent of the person concerned for such recording does not exist
whereas without consent of a person, in ordinary course, no one has the right to film him.
However, it may be argued that an illegal act being committed by a public servant during
his office hours and in abuse of the spirit of his office, is not worthy of protection under
Right to Privacy. Right to Privacy is implicit to Article 21. According to Subba Rao J
‘liberty’ in Article 21 is comprehensive enough to include privacy. His Lordship said that
although it is true that he does not explicitly declare the Right to Privacy as a Fundamental
Right but the right is an essential ingredient of personal liberty. It is regarded as a
Fundamental Right but cannot be called absolute. It can be restricted on the basis of
compelling public interest.88 The Court, however, has limited it to personal intimacies of
the family, marriage, motherhood, procreation and child bearing.89The movement towards
the recognition of right to privacy in India started with Kharak Singh v. State of Uttar
Pradesh and Others,90 wherein the apex Court observed that it is true that our
Constitution does not expressly declare a right to privacy. Today, it is seen that the over-
inquisitive media, which is a product of over-commercialization, is severely encroaching
on the individual’s right to privacy by crossing the boundaries of its freedom. Yet another
observation of the Court which touched this aspect of violation of right to privacy of the

87
the 200 th Report of the Law Commission on “Trial by Media: Free Speech Vs. Fair Trial Under Criminal Procedure (Amendments to
the Contempt of Court Act, 1971)
88
Govind v. State of M.P. (1975)2 SCC 148, AIR 1975 S.C. 1378
89
P.U.C.L. v. Union of India (1997)1 SCC 301, AIR 1997 S.C. 568
90
AIR 1963 SC 1295

191
individuals is found in the judgment of the Andhra Pradesh High Court in Labour
Liberation Front v. State of Andhra Pradesh. The Court observed: “Once an incident
involving a prominent person or institution takes place, the media is swinging into action
virtually leaving very little for the prosecution or the Courts to examine in the matter.
Recently, it has assumed dangerous proportions, to the extent of intruding into the very
privacy of individuals. Gross misuse of technological advancements and the unhealthy
competition in the field of journalism resulted in obliteration of norms or commitments to
the noble profession. The freedom of speech and expression, which is the bedrock of
journalism, is subjected to gross misuse. It must not be forgotten that only those who
maintain restraint can exercise rights and freedoms effectively”.

The following observations of the Supreme Court in R. Rajagopal and

Another v. State of Tamil Nadu and Others91 are true reminiscence of the limits of
freedom of press with respect to the right to privacy: A citizen has a right to safeguard the
privacy of his own, his family, marriage, procreation, motherhood, child bearing and
education among other matters. No one can publish anything concerning the above matters
without his consent - whether truthful or otherwise and whether laudatory or critical. If he
does so, he would be violating the right to privacy of the person concerned and would be
liable to action for damages. Position may, however, be different, if a person voluntarily
thrusts himself into controversy or voluntarily invites or raises a controversy”. The ever-
increasing tendency to use media while the matter is sub-judice has been frowned down by
the Courts including the Supreme Court of India on the several occasions. In State of
Maharashtra v. Rajendra Jawanmal Gandhi92, the Supreme Court observed: “There is
the procedure established by law governing the conduct of trial of a person accused of an
offence. A trial by press, electronic media or public agitation is very antithesis of rule of
law. It can well lead to miscarriage of justice. A judge has to guard himself against any
such pressure and is to be guided strictly by rules of law. If he finds the person guilty of an
offence he is then to address himself to the question of sentence to be awarded to him in
accordance with the provisions of law”.

The Hon’ble Supreme Court in the case of Rajendra Sail v. Madhya

Pradesh High Court Bar Association and Others, observed that for rule of law and orderly
society, a free responsible press and an independent judiciary are both dispensable and

91
1995 AIR 264
92
2005 (2) SCC 686

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both have to be, therefore, protected. The aim and duty of both is to bring out the truth.
And it is well known that the truth is often found in shades of grey. Therefore the role of
both cannot be but emphasized enough, especially in a ‘new India’, where the public is
becoming more aware and sensitive to its surroundings than ever before. The only way of
functioning orderly is to maintain the delicate balance between the two. The country
cannot function without two of the pillars its people trust the most.93

With power comes responsibility. With great power comes great responsibility and
therefore, the freedom of speech and expression under Article 19 (1) (a) of the
Constitution of India correlates with a duty not to violate the law. If citizens and
organizations are left absolutely free and unchecked, it will lead to conflict of rights and
ultimately end in disorder and anarchy. The news Channels in a bid to enhance their
viewer ship resort to sensationalized journalism. Sting operations are bound to come on
the agenda. Performing a sting operation with an attempt to attack the personality,
reputation and carrier, especially when no national interest or public money is involved,
may be an exercise of the right of freedom of expression, but it hits at the privacy of some
other individual. Therefore, while exercising such rights of speech and expression, one
should keep in mind the fundamental right to dignity and privacy of the individual
concerned as guaranteed under Article 21 of the Constitution of India. In a recent
Judgment the Hon’ble Supreme Court has upheld the validity of the sting operation carried
out by a leading news channel NDTV on a very well known and senior Advocate
R. K. Anand. A Bench comprising of Justices B.N. Agrawal, G.S. Singhvi and Aftab
Alam, in its judgment in the ‘R.K. Anand’ case, said: “It is not our intent here to lay down
any reformist agenda for the media. The norms to regulate the media and to raise its
professional standards must come from inside.” “Despite many faults”, the Court
pointed out that, “the telecast of the sting operation was in public interest and it
has rendered important serviced to protect and salvage the purity of the course of
justice”. Writing the judgment, Justice Alam said: “The programme may have any other
fault or weakness but it certainly did not interfere with or obstruct the due course of
the BMW [hit-and-run case] trial94. The programme telecast by NDTV showed to the
people [the Courts not excluded] that a conspiracy was afoot to undermine the BMW trial.

93
Dalei ,Pravesh and Nirala ,Surendra Kumar ; ting Operation vis-à-vis Right to Privacy by Media: A legal analysis in Indian Context,
International Journal of Humanities and Applied Sciences (IJHAS) Vol. 2, No. 4, 2013 ISSN 2277 – 4386

94
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What was shown was proved to be substantially true and accurate. The programme was
thus clearly intended to prevent the attempt to interfere with or obstruct the due course of
the BMW trial.”Further the Court has also ruled out the plea of getting prior
permission for the purpose of sting operation and said that, “Such a course would
not be an exercise in journalism but in that case the media would be acting as some
sort of special vigilance agency for the Court. On a little consideration, the idea appears to
be quite repugnant both from the points of view of the Court and the media. It would be a
sad day for the Court to employ the media for setting its own house in order; and media
too would certainly not relish the role of being the snoopers for the Court.”The Court
further said: “Moreover, to insist that a report concerning a pending trial may be published
or a sting operation concerning a trial may be done only subject to the prior consent and
permission of the Court would tantamount to pre-censorship of reporting of Court
proceedings. And this would be plainly an infraction under Article 19 (1)(a) of the
Constitution.”

Guidelines for conducting sting operations

In furtherance of the principles of self-regulation

as contained in NBA’s Code of Ethics and Broadcasting Standards and Specific
Guidelines Covering Reportage, a member news channel may conduct a “sting
operation”, but only in conformity, with the following guidelines :

1. No sting operation shall be conducted except with the prior approval and under the
supervision of the head of the editorial team of a news channel, who shall also, along with
other person concerned, be responsible for all consequences ;

2. A sting operation may be conducted only if warranted in public interest;

3. A sting operation should be conducted only for exposing a wrong-doing;

4. A sting operation should not be used for gratuitously prying into peoples’
private lives;

5. A sting operation may be resorted to only if there is no other effective overt means of
collecting or recording the same information or news ;

6. In conducting a sting operation, a news channel shall not indulge in inducing a person
to commit a wrongful act not otherwise contemplated by the person;

194
7. Resort shall not be had to sleaze or sex or any illegal act as a means for carrying-out a
sting operation;

8. The entire recordings of a sting operation, including edited and un-edited, audio and
video footage, must be preserved, as they are for a period of 90 days or for such other
period as may be necessary in a given case ;

9. Recordings of a sting operation, including edited and un-edited, audio and video
footage, shall not be tampered, manipulated, interposed, altered, distorted, morphed or
otherwise doctored in any manner that may change the context, purport or meaning thereof

10. There must be concurrent and contemporaneous recording in writing of the

various stages of progress of a sting operation by the person in-charge of it ; and such
written record shall also be preserved for a period of 90 days or for such other period as
may be necessary in a given case ;

11. A sting operation must not offend against the provisions of Section 5 of The Cable
Television Networks (Regulation) Act 199595 and Rule 6 of The Cable Television
Networks Rules 1994 relating to “Programme Code” or any other law in force for the time
being, including Section 24 of the Prevention of Corruption Act, 1988 ; 12. A sting
operation shall be telecast only if, and when there is ample evidence to prima facie
demonstrate the culpability of a wrong-doer;

13. If a sting operation is found false or fabricated, all persons concerned with conducting
the sting operation could be liable for punishment in act.

Normally a sting operation is carried out by agents acting undercover, that is,
concealing the fact that they work for the authorities. he critical feature is that the agent is
authorized to somehow promote or facilitate (using those terms broadly) the unlawful
activity of others, who then are penalized for that crime (including attempted crime). We
will use the terms “target” or “sting victim” to refer to the individuals who are thus caught
and charged. Sting operations come in two basic types.96The first type has the agent pose
as a participant in unlawful activity, such as a buyer or seller of illegal goods or services.97

95
The Cable Television Networks (Regulation) Act 1995
96
Most of the examples to follow are drawn from newspaper articles and judicial case reports.
97
Among the best known recent cases are Abscam, in which members of Congress took bribes in exchange for
influencing immigration authorities, Operation Greylord, in which Chicago judges took bribes in exchange for
fixing cases.

