This article is written by Vidita Saini, pursuing Diploma in International Contract Negotiation, Drafting and Enforcement at LawSikho. This article discusses the various aspects of expungement which is the process of erasing or sealing a criminal record from the public and the legal challenges involving the same.
It has been published by Rachit Garg.
Table of Contents
Introduction
“Liberty is one of the most essential requirements of the modern man. It is said to be the delicate fruit of a mature civilization. It is the very quintessence of civilized existence and essential requirement of a modern man”
-John E.E.D. in “Essays on Freedom and Power“
The legal process of erasing or sealing a criminal record from public access is termed as ‘Expungement.’ This ability to avoid or erase a criminal conviction is useful assistance provided through legal means in order to give convicted persons a second chance to start their life afresh. However, expungement is not a panacea for all the challenges faced by individuals with criminal histories. They still have to face discrimination in society. How expungement helps to mitigate this problem is discussed in the article. Further, the article presents a brief overview of the process of expungement and the associated legal challenges, followed by its benefits and drawbacks.
Historical background of expungement
The concept of expungement was introduced in the early 20th century in the United States. In 1905, Illinois became the first state to bring in legislation on expungement in the case of juvenile delinquency. Thereafter, California in 1955 and New York in 1965 joined with the common goal of giving opportunity to juvenile delinquents to rebuild their lives.
The concept of expungement gained momentum in the 1970s as part of the broader criminal justice reform movement. Those in favour of expungement argued that it would help those convicted of minor offences and wants to participate in society without any social stigma attached. However, the process of expungement remained complex. By the end of the 20th century, several states enacted legislation to make the procedure more accessible. Various reliefs like sealing the record and setting aside the conviction were added.
Expungement has proven to be an important instrument for destroying the criminal record and aiding people to move ahead in life with a clean slate. At present, expungement is recognised in nations like the UK, USA, Canada, Australia, South Africa, Spain but it is still an alien concept for some countries like- Japan, South Korea. In India, we do not find per se mention of it in any of the legislation. However, the concept of plea bargaining under Sections 265A–265L of the Criminal Procedure Code, 1973 can be said to be a form of expungement, upon a wide interpretation of the term.
Process of expungement : a brief overview
The process of expungement, in general, begins with filing a petition in court to get the criminal record erased. To be eligible for the procedure, certain essential requirements must be fulfilled.
(a) The accused is found to be not guilty and they should not have committed some specific categories of crimes or against a specific category of people (like women or children) (this condition varies from jurisdiction to jurisdiction).
(b) Accused is either pardoned or released without a conviction.
(c) The offence in question must not be grave in nature.
(d) The offender must complete his/her sentence or the period of probation.
(e) In the case of a first-time offender, the nature of the offence is critical to decide whether the expungement should be allowed or not.
Analysis of the procedure of expungement
Getting a criminal record erased or sealed is undoubtedly an advantageous service for the convicted person. Charging premium or unnecessary premium for this service is the question of debate for a long time since there are several legal implications involved in allowing and availing of this service. It includes the issue of ethics, bribery and the integrity of the justice system. We shall discuss these points in detail.
Legal implications
(a) Charging fee for Legal Representation: In most jurisdictions, providing legal services to the client is part of the justice system and hence should not be monetised for the benefit of service providers. So anyone trying to charge a premium for the ability to avoid or erase criminal conviction will be subject to criminal prosecution. This can include disbarment or suspension of license to practice law.
(b) Bribe: To get the criminal record clear is an invaluable service for the convicted person. He/she will go to any extent to avail of this service and thus, the possibility of giving or taking bribe cannot be ruled out. Also, since bribes can be in any form, favour or kind, it will be very difficult to find out. This is why the concept of expungement in highly populated developing countries like India is not yet introduced.
(c) Corruption: It would not be difficult for influential persons to use their position to get their criminal record erased or sealed. Also, it gives scope for the criminals to commit crimes with an assurance that with the help of their powerful connections, they will easily get their criminal records erased. Such practices only corrupt public officials and put a stain on the justice system. This process has the potential to violate the provisions of The Indian Penal Code, 1860 (section 171B–171I) which penalises the act of giving or accepting gratification for the exercise of personal influence.
(f) Integrity of the Justice System: The right to equality is an integral part of the rule of law. It states that every individual is equal in the eyes of law and deserves an equal treatment. Provisions like expungement have all the potential to undermine this fundamental principle by giving unfair advantage to a particular section of society. Wealthy persons can also take the undue benefit of these services and can damage the integrity of the justice system.
Advantages of expungement
Expungement gives a second chance to the convicted person to start his/her life again. There are a number of benefits one can avail of through this process.
(a) Employment: Having a criminal record acts as a barrier in obtaining any kind of job. It is generally a condition in the job recruitment process that one should never be convicted of any criminal offence. Expungement helps to clean the criminal records of an individual.
(b) Accommodation: Due to the criminal history attached, it gets difficult for an individual to rent a house as some landlords ask for background checks. Expungement solves this problem as well.
