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9 Before THE HONORABLE HIGH COURT OF CITY OF JOY UNDER ARTICLE 226 OF THE CONSTITUTION OF NARNIA, 1950. W.P. / (2018) IN THE MATTER OF MR. TRUE LIES ............................................................................................................................PETITIONER VERSUS UNION OF NARNIA AND ANOTHER .................................................................................. RESPONDENT
- UNION OF NARNIA………………...……………….……………..…...RESPONDENT NO.
- SAYPM……………………………………………………………..…..RESPONDENT NO. MEMORANDUM FOR THE RESPONDENTS DRAWN AND FILED BY COUNSEL ON BEHALF OF RESPONDENTS
TEAM CODE –
I
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................................I
LIST OF ABBREVIATIONS .................................................................................................. III
INDEX OF AUTHORITIES ..................................................................................................... V
STATEMENT OF JURISDICTION .......................................................................................... 1
STATEMENT OF FACTS ........................................................................................................ 2
ISSUES RAISED ....................................................................................................................... 3
1. WHETHER THE WRIT PETITION IS MAINTAINABLE OR NOT.............................. 3
2. WHETHER THE GOVERNMENT AND SAYPM ACTED IN COLLUSION AND
VIOLATED THE RIGHT TO PRIVACY OF THE CITIZENS UNDER ARTICLE 21 OF
THE CONSTITUTION OF NARNIA. .................................................................................. 3
3. SAYPM HAS VIOLATED THE CONTRACT AND DATA PROTECTION LAWS OF
NARNIA IN A MANNER THAT IMPACTED PUBLIC INTEREST AT LARGE. ........... 3
SUMMARY OF ARGUMENTS ............................................................................................... 4
ARGUMENTS ADVANCED ................................................................................................... 5
ISSUE 1: THAT THE WRIT PETITION IS NOT MAINTAINABLE. ................................... 5
1.1 THE PETITIONER HAS NO LOCUS STANDI ............................................................ 5
1.2 THERE IS NO PUBLIC INTEREST INVOLVED AND NO VIOLATION OF
FUNDAMENTAL RIGHTS HAS OCCURRED .................................................................. 6
1.3 THE HIGH COURT LACKS THE AUTHORITY TO DO COMPLETE
JUSTICE .............................................................................................................................. 6
ISSUE 2: THAT THE GOVERNMENT AND SAYPM HAVE NOT ACTED IN
COLLUSION AND THE RIGHT TO PRIVACY OF THE CITIZENS UNDER ARTICLE 21
OF THE CONSTITUTION OF NARNIA HAS NOT BEEN VIOLATED .............................. 8
2.1 NO NEXUS CAN BE ESTABLISHED BETWEEN THE GOVERNMENT AND
SAYPM. ................................................................................................................................. 8
2.1.1 DEMONETISATION WAS NOT AN ACT DRIVEN BY COMMERCIAL
PROPOGANDA .................................................................................................................. 8
III
LIST OF ABBREVIATIONS
- & : And
- ¶ : Paragraph
- § : Section
- A.I.R. : All India Reporter
- Anr. : Another
- App. : Application
- Art. : Article
- A/c : Account
- Co. : Company
- Cal. : California
- Del. : Delhi
- Ed. : Edition
- E.U. : European Union
- Hon’ble : Honourable
- HC : High Court
- i.e. : That is
- Inc. : Incorporation
- I.P.C. : Indian Penal Code
- IT Act : Information Technology Act
- Ltd. : Limited
- M.P : Madhya Pradesh
- Mad. : Madras
- N.C.T. : National Capital Territory
- Ors. : Others
- PIL : Public Interest Litigation
- PM : Prime Minister
- PMO : Prime Minister’s Office
- Pvt. : Private
- Q.B. : Queen’s Bench
- SC : Supreme Court
IV
- Sec. : Section
- S.C.C. : Supreme Court Cases
- S.C.R. : Supreme Court Review
- Supp. : Supplement
- T.N. : Tamil Nadu
- U.P : Uttar Pradesh
- U.S. : United States
- U.K. : United Kingdom
- U.O.I. : Union of India
- USA : United States of America
- UDHR : Universal Declaration of Human Rights
- Vol. : Volume
- v/vs : Versus
- W.B : West Bengal
- WP : Writ Petition
- W.L.R. : Weekly Law Reports
- Ajay Hasia Etc vs Khalid Mujib Sehravardi & Ors.,1981 AIR 487 (India) CASE LAWS
- Ashok Kumar Pandey v. State of W.B., 2004 (3) SCC 349 (India).