195
 Sting operations by various television channels are a subject of debate over media ethics
with the number of news channels increasing day by day, one or other television
channel conducts a sting operation across the country. Some target corrupt officials.
Some other sting operations chase politicians in power. Some expose the wrong doings of
public life. Many such operations invade private life of high and mighty. In an age of
sensationalism the sting operations have become effective means of capturing the
audience. The myriad hour, multi channel television boom is propelling the phenomenon
of sting operations. It raises many ethical, moral and professional questions. The Tehelka
expose which saw top BJP leaders98 caught on cameras accepting bribe has become a
controversy for alleged use of unfair means in the process of carrying out the sting
operation. More recently, the sting operation that unraveled the cash for votes scam raised
questions on parliamentary practice. The cash for questions scam brought to the notice
of the world how our parliamentarians work. The sting operation that exposed the sex
scandal of former Andhra Pradesh governor ND Tiwari revealed how vulnerable even the
top leaders to this new journalistic weapon. The critics of sting operations often accuse
this as an invasion of privacy. The sting operations have to be welcomed if they
serve a public purpose whatever may be the motive behind conducting these
operations. Should means justify the ends or ends justify the means. This is a long heard
philosophical debate. I think both means and ends should be justifiable.

Given this debate, some broad conclusions can be drawn on the arguments and
counterarguments over the sting operations by television channels. First, these sting
operations should definitely serve a larger public purpose. People in power cannot
escape public scrutiny in the name of right to privacy. Parliamentarians cannot get
immunity from public scrutiny through media in the name of privileges. Moral and
ethical dimensions of media are embedded in the larger public purpose the media
operations serve. Sting operations for settling scores or targeting personal lives for
sensational purposes or undermining some ones interests cannot be acceptable. Strict
adherence to public cause and purpose should be the basis for any media sting operations.

Second, sting operations should be sparingly used. It cannot become a routine media
practice as if covering a press conference. Thirdly, sting operations should be used
only when it is impossible to collect information through normal journalistic

98
Tehelka sting: How Bangaru Laxman fell for the trap". Retrieved 18 April2013

196
practices and the media organization or the concerned journalists should have
exhausted these means. Suitable legal and regulatory mechanism should be in place to
prevent misuse of such an effective tool in the hands of media to uncover the
shadow society. The media should evolve its own code of conduct and self
regulatory mechanism to standardize the practice. Professional methods of sting
operations and the ethical edifice of this practice should form part of the training
programmes of journalism schools and in house media training centre. There should
be closer and effective scrutiny of sting operations to make it healthier and professionally
sound.99Finding an acceptable Constitutional balance between free press and
administration of justice is a difficult task in every legal system.

The privatization policy of the Government many industrial house are opening new
television channels which compete for their existence. News reporting is now on
commercial basis. Every channel wants to high up its TRP rating100 to prove its supremacy
over collecting and telecasting the news programme to the public as early as possible.
Many news channels present crime related news in the sensational manner to increase their
TRP and have also started exclusive crime news channels. They telecast the criminal cases
involving high profile personality to attract more public attention. These crime news
channels play the role of investigators and adjudicator especially regarding sensational/
high profile crimes about the guilt of the accused. Many accused are now using these
channels to surrender themselves in a heroic way after giving long interviews to gain
public sympathy and these channels live telecast these surrenders again and again or a day
or two. Sometimes witnesses of such cases are traced by their news reporters to get their
live version about the facts of the case without caring their impact on the trial of the cases.

This media trial has its pros and cons qua the fair trial to the accused. This right of fair
trial of an accused is a legal right, which comes from Article, 21 of the Constitution of
India and also from the various provisions of Code of Criminal Procedure. Sometimes
“Media Trial” also invades the protection conferred upon the accused under Article 20(3)
of the Constitution, against self incrimination. So the question now is whether the freedom
of press/media should be absolute or there should be some rider on this freedom.

99
http://indiacurrentaffairs.org/are-sting-operations-acceptable-%E2%80%93-prof-k-nageshwar,visited on 12 Novmber,2014
100
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The Apex Court in Re. Hari Jai Singh in Re. - Vijay Kumar101 expressed serious
concern about freedom of press being misused, while holding that the freedom of press is
indispensable for the functioning of democracy. The Apex Court observed: “The
protection cover of freedom of press must not be thrown open for wrong doings. Public
order, decency, morality and such other things must be safeguarded. If a news paper
publishes what is improper, mischievously false or illegal and abuses its liberty, it must be
punished by the Court of law. It is the duty of a true and responsible journalist to strive to
inform the people with accurate and impartial presentation of news and their views after
dispassionate evaluation of the facts and information received by them and to be published
as a news item. The presentation of news should be truthful, objective and comprehensive
without any false and distorted expression”. Thus freedom of press is not an unfettered
freedom; it is under a duty to exercise it with a sense of responsibility by taking into
consideration the provision of Article 19(2) of the Constitution of India.

102
In State of Maharashtra vs. Jalga on Municipal Council the Apex Court observed
that an accused cannot be convicted merely because anybody including press so desire.
The press has right to publish Court proceedings but this right is not absolute one and is
subject to two limitations. Firstly, it should not be contempt of Court and secondly, it
should not prejudice the accused.

In State vs. Mohd Afzal & others 103the Defence Counsel took the plea that the Police
allowed the Media to take interview of Mohd. Afzal and the same were prominently
telecasted for about 100days by various channels which caused prejudice to the accused.
He further submitted that Media trial is anti thesis of the rule of law and results in
miscarriage of justice. He further contended that pre-trial publicity is sufficient to cause
prejudice and hatred against the accused and the presumption of innocence of every person
till found guilty by a Court of Law is eroded. But the Hon’ble judges of Delhi High Court
rejected this argument by observing that judges are trained, skilled and have sufficient
experience to shut their minds receiving hearsay evidence or being influenced by the
Media. But the Hon’ble judge lodged a caveat on this aspect of the matter by observing: It
has indeed become a disturbing feature as is being noticed by us repeatedly that the
accused persons, after their remand by the Magistrate, are brazenly paraded before the
press and interviews are being allowed. Accused persons are exposed to public glare
101
(1996) 6 SCC. Page 446
102
AIR 2003, S.C.1659
103
2003(3) JCC 1669

198
through T.V. and in case where test identification parade or the accused person being
identified by witnesses (as in the present case) arises, the case of the prosecution is
vulnerable to be attacked on the ground of exposure of the accused persons to public glare,
weakening the impact of the identification. Further, what is more fundamentally disturbing
to our mind is the fact that the police custody is given by the Court to the investigation
authorities on the premise that the accused is required for the purpose of investigation.
This custody is not to be misused by allowing the media to interview the accused persons.
The practice of allowing the media to interview the accused persons when they are in
police custody under the order of the Court has therefore, to be deprecated.”

Similarly in State vs. Sushil Sharma104, while rejecting the plea of unfair trial due to
Media Trial, the Hon’ble Court observed, “As far as the grievances of the appellant’s
counsel against the media publicity of the case is concerned we do not think that anything
would turnaround this plea. We find that this is now becoming a main ground of challenge
whenever some conviction takes place. We, however, feel that despite the fact that in this
case the learned trial judge has also noticed in his judgment that this case had attracted lot
of media attention but his decision is based on a fair, unbiased and unprejudiced analysis
and assessment of the evidence before him. As far as parallel media trial of criminal cases
is concerned , that takes place since these days media people are briefed on day to day
basis by the police, representatives of the accused and even accused persons themselves
also quite often speak before the cameras of various TV channels. In these circumstances
media cannot be blamed for highlighting the facts, which are spoken to before the cameras
by the representatives of the prosecution as well as the accused. We have also experienced
that these days whenever media people highlight some crime the investigation agencies
perform their functions with much more diligence and perfection. We, therefore, reject the
argument that the appellant did not get a fair trial”.

The Hon’ble Supreme Court also in case R Bala Krishna Pillai vs. State of Kerala105 and
106
also in case Zee News V. Navjot Sandhu held that media interviews do not prejudice
judges.But in Kali Ram vs. State of H.P. reported in AIR107, the apex Court held that if
a reasonable doubt arises regarding the guilt of accused, the benefit of that cannot be
withheld from the accused. The Courts would not be justified in withholding that benefit

104
2007 (1) J.C.C. Page 765
105
2000(7) SCC page 129
106
2003(1) SCALE 113
107
1973, S.C. 2773

199
because the acquittal right have an impact on the law and order situation or create a
diverse reaction in society or among those members of the society who believe the
accused to be guilty. Guilt should have been established by the evidence on record.

In M.P. Lohia vs. State of West Bengal108 the Apex Court observed “having gone
through the record we find very disturbing fact, which we feel necessary to comment upon
in the interest of justice. The death of Chandni took place on 23.10.2003 and the complaint
in this regard was registered and the investigation was in progress. The application for
grant of anticipatory bail was disposed of by the High Court of Calcutta on 13.12.2004 and
the special leave petition was pending before this Court. Even then, an article, appeared in
a magazine called Saga titled ‘Doomed by Dowry’ written by one Kokila Pooddar based
on her interview of the family of the deceased giving version of the tragedy and
extensively quoting the father of the deceased as to his version of the case. The facts
narrated therein are all materials that may be used in the forthcoming trial in this case and
we have no hesitation that these type of articles appearing in the media would certainly
interfere with the administration of the justice. We deprecate this practice and caution the
publisher, editor and the journalist, who were responsible for the said article, against
indulging in such trial by media where the issue is sub-judice. However, to prevent any
further issue being raised in this regard, we treat this matter as closed and hope that the
order concerned in journalism would take note of this displeasure expressed by us for
interfering with the administration of justice”. This judgment also clarifies that no
comments can be made on the merits of the case or on any material, which is the subject
matter of a case pending before a Court of law.

In October 2005 a news item was published in Times of India, New Delhi with the
heading “Media Trial ends in Suicide”. It was stated in that news that one person Naresh
Pal working as a driver with Pusa Agriculture Institute committed suicide with his wife
after leaving a suicide note which stated that a T.V. Channel was called by his niece who
made allegation of rape against him although he was impotent. He could not face
humiliation and ended his life along with his wife. Without going on truth the fact is that
the allegation of niece was telecast on T.V. Channel, which gave publicity to her claim of
being raped by her uncle. The channel in such cases must have asked the complainant to
lodge a report with the police for proper investigation instead of defaming a person

108
2005 “Crl. J 1416

200
without ascertaining his views just to sensationalize the news. Recently, Sting operation of
General Secretary of Indian Hockey Federation for accepting bribe which stirred the sport
arena including Hockey Federation even this operation rocked the Parliament when many
members of Parliament raised this issue because of poor performance of Indian Hockey
Team. The Sports Minister of India also demanded resignation of Chairman of Indian
Hockey Federation due to corruption shown in the sting operation.

