By Chandrika Bothra

The jurisprudence of the Indian criminal law is not explicit with its stance on state entrapment or the defences concerning it. However, the use of entrapment to create a crime where none would have existed has largely been seen as contrary to the principles of public policy. A holistic and well-rounded approach to the defence with consideration of its social impact needs to be developed in order to understand the availability of the defence and its application in the law and society framework. In this article, I explore the contours of state entrapment in India. I argue that a regulatory framework needs to be formulated, relying on public policy justifications and instances of misuse and far reaching social impacts of the same. I propose reforms that make the scope of state entrapment in India narrower, to cover certain loopholes. In order to arrive at this conclusion, I import and analyse the traditional American subjective and objective approaches to entrapment in the context of Indian society and culture.

                                                                                            I. Introduction

State entrapment is a practice where the government creates an opportunity and induces a person to commit an offence which he otherwise would not have committed.^[1] The case of Sorrells v. United States,^[2] one of the first cases on state entrapment, recognised the defence of entrapment as a valid rebuttal under American criminal law. While the Court had considered certain important questions relating to the extent of inducement and identity of the accused,^[3] these issues still remain unresolved in India.

While there have been a few instances of the state entrapping individuals in India, the availability of the defence has not been adjudicated upon by Indian courts. Instances of the state planting bribery traps for public officials have been recorded. However, the possibility of misusing the tactic by actively inducing the non-disposed members towards committing a crime arguably violates the essence of the criminal justice and makes a particular section of society more susceptible to engaging in criminal activities. Thus, it is essential to come up with a valid defence with an analysis from the law and society perspective. The approaches which surround the defence are based on two factors – the subjective approach that requires the court to consider the predisposition of the accused, and the objective approach that demands an assessment of the police conduct. However, there are various deficiencies associated with them. This paper attempts to find a suitable approach to address this practice in the context of Indian law and society.

This paper is divided into four parts. In Part II, I provide a brief background of entrapment in India, and analyse the rationale for having the defence under the Indian criminal law. In Part III, I analyse the traditional approaches, subjective and objective, to the defence of entrapment, and propose an individualised hybrid approach. Lastly, I offer concluding remarks in Part IV of the paper.

                                                                                II.The Contours of State Entrapment in India

The defence of entrapment must be recognised by courts owing to its potential to exploit the innocent and hamper the delivery of justice. In the following subparts, I discuss the forms of entrapment in Indian society and the rationale behind the need for regulation.

A.  The Indian Position on Entrapment

State entrapment in India can be categorised into two kinds: first, where it is authorised by a statute, and second, where the government’s actions do not derive authority from any legislation. The first kind of entrapment operates in a limited arena. For instance, the ACB or CBI is authorised by the Delhi Special Police Establishment Act, 1946, to create fictional scenarios to ‘trap’ corrupt public servants.^[4] Upon receiving information on the demand for money by a public official, the CBI authorises officers to set up ‘traps’ to lay hold of those demanding bribes.  This is usually done by noting the unique number of currency notes and by immersing these currency notes into Phenolphthalein which is used for recording fingerprints. The ‘trap party’ then catches the public official accepting bribes red handed. Thus, it can be seen that the state employs resources to create ‘traps’ for public officials who show an inclination towards acceptance of bribes.[5]  In the second instance, where the law enforcement officers act on their own prerogative and are unauthorised by a specific statute, there are bound to be blatant constitutional and human rights violations. Article 20(3) guarantees all Indian citizens a right against self incrimination.^[6] However, in situations relating to state entrapment, the state ‘compels’ individuals to commit an offence which an individual would not have committed in the absence of an active inducement. Since the inducement advanced by public officials remains unchecked in the absence of a specific provisions in a statute, the methods to advance this inducement may violate an individual’s fundamental rights by being arbitrary and discriminatory towards certain individuals.[7] In the pre-Navtej Singh Johar era,^[8] the Lucknow police arrested four gay men on the charges of homosexuality by entrapping them on a dating-website.^[9] Recently, many Indian students were ‘trapped’ by US Immigrations and Customs Enforcement (‘ICE’) by promises of being granted employment visas subsequent to enrolling at University of Flarmington ­­–– a fake university set up by the ICE.^[10] It therefore becomes imperative to safeguard citizens from this practice, through regulation, control and an infallible redressal mechanism.

B. Need for regulation: Rationale for the defence of entrapment in India

Those who have engaged in the debate surrounding entrapment tend to acknowledge the possibility of misuse of entrapment so as to convict the unwary innocent and marginalised.^[11] The discussion below provides the rationale for having entrapment as a defence in India.

