If Supreme Court disapproves of plea bargaining, why are approvers such as David Headley allowed?

David Headley was made approver by a special court in Mumbai on December 10, 2015, and his deposition through video conferencing this week, particularly his reported remarks about Ishrat Jahan being a Lashkar-e-Taibaa operative, is making news.

The provision for granting the status of approver (that is, to testify as a witness for the state against associates or accomplices) has existed on the Indian statute books since 1898. It has typically been used in terror offences or cases pertaining to criminal conspiracy, because, as GA Sanap, the judge of the TADA court, Mumbai handling Headley’s case, explained, “In case of a criminal conspiracy, it is hardly possible to get direct evidence.”

Despite its frequent use in terror cases, and the fact that it suffers from many weaknesses, with immense scope for abuse in its application, the law around granting approver status has not been sufficiently written about or discussed.

The procedure for turning approver is contained in sections 306 to 308 of the Code of Criminal Procedure. Approvers are granted pardon in exchange for testifying regarding the circumstances surrounding the offence and the role of accomplices in the offence.

Approvers are pardoned before testifying, as a result of which, their status changes from that of a co-accused to a prosecution witness.

If approvers do not fulfil their part of the deal – either by wilfully concealing essential facts or by giving false evidence – they are no longer regarded as being immune from prosecution, and are subject to a separate trial.

The law relating to approvers thus seeks to obtain evidence of an accomplice, and facilitate conviction of others.

Crime and punishment

For a society that otherwise regards just punishment as a necessary consequence of crime, it seems contradictory to allow a person involved in criminal conspiracy to escape punishment. Crucially, once a lower court grants pardon, and the approver has made a full disclosure of events, higher courts cannot overturn the pardon.

Renuka Bai v. State provides a case in point: all the accused involved were convicted and given the death penalty for kidnapping, murder, and occasional sodomy of children, but the solitary male involved in the crime (all his accomplices were women) had turned approver, and was pardoned in exchange for his testimony by the Sessions Court. When the case reached the Supreme Court, all the court could do was lament the situation where an accused had escaped just punishment, and admonish the public prosecutor for not having taken any steps to proceed against the approver.

Unreliable testimony

Another concern with the practice of turning approver is that courts themselves find approver testimony to be unreliable. In Ravinder Singh v. State of Haryana, the Supreme Court, while considering the approver’s testimony observed that, “(A)n approver is a most unworthy friend, and he, having bargained for his immunity, must prove his worthiness for credibility in Court.”

While section 133 of the Indian Evidence Act permits a conviction upon uncorroborated testimony of an accomplice, Illustration (b) to Section 114 of the same act cautions courts to look at accomplice evidence with suspicion. Courts often – justifiably – presume that the evidence of an accomplice cannot be relied upon, unless such evidence is corroborated in material particulars.

Further, the provision for granting an approver status confers a disturbing amount of power upon the public prosecutor. Turning someone an approver is usually at the discretion of the prosecution, and courts are relegated to a supervisory role in the process. These dealings tend to take place in secret, which can lead to corruption and collusion between the accused/approver and the prosecution.

This prosecutorial discretion has been rendered infamous in Maharashtra, where one of India’s best-known public prosecutors, Ujjwal Nikam, has made this practice a norm. Arguably, cases resting on weak evidence are prone to dubious approver witnesses and prosecutorial manipulation, where approvers are set up as witnesses, and have no real connection to the offence. Since the dealings between the approver and the prosecutor take place in secret, it is hard to conclude with any certainty as to how the approver was chosen and whether any inducement was given to turn approver.

Bargaining for freedom

The Supreme Court has consistently indicated its disapproval of plea-bargaining as being against public policy on the grounds that negotiations of any sort make a mockery of criminal process, and do not follow due process.

Plea bargaining as a practice has thus been characterised as possibly "immoral" associated with "the bad odour of purchased pleas of guilt" and as "subtly subverting the mandate of the law." In State of Uttar Pradesh v. Chandrika, the Supreme Court observed that if an accused confesses guilt, an appropriate sentence must be imposed.

“Mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the court that as he is pleading guilty the sentence be reduced.”

In 2005, despite this long tradition of opposition at the highest level, a procedure for plea-bargaining was officially accepted into the Indian criminal justice system. Three Law Commission of India reports, in 1991, 1996, and 2001 had recommended that versions of plea-bargaining appropriate to the "national ethos" be adopted. The power to implement plea-bargaining came into effect on July 5, 2006.

But the law makes clear exceptions. Plea-bargaining cannot be applied to offences punishable with a sentence exceeding seven years. The other categories of offences excluded from its purview are offences affecting socio-economic conditions of India and offences committed against women and children under fourteen. The provision contemplates an application for plea-bargaining to be filed by the accused, accompanied by an affidavit stating that he/she has not been convicted previously for the same offence. The court may then release the accused on probation, sentence him/her to half of the minimum prescribed punishment for the offence, or to one-fourth of the maximum punishment provided for such offence.

The Code allows for no negotiation between the accused and the prosecutor, a fundamental difference the scheme maintains from the practice as it is traditionally understood.

The process of turning approver is similar to the traditional practice of plea-bargaining, where an accused negotiates for freedom in exchange for testimony, to which a prosecutor might agree because it would help prosecute the person’s accomplices.

The Supreme Court problematically seems to have set contradictory standards for provisions, which are essentially the same: while the court has consistently cautioned against the practice of plea-bargaining (as mentioned above, a highly circumspect law on plea-bargaining is the consequence of this cautioning), it has allowed the flawed provision on approver to remain un-amended.

With the legislature failing to do its bit on the text of the law, it is time for the Supreme Court to examine this provision in more detail, riddled as it is with holes, and prescribe a stricter system that is not open to abuse.