- Barada Kanta v. State of West Bengal, AIR 1963 (Cal.) 161 (India)
- Bareilly Develpoment Authority & Anr. v. Ajai Pal Singh & Ors., 1989 AIR
- Bata India Ltd. v. A.M. Turaz & Ors., 2013 53 PTC 536 (India)................................
- Binny v. Sadasivan, 2005 (6) S.C.J. 15 (India).
- C.S Rowjee v. State of Andra Pradesh, AIR 1964 SC 962 (India)
- Central Inland Water Transport Corporation Ltd. V. Brojo Nath, A.I.R 1986 S.C
- Court on its own motion vs State, 146 (2008) DLT 429 (India)
- Damodar S. Prabhu v. Sayed Babalal, AIR 2010 SC 1907 (India).
- District Registrar and collector v. Canara Bank, AIR 2005 SC 186 (India)
- Divisional Manager, Aravalli Golf Club and Anr. v. Chander Hass and Anr, (2008)
- Forrest v. Verizon Comm., Inc., 805 A 2d 1007, 1011 (DC 2002).
- I. Lan Systems, Inc. v. Netscout Level Corp., 183 F. Supp. 2d 328 (2008)
- Indian Airlines Corporation v. Madhuri Chaudhary, A.I.R. 1965 Cal 252 (India)......
- Janata Dal v. H.S. Chowdhary and Ors., (1992) 4 SCC 305 (India)
- 671 (India) 17. Jasbhai Motibhai Desai v. Roshan Kumar, Haji Basheer Ahmed and Ors., (1976) 1 SCC
- Jogeswar Swain v. Union of India, 2005 (3) JKJ 143 (India)
- K.S. Puttaswamy v. Union of India, LNIND 2017 SC 420 (India)
- Kartar Singh v. State of Punjab, AIR 1967 SC 1643 (India)
- Kerala State Electricity Board v. Kurien E. Kallathil, (2018) 4 SCC 793 (India)
- ...................................................................................................................................... 22. Kesavananda Bharati and Ors. v. State of Kerala and Anr. (1973) 4 SCC 225 (India).
- Lachoo Mal v. Radhey Shyam, 1971 A.I.R. 221 (India).
- M Kheri v. M Hamid Ali Gardish, AIR 1940 Oudh 137 (India)
- Miami herald v. Tornillo, (1974) 418 US 241.
- Official Trustee v. Sachindra Nath Chatterjee, (1969) 3 SCR 92 (India)
- Pandey Surindra Nath Sinha v. Bageshwari Pd., 1961 AIR (Pat) 164 (India)............. VI
- R&M Trust v. Koramangala Residents Vigilance Group, AIR 2005 SC 894 (India).
- R. Rajagopal v. State of T.N., 6 S.C.C. 632 (1994) (India)
- R. Rajagopal v. State of T.N., 6 S.C.C. 632 (1994) (India)
- R. v. Godolphin, (1838) 8 A. & E. 338 (344) (USA)
- R. v. Harland, (1838) 8 A. & E. 826 (829-830).
- Ratanchand Hirachand v. Askar Nawaz Jung, A.I.R 1976 A.P. 112 (India).
- Re Flether’s Appliction, (1970) 2 AER 527n
- S. Raja Chetty v. Jaggannathadas Govinda and Anr., (1949) 2 MLJ 694 (India)........
- State of Bihar v. Bal Mukund Shah, (2000) 4 SCC 640 (India)
- State of UP v. Bridge and Roof, (1996) 6 SCC 22 (India)
- State of Uttaranchal v. Balwant Singh Chaufal & Ors., (2010) 3 SCC 402 (India).
- Bengal & Ors., AIR 2010 SC 1476 (India) 39. State of West Bengal & Ors. v. Committee for protection of Democratic Rights, West
- 758 (India) 40. The Post Master General and Gangaram v. Chenmal Mayachand, (1941) 43 BOM LR
- U. Kesavulu Naidu v. Arithulai Ammal, (1912) ILR 36 Mad 533 (India)
- Vishaka & Ors. v. State of Rajasthan and Ors., AIR 1997 SC 3011 (India)
- Chapter VI, Privacy Principles, CIC Regulations. STATUTES, LEGISLATIONS & INTERNATIONAL CONVENTIONS
- Clause 37.2, Unified License Agreement.
- Clause 39.17, Unified License Agreement.
- INDIA CONST. art. 19 cl. 1(a).
- INDIA CONST. art. 21.
