Sting operation ruled illegal

The Supreme Court on Tuesday declared the Commission for the Investigation of Abuse of Authority's  (CIAA) use of sting operations unconstitutional, putting an end to two decades of scare-mongering fueled by personal agenda and impunity.

Acting on a petition filed by Advocate Bishnu Prasad Ghimire, the Constitutional Bench of the SC led by Chief Justice Cholendra Shamsher Rana declared the provision for sting operations set out by CIAA Rule 30 (2002) as contrary to the spirit and essence of the Constitution. 

“The nature of the stipulated provision is found to be encouraging the investigating officer to act in an arbitrary way”, the brief judgment issued today stated. 

Decried by critics as a tool to further personal interests, Rule 30 gave CIAA operatives the power to procure and set up bribes for stings and exempted them from constitutional law which criminalises the giving of kickbacks.

Opportunists then exploited this loophole, conspiring with operatives to set up bribes and implicate low-level employees they had disagreements with.

Enforcement of Rule 30 was noticeably higher, and random, over the last few years. Of 206 cases of graft registered in the Special Court by the CIAA last fiscal year, 181 had sting operations, from which 99 involved kickbacks less than Rs 25,000.

There were 277 arrests, among whom 69 ranked as non-gazetted officers or lower and 16 were office peons. It is clear that the CIAA is focused merely on the ‘easy work’ of luring low-ranked officers and making arbitrary arrests in an extralegal manner. 

As the CIAA goes around chasing after small-time offenders and innocents, corruption in the larger scale flourishes. Over the last three years, only four percent of cases registered by the CIAA concerned serious offences, including revenue embezzlement and illegal acquisition of property. 

“Despite the instructions of the parliamentary committee and the emergence of huge scandals such as Ncell and Wide Body, the CIAA has failed to conduct any meaningful investigation.” says former Chairman of the Special Court Gauri Bahadur Karki. “Sting operations are their way of fudging case numbers to inflate performance.”     

A Centre for Investigative Journalism (CIJ) report in July last year detailed instances where sting operations had led to arrests of low-level employees.

For example, contractor Sujan Poudel filed a complaint at the CIAA against police deputy superintendent Shyam Kumar Rai, accusing him of soliciting a bribe. The CIAA decided to catch Rai red-handed in a sting operation. Poudel went to Rai’s office and surreptitiously planted Rs140,000 in cash in the police officer’s drawer. Immediately after, officials from the CIAA who were hiding outside barged into the office and arrested Rai.

The media ran the news: ‘DSP Rai arrested with Rs140,000 bribe money’. The CIAA took Rai under custody and filed a corruption case at the Special Court. Rai later accused Poudel of framing him because he had taken action against the contractor for illegal sand mining and quarrying. 

“CIAA can file corruption case if someone is caught taking a bribe,” said constitutional expert Bhimarjun Acharya told CIJ then, “but a constitutionally empowered body’s involvement in using cash to trap someone is not really acceptable matter in any civilised society, and it goes against the rule of law.”

Former police chief Hemanta Malla who has worked at the CIAA says the agency’s use of stings goes against the basic principle of ‘secret action’. He admits that sting operations can be used to expose serious crimes like match fixing, human trafficking and drug trafficking, but says the use of sting operations against petty crime is ‘overkill’.

“The target of secret action should be to break organised crime networks, but the CIAA’s operation seems just focused on arresting junior-ranking officials. This should be stopped because the sting tool can be misused,” Malla added.