Restrictions

In many acts, apart from Constitution of India, there are restrictions imposed on the media
by the legislation:

(1) Sec.499, of Indian Penal Code, which provide as under: “Defamation: Whoever, by
words either spoken or intended to be read or by signs or by visible representations, makes
or published any imputation concerning any person intending any harm, or knowing, or
having reason to believe that such imputation, will harm, the reputation of such person, is
said except in case hereinafter excepted, to defame that person. There are, however, ten
exceptions to this section.

(2) Sec. 327 of Code of Criminal Procedure 1973,which provides as under: ‘Court to be
open (1) the place in which any criminal Court is held for the purpose of inquiring into or
trying any offence shall be deemed to be an open Court, to which the public generally may
have access, so far as the same can conveniently contain them; Provided that the presiding
judge or magistrate may, if he thinks fit, order at any stage or any inquiry into, or trial of,
any particular case, that the public generally, or any particular person, shall not have
access to, or be or remain in the room or building used by the Court.

(2) Notwithstanding, anything contained in sub-section (1), the inquiry in to and trial of
rape or an offence under Section 376, Section 376A, Section376B, Section 376C or
Section 376D of the Indian Penal Code shall be conducted in-camera;

Provided that the presiding judge may, if he thinks fit, or on an application made
by either of the parties, allow any particular person to access to, or be or remain in, the
room or building used by Court.(3) Where any proceedings are held under sub-section (2)
it shall not be lawful for any person to print or publish any matter in relation to any such
proceedings, except with the previous permission of the Court .

201
Section 22 of Hindu Marriage Act, Proceedings to be in camera and may not be printed or
published (1) Every proceeding under this Act shall be conducted in Camera and it shall
not be lawful for any person to print or publish any matter in relation to any such
proceedings except a judgment of the High Court or of Supreme Court printed or
published with the previous permission of the Court.(2) If any person prints or publishes
any matter in contravention of the provisions contained in subsection (1), it shall be
punishable with fine, which may extend to one thousand rupees.

Section 14 Official Secrets Act: Exclusion of public from proceedings: In addition and
without prejudice to any powers, which a Court may possess to order the exclusion of the
public from any proceedings, if the course of proceedings before a Court against any
person for an offence under this Act or the proceeding on appeal or in the course of trial of
a person under this Act, application is made by the prosecution on the ground that the
publication of any evidence to be given or of any statement to be made in the course of the
proceedings would be prejudicial to the safety of the State, all or any portion of the public
shall be excluded during any part of hearing, the Court may make an order to that effect,
but the passing of the sentence shall in every case take place in public .Another aspect of
media trials which denies fair trial to the accused is the interview of the accused during
police custody to the electronic media persons and the same were telecast for many days
which focus public opinion against the accused. These interviews are self incrimatory
and off end protection against the self incrimination which is provided to him under article
20(3) of the Constitution. Article 20(3): provided that no person accused of an offence
109
shall be compelled to be a witness against himself. The Hon’ble Supreme Court held
that the concept of compelled testimony goes back to the stage of interrogation as per
provisions of Article 20(3) of the Constitution. The Court denied the compelled testimony
as evidence procured not merely by physical threat, physic torture, at spherical pressure,
environmental coercion, over bearing and intimidators methods and the like not legal
penalty for violation.

Public awareness

It is true that largely the media, especially Electronic Media is doing deplorable job of
public awareness by exposing corruption prevailing at every step, in the public life and
exposing commission of crimes, etc., but at the same time it should not cross its

109
in Nandini Satyhy vs. D.L. Dhani repotted in AIR 1978 S.C.C. page 1025

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limitations and should not get involved in trial by media persons. For the last many years,
a new concept of ‘sting operation’ is on increase on almost every channel of Electronic
Media to show something different for exposing corruption and social evils prevailing in
the society. These telecasts of sting operations have also increased the TRP rating of the
news channels. Tehlka.com was the first to telecast sting operation for exposing corruption
in defence deals. Another sting operation was telecast which shows accepting of money by
the then BJP President. After getting good public response and success of these sting
operations which also increased the TRP rating of those news channels, every channel
appointed special investigator equipped with sophisticated special equipments and hidden
cameras to expose quack Doctors, showing corruption in Sales Tax Department,
Corruption in Police and also corruption among political personalities including Members
of Parliament who misused MPLAD Fund110 and accepted money for asking questions in
the Parliament. Due to these sting operations, these Members of Parliament were adjudged
disqualified and their memberships were cancelled. Many public servants were removed
from service and criminal cases as well departmental enquires were also initiated. Some
sting operations were telecast to expose the poor service in Medical Colleges and Govt.
hospitals, such exposures through Electronic Media play a major role in stirring public
opinions and consciousness and forcing the Govt. and its officials to act diligently and in a
transparent manner. This role of public awareness also thrust a heavy responsibility on
Media to act without crossing the limits as mentioned above, otherwise an individual has
to pay its price against whom the sting operation was telecast. One of such case is of Ms.
Uma Khurana a teacher in Delhi Govt. School against whom a sting operation was telecast
on ‘Live India’ a television News Channel on 30.08.2007 in which she was dubbed as
racketeer of prostitution who was purportedly forcing a girl student in to prostitution.
After this telecast she was beaten by the public at the gate of her school who also tore her
clothes. Police sprung into action and saved her from public outrage and arrested her. Due
to public outcry after seeing her sting operation, the Education Department of Delhi
Administration hurriedly, first suspended her and later dismissed her from service. Later
on, it was revealed that the girl who had been shown as a student and was allegedly being
forced into prostitution by Ms. Uma Khurana was not a school girl but a budding
journalist. The news of the sting operation widely published in almost every newspaper for
months together. The Hon’ble Delhi High Court suo moto took cognizance of this fake

110
Member of Parliament Local Area Development Scheme (MPLADS)

203
sting operation and issued notice to Delhi Administration and Delhi Police. Pursuant to the
notice, the police told the Court that it was a stage managed episode prepared by one
Virendra Kumar in conspiracy with Mr. Prakash Singh and Ms. Rashmi Singh and was
shown as sting operation, because Virendra Kumar had some monetary dispute with Ms.
Khurana. Police also gave clear chit to Ms. Uma Khurana and charged above said three
persons who prepared and telecast the alleged sting operation. The Hon’ble Court
observed in its order, “Such incident should not happen and false and fabricated sting
operation directly infringing upon a person’s right to privacy should not recur because of
desire to earn more and to have higher TRP rating.”“There is no doubt and there is no
second opinion that ‘truth’ is required to be shown to the public in public interest and the
same can be shown whether in nature of sting operation or otherwise but what we feel is
that entrapment of any person should not be resorted to and should not be permitted.”

“Sting operations showing acts and facts as they are truly and actually happening may be
necessary in public interest and as a toll for justice, but a hidden camera cannot be allowed
to depict something which is not true, correct and is not happening but has happened
because of inducement by entrapping a person.”“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. However, it is not permissible to 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 such cases there is no predisposition.

If one were to look into our mythology even a sage like Vishwamitra succumbed to the
enchantment of “Maneka”. It would be stating the obvious that 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. In such case the individual
may as well claim that the person offering inducement is equally guilty and a party to the
crime that he/she is being accused of. This would infringe upon the individual’s right to
privacy.

111
While disposing this writ petition the Hon’ble Court asked the Ministry of
Information and Broadcasting to consider certain proposed guidelines mentioned in the
order while examining whether a statute/or a code of conduct should be enacted for
telecast of sting operation. Thus, the electronic media is playing an important role for the

111
(Crl. No. 1175/2007),

204
good health of our democracy by exposing corrupt officials and other evils prevailing in
the society by way of sting operations, but while doing so it must adhere to the limitations
mentioned above.

Characteristics of online sting operations

Prior to the emergence of the Internet, sting operations had potential but specific targets.
However, sting operations through the Internet aim at unspecified individuals without
specific targets, even though it is believed that people with dangerous dispositions will be
caught eventually In addition, Internet users can change their identity and tend to behave
differently on the Internet due to Anonymity, one of the key characteristics of the Internet.
Internet users can “adopt different personae and fantasize about doing acts that they would
never do in real life”. Thus, a desire or intention expressed online might not be “real.” This
means that essentially everyone on the Internet is a potential target for the sting operation
by law enforcement officers at some level.

4.6 Electronic Media, Information Technology and its Implications

Their uncertainty is not unfounded. Face book itself has acknowledged that members’
data may be used without consent: a joint document published with the Province of
Ontario’s Office of the Information and Privacy Commissioner states, “at any point in
time and potentially without any notice... information from your profile and logs of your
online activities may be used and disclosed in unexpected ways that can affect your
privacy”112his process of commodifying information based on surveillance intensified
dramatically in November 2007, when Face book introduced Beacon, an advertising
program that allowed forty commercial websites to track online purchases of Face book
users and broadcast them to members’ social networks, a form of viral marketing. In
addition to structural features, gender-based discourses in mainstream media have outlined
limited roles for young women as agents. Instead, they have been depicted as passive
consumers or misguided youth whose provocative photographs risk attract in gun wanted
attention. In contrast, young men behind the creation of many popular Web 2.0sites
(including YouTube, My space, and Face book) are celebrated as creative, entrepreneurial
boy geniuses. These discourses emphasize that the emerging gender order in Silicon
Valley is still decidedly male terrain. The economic imperatives driving Face book,
although still developing, enable or constrain the actions of its members. It is thus not
112
Cavoukian , Facebook 2007, p. 3

205
surprising that, on a commercial and advertising oriented website whose culture depends
upon personal disclosure, the young women we interviewed, although enthusiastic about
the social possibilities of Face book, did not see space for creating alternative messages.
Our research points to the need for further enquiry into how young women construct their
identities on SNS, how they define their personal privacy on SNS, how corporations and
marketers target young women on SNS, and how eminent action groups can utilize SNS
for change.

What kinds of computer related activities impinge on privacy?

