The Supreme Court petition on the Quint sting

The Quint’s Poonam Agarwal petitions the apex court on the OSA charge, defends her sting on the army’s sahayak system, and demands a court inquiry into a soldier’s death.
PRASHANT R THIKKAVARAPU does not think the OSA charge will stick.

A screen grab from the sting video 

 

The Supreme Court on April 24 issued notice to the Central Government on a petition filed jointly by Poonam Agarwal, a journalist at Quint and a former soldier. Both were involved in a ‘sting operation’ that recorded soldiers of the Indian Army (with their faces blurred) without their knowledge or permission, complaining about how they were being made to do menial chores by officers and how this was an abuse of the sahayak (orderly) system in the Army.

The video has since been taken down from the Quint’s website after one of the soldier’s featured in it, Gunner Roy Mathew, was found dead on the Army camp in a case of alleged suicide. The investigation that followed the death of the soldier is yet to be completed and in a comment made to the Hoot, the reporter has stated that she has handed over the raw footage to the police and is fully co-operating with the investigation.

It is not yet clear whether the soldier’s death was a suicide. The Army is sticking to its story that the soldier committed suicide while Agarwal and the family are alleging that Roy was killed and did not commit suicide. A month after the death, the police in Nashik, acting on an application by the Army, registered a FIR against Agarwal under Section 306 of the IPC (Abetment to suicide), criminal trespass, and Sections 3 & 7 of the Official Secrets Act.

In the joint petition, Agarwal and the former soldier have sought a court-monitored investigation into Mathew’s death, an inquiry into the misuse of the sahayak system, payment of compensation for Mathew’s death, and the issuing of suitable guidelines giving a “strict and controlling interpretation of the OSA” to prevent its abuse and to protect the former soldier who aided Agarwal in the sting from any retaliatory action by the Army. (The soldier, who has lost three of his limbs, used to run a small canteen on the Army camp and was directed to vacate the premises by the Army after the sting went public).

It should be mentioned that Poonam Agarwal was also the journalist responsible for the famous sting in the infamous BMW ‘hit & run’ criminal trial which exposed a senior advocate unduly influencing a witness. In that case the Supreme Court had said “We have unequivocally upheld the basic legitimacy of the stings and the sting programmes telecast by NDTV.”

Invoking the Official Secrets Act

The fact that the police have mentioned some provisions of the Official Secrets Act (OSA), 1923 in the FIR registered in the death of Gunner Roy Mathew has led to criticism from journalists. The Network of Women in Media (NWMI) put out a press release demanding the dropping of cases against Agarwal. Amongst other demands, the NWMI has asked the government to “withdraw the charges under the Official Secrets Act”.

From the information available so far, it does not appear that Agarwal has been “charged” with offences under the OSA. The mentioning of a particular law in the FIR is to facilitate an investigation. “Charging” happens at the time of filing the charge sheet when the prosecution has decided the investigation has yielded enough evidence to seek conviction of the accused. Not all offences mentioned in the FIR are required to make their way into the charge sheet. That said, is there a case for an investigation under the OSA? 

While reporting on the sahayak system itself can hardly qualify as an offence under the OSA, there is also the issue of filming in a prohibited area. The video was shot on a spy cam in an Army camp which is a “prohibited area”. Prima facie there appear to be grounds for investigation.

"While reporting on the sahayak system itself can hardly qualify as an offence under the OSA, there is also the issue of filming in a prohibited area."

 

What are the chances of Agarwal actually being charged under the OSA? I think they are rather slim but journalists would be mistaken to assume that they get a free pass from any criminal prosecution just because a sting operation was justified in the larger public interest. This question of law was answered by the Supreme Court when it was faced with a case where a reporter in a sting operation was accused of corruption by the investigating agency. In that case the court held the following:

“A crime does not stand obliterated or extinguished merely because its commission is claimed to be in public interest. Any such principle would be abhorrent to our criminal jurisprudence. At the same time the criminal intent behind the commission of the act which is alleged to have occasioned the crime will have to be established before the liability of the person charged with the commission of crime can be adjudged.

“The doctrine of mens rea, though a salient feature of the Indian criminal justice system, finds expression in different statutory provisions requiring proof of either intention or knowledge on the part of the accused. Such proof is to be gathered from the surrounding facts established by the evidence and materials before the Court and not by a process of probe of the mental state of the accused which the law does not contemplate.”

The police are therefore well within their right to investigate the circumstances of Agarwal’s sting and for that it was necessary to mention the OSA in the FIR. However, I seriously doubt whether they will uncover evidence to actually prosecute her on an OSA charge. 

The ethics of the Quint’s sting 

The case raises very serious questions of journalistic ethics. Most stings by the Indian media have focussed the camera on the wrongdoer. For example, the very first Tehelka sting captured politicians and bureaucrats accepting bribes, the IBN sting on ‘cash for votes’ captured MPs taking bribes on camera, and the Cobrapost sting on money-laundering captured corrupt bankers offering to launder money etc.

"Most stings by the Indian media have focussed the camera on the wrongdoer."

 

The Quint sting, however, is one of those rare cases where the innocent victims of the story were captured on camera without their permission and although the Quint has argued in its defence that it blurred the faces, there has been criticism that the blurring did not mask the identity of the soldiers who could still be identified from their voice and body build.

Normally the invasion of a person’s privacy can be justified in the case of a sting operation, in the public interest of exposing their morally or legally, reprehensible conduct. For example in the BMW case, the senior advocate in question was blatantly trying to influence one of the witnesses in a manner that was contrary to the law and was in fact found guilty of criminal contempt.

But how does one justify a sting featuring the victim of an institutional practice that is the subject of the critique? What value did the sting add to the existing information regarding the abuse of the sahayak system? In the weeks prior to the Quint’s sting operation, there were self-shot videos by army soldiers complaining about the sahayak system. That soldiers were not happy with the system was plain knowledge to everybody.

"But how does one justify a sting featuring the victim of an institutional practice that is the subject of the critique?"

 

What additional information did this sting add to the public debate and was it worth compromising the privacy of the soldiers in question? These are important questions to ask when journalists are compromising the privacy of a person especially when the person is the journalist’s source.

The soldiers in question were speaking to Agarwal in confidence and they were her “source” for the story. Should the journalist have betrayed the confidence of her own “source” by recording and broadcasting the video of their conversation without their approval? I think the answer is in the negative.

What if the abuse of the sahayak system wasn’t public knowledge? Would that have justified a sting operation on an unsuspecting innocent? The unequivocal answer to this question is also no and this would hold true even if the soldier hadn’t killed himself. Given the Army’s strict insistence on discipline, it was foreseeable to anybody that the soldiers, if identified, could have been subject to harsh disciplinary action by way of a court martial. The Quint was clearly aware of this because they did try masking the identity of the soldiers but failed to do so.  The moral culpability for this sting doesn’t stop with the journalist but with the editor who cleared the sting for broadcast.

 

The author is a Research Associate at School of Law, Singapore Management University.

 

 

 

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