A Law On 'Spent Conviction'; An Effective Solution To Reduce Pendency Of Criminal Cases

In a 2018 Article [DPA1] by PRS Legislative Research, it was pointed out that 86% of all the pending cases were pending in the Sub-ordinate Courts, and of these 81% cases were Criminal cases and only 19% are Civil Cases. The AIR Manual contains all Statutes currently in force and when complete, the series is likely to have more than 50 Volumes. A glance through just Volume 1 shows that 18 of the 43 statues mentioned in it provide for Criminal Prosecutions and penalties. Of these 5 statutes create offences which provide for imprisonment of more than 3 years while the remaining 13 contemplate offences that are punishable with a maximum of three years imprisonment and a fine or in the alternative, only a fine. Indeed, this is true of the vast majority of statutes that impose criminal liabilities. The statutes that impose more serious penalties are relatively few. Thirty years ago criminal lawyers could spend their entire careers defending prosecutions under The Indian Penal Code,1860, alone. Today Criminal Lawyers can now spend their entire careers without defending a single case under that statute. The last three decades have seen the enactment of numerous statutes that make culpable, acts of omission rather than commission and it is this, in part, that has led to a striking increase in the number of criminal prosecutions. As an example, even a small Company is today required to ensure compliance with dozens of statutes and the consequences of a failure to do so is for the Company and one or more of its Officers to face Criminal Prosecutions. The liability imposed by these statutes is strict and, as such, the intention to commit the offence, an integral part of traditional criminal offences, is not necessary for a conviction. Many of these statutes only impose a monetary penalty in the form of a fine but the imposition of fine is nonetheless a criminal conviction.

A criminal conviction, in most societies, has many consequences, apart from the stigma attached to such a conviction. In the Public Sector, a person convicted of a criminal offence cannot expect to be appointed to Government Service and a similar disability may attach to a person seeking employment in the private sector. A person convicted of a criminal offence may have difficulty applying for a passport or getting a visa or financial facilities. In addition, the stigma of a criminal conviction is both mental and actual and can arguably be a hurdle to true rehabilitation. Besides, those who have faced a criminal prosecution know that oft-times, the process is also a penalty. Thus a convicted accused not only suffers this arduous process but also whatever sentence may be imposed. These consequences of a criminal conviction necessarily mean that unlike many other jurisdictions, there is in India, a dis-incentive [DPA2] to pleading guilty to an offence, because the consequences far exceed the statutorily stipulated penalty.

It is in this background that it appears appropriate for the legislature to consider making a real and genuine statutory distinction between offences of moral turpitude and those lacking that element, so as to enable them to be treated differently. Numerous statutes use the phrase 'moral turpitude' but the phrase has found definition in only a handful of judgements. The approach of the legislature thus far appears to have been that we know the mischief when we see it without needing to describe it. In The State Bank of India Versus P.Soupramaniane (Civil Appeal No. 7011 of 2009) , the Supreme Court of India, observed that acts which disclosed depravity and wickedness of character could be categorized as offences involving moral turpitude and added the proviso that whether an offence involved moral turpitude or not would depend on the facts and circumstances of the case. In this Judgement the Supreme Court further approved the test laid down by the Allahabad High Court in Mangali Versus Chhakki Lal And Others (AIR 1963 All 527) as being (1) whether the act leading to a conviction was such as could shock the moral conscience or society in general, (2) whether the motive which led to the act was a base one and (3) whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society. By this yardstick, the vast majority of offences which are attended with criminal consequences are not offences of moral turpitude and should, as such, surely be treated differently from those involving baser [DPA3] conduct or motive. It could be argued that the legislature has already taken note of this by prescribing punishment for the offences not involving moral turpitude with a lesser sentence. What is being suggested here is that it may now be appropriate to go further along this path.

Section 12 of 'The Probation of Offenders Act, 1958' provides that an individual, who having been convicted, is deemed to be entitled to the benefit of probation, shall not suffer any disqualification as a consequence of the conviction. This provision is unique in our Law; however, in practice, the grant of Probation is limited to a handful of cases and does not discourage an accused to undergo a full trial. On the other hand, while the introduction of the concept of Plea Bargaining by way of the newly inserted Chapter XXIA in The Code of Criminal Procedure, 1973 in 2006, encourages the accused, it does nothing to diminish the disqualifications that may attach to a criminal conviction. It is, in this context that the jurisprudence of a spent conviction is especially valuable. Of course, this needs, in the longer run, to be coupled with a more defined sentencing policy and greater sentencing options such as community service, a direction to execute 'good behaviour bond', conditional discharges, suspended sentences, intermittent sentences, and conditional sentences being available to the Courts.