Although Information and Communications Technologies (ICTs) have greatly

enhanced our capacities to collect, store, process and communicate information, it is
ironically these very capacities of technology which make us vulnerable to intrusions of
our privacy on a previously impossible scale. Firstly, data on our own personal computers
can compromise us in unpleasant ways — with consequences ranging from personal
embarrassment to financial loss. Secondly, transmission of data over the Internet and
mobile networks is equally fraught with the risk of interception — both lawful and
unlawful — which could compromise our privacy. Thirdly, in this age of cloud computing
when much of "our" data — our emails, chat logs, personal profiles, bank statements, etc.,
reside on distant servers of the companies whose services we use, our privacy becomes
only as strong as these companies’ internal electronic security systems. Fourthly, the
privacy of children, women and minorities tend to be especially breakable in this digital
age and they have become frequent targets of exploitation. Fifthly, Internet has spawned
new kinds of annoyances from electronic voyeurism to spam or offensive email to
‘phishing’ — impersonating someone else’s identity for financial gain — each of which
have the effect of impinging on one’s privacy.113Although there are a number of
technological measures through which these risks can be reduced, it is equally important
to have a robust legal regime in place which lays emphasis on the maintenance of privacy.
This note looks at whether and how the Information Technology Act that we currently
have in India measures up to these challenges of electronic privacy.114

113
Prashant Iyengar,Privacy and the Information Technology Act — do we have the Safeguards for Electronic Privacy? http://cis-
india.org/internet-governance/blog/privacy/safeguards-for-electronic-privacy
114
The IT Act is only one of the various laws which safeguard citizens from violations of online privacy. In addition, in the domain of
finance, for instance, various RBI regulations mandate strong security protocols with respect to data held by financial institutions. Since

206
What provisions in the IT Act protect against violations of privacy?

At the outset, it would be pertinent to note that the IT Act defines a ‘computer resource’;
expansively as including a “computer, computer system, computer network, data,
computer database or software”.115 As is evident, this definition is wide enough to cover
most intrusions which involve any electronic communication devices or networks —
including mobile networks. Briefly, then IT Act provides for both civil liability and
criminal penalty for a number of specifically proscribed activities involving use of a
computer — many of which impinge on privacy directly or indirectly. These will be
examined in detail in the following sub-sections. Intrusions into computers and mobile
devices

• accessing

• downloading/copying/extraction of data or extracts any data

• introduction of computer contaminant116;or computer virus117

• causing damage either to the computer resource or data residing on it

• disruption

• denial of access

• facilitating access by an unauthorized person

• charging the services availed of by a person to the account of another person,

• destruction or diminishing of value of information

• stealing, concealing, destroying or altering source code with an intention

this is the subject of a different dispatch on banking and privacy which we have brought out, these regulations are omitted from this
discussion.
115
Section 2(k) of the IT Act defines ‘computer’ as any electronic magnetic, optical or other high-speed data processing device or
system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and
includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the
computer in a computer system or computer network.
116
Section 43 defines "computer contaminant" as any set of computer instructions that are designed— (a) to modify, destroy, record,
transmit data or program residing within a computer, computer system or computer network; or (b) by any means to usurp the normal
operation of the computer, computer system, or computer network;

117
Similarly, "computer virus" has been defined in section 43 as “any computer instruction, information, data or program that destroys,
damages, degrades or adversely affects the performance of a computer resource or attaches itself to another computer resource and
operates when a program, data or instruction is executed or some other event takes place in that computer resource;

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The Act provides for the civil remedy of “damages by way of compensation” for damages
caused by any of these actions. In addition anyone who “dishonestly” and “fraudulently”
does any of these specified acts is liable to be punished with imprisonment for a term of
upto three years or with a fine which may extend to five lakh rupees, or with both.

Bangalore techie convicted for hacking government site (2009, Deccan Herald)118

In November 2009, The Additional Chief Metropolitan Magistrate, Egmore, Chennai,

sentenced N G Arun Kumar, a techie from Bangalore to undergo a rigorous imprisonment
for one year with a fine of Rs 5,000 under section 420 IPC (cheating) and Section 66 of IT
Act (hacking).Investigations had revealed that Kumar was logging on to the BSNL
broadband Internet connection as if he was the authorized genuine user and ‘made
alteration in the computer database pertaining to broadband Internet user accounts’ of the
subscribers.

The CBI had registered a cyber crime case against Kumar and carried out investigations
on the basis of a complaint by the Press Information Bureau, Chennai, which detected the
unauthorized use of broadband Internet. The complaint also stated that the subscribers had
incurred a loss of Rs 38,248 due to Kumar’s wrongful act. He used to ‘hack’ sites from
Bangalore as also from Chennai and other cities, they said.

Children's privacy online

As computers and the Internet become ubiquitous children have increasingly become
exposed to crimes such as pornography and stalking that make use of their private
information. The newly inserted section 67B of the IT Act (2008) attempts to safeguard
the privacy of children below 18 years by creating a new enhanced penalty for criminals
who target children.

The section firstly penalizes anyone engaged in child pornography. Thus, any person who
“publishes or transmits” any material which depicts children engaged in sexually explicit
conduct, or anyone who creates, seeks, collects, stores, downloads, advertises or
exchanges this material may be punished with imprisonment up to five years (seven years
for repeat offenders) and with a fine of upto Rs. 10 lakh.

118
Section 66 of the IT Act. Anon, 2009. Bangalore techie convicted for hacking govt site. Deccan Herald. Available at:
http://goo.gl/jCvAh. , Accessed March 29, 2011

208
Secondly, this section punishes the online enticement of children into sexually explicitly
acts, and the facilitation of child abuse, which are also punishable as above. Viewed
together, these provisions seek to carve out a limited domain of privacy for children from
would-be sexual predators. The section exempts from its ambit, material which is justified
on the grounds of public good, including the interests of "science, literature, art, learning
or other objects of general concern". Material which is kept or used for bona fide "heritage
or religious purpose" is also exempt.

In addition, the newly released Draft Intermediary Due-Diligence Guidelines,

2011119require ‘intermediaries’120to notify users not to store, update, transmit and store any
information that is inter alia, “pedophilic” or “harms minors in any way”. An intermediary
who obtains knowledge of such information is required to “act expeditiously to work with
user or owner of such information to remove access to such information that is claimed to
be infringing or to be the subject of infringing activity”. Further, the intermediary is
required to inform the police about such information and preserve the records for 90 days.

Electronic Voyeurism

Although once regarded as only the stuff of spy cinema, the explosion in consumer
electronics has lowered the costs and the size of cameras to such an extent that the threat
of hidden cameras recording people’s intimate moments has become quite real.
Responding to the growing trend of such electronic voyeurism, a new section 66E has
been inserted into the IT Act which penalizes the capturing, publishing and transmission
of images of the "private area"121of any person without their consent, "under circumstances
violating the privacy"122 of that person. This offence is punishable with imprisonment of
upto three years or with a fine of upto Rs. two lakh or both.

119
The Information Technology (Due Diligence observed by Intermediaries Guidelines) Rules, 2011
120
].‘Intermediary’ has been defined very expansively under section 2(w) of the Act to mean, with respect to any electronic record, “any
person who on behalf of another person receives, stores or transmits that record, or provides any service with respect to that record and
includes telecom service providers, network service providers, Internet service providers, web hosting service providers, search engines,
online payment sites, online-auction sites, online-market places and cyber cafes
121
Private area’ has been defined in section 66E as “the naked or undergarment clad genitals, pubic area, buttocks or female breast”.

122
Defined as “circumstances in which a person can have a reasonable expectation that (i) he or she could disrobe in privacy, without
being concerned that an image of his or her private area was being captured or (ii) any part of his or her private area would not be
visible to the public regardless of whether that person is in a public or private place”. See explanation to Section 66E.

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Phishing – or Identity Theft

The word 'phishing' is commonly used to describe the offence of electronically

impersonating someone else for financial gain. This is frequently done either by using
someone else’s login credentials to gain access to protected systems, or by the
unauthorized application of someone else’s digital signature in the course of electronic
contracts. Increasingly a new type of crime has emerged wherein SIM cards of mobile
phones have been ‘cloned’ enabling miscreants to make calls on others' accounts. This is
also a form of identity theft. Two sections of the amended IT Act penalize these crimes:

Section 66C makes it an offence to “fraudulently or dishonestly” make use of the

electronic signature, password or other unique identification feature of any person.
123
Similarly, section 66D makes it an offence to “cheat by person” by means of any
‘communication device’124 or 'computer resource'.Both offences are punishable with
imprisonment of upto three years or with a fine of upto Rs. one lakh.

Mumbai Police Solves Phishing scam125

In 2005, a financial institute complained that they were receiving misleading emails
ostensibly emanating from ICICI Bank’s email ID. An investigation was carried out with
the emails received by the customers of that financial institute and the accused were
arrested. The place of offence, Vijaywada was searched for the evidence. One laptop and
mobile phone used for committing the crime was seized. The arrested accused had used
open source code email application software for sending spam e-mails. He had
downloaded the same software from the Internet and then used it as it is. He used only
VSNL to spam the e-mail to customers of the financial institute because VSNL email
service provider does not have spam box to block the unsolicited emails. After spamming
e-mails to the institute customers he got the response from around 120 customers of which
80 are genuine and others are not correct because they do not have debit card details as

123
Cheating by personation" is a crime defined under section 416 the Indian Penal Code. According to that section, “a person is said to
"cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or
representing that he or any other person is a person other than he or such other person really is." The explanation to the section adds that
"the offence is committed whether the individual personated is a real or imaginary person". Two illustrations to the section further
elaborate its meaning: (a) A cheats by pretending to be a certain rich banker of the same name. A cheats by personation (b) A cheats by
pretending to be B, a person who is deceased. A cheats by personation.

124
Communication device" has been defined to mean "cell phones, personal digital assistance (sic) or combination of both or any other
device used to communicate send or transmit any text, video, audio or image".
125
2005. Cyber Crime Cell, Mumbai: Case of Phishing. Mumbai Police. Available at: http://www.cybercellmumbai.com/case-
studies/case-of-fishing [Accessed March 23, 2011].

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required for e-banking."

The customers who received his e-mail felt that it originated from the bank. When they
filled the confidential information and submitted it the said information was directed to the
accused. This was possible because the dynamic link was given in the first page (home
page) of the fake website. The dynamic link means when people click on the link provided
in spam that time only the link will be activated. The dynamic link was coded by handling
the Internet Explorer once lick event and the information of the form will be submitted to
the web server (where the fake website is hosted). Then server will send the data to the
configured e-mail address and in this case the e-mail configured was to the e-mail of the
accused. All the information after phishing (user name, password, transaction password,
debit card number and PIN, mother’s maiden name) which he had received through the
Wi-Fi Internet connectivity of Reliance.com was now available on his Acer laptop.This
crime was registered under section 66 of the IT Act, sections 419, 420, 465, 468 and 471
of the Indian Penal Code and sections 51, 63 and 65 of the Indian Copyright Act, 1957
which attract the punishment of three years imprisonment and fine upto Rs 2 lac which the
accused never thought of.