- Indian Contract Act, § 2 cl. a (India. 1872).
- Information Technology (Amendment) Act, 2008.
- Personal Data or Information) Rules, 2011. 8. Information Technology (Reasonable Security Practices and Procedures and Sensitive
- Information Technology Act, § 11 (India. 2000).
- Information Technology Act, § 43. cl. a. (India. 2008).
- Information Technology Act, § 72. cl. a. (India. 2008).
- PEN. CODE. 1860.
VII
- Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, OJ 1995 L 281/31, Article 5 ........................ 27
- Regulation 2(b), CIC Regulations................................................................................ 21
- Regulation 2(i), TRAI Regulations. ............................................................................. 22
- Rule 5(2) of Information Technology (Reasonable Security Practices and Sensitive Personal Data or Information) Rules, 2011. ................................................................ 26
- Section 19, CIC Act. .................................................................................................... 21
- Section 20, CIC Act. .................................................................................................... 21
- SPDI Rules, § 72 cl. A. ................................................................................................ 20 ARTICLES, JOURNALS & REPORTS
- Donnie l. Kidd, Jr. & William H. Daughtrey, “Adopting contract law to accommodate contract: Overview and Suggestions” , (2000)............................................................. 23
- Justice B.N. Srikrishna Committee, ‘White paper of the committee of experts on a data protection framework for India’, November 27, 2017. ................................................ 21
- RBI Master Circular on Customer Service in UCBs dated 1 July 2015, available at: 22
- RBI Master Direction on Know Your Customer (KYC) Direction, 2016 dated 25 February 2016, updated as ........................................................................................... 22 BOOKS
- 1 POLLOCK & MULLA, THE INDIAN CONTRACT ACT AND SPECIFIC RELIEF ACT, (14th^ ed. 2012) .................................................................................................... 23
- APARNA VISHWANATHAN, CYBER LAW 195 (Lexis Nexis, New Delhi)......... 26
- BRYAN A. GARNER, BLACK’S LAW DICTIONARY, 1084 (10th ed. 2014) ......................... 12
- BRYAN A. GARNER, BLACK’S LAW DICTIONARY, 1425 (10TH ED. 2014) ........................ 13
- JOHN STUART MILL, ON LIBERTY 13 (1859) ...................................................... 16
- KARNIKA SETH, COMPUTER, INTERNET AND NEW TECHNOLOGY LAW 365 (2nd^ ed. 2012) ............................................................................................................... 26
- MAXWELL ON INTERPRETATION OF STATUTES 423 (11th^ ed. 2010) ............. 25
- NANDAN SETH, LAW RELATING TO COMPUTERS, INTERNET & E- COMMERCE (5th^ ed. 2012).
2
STATEMENT OF FACTS
I. BACKGROUND
SayPM being a digital wallet company offering e-payment services, akin to a necessary public utility, collects sensitive data from its users such as bank account and card details for access to its services. It claims to be in compliance with the applicable data protection laws. However, the consent form which users need to agree to before using the services is lengthy and complex. II. ALLEGED NEXUS AND DATA BREACH During demonetization, SayPM advertised using the PM’s photograph which was widely criticized and led to various PILs alleging a commercial propaganda. AnacondaPole, famous for its investigative journalism, conducted an investigation during which Mrs. Money Bag in a drunken conversation, allegedly claimed receiving a call from the PMO demanding user data before the General Elections. Mrs. Money Bag also claimed to have an association with the PMO and that the PM had written a book which was being sold on SayPM regarding which the PM demanded user data and some other information. However, the claim was not substantiated. The transcripts and video clips were released on social media. SayPM claimed that their user data being 100% secure has not been shared with anyone except law enforcement agencies on request, the names of which were not released. Also, Allegedly the PM’s own mobile app “SayMo” transferred user data to a few foreign companies for data analytics. While this was denied by the PMO, no investigation was conducted. III. UPDATED PRIVACY POLICY SayPM revised its privacy policy including a new clause allowing them to share user data on their sole discretion to any 3 rd^ party. The users who did not consent to this clause were blocked from using the app. SayPM claimed that the data was shared as per the contract, only for necessary purposes, in compliance with the existing laws. Money of the users in the wallet will not be blocked entirely but can be transferred back into their bank A/c by paying a minor fee. IV. THE RESULTED LITIGATION Due to rising concerns regarding data protection, Mr. True Lies filed a PIL by way of a WP in the HC of City of Joy, alleging the violation of Right to Privacy guaranteed under Art. 21 of the Constitution and the provisions of the IT Act. SayPM was made a party to the WP. Hence, the matter is presented before this Hon’ble Court.
