By Chandrika Bothra

 

III. Analysis of approaches to the defence of entrapment

Traditionally, there have been two approaches to the defence of entrapment: subjective and objective.^[1] These approaches have been evolved by the federal courts in the USA but are relevant to the discussion in the context of India. In the case of Rajat Prasad v. C.B.I, the court has thoroughly discussed the applicability of the defence of entrapment in India.^[2]  The apex Court has also previously held that irrespective of the criminal tendencies of a person, he cannot be deliberately tempted to commit a crime.[3] This shows the tendency of Indian courts to consider the applicability of the defence of entrapment.

A.     Subjective approach

The subjective approach to entrapment requires the courts to adopt an individual centred perspective to entrapment.^[4] Upon the successful claim of police inducement by the accused, the burden of proof shifts on the prosecution to prove beyond reasonable doubt the predisposition of the accused.^[5] Although the element of predisposition has not been precisely defined in any case, it can be understood with the aid of the Origin of Intent and the Culpability theory.[6] This test requires that the criminal design and willingness to commit the crime should have originated in the mind of the defendant.[7] For instance, in the case of Sherman v. United States,^[8] the Court overturned the conviction of a recovering drug addict, taking into account both the past criminal history and attempts to rehabilitate.[9]

However, objections are raised to the method of determination of predisposition. A person’s past conduct and criminal records ­­– inadmissible evidence otherwise – become the primary determinants of his predisposition. Additionally, this allows the law enforcement agencies to specifically ‘entrap’ those with unfavourable past records.[10] This violates the Indian constitutional guarantee of equal protection of laws.[11] Furthermore, the approach fails to acknowledge that the extent of persuasion may considerably impact the accused. The criminal design depends largely on the interaction of the accused and the police, and cannot be singled to one entity exclusively. Since the police conduct differs in each case, it is not possible to standardise the cases and assess them solely on the basis of the defendant’s predisposition.

B.     Objective approach

The focus of the objective approach is on the conduct of the police officer and the nature of inducement advanced. [12] The approach states that if the agent of the government uses ‘improper’ means to induce the accused then the court would not consider any other secondary factors.^[13] It is critical for the defendant to establish a chain of causation between the police’s inducement and the crime committed as a result of the same.^[14] If a hypothetical person could have been induced to commit the crime, in a similar fact situation, then the defence would be successful.^[15] Thus, the focus is on preserving the purity of the courts and due process, as opposed to immediate factors such as deterrence and incapacitation of the accused.^[16]

However, a few elements of this approach are shrouded with ambiguity. It is unclear if police conduct will only be deemed unacceptable if the hypothetical person has been induced to act upon it.[17] In addition, the specific characteristics used in profiling of the hypothetical person may affect the applicability of the defence.[18] Moreover, the overt act committed by the accused remains solely his and cannot be contrasted with that of a hypothetical person’s.

It can be therefore concluded that the reasonability and righteousness of police conduct is specific to instances and individuals; it cannot be generalised. In some charges, such as those relating to terrorism, it is vital for the police to be acquainted with the propensity of the defendant to commit crime.

C.     Individualised hybrid approach

Neither of the traditional approaches independently solves the mischiefs the other one gives rise to. Due to the difference in the objectives of both approaches, they can neither be directly compared nor can one be said to be more preferable. The individualised hybrid approach, I propose, identifies the most alarming drawbacks of the traditional approaches. These are either complete disregard of police conduct (subjective approach) or absolute ignorance of existing predisposition (objective approach). The most important factors among the two approaches can be narrowed down to the extent of instigation, the presence of predisposition and the role of the instigation in the actual commission of the offence.

The current approach suggests that entrapment should generally not be permissible unless there is an absolute underlying need for the same. Moreover, the class of offences to which it is applicable should be specified beforehand. However, in the circumstances that it is permissible, certain guidelines should be adopted to make the process equitable. For instance, before actual instigation is advanced by government agents, a preliminary unbiased inquiry to assess the predisposition of the accused must be conducted by the law enforcement agencies. While predisposition of the accused is completely ignored in the objective approach, it becomes the starting point for the applicability of the subjective approach; however, there is no set standard for the extent of predisposition that must be present so as to justify the use of entrapment. Moreover, the trends in entrapment must also be carefully perused to ensure that they are not advanced against the more marginalised sections of the society specifically.