Spam and Offensive Messages

Although the advent of e-mail has greatly enhanced our communications

capacities, most e-mail networks today remain susceptible to attacks from spammers who
bulk-email unsolicited promotional or even offensive messages to the nuisance of users.
Among the more notorious of these scams is/was the so-called "section 409 scam" in
which victims receive e-mails from alleged millionaires who induce them to disclose
their credit information in return for a share in millions.

Hoax E-mails 126

In 2009, a 15-year-old Bangalore teenager was arrested by the cyber crime investigation
cell (CCIC) of the city crime branch for allegedly sending a hoax e-mail to a private news

126
Hafeez, M., 2009. Crime Line: Curiosity was his main motive, say city police. Crime Line. Available at:
http://mateenhafeez.blogspot.com/2009/05/curiosity-was-his-main-motive-say-city.html [Accessed March 23, 2011].

211
channel. In the e-mail, he claimed to have planted five bombs in Mumbai, challenging the
police to find them before it was too late.According to police officials, at around 1p.m. on
May 25, the news channel received an e-mail that read: “I have planted five bombs in
Mumbai; you have two hours to find it.” The police, who were alerted immediately, traced
the Internet Protocol (IP) address to Vijay Nagar in Bangalore. The Internet service
provider for the account was BSNL, said officials.

Minor Hoax Spells Major Trouble

• Sixteen-year-old Rakesh Patel (name changed), a student from Ahmedabad, sent

an e-mail to a private news channel on March 18, 2008, warning officials of a bomb on
an Andheri-bound train. In the e-mail, he claimed to be a member of the Dawood
Ibrahim gang. Three days later, the crime investigation cell (CCIC) of the city police
arrested the boy under section 506 (ii) for criminal intimidation. He was charge-
sheeted on November 28, 2008.
• A 14-year-old Colaba boy sent a hoax e-mail to a TV channel in Madhya
Pradesh, three days after the July 26, 2008, Ahmedabad bomb blasts. He claimed
that 29 bombs would go off in Jabalpur. He was picked up by officers of the anti-
terrorism squad (ATS) who, with the help of the MP police, were able to trace the
e-mail to a cyber café in Colaba. Status: No FIR was registered. The Cuffe Parade
police registered a non-cognizable (NC) complaint against him, and the boy was
allowed to go home after the police gave him a “strict warning”.
• Shariq Khan, 18, was arrested in Bhopal on July 26, 2006, for sending out three e-
mails claiming to be a member of the terrorist organization, which the police
believed was behind the 7/11 train bombings. He was arrested by the Bhopal
police. Later, the ATS brought the boy to Mumbai and also booked him for a five-
year-old unsolved case where an unknown accused had sent e-mail warnings to the
department of Atomic Energy (DAE) in 2001.
• Status: The police filed a charge-sheet against Shariq who claimed that he had sent
the e-mails for fun. Trial is pending in a juvenile Court. Shariq is presently out on
bail in Bhopal.
• On February 26, 2006, a 17-yearold student from Jamnabai Narsee School called
an Alitalia flight bound to Milan at 2 a.m. telling them there was a bomb on board.
He wanted to stop his girlfriend from going abroad. She was one of the 12 students

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 on their way to attend a mock United Nations session in Geneva.
Status: After being grilled by the police, he was arrested, but let out on bail.

Lawful Interception and monitoring of electronic communications under the IT Act

In addition to violations of privacy by criminal and the mischievous minded, electronic

communications and storage are also a goldmine for governmental supervision and
surveillance. This section provides a brief overview of the provisions in the IT Act which
circumscribe the powers of the state to intercept electronic communications.

The newly amended IT Act completely rewrote its provisions in relation to lawful
interception. The new section 69 dealing with “power to issue directions for interception
or monitoring or decryption of any information through any computer resource” is much
more elaborate than the one it replaced, In October 2009, the Central Government notified
rules under section 69 which lay down procedures and safeguards for interception,
monitoring and decryption of information (the “Interception Rules 2009”). This further
thickens the legal regime in this context.

Unlawful Intercept

In August 2007, Lakshmana Kailash K., a techie from Bangalore was arrested on the
suspicion of having posted insulting images of Chhatrapati Shivaji, a major historical
figure in the state of Maharashtra, on the social-networking site Orkut. The police
identified him based on IP address details obtained from Google and Airtel – Lakshmana’s
ISP. He was brought to Pune and detained for 50 days before it was discovered that the IP
address provided by Airtel was erroneous. The mistake was evidently due to the fact that
while requesting information from Airtel, the police had not properly specified whether
the suspect had posted the content at 1:15 p.m. or a.m.Taking cognizance of his plight
from newspaper accounts, the State Human Rights Commission subsequently ordered the
company to pay Rs 2 lakh to Lakshmana as damages127.The incident highlights how minor

127
Holla, A., 2009. Wronged, techie gets justice 2 yrs after being jailed. Mumbai Mirror. Available at:
http://www.mumbaimirror.com/index.aspx?page=article&sectid=2&contentid=200906252009062503144578681037483 [Accessed
March 23, 2011].

213
privacy violations by ISPs and intermediaries could have impacts that gravely undermine
other basic human rights 128.

In addition to section 69, the Government has been empowered under the newly inserted
section 69B to "monitor and collect traffic data or information generated, transmitted,
received or stored in any computer resource".

"Traffic data" has been defined in the section to mean “any data identifying or purporting
to identify any person, computer system or computer network or any location to or from
which communication is or may be transmitted.” Rules have been issued by the Central
Government under this section (the “Monitoring and Collecting Traffic Data Rules,
2009”) which are similar, although with important distinctions, to the rules issued under
section 69.

Thus, there are two parallel interception and monitoring regimes in place under the
Information Technology Act. In the paragraphs that follow, we provide an overview of the
regime of surveillance under section 69 — since they are more targeted towards the
individual, and consequently the threats to privacy are more severe — while highlighting
important differences in the rules drafted under section 69.

Who may lawfully intercept?

Section 69 empowers the “Central Government or a state government or any of its officers
specially authorized by the Central Government or the state government, as the case may
be” to exercise powers of interception under this section. Under the Interception Rules
2009, the secretary in the Ministry of Home Affairs has been designated as the "competent
authority", with respect to the Central Government, to issue directions pertaining to
interception, monitoring and decryption. Similarly, the respective state secretaries in
charge of Home Departments of the various states and union territories are designated as
"competent authorities" to issue directions with respect to the state government.129

128
See also Nanjappa, V., 2008. 'I have lost everything'. Rediff.com News. Available at:
http://www.rediff.com/news/2008/jan/21inter.htm [Accessed March 23, 2011].

129
By contrast, rules framed under Section 69B designates only the Secretary to the Government of India in the Department of
Information Technology under the Ministry of Communications and IT as the “competent authority” to issue orders of interception.

214
 Central Government State/Union Territory

Ordinary Secretary in the Ministry of Home Secretary in charge of Home

Circumstances Affairs Departments of State

Emergency Head or second senior most Authorized officer not below the
officer of security and law rank of Inspectors General of
enforcement Police

However, an exception is made in cases of emergency, either

• in remote areas where obtaining prior directions from the competent authority is
not feasible or

• for ‘operational reasons’ 130where obtaining prior directions is not feasible.

In such cases it would be permissible to carry out interception after obtaining the orders of
the Head or second senior most officer of security and law enforcement at the central
level, and an authorized officer not below the rank of Inspector General of Police at the
state or union territory level. The order must be communicated to the competent authority
within three days of its issue, and approval must be obtained from the authority within
seven working days, failing which the order would lapse.

Where a state/union territory wishes to intercept/monitor or decrypt information beyond its

territory, the competent authority for that state must make a request to the competent
authority of the Central Government to issue appropriate directions.

Under what circumstances a direction to intercept may be issued?

Purposes for which interception may be directed

Under section 69, the powers of interception may be exercised by the authorized officers
“when they are satisfied that it is necessary or expedient” to do so in the interest of:

• sovereignty or integrity of India,

• defense of India,

130
It is unclear what these “operational reasons” could mean. The text of the rules provide no useful guidance

215
 • security of the state,

• friendly relations with foreign states or

• public order or

• preventing incitement to the commission of any cognizable offence relating to

above or

• for investigation of any offence.

Under section 69B, the competent authority may issue directions for monitoring for a
range of “cyber security”131 purposes including, inter alia, “identifying or tracking of any
person who has breached, or is suspected of having breached or being likely to breach
cyber security”.

Contents of direction

The reasons for ordering interception must be recorded in writing.132In the case of a
direction under section 69, in arriving at its decision, the competent authority must
consider alternate means of acquiring the information other than issuing a direction for
interception.133 The direction must relate to information sent or likely to be sent from one
or more particular computer resources to another (or many) computer resources.134 The
direction must specify the name and designation of the officer to whom information
obtained is to be disclosed, and also specify the uses for which the information is to be
employed.135

Duration of interception and periodic review

Once issued, an interception direction issued under section 69 remains in force for a period
of 60 days (unless withdrawn earlier), and may be renewed for a total period not
exceeding 180 days.136 A direction issued under section 69B does not expire automatically
through the lapse of time and theoretically would continue until withdrawn.

131
“Cyber security breach” is defined as meaning “any real or suspected adverse event in relation to cyber security that violates an
explicitly or implicitly acceptable security policy resulting in unauthorized access, denial of service, disruption, unauthorized use of a
computer resource for processing or storage of information or changes to date, information without authorization”. Rule 2(f) of the
Monitoring and Collecting of Traffic Data Rules 2009.
132
Rule 7 of the Interception Rules 2009; Rule 3(3) of the Monitoring and Collecting of Traffic Data Rules 2009
133
Rule 8 of the Interception Rules 2009
134
Rule 9 of the Interception Rules 2009
135
Rule 10 of the Interception Rules 2009;
136
Rule 11 of the Interception Rules 2009

216
Within seven days of its issue, a copy of a direction issued under either section 69 or
section 69B must be forwarded to the review committee constituted to oversee
wiretapping under the Indian Telegraph Act.137 Every two months, the review committee is
required to meet and record its findings as to whether the direction was validly issued in
light of section 69(3)138. If the review committee is of the opinion that it was not, it can set
aside the direction and order destruction of all information collected.139

What powers of interception do they have?

The competent authority may, in his written direction “direct any agency of the
appropriate government to intercept monitor or decrypt or cause to be intercepted or
monitored or decrypted any information generated, transmitted, received or stored in any
computer resource”.140

Accordingly, the subscriber or intermediary or any person in charge of the computer

resource is must, if required by the designated government agency, extend all facilities,
equipment and technical assistance to:

• provide access to or secure access to the computer resource generating,

transmitting, receiving or storing such information; or

• intercept, monitor, or decrypt141 the information, as the case may be; or

• Provide information stored in computer resource.