1.      Gross Abuse by Entrapping Authority

The possibility of misuse of entrapment by law enforcement agencies, employment of controversial methods to induce the commission of the offence and the kinds of offences entrapment is used for, are some of the factors where there might be grave violations. In the past, law enforcement agencies have often employed objectionable means of inducement.^[12] These include, but are not limited to, the use of financial inducements, sexual favours, fishing people through dating websites and emotional appeals to the innocent.^[13] In doing so, the focus of the police shifts from ‘crime prevention’ to ‘crime creation’; thus marking a transition to a situation where crime is ‘created’ by the law enforcement agencies by advancing the inducement.^[14] In the case of Butts v. United States,^[15] the Court had held that law enforcement agencies must not ‘create crime’ for the purposes of punishing and prosecuting it later. Thus, in order to protect citizens against the gross abuse of power and process by the State, access to a viable legal defence must be established.

2.      Public Policy Justifications

The criminal justice system in India draws heavily from public policy and due process.^[16] Previous decisions have highlighted the Indian judiciary’s strong commitment towards providing remedy,^[17] wherever there is incidence of injustice. Thus, in order to punish a person for the commission of an offense, for which he would never have been guilty in the absence of entrapment, is against the basic tenets of the Indian judicial system.

The two primary doctrines that justify the defence of entrapment are that of judicial control of police impropriety and the oppression principle.^[18] The former relates to supervisory powers of the court and the constitutional function of criminal law. It states that the judiciary is not only to use Constitution for interpreting law, but also directly supervise the interaction of law with various sections of the society to judge its impact. The oppression principle is associated with the inherent flaw in employing organs of the state to promote crime in the context of leading a person to commit a crime which he would not otherwise have committed. This is in contrast to the predisposition principle which believes that the individual was predisposed to commit the crime and the role of the state is only with respect to the actual facilitation. The defence also notes the likeliness of police to target a certain class of people more than others based on factors such as caste, religion, class and the ability to afford court trials.[19] Keeping the principles in mind, the judiciary should make the circumstances surrounding entrapment more conducive towards the development of the defence.

[The next part of the blog discusses the analyses of various approaches to the defence of entrapment and concludes with the author’s comments.]

Chandrika Bothra is a 3rd Year B.A. LLB. (Hon.) student at the The WB National University of Juridical Sciences (NUJS), Kolkata.

^[1] Andrew Ashworth, What is wrong with Entrapment, 40 Singapore Journal of Legal Studies 293-317 (1999).

^[2] Sorrells v. United States, (1932) 287 U.S. 435, 451 (per O. Roberts J.)

^[3] Id.

^[4] Central Bureau of Investigation, Frequently Asked Questions, available at http://www.cbi.gov.in/faq.php#faq15 (Last visited on August 23, 2019).

[5] Rajat Prasad v. C.B.I., (2014) 6 SCC 495.

^[6] Article 20(3), Constitution of India, 1950.

[7] Article 14 and 15, Constitution of India, 1950.

^[8] Navtej Singh Johar v. Union of India, the Secretary Ministry of Law and Justice, (2018) 1 SCC 791.

^[9] Human Rights Watch, Letter to Indian Prime Minister Singh, January 10, 2006, available at https://www.hrw.org/news/2006/01/10/letter-indian-prime-minister-singh (Last visited on August 19, 2019).

^[10]Economic Times, Many More Indian Students Fear Being Trapped and Detained, Feburary 15, 2019, available at https://economictimes.indiatimes.com/news/politics-and-nation/many-more-indian-students-fear-being-trapped-detained/articleshow/68016296.cms (Last visited on August 19, 2019).

^[11] Sherman v. United States, (1958) 356 US 369, 375.

^[12] Louis Michael Seidman, The Supreme Court, Entrapment, and Our Criminal Justice Dilemma, 5 The Supreme Court Review 111-155 (1981).

^[13] Id.

^[14] Id.

^[15] Butts v. United States, (1925) 7 F.2d 1017.

^[16] Report of the Committee on DRAFT NATIONAL POLICY ON CRIMINAL JUSTICE, Ministry of Home Affairs, Government of India, 2007.

^[17] Legal Correspondent, Bilkis Bano case: SC asks Gujarat govt. to complete disciplinary action against erring officials, The Hindu (New Delhi), March 29, 2019.

^[18] Michael Gorr, Entrapment, Due Process and the Period of Pro-Active Law Enforcement, 13 Public Affairs Quarterly 1 (1999).

[19] Andrew Ashworth, What is wrong with Entrapment, 40 Singapore Journal of Legal Studies 293-317 (1999).