(c) Education: Sometimes, due to the criminal record, it can become difficult to avail educational opportunities in some institutions. Taking a financial loan for the purpose of education in such cases also turns into a complex process. Getting the criminal record erased through legal process helps to resolve this issue also.
(d) General Rights: A person with a criminal record can be barred from exercising some rights like the right to vote, right to own firearms etc. Expungement revives such rights and allows the person to be a part of society without any social stigma attached.
(e) Psychological Aspect: Mental peace is very important to live a normal and healthy life. Expungement provides peace of mind to the person with the feeling of satisfaction that he/she can now lead a life without the burden of past mistakes.
Disadvantages of expungement
There are numerous benefits of expungement as discussed above but it has its own drawbacks also. Some of the disadvantages of expungement can be listed as follows:
(a) Not a Uniform Process: The process of expungement varies from state to state. The eligibility criteria also depend on various factors that again, can differ from one jurisdiction to another. For instance, to decide whether the expungement should be allowed or not the offence in question matters the most. The list of such offences differs from place to place.
(b) Expensive Process: Since the process of expungement is a relatively new one, it is hard to find an attorney who is well-versed in the complex process of expungement. Thus, hiring an expert for this service can be very costly.
(c) Limited Efficacy: Government or the concerned authority can still have the criminal records with them even after the process of expungement.
(d) Public Safety: Expungement no doubt helps to move on from past mistakes but concealing the criminal records of an individual can put the public in danger also. The possibility of expungement being given to a non-deserving candidate cannot be ignored.
(e) Stigma Attached: Through the process of expungement, criminal history can be deleted from the record but it cannot be erased from the minds of people. People may still discriminate against such convicted persons.
Expungement in India
Though the concept of expungement is not formally introduced in the Indian judicial system, its practice cannot be totally denied. The instances of erasing criminal records can be traced back to ancient times. People in power and people with power used to save themselves from the punishment and the marginalized section had to pay the price in their place. The untouchability and the caste system added fuel to the fire.
When the legal system was introduced in India during colonial times, the concept of ‘Plea Bargaining’ came. Plea bargaining allowed the parties to negotiate or have mutual compromise and settle in exchange for a lesser sentence for the culprit. Even though this practice was very much prevalent, it was not formally introduced in the Indian Criminal System. Justice Malimath Committee in 2003 suggested bringing in the concept of Plea Bargaining or the Doctrine of Nolo Contendere to reduce the burden on courts. Thereafter, Chapter XXIA wholly dedicated to the idea of Plea Bargaining was added to the Criminal Procedure Code, 1973 by the Criminal Law (Amendment Act), 2005. However, misuse of this provision was observed by the Supreme Court of India and in 2018 the court held that plea bargaining in corruption cases affects the socio-economic conditions of the country and hence cannot be used. Despite these orders and checks and balances by the concerned authorities, we find newspapers filled with high-profile cases wherein either the person escapes the bars through his connections or pay hefty amount to get his criminal record cleared.
Conclusion
Expungement i.e. the legal process to get one’s criminal record erased or sealed is one of its kind services provided by the justice system of a country. One can apply to get his criminal record erased by filing a petition through legitimate means. This service has more chances of being misused than to be of benefit to society. This is why there are a number of conditions before the process of expungement can be put into action. For instance, it usually can be applied by only first time offenders and that too when the crime committed is not grave in nature. Crime against women and children does not qualify for this process. Further, it poses an ethical challenge for the justice system as well. However, having said all of this, it cannot also be denied that expungement gives a second chance to the offenders. Such opportunities are rare and have a high possibility of changing the person for the better. Charging unnecessary premiums or hefty amount for expungement from the qualifying candidate denies him/her the right to re-enter society. To solve this problem, incentives can be given for the attorneys to take up a particular number of expungement matters on a pro bono basis. Paying for the expungement process can also be added to the list of causes under community service. After all, we as a society should also strive to make our world a better place to live in and focus more on correctional measures. As Mahatma Gandhi also said-“One should hate the sin and not the sinner.”
References
- Amy F. Kimpel, Paying For a Clean Record, 112 J. Crim. L. & Criminology 439 (2022)
- https://scholarlycommons.law.northwestern.edu/jclc/vol112/iss3/1
- Satender Kumar Antil vs Central Bureau Of Investigation SLP (CRL.) NO.5191 OF 2021
- https://www.americanbar.org/groups/public_education/publications/teaching-legal-docs/what-is-_expungement-/
- https://www.americanprogress.org/article/fines-and-fees-are-a-barrier-to-criminal-record-clearing/
- https://sentencing.typepad.com/sentencing_law_and_policy/2022/05/paying-for-a-clean-record.html
- https://www.ohioexpungementlaw.com/definition-of-expungement/
- https://blog.cisive.com/understanding-how-expungement-works-and-impacts-your-employee-background-checks/
- https://repository.law.umich.edu/cgi/viewcontent.cgi?article=3167&context=articles
- https://www.goodhire.com/blog/clean-slate-laws/
- https://www.canada.ca/en/parole-board/services/expungements/expungement.html
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