The intermediary must maintain records mentioning the intercepted information, the
particulars of the person, e-mail account, computer resource, etc., that was intercepted, the
particulars of the authority to whom the information was disclosed, number of copies of
the information that were made, the date of their destruction, etc.142 This list of
requisitions received must be forwarded to the government agency once every 15 days to

137
Rule 22 of the Interception Rules 2009
138
Ibid

140
Section 69 of the IT Act
141
The intermediary is required to assist in the decryption only to the extent that the intermediary has control over the decryption key.
See Sub-Rule 13(3) of the Interception Rules 2009. Rule 17 enjoins the holder of a decryption key to provide decryption assistance
when directed to by the competent authority
142
Rule 16 of the Interception Rules 2009

217
 ensure their authenticity.143In addition, a responsibility is cast on the intermediary to put in
place adequate internal checks to ensure that unauthorized interception does not take
place, and extreme secrecy of intercepted information is maintained.144

How long can information collected during interception are retained?

Interception rules require all records, including electronic records pertaining to

interception to be destroyed by the government agency “in every six months except in
cases where such information is required or likely to be required for functional purposes”.
In the case of the Monitoring and Collecting of Traffic Data Rules 2009, this period is nine
months from the date of creation of record. In addition, all records pertaining to directions
for interception and monitoring are to be destroyed by the intermediary within a period of
two months following discontinuance of interception or monitoring, unless they are
required for any ongoing investigation or legal proceedings. In the case of Monitoring
Rules, this period is six months from the date of discontinuance.

What penalties accrue to intermediaries and subscribers for resisting interception?

Section 69 stipulates a penalty of imprisonment upto a term of seven years and fine for
any “subscriber or intermediary or any person who fails to assist the agency” empowered
to intercept.

Data Protection under the IT Act

Data Retention Requirements of 'Intermediaries': Section 67C of the amended IT Act

mandates ‘intermediaries’145 to maintain and preserve certain information under their
control for durations which are to be specified by law, any intermediary who fails to retain
such electronic records may be punished with imprisonment up to three years and a fine.

Liability for body-corporate under section 43A

The newly inserted section 43A makes a start at introducing a mandatory data protection
regime in Indian law. The section obliges corporate bodies who ‘possess, deal or handle’

143
Rule 18 of the Interception Rules 2009
144
Rule 20 of the Interception Rules 2009; Rules 10 & 11 of the Monitoring and Collecting of Traffic Data Rules 2009. Failure to
maintain secrecy of data may attract punishment under Section 72 of the Information Technology Act.

218
any ‘sensitive personal data’ to implement and maintain ‘reasonable’ security practices,
failing which they would be liable to compensate those affected by any negligence
attributable to this failure. It is only the narrowly-defined ‘body corporate’146 engaged in
‘commercial or professional activities’ that are the targets of this section. Thus
government agencies and non-profit organizations are entirely excluded from the ambit of
this section. 147

“Sensitive personal data or information” is any information that the Central Government
may designate as such, when it sees fit to. The “reasonable security practices” which the
section obliges body corporate to observe are restricted to such measures as may be
specified either “in an agreement between the parties” or in any law in force or as
prescribed by the Central Government. By defining both “sensitive personal data” and
“reasonable security practice” in terms that require executive elaboration, the section in
effect pre-empts the Courts from evolving an iterative, contextual definition of these
terms.

Mphasis BPO Fraud: 2005148

In December 2004, four call centre employees, working at an outsourcing facility operated
by MphasiS in India, obtained PIN codes from four customers of MphasiS’ client, Citi
Group. These employees were not authorized to obtain the PINs. In association with
others, the call centre employees opened new accounts at Indian banks using false
identities. Within two months, they used the PINs and account information gleaned during
their employment at MphasiS to transfer money from the bank accounts of CitiG roup
customers to the new accounts at Indian banks.

By April 2005, the Indian police had tipped off to the scam by a U.S. bank, and quickly

146
Section 43A defines "'body corporate" as any company and includes a firm, sole proprietorship or other association of individuals
engaged in commercial or professional activities;

147
This does not necessarily mean that these entitles are exempt from taking reasonable care to safeguard information that they collect,
maintain or control – only that remedies against the government must be sought under general common law, rather than under the IT
Act.

148
Anon, 2005. The MphasiS Scandal – And How it Concerns U.S. Companies Considering Offshore BPO. Carretek. Available at:
http://www.carretek.com/main/news/articles/MphasiS_scandal.htm [Accessed March 29, 2011]. See also Anon, 2005. MphasiS case:
BPOs feel need to tighten security. Indian Express. Available at: http://www.expressindia.com/news/fullstory.php?newsid=44856
[Accessed March 29, 2011].

219
identified the individuals involved in the scam. Arrests were made when those individuals
attempted to withdraw cash from the falsified accounts, $426,000 was stolen; the amount
recovered was $230,000.

Draft Reasonable Security Practices Rules 2011149

In February 2011, the Ministry of Information and Technology, published draft rules
under section 43A in order to define “sensitive personal information” and to prescribe
“reasonable security practices” that body corporate must observe in relation to the
information they hold.

Sensitive Personal Information: Rule 3 of these Draft Rules designates the following
types of information as ‘sensitive personal information150’:

• password;

• user details as provided at the time of registration or thereafter;

• information related to financial information such as Bank account / credit card /

debit card / other payment instrument details of the users;

• physiological and mental health condition;

• medical records and history;(vi) Biometric information;

• information received by body corporate for processing, stored or processed under

lawful contract or otherwise;

• call data records;

This however, does not apply to “any information that is freely available or accessible in
public domain or accessible under the Right to Information Act, 2005”.

149
The Information Technology (Reasonable security practices and procedures and sensitive personal information) Rules, 2011.
Available at http://www.mit.gov.in/sites/upload_files/dit/files/senstivepersonainfo07_02_11.pdf, last accessed February 15th, 2011.

150
Rule 5 of the Draft Rules

220
They and “any person” holding sensitive personal information are forbidden from
“keeping that information for longer than is required for the purposes for which the
information may lawfully be used”151

Mandatory Privacy Policies for body corporate

Rule 4 of the draft rules enjoins a body corporate or its representative who “collects,
receives, possess, stores, deals or handles” data to provide a privacy policy “for handling
of or dealing in user information including sensitive personal information”. This policy is
to be made available for view by such “providers of information”.152 The policy must
provide details of:

• Type of personal or sensitive information collected under sub-rule (ii) of rule 3;

• Purpose, means and modes of usage of such information;
• Disclosure of information as provided in rule 6 .

Prior Consent and Use Limitation during Data Collection

In addition to the restrictions on collecting sensitive personal information, body corporate

must obtain prior consent from the “provider of information” regarding “purpose, means
and modes of use of the information”. The body corporate is required to “take such steps
as are, in the circumstances, reasonable”153to ensure that the individual from whom data is
collected is aware of :

• the fact that the information is being collected; and

• the purpose for which the information is being collected; and
• the intended recipients of the information; and
• the name and address of :

151
This is perhaps a bit vague, since the potential ‘lawful uses’ are numerous and could be inexhaustible. It is unclear whether “lawful
usage” is coterminous with “the uses which are disclosed to the individual at the time of collection”. In addition, this rule is framed
rather weakly since it does not impose a positive obligation (although this is implied) to destroy information that is no longer required
or in use.

152
.“Provider of data” is not the same as individuals to whom the data pertains, and could possibly include intermediaries who have
custody over the data. We feel this privacy policy should be made available for view generally – and not only to providers of
information. In addition, it might be advisable to mandate registration of privacy policies with designated data controllers.

153
One wonders about the convoluted language used here when a simpler phrase like “take reasonable steps” alone might have sufficed
- reasonableness has generally been interpreted by courts contextually. As the Supreme Court has remarked, “`Reasonable’ means prima
facie in law reasonable in regard to those circumstances of which the actor, called upon to act reasonably, knows or ought to know. See
Gujarat Water Supply and Sewage Board v. Unique Erectors (Guj) AIR 1989 SC 973

221
 • the agency that is collecting the information; and
• the agency that will hold the information.

During data collection, body corporates are required to give individuals the option to opt-
in or opt-out from data collection.154 They must also permit individuals to review and
modify the information they provide "wherever necessary".155 Information collected is to
be kept securely156, used only for the stated purpose 157
and any grievances must be
addressed by the body corporate “in a time bound manner”.158

Unlike "sensitive personal information" there is no obligation to retain information only

for as long as is it is required for the purpose collected.

Limitations on Disclosure of Information

The draft rules require a body corporate to obtain prior permission from the
provider of such information obtained either “under lawful contract or otherwise” before
information is disclosed.159 The body corporate or any person on its behalf shall not
publish the sensitive personal information. Any third party receiving this information is
prohibited from disclosing it further.160 However, a proviso to this sub-rule mandates
information to be provided to ‘government agencies’ for the purposes of “verification of
identity, or for prevention, detection, investigation, prosecution, and punishment of
offences”. In such cases, the government agency is required to send a written request to
the body corporate possessing the sensitive information, stating clearly the purpose of

154
Sub-Rule 5(7).

155
Sub-Rule 5(6). It is unclear what would count as a ‘necessary’ circumstance and who would be the authority to determine such
necessity.

156
Sub-Rule 5(8).

157
Sub-Rule 5(5).
158
Sub-Rule 5(9).
159
Sub-Rule 6(1) There are two problems with this rule. First, it requires prior permission only from the provider of information, and
not the individual to whom the data pertains. In effect this whittles down the agency of the individual in being able to control the
manner in which information pertaining to her is used. Second, it is not clear whether this information includes “sensitive personal
information”. The proviso to this rule includes the phrase “sensitive information”, which would suggest that such information would be
included. This makes it even more important that the rule require that prior permission be obtained from the individual to whom the data
pertains and not merely from the provider of information.

160
Sub-Rule 6(4).

222
seeking such information. The government agency is also required to “state that the
information thus obtained will not be published or shared with any other person”.161

Sub-rule (2) of rule 6 requires “any information” to be “disclosed to any third party by an
order under the law for the time being in force.” This is to be done “without prejudice” to
the obligations of the body corporate to obtain prior permission from the providers of
information.162

Reasonable Security Practices

Rule 7 of the draft rules stipulates that a body corporate shall be deemed to have complied
with reasonable security practices if it has implemented security practices and standards
which require:

• a comprehensive documented information security program; and

• Information security policies that contain managerial, technical, operational and

physical security control measures that are commensurate with the information
assets being protected.