Further, during the administration of the trial, the court should recognise that there may be a defect in the assessment of the predisposition of the accused by the police. Therefore, the courts must not treat the evidence received from the prosecution as conclusive, however, should instead encourage cross examination at various levels. The courts should also acknowledge the fact that the police are likely to entrap people with past criminal records. In such a scenario, the courts must place emphasis on the actus reus and the mens rea of the accused at the time of commission of the offence. While the conduct of the police cannot be regulated by rigid rules, a requirement of reasonableness, due process norms and constitutionality may be introduced during the investigation as well as stage of trial. Entrapment should thus be understood as a product of the interactions of a predisposed mind and official instigation.^[19]

                                                                                        IV. Conclusion

The courts in India have not had a fair opportunity to extensively deal with the concept of state entrapment, despite the occurrence of a few cases. However, the possibility of misuse and exploitation of this practice and the far reaching effects of the same, have necessitated the need to recognise the defence of entrapment in India.

As discussed in the paper, there have been two approaches to entrapment: subjective and objective. While the former states that if the intent and criminal design to commit the crime did not originate in the mind of the accused, the defence should be available to him; the objective approach requires the court to evaluate whether the inducement was strong enough to instigate a reasonable person to commit the crime. However, the drawbacks of these approaches are not addressed by adopting the other. This can be resolved by adopting the individualised hybrid approach as proposed above. This would require a fair evaluation of the predisposition of the accused, the extent of inducement and the effect of the inducement on the commission. Requiring the court to consider these factors cumulatively would assist in bridging the gap between the rightful uses of the defence to the induced, and make it more aligned to equity and public policy.

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

^[1] Paul Marcus, The Entrapment Defence 669-706 (1995).

^[2] Rajat Prasad v. C.B.I., (2014) 6 SCC 495.

[3] Ramajanam Singh v. State of Bihar, AIR 1956 SC 643.

^[4] Kit Kinports, Criminal Procedure in Perspective, 98 The Journal of Criminal Law and Criminology 1 (2007).

^[5] A. M. Dillof, Unraveling Unlawful Entrapment, 94 The Journal of Criminal Law and Criminology 4 (2004).

[6] B. G. Stitt & G. G. James, Entrapment and the Entrapment Defense: Dilemmas for a Democratic Society, 3 Law and Philosophy 1 (1984).

[7] Andrew Choo, A Defence of Entrapment, 53 The Modern Law Review 4 (1990).

^[8]  Sherman v. United States, (1958) 356 US 369, 375; Andrew Carlon, Entrapment, Punishment, and the Sadistic State, 93 Virginia Law Review 4 (2007).

[9] Id.

[10] M. L. Friedland, Controlling Entrapment, 32 The University of Toronto Law Journal 1 (1982).

[11] The Constitution of India, 1950, Art. 14.

[12] N. U. Pritzker, Entrapment, 64 The Journal of Criminal Law and Criminology 4 (1973).

^[13] J. C. Carlson, The Act Requirement and the Foundations of the Entrapment Defense, 73 Virginia Law Review 6 (1987).

^[14] A. M. Dillof, supra note 19.

^[15] American Law Institute’s Model Penal Code, 1962, §2.13.

^[16] Roger Park, The Entrapment Controversy, 60 Minnesota Law Review 163 (1976).

[17] L. B. Orfield, The Defense of Entrapment in the Federal Courts, 39 Duke Law Journal 1 (1967).

[18] Andrew Carlon, Entrapment, Punishment, and the Sadistic State, 93 Virginia Law Review 4 (2007).

^[19] New Jersey Revised Statutes, 1990, §2C: 2-12; See also Warren Bennett, From Sorrells to Jacobson: Six Decades of Entrapment Law and Related Defenses in Federal Court, 27 Wake Forest L. Rev. 829, 831 (1992).