3
ISSUES RAISED
I.
WHETHER THE WRIT PETITION IS MAINTAINABLE OR NOT.
II.
WHETHER THE GOVERNMENT AND SAYPM ACTED IN COLLUSION AND
VIOLATED THE RIGHT TO PRIVACY OF THE CITIZENS UNDER ARTICLE 21 OF
THE CONSTITUTION OF NARNIA.
III.
SAYPM HAS VIOLATED THE CONTRACT AND DATA PROTECTION LAWS OF
NARNIA IN A MANNER THAT IMPACTED PUBLIC INTEREST AT LARGE.
5
ARGUMENTS ADVANCED
ISSUE 1: THAT THE WRIT PETITION IS NOT MAINTAINABLE.
1. It is humbly submitted that the Petitioner has no locus standi and has acted in bad faith in line with his personal animosity against the ruling government. In the instant case, the PIL filed by Mr. True Lies has no locus standi as he lacks sufficient interest in the matter and further the grounds on which he has filed the PIL are baseless. 1.1 THE PETITIONER HAS NO LOCUS STANDI 2. According to Black’s Law Dictionary ‘Locus Standi’^2 , means the right to bring an action or to be heard in a given forum or the place of standing. Locus Standi in such public interest litigation is a very relevant factor and the court should always inquire into the locus of person before entertaining such petition.^3 3. In the instant case, it is submitted that the petitioner has pretended to act in the name of pro bono publico, though he had no interest of the public or even of his own to protect.^4 The Petitioner has filed this PIL having mala fide intention against the petitioner and the allegations made in the petition are baseless and unfounded. This petition styled as Public Interest Litigation is nothing but a camouflage to foster personal and political vendetta. Hence it is submitted that the PIL filled by Mr. True Lies have no Locus Standi. And thus, this petition on this sole basis is not maintainable. 4. It is further contended that Hon’ble Supreme Court in the case of State of Uttaranchal v. Balwant Singh Chaufal & Ors ,^5 while expressing its concern regarding the abuse of process of court through PIL issued some directions in order to preserve the purity and sanctity of PIL. Among which directions, it is stated that “the court should ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.” 5. Hon'ble Supreme Court in the case of Ashok Kumar Pandey Vs. State of W.B. ,^6 held that Court has to strike balance between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing (^2) BRYAN A. GARNER, BLACK’S LAW DICTIONARY, 1084 (10th ed. 2014). (^3) R&M Trust v. Koramangala Residents Vigilance Group, AIR 2005 SC 894 (India). (^4) Jasbhai Motibhai Desai v. Roshan Kumar, Haji Basheer Ahmed and Ors., (1976) 1 SCC 671 (India). (^5) State of Uttaranchal v. Balwant Singh Chaufal & Ors., (2010) 3 SCC 402 (India). (^6) Ashok Kumar Pandey v. State of W.B., 2004 (3) SCC 349 (India).
6 a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature.^7 1.2 THERE IS NO PUBLIC INTEREST INVOLVED AND NO VIOLATION OF FUNDAMENTAL RIGHTS HAS OCCURRED.
6. It is humbly submitted that it is necessary to take note of the meaning of the expression "public interest litigation". In Black's Law Dictionary, "public interest" is defined as follows: Public interest. - Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, State or national Government.^8 7. It is submitted that the expression "PIL" means the legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.^9 Not every matter of public interest or curiosity is a subject matter of Public interest litigation. Mere baseless allegations with no actual evidence cannot be made a subject matter of Public interest litigation.^10 It is not originally intended or nor should they be a part in the administration of the state. Court should only interfere when there is a clear violation of the constitutional or statutory provision or statutory duties. In the case, there has been no clear violation of Right to privacy of the customers as falsely alleged. Hence, the PIL should not be allowed to sustain. 1.3 THE HIGH COURT LACKS THE AUTHORITY TO DO COMPLETE JUSTICE 8. It is humbly submitted that the High Court does not have the power to give directions to the government or any other appropriate authority to frame or amend rule/ regulations/ guidelines which may amount to Judicial law making. The Supreme Court in the case of Damodar S. Prabhu v. Sayed Babalal^11 has held that framing of the guidelines by the High Court may amount to judicial law making, which is thereby breach the perimeters of High Court jurisdiction. The court, in order to do complete justice could frame guidelines where (^7) Supra note 6. (^8) BRYAN A. GARNER, BLACK’S LAW DICTIONARY, 1425 (10TH ED. 2014). (^9) Janata Dal v. H.S. Chowdhary and Ors., (1992) 4 SCC 305 (India). (^10) C.S Rowjee v. State of Andra Pradesh, AIR 1964 SC 962 (India). (^11) Damodar S. Prabhu v. Sayed Babalal, AIR 2010 SC 1907 (India).