In case of an information security breach, such body corporate will be “required to

demonstrate, as and when called upon to do so by the agency mandated under the law, that
they have implemented security control measures as per their documented information
security program and information security policies”.

The rule stipulates that by adopting the International Standard IS/ISO/IEC 27001 on
“Information Technology – Security Techniques – Information Security Management
System – Requirements”, a body corporate will be deemed to have complied with
reasonable security practices and procedures.

161
This is a curious insertion since it begs the question as to the utility of such a statement issued by the requesting agency. What are the
sanctions under the IT Act that may be attached to a government agencies that betrays this statement? Why not instead, insert a
peremptory prohibition on government agencies from disclosing such information (with the exception, perhaps, of securing conviction
of offenders)?

162
This sub-rule does not distinguish between orders issued by a court and those issued by an administrative/quasi-judicial body.

223
The rule also permits “industry associations or industry clusters” who are following
standards other than IS/ISO/IEC 27001 but which nevertheless correspond to the
requirements of sub-rule 7(1), to obtain approval for these codes from the government.
Once this approval has been sought and obtained, the observance of these standards by a
body corporate would deem them to have complied with the reasonable security practice
requirements of section 43A.

Penalties and Remedies for breach of Data Protection

Civil Liability for Corporate:As mentioned above, anybody corporate who fail to observe
data protection norms may be liable to pay compensation if:

• it is negligent in implementing and maintaining reasonable security practices, and

thereby

• causes wrongful loss or wrongful gain to any person;163

Claims for compensation are to be made to the adjudicating officer appointed under
section 46 of the IT Act. Further, details of the powers and functions of this officer are
given in succeeding sections of this note.

Criminal liability for disclosure of information obtained in the course of exercising

powers under the IT Act

Section 72 of the Information Technology Act imposes a penalty on “any person”

who, having secured access to any electronic record, correspondence, information,
document or other material using powers conferred by the Act or rules, discloses such
information without the consent of the person concerned. Such unauthorized disclosure is
punishable “with imprisonment for a term which may extend to two years, or with fine
which may extend to one lakh rupees, or with both.”

163
“Wrongful loss” and “wrongful gain” have been defined by Section 23 of the Indian Penal Code. Accordingly, "Wrongful gain" is
gain by unlawful means of property which the person gaining is not legally entitled. "Wrongful loss"- "Wrongful loss" is the loss by
unlawful means of property to which the person losing it is legally entitled.” The section also includes this interesting explanation
“Gaining wrongfully, losing wrongfully- A person is said to gain wrongfully when such person retains wrongfully, as well as when such
person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property as well as
when such person is wrongfully deprived of property”. Following this, it could be possible to argue that the retention of data beyond the
period of its use would amount to a “wrongful gain

224
Criminal Liability for unauthorized disclosure of information by any person of
information obtained under contract

Section 72A of the IT Act imposes a penalty on any person164 (including an intermediary)
who:

• has obtained personal information while providing services under a lawful contract
and

• discloses the personal information without consent of the person,

• with the intent to cause, or knowing it is likely to cause wrongful gain or wrongful
loss165
• Such unauthorised disclosure to a third person is punishable with imprisonment
upto three years or with fine upto Rs five lakh, or both.

Whom to call? Adjudicatory Mechanism and Remedies under the IT Act

As mentioned above, the IT Act provides for both the civil remedy of damages in
compensation (Chapter IX) as well as criminal penalties for offences such as
imprisonment and fine (Chapter XI). In general, claiming a civil remedy does not bar one
from seeking criminal prosecution and ideally both should be pursued together. For
clarity, in the sections that follow, we will be discussing the two procedures separately.

Civil Damages and Compensation

Whom to approach?

Section 46 of the IT Act empowers the Central Government to appoint “adjudication

officers” to adjudicate whether any person has committed any of the contraventions
described in Chapter IX of the Act, and to determine the quantum of compensation
payable. Accordingly, the Central Government has designated the secretaries of the
Department of Information Technology of each of the states or union territories as the
“adjudicating officer” with respect to each of their territories.166

164
Section 3(39) of the General Clauses Act defines a person to include “any company or association or body of individuals whether
incorporated or not”. An interesting question here would be whether the State can be considered “a person” so that it can be held liable
for unauthorized disclosure of personal information. In an early case of Shiv Prasad v. Punjab State AIR 1957 Punj 150, the Punjab
High Court had excluded this possibility. However, the case law on this point has not been consistent. In Ramanlal Maheshwari
v.Municipal Committee, the MP High Court held that the Municipal Council could be treated as a ‘person’ for the purpose of levying a
fine attached to a criminal offence. Statutory corporate bodies (such as the proposed UID Authority of India) have been held to be
‘persons’ for purposes of law . See Commissioners, Port of Calcutta v. General Trading Corporation, AIR 1964 Cal 290. Here under the
Calcutta Port Act, Port Commissioners were declared to be a “body corporate”, and hence were held to be a ‘person’.
165
Information Technology Act,2000
166
See G.S.R.240(E) New Delhi, the 25th March, 2003 available at < http://www.mit.gov.in/content/it-act-notification-no-240>

225
However, a pecuniary limit has been placed on the powers of adjudicating officers, and
they may only adjudicate cases where the quantum of compensation claimed does not
exceed Rs. five crores. In cases where the compensation claimed exceeds this amount,
jurisdiction would vest in the “competent Court”, under the Code of Civil Procedure.167

Section 61 of the Act bars ordinary civil Courts from jurisdiction over matters which the
adjudicating officers have been empowered to decide under this Act.

When must a complaint be filed?

The Limitation Act provides that a suit must be filed within three years from when the
right to sue accrues.168

What is the procedure?

Section 46 and the rules framed under that section provide elaborate guidelines on the
procedure that is to be followed by the adjudicating officer. Thus, the adjudicating officer
is required to give the accused person “a reasonable opportunity for making representation
in the matter”. Thereafter, if , on an inquiry, “he is satisfied that the person has committed
the contravention, he may impose such penalty or award such compensation as he thinks
fit in accordance with the provisions of that section.”

In order to carry out their duties adjudicating officer have been invested with the powers
of a civil Court which are conferred on the cyber appellate tribunal.169 Additionally, they
have the power to punish for their contempt under the Code of Criminal Procedure.

Rules framed under the section provide further details on the procedure that must be
followed and provide for the issuance of a “show cause notice”, manner of holding
enquiry, compounding of offences, etc.170

167
See Section 46(1A).
168
Schedule I, Part X of the Limitation Act “Suits for which there is no prescribed period.”
169
The powers of the Cyber Appellate Tribunal under Section 58 include the powers of (a) summoning and enforcing the attendance of
any person and examining him on oath; (b) requiring the discovery and production of documents or other electronic records; (c)
receiving evidence on affidavits; (d) issuing commissions for the examination of witnesses or documents; (e) reviewing its decisions; (f)
dismissing an application for default or deciding it ex parte.
170
Information Technology (Qualification and Experience of Adjudicating Officers and Manner of holding Enquiry) Rules, 2003 [GSR
220(E)] Available at <http://cca.gov.in/rw/resource/notification-gsr220e.pdf?download=true>.

226
Section 47 provides that in adjudging the quantum of compensation, the adjudicating
officer shall have due regard to the following factors, namely:

• the amount of gain of unfair advantage, wherever quantifiable, made as a result of

the default;

• the amount of loss caused to any person as a result of the default;

• the repetitive nature of the default.

Where must a complaint be filed and in what format?

The complaint must be made to the adjudicating officer of the state or union territory on
the basis of location of computer system, computer network. The complaint must be made
on a plain paper in the format provided in the Performa attached to the rules.171

In case the offender or computer resource is located abroad, it would be deemed, for the
purpose of prosecution to be located in India.172

How long does the process take?

The Rules direct that the whole matter should be heard and decided “as far as possible”
within a period of six months.173

How much does it cost?

The Rules stipulates a variable fee payable by a bank draft calculated on the basis of
damages claimed by way of compensation

a) Upto Rs. 10,000 10% ad valorem rounded off to nearest next hundred
b) From 10001 to Rs. 1000 plus 5% of the amount exceeding Rs.10,000 rounded
Rs.50000 off to nearest next hundred
c) From Rs.50001 to Rs. 3000/- plus 4% of the amount exceeding Rs. 50,000 rounded
Rs.100000 off to nearest next hundred

171
Ibid Rule 4(b).
172
Section 75.
173
Ibid, Rule 4(k).

227
d) More than Rs. 100000 Rs.5000/- plus 2% of the amount exceeding Rs. 100,000 rounded
off to nearest next hundred

Appeals to the Cyber Appellate Tribunal and the High Court

The Act provides for the Constitution of a Cyber Appellate Tribunal to hear appeals from
cases decided by the adjudicating officer. Within 25 days of the copy of the decision being
made available by the adjudicating officer, the aggrieved party may file an appeal before
the Cyber Appellate Tribunal.

Section 57 provides that the appeal filed before the cyber appellate tribunal shall be dealt
with by it as expeditiously as possible and endeavor shall be made by it to dispose of the
appeal finally within six months from the date of receipt of the appeal. Section 62 gives
the right of appeal to a high Court to any person aggrieved by any decision or order of the
cyber appellate tribunal on any question of fact or law arising out of such order. Such an
appeal must be filed within 60 days from the date of communication of the decision or
order of the Cyber Appellate Tribunal.

Can contraventions be compounded (compromised) with the offender?

Except in the case of repeat offenders, contraventions may be compromised by the

adjudicating officer or between the parties either before or after institution of the suit.
Where any contravention has been compounded the IT Act provides that “no proceeding
or further proceeding, as the case may be, shall be taken against the person guilty of such
contravention in respect of the contravention so compounded”.174

Criminal Penalties

The process described above applies to “contraventions” under Chapter IX of the Act. In
addition to being liable to pay compensation, in the cases falling under section 43, such
offenders may also be liable for criminal penalties such as imprisonment and fines.175 This

174
Section 63 of the Act.

175
Prior to amendment in 2008, contraventions listed in Section 43 were only liable to be compensated by damages through civil
proceedings. Thus in 2007, the Madras High Court annulled an FIR lodged in a police station which listed an activity mentioned in
43(g). See S. Sekar vs The Principal General Manager < http://indiankanoon.org/doc/182565/> This position has however been changed
with the new Section 66 which makes all actions listed in Section 43 an offence when committed with dishonest or fraudulent intent.
Thus an FIR can be lodged with respect to these activities as well.