Many countries have long recognised and introduced the concept of a 'spent' conviction but this concept is largely alien to Indian Jurisprudence. What is a 'spent conviction'? In essence, it is a modality by which, after the passage of a specified period of time, the stigma and disqualification, if any, attaching to a criminal conviction, is deemed to be wiped out because the conviction itself, is deemed to be wiped out. After the passage of that specified time, which is different for different offences, the convict can legally answer the question by any authority , "Have you been convicted of a criminal offence?, in the negative. In the United Kingdom this Law is codified under 'The Rehabilitation of Offenders Act, 1974' and in Australia, the Commonwealth Spent Convictions Scheme,1990 serves the same purpose. Under the Scheme in Australia, the States have enacted their various legislations, one example being the Spent Convictions Act,2000 applicable to the Australian Capital Territory. Other countries such as South Africa, New Zealand, Ireland, Spain, Sweden and France also have different laws and processes designed to meet the same object. Most jurisdictions having spent conviction legislation do not allow the benefit of the law to extend to offences of moral turpitude and that is probably, as it should be. However, with respect to offences of omission and offences punishable with sentences of less than three years, the introduction of such a scheme would not only promote rehabilitation but would encourage an acknowledgement of guilt at the very outset, especially if coupled with a more dynamic sentencing regime. This is because the plea of guilt and the criminal conviction would not be tantamount to having the albatross of a conviction hanging around the Accused's neck forever, thereby affecting potential employment prospects, access to financial facilities and restrictions on travel. Whereas the statistics to support this hypothesis are not readily available, it is believed that more accused plead not guilty and claim trial for the offences charged in India than in most Common Law jurisdictions. Practical experience suggests that this is not only because of the prospect of incarceration but also because of stigma attached to a criminal conviction and also for fear of the disqualifications attached to the conviction, which disqualifications do not have an expiry date. A 'spent conviction' legislation, especially in cases where there is no criminal intention motivating the offence, is not only in the interests of society at large but would also serve to encourage individuals to acknowledge their guilt and ease the pressure of contested litigation. This coupled with a more flexible sentencing policy could alter the landscape of criminal litigation, very substantially.

Section 468 of The Code of Criminal Procedure,1973 provides a bar to the taking of cognizance of certain offences beyond a certain specified period. The periods of limitation prescribed are six months if the offence is punishable with a fine only; one year if the offence is punishable with imprisonment for a term not exceeding one year and three years if the offence is punishable with imprisonment exceeding one year but not exceeding three years. This, it seems would be a workable guideline for 'spent convictions' too, with a sentence of fine being treated as spent after six months, a sentence of up to one year's imprisonment being treated as 'spent' after the passage of one year from the conclusion of the sentence and a sentence of between one year and three years being treated as spent after a like period of the conclusion of the sentence. As already stated the benefit of this Law would not be available for offences classified as offences involving moral turpitude or if the Accused commits a like offence during the period contemplated for the wiping out of the conviction. In some ways, this proposal is more liberal than that in force in other countries but then again, our pendency and challenges are also different from those faced by those countries.

A multi-national corporation's CEO in India was prosecuted for failing to maintain a statutory register in the manner prescribed in the applicable statute. The offence was punishable with a maximum of a 5000/- Rupees fine. However, the prosecution was contested over many court hearings and many years because the concerned CEO did not want to live with the stigma of a criminal conviction and repeatedly having to narrate the circumstances in which he came to be convicted. This example is not an isolated one. Our Courts are flooded with too many cases like this. There is too much serious crime in India but too much of our resources are spent and wasted on dealing with relatively non-serious crime. The introduction of a legislation that treats serious and non-serious crime differently is the need of the hour. The introduction of the concept of spent convictions may be a timely step forward in putting the volume of criminal litigation in perspective and in directing resources where they are more urgently needed