8 law that disputes relating to contracts cannot be agitated under Article 226 of the Constitution of India.^22
12. The Respondent therefore contends that PIL shall not be used for private or political motive. The allegations made by the petitioners are vague and indefinite and are made with a political motive. Allowing such PIL will be an abuse of the process of the court. There is not an iota of truth in the allegations and all the averments of the petitioners are completely baseless. Hence, the PIL is not maintainable. ISSUE 2: THAT THE GOVERNMENT AND SAYPM HAVE NOT ACTED IN COLLUSION AND THE RIGHT TO PRIVACY OF THE CITIZENS UNDER ARTICLE 21 OF THE CONSTITUTION OF NARNIA HAS NOT BEEN VIOLATED. 13. It is humbly submitted that the Right to Privacy of the citizens of Narnia under Article 2123 of the Constitution has not been violated. The contentions of the counsels on behalf of the petitioners is vehemently denied. 2.1 NO NEXUS CAN BE ESTABLISHED BETWEEN THE GOVERNMENT AND SAYPM. 14. It is humbly submitted that there is no established nexus between the Government and SayPM. A nexus between the above mentioned parties cannot be established on the basis of vague statements and illogical assumptions. 2.1.1 DEMONETISATION WAS NOT AN ACT DRIVEN BY COMMERCIAL PROPOGANDA 15. It is humbly submitted that post demonetisation, usage of the Prime Minister’s photograph for advertisements by SayPM does not establish any commercial nexus on their part, as the allegation was refuted while clearly stating that above mentioned act was done to promote the positive effects of demonetisation on the citizens, and not with any mala fide intention.^24 Also, no commercial propaganda has been directed towards in the fact sheet of the instant case. 16. It is humbly submitted that demonetisation cannot be assumed to be an act driven by a commercial propaganda between the above mentioned parties, as it was an act solely (^22) Kerala State Electricity Board v. Kurien E. Kallathil, (2018) 4 SCC 793 (India); State of UP v. Bridge and Roof, (1996) 6 SCC 22 (India); Bareilly Develpoment Authority & Anr. v. Ajai Pal Singh & Ors., 1989 AIR 1076 (India). (^23) INDIA CONST. art. 21. (^24) ¶ 2, Compromis.
9 executed for the eradication of black money. It is implied that e-transactions will increase after such an act, and SayPM being a body corporate established solely for e-commercial purposes, will have positive repercussions of such an act. 2.1.2 ALLEGED DATA BREACH
17. It is humbly submitted that there was no breach of data protection by the Respondents. As stated in the instant case, AnacondaPole, famous for its investigative journalism, conducted an investigation during which Mrs. Money Bag in a drunken conversation, allegedly claimed receiving a call from the PMO demanding user data before the General Elections.^25 Mrs. Money Bag also claimed to have an association with the PMO and that the PM had written a book which was being sold on SayPM regarding which the PM demanded user data and some other information.^26 Also, Allegedly the PM’s own mobile app “SayMo” transferred user data to a few foreign companies for data analytics. While this was denied by the PMO, no investigation was conducted.^27 It is humbly submitted that none of the allegations against SayPM were substantiated with actual evidence and hence cannot be admissible in Court. 18. As for SayMO, being in the official capacity of the PMO, the counsel would like to draw attention to the Principle of Proportionality as laid down in the Puttaswamy case^28 , which states that “The right to privacy as already observed is not absolute. The right to privacy as falling in part III of the Constitution may, depending on its variable facts, vest in one part or the other, and would thus be subject to the restrictions of exercise of that particular fundamental right. National security would thus be an obvious restriction, so would the provisos to different fundamental rights, dependent on where the right to privacy would arise. The Public interest element would be another aspect.”^29 19. It has been held in the above mentioned case, that with respect to the European Union Regulation of 2016^30 , restrictions of the right to privacy maybe justifiable in certain circumstances, one of them being “Public interest including scientific or historical research purposes or statistical purposes”^31. Hence, it is contended that the data being sent for analytical and statistical purposes falls under the above stated exemption and does not encroach upon the Right to Privacy of the users of the app. (^25) ¶ 5, Compromis. (^26) ¶ 6, Compromis. (^27) ¶ 9, Compromis. (^28) K.S. Puttaswamy v. Union of India, LNIND 2017 SC 420 (India). (^29) Id. (^30) JOHN STUART MILL, ON LIBERTY 13 (1859). (^31) Supra note 28.