228
sub-section of this paper deals with the procedure to be followed with respect to the
criminal offences set out under Chapter XI of the Act176 .

Whom to approach? Who can take cognizance of offences and investigate them?

Section 78 of the IT Act empowers police officers of the rank of Inspectors and above to
investigate offences under the IT Act. Many states have set up dedicated cyber crime
police stations to investigate offences under this Act.177 Thus, for example, the State of
Karnataka has set up a special cyber crime police station responsible for investigating all
offences under the IT Act with respect to the entire territory of Karnataka.178

When must a complaint be lodged?

Although there is no time limit prescribed by the IT Act or the Code of Criminal
Procedure with respect to when an FIR must be filed, in general, Courts tend to take an
adverse view when a significant delay has occurred between the time of occurrence of an
offence and it’s reporting to the nearest police station.

The Code of Criminal Procedure forbids Courts from taking cognizance of cases after
three years “if the offence is punishable with imprisonment for a term exceeding one year
but not exceeding three years”. Where either the commission of the offence was not
known to the person aggrieved, or where it is not known by whom the offence committed,
this period is computed from the date on which respectively the offence or the identity of
the offender comes to the knowledge of the person aggrieved.179

What is the procedure?

No special procedure is prescribed for the trial of cyber offences and hence the general
provisions of criminal procedure would apply with respect to investigation, charge sheet,
trial, decision, sentencing and appeal.

176
for example, see sections 2.2 to 2.5 I.T.Act,2000

177
An incomplete list of cyber crime cells of police in different states can be viewed at <http://infosecawareness.in/cyber-crime-cells-in-
india

178
Home and Transport3 Secretariat, Notification no. HD 173 POP 99 Bangalore, Dated 13th September 2001 Available at <
http://cyberpolicebangalore.nic.in/pdf/notification_1.pdf>.visited on 25,April 2014
179
Sections 468 and 469 of the Code of Criminal Procedure, 1973.

229
Can offences be compounded?

Offences punishable with imprisonment of upto three years are compoundable by a

competent Court. However, repeat offenders cannot have their subsequent offences
compounded. Additionally, offences which “affect the socio-economic conditions of the
country” or those committed against a child under 18 years of age or against women
cannot be compounded. 180

4.7 Human Rights in cyber space

Cyberspace is the virtual communicative space created by digital technologies. It is

not limited to the operation of computer networks, but also encompasses all social
activities in which digital information and communication technologies (ICT) are
deployed. It thus ranges from computerized reservation systems to automated teller
systems and smart cards. With the ‘embedding’ of digital facilities in more and more
objects (from microwave ovens to jogging shoes), these acquire intelligent functions and
181
communicative capacities and begin to create a permanent virtual life-space. The issue
of the governance of cyberspace emerges in many current ICT-debates at different levels.

There is the staunch anarchistic position that considers cyberspace a totally new and alien
territory where conventional rules do not apply. For those holding this cyber-libertarian
view no governance is the best governance. But, however attractive this approach may
seem, if more people are to use cyberspace this is likely to need public and corporate
policymaking. This is equally the case if cyberspace is to be protected against
unprecedented opportunities for criminal activity. Moreover, cyberspace technology does
create a virtual reality, but this is not altogether de-linked from politics in the real
world.Opposed to cyber-anarchy are those governments who would want a strict regime
for activities in cyberspace in order to control not only the pornographers, and neo-Nazis
but also the copyright pirates or just anybody who holds politically subversive aspirations.
Then there are the cyberspace citizens who feel they can best police themselves and who

180
Section 77A of the Information Technology Act,2000

181
Cees J. Hamelink ,Human Rights in Cyberspace, the International Journal for Communication Studies,p.231

230
discuss among themselves a variety of forms of self regulation ranging from Parent
Control software to Cyber Angels, Codes of Conduct and Netiquette.

Cyberspace is perceived by the digital settlers as the last ‘electronic’ frontier, but
cyberspace also colonizes our non-virtual reality and lest it totally controls daily life it
needs to be governed by norms and rules. A re-current question is whether cyberspace
gives rise to new forms of democratic [electronic] governance, which are less-territory
based, less hierarchical, more participatory, and demand new rules for political practice.

Whatever position one may take regarding future governance of cyberspace, it can not be
denied that in any case (moral) choices have to be made and are being made since
inevitably the proliferation of cyberspace technologies implies like all technological
development a confrontation with moral issues on different levels.

These relate to -among others- choices about the way the technology will be designed;
choices among possible applications and the responsibility for certain applications;
choices about the the introduction and the use of applications. They also address issues
such as the unequal distribution of harm and benefit of applications among social actors;
the control over technology and its administration; and the uncertainty about the future
impacts of technology.

The specific question that concerns me here is whether the current international human
rights regime can provide us with meaningful moral and legal guidance for the solution of
these moral choices.

A first issue that emerges concerns the observation that the human rights regime is firmly
embedded in modernist, Enlightenment thought that seems to collide with the view that
cyberspace is "a manifestation of the postmodern world" .Characteristic of the modern
world are the physical categories, such as location, gender, ethnicity, appearance, from
which cyberspace seems to liberate us. There is a pragmatic answer to this question. Even
if the international human rights regime is affected by the flaws of modernity in today’s
reality the regime is more noted for its violations than its respect, and the world would
undoubtedly be a safer place for the world’s majority if its provisions were implemented.
Moreover, cyberspace itself it solidly rooted in and connected with the forces of
modernity. It originates with the military establishment (that created the predecessor of the

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Internet) and is strongly promoted by the world’s leading financial and industrial
corporations.It seems however necessary to expand the discussion with a conceptual
critique of the conventional human rights discourse. The real significance of human rights
standards can only be uncovered if a number of theoretical inadequacies are addressed and
remedied. Conventional theories on human rights imply limitations to the understanding of
human rights that erode the effective implementation of the very basic claims they
enunciate. These theories are characterized by their exclusive emphasis on individual
rights; their limited interpretation of the concept ‘freedom’; their limited understanding of
the concept ‘equality’; their limited scope for ‘horizontal effect’; and their lack of
institutional consideration.

Horizontal effect

Conventional human rights thinking mainly focuses on the vertical state/citizen

relation and the basic moral standards almost exclusively focus on the political sphere.
This ignores the possibility that concentration of power in the hands of individuals can be
as threatening as state power. Whenever citizens pursue different economic interests,
individual human rights will be under serious threat. Citizens also need to be protected
against each other. A concept like of equality should therefore be extended to all those
(socio-economic and cultural) spheres that are essential to human emancipation and self-
development. Beyond the concern to realize equal voting rights in democratic societies,
for example, the need to create equal participation in cultural life, should receive similar
emphasis. Human rights cannot be realized without involving citizens in the decision-
making processes about the spheres in which freedom and equality are to be achieved.

The idea of human rights has thus to extend to the social institutions (the institutional
arrangements) that would facilitate the realization of fundamental standards. This moves
the democratic process beyond the political sphere and extends the requirement of
participatory institutional arrangements to other social domains. It claims that also culture
and technology should be subject to democratic control.

This is particularly important in the light of the fact that current democratization processes
(the "new world order" processes) tend to delegate important areas of social life to private
rather than to public control and accountability. Increasingly large volumes of social

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activity are withdrawn from public accountability, from democratic control, and from the
participation of citizens in decision-making.

The People’s Communication Charter

The recognition of individual rights under international law was thus linked with the
notion that individuals also have duties under international law. This was eloquently
expressed in 1947 by Mahatma Gandhi in a letter to the director of UNESCO about the
issue of human rights. Gandhi wrote, "I learnt from my illiterate but wise mother that
rights to be deserved and preserved came from duty well done".

The People’s Communication Charter articulates essential rights and responsibilities that
ordinary people have in relation to their cultural environment. It represents an attempt to
redress some of the weaknesses inherent in the conventional human rights regime. It
aspires to a democratic and sustainable organization of the world’s communication
structures and information flows. It is abundantly clear that these great ideas cannot be
simply implemented by drafting and revising a text. The text constitutes merely a point of
reference for a much needed civil activism that targets what arguably is a very central
social domain.

The People’s Communication Charter is an initiative of the Third World Network

(Penang, Malaysia), the Centre for Communication & Human Rights (Amsterdam, the
Netherlands), the Cultural Environment Movement (USA), the World Association of
Community Radio Broadcasters (AMARC), and the World Association for Christian
Communication.

The Charter provides the common framework for all those who share the belief that people
should be active and critical participants in their social reality and capable of governing
themselves. The People’s Communication Charter could be a first step in the development
of a permanent movement concerned with the quality of our cultural environment.

The movement should not be seen by those who work in the mass media as a populist
intervention with their professional independence. It should rather be welcomed as a
creative alliance between media producers and consumers against those commercial forces
that are more intent on generating profits than on informing people properly. If we want to

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apply human rights standards to relations in cyberspace this requires the active
responsibility on behalf of those who are concerned.

From the beginning it was clear that the Charter should not be seen as an end in itself. It
intends to provide the basis for a permanent critical reflection on those worldwide trends
that determine the quality of our lives in the third millennium. The Charter has now been
adopted by a growing number of organizations and individuals around the world and
several activities inspired by the Charter are planned for the coming years, among them an
international tribunal on violations of the Charter’s rights. To-day the Web site of the
Charter182 is the place where such events and the progress in widening support for the PCC
is made public. The core themes of the movement concern:

1. Communication and human rights: Communication and information services should

be guided by respect for fundamental human rights.

2. The public domain. Communication resources (such as airwaves and outer space)
belong to the "commons"; they are public domain and should not be appropriated by
private parties.

3. Ownership. Communication and information services should not be monopolized by

governments or business firms.

4. Empowerment. People are entitled to the protection of their cultural identity and to the
development of their communicative capacities.

5. Public accountability. Providers of communication and information services should

accept public accountability for the quality of their performance.

The cultural environment is ultimately not only shaped by governments and media
moguls, but in important ways by the clients of the system. We need a critical debate on
the use of the international human rights regime as instrument of moral guidance.
Ultimately, all depends upon the commitment of people themselves to shaping humane
governance for our future in cyberspace.

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In August 1997, for example, the Charter was displayed at the famous Dokumenta exhibition at Kassel, Germany. The text was
discussed and signed by many visitors.

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