11 Bag, who is a director of SayPM, has allegedly claimed, during a drunken conversation that the e-wallet company had received a call from the Prime Minister’s Office (“ PMO”) demanding some user data, right before the General Elections in Narnia. To substantiate its claims, AnacondaPole has released the transcripts and video clips of Mrs. Money Bag on its social media profiles in Legbook and MeTube.^38 This is a clear violation of the Right to Privacy of Mrs. Money Bags, and also does not safeguard the freedom of expression under Article 19 as it does not balance the freedom of press with right to privacy.
25. The String Operation also has resulted in defamation of the Respondent. As defined in Law of Torts and many other cases^39 - "A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right thinking member of society."^40 26. In the instant case, the unauthorised uploading of the video with the breach of Right to Privacy of the respondent has also caused injury to the reputation of the respondent. A citizen has a right to safeguard the privacy of his own^41. 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 in an action for damages. As specified in the facts above, the transcripts and video that was broadcasted was done without prior consent. 2.1.5 THE STING OPERATION AMOUNTS TO INTERFERENCE IN THE ADMINISTRATION OF JUSTICE. 27. It is humbly contended that sting operations interfere with the administration of justice as they take the form of bad law. Law enforcement is solely within the ambit of powers of the Government. Others can merely assist in enforcement, but cannot take the law in their own hands. The journalists should inform law enforcement agencies either prior to or immediately after carrying out the sting operation. Though media acts as a guardian of the enforcement of fundamental rights, it must do so responsibly. Similarly, in this present case (^38) ¶ 5, Compromis. (^39) Bata India Ltd. v. A.M. Turaz & Ors., 2013 53 PTC 536 (India); Pandey Surindra Nath Sinha v. Bageshwari Pd., 1961 AIR (Pat) 164 (India). (^40) Id. (^41) District Registrar and collector v. Canara Bank, AIR 2005 SC 186 (India).
12 AnacondaPole should have informed law enforcement agencies before releasing the video and transcripts on social media, instead of taking the law in their own hands and giving rise to sensationalism.
28. In District Magistrate, Kheri v. M. Hamid Ali Gardish ,^42 the Division Bench of the Oudh Chief Court observed, “The special privilege of the press is a time-worn fallacy and the sooner the misconception that the press is not accountable to the law is removed the better it will be. No editor has a right to assume the role of investigator or try to prejudice the court against any person”. It is humbly submitted that the obiter dicta of the Supreme Court in Rajagopal case ,^43 it can be reasonably gauged that sting operations are not legal in India, as it would defeat the purpose of privacy. 29. The press is the servant, not the master, of the citizenry, and its freedom does not carry with it an unrestricted hunting license to prey on the ordinary citizen.^44 In plain English, freedom carries with it responsibility even for the press; freedom of the press is not a freedom from responsibility for its exercise. Without a lively sense of responsibility, a free press may readily become a powerful instrument of injustice. 30. In a recent case, Court on Its Own Motion v State^45 , the Delhi HC laid down certain guidelines to be followed by agencies carrying out sting operations. - A sting operation must have the sanction of an appropriate authority. Since no such authority exists in India, and until it is set up, a sting operation by a private person or agency, ought to have the sanction of a court of competent jurisdiction. - A channel proposing to broadcast a sting operation should obtain prior permission from a committee appointed by the Ministry of Information and Broadcasting, to broadcast the sting operation by producing unedited tapes. - The reports should not be such as to create panic. Certain standards having regards to sentiments of the viewers should be observed by media. It is imperative that such guidelines are followed or carried out. 31. It is humbly submitted that in countries like US and UK , sting operations are usually deemed a legal method of law enforcement, albeit in a limited way (which incidentally, is not the case in India). Since we do not have law for regulating sting operations there is a possibility to abuse the process. Therefore, sting operations do not have a blanket of immunity from criminal prosecution, even if the sting was done for larger public good. (^42) M Kheri v. M Hamid Ali Gardish, AIR 1940 Oudh 137 (India). (^43) Supra note 25. (^44) Miami herald v. Tornillo, (1974) 418 US 241. (^45) Court on its own motion vs State, 146 (2008) DLT 429 (India).
