Aditi Singh | Army Institute of Law, Mohali | 24th August 2020
Introduction
The problem of backlog of cases has been haunting the Indian Courts for a long time. This pendency of cases in Indian Courts is truly pitiful — with over three Crore cases pending in approximation. A large number of these cases have been lingering in the middle of all the strenuous processes and adjourned dates, for no less than twenty years. And this period and the plethora of cases are increasing exponentially. As far as the statistics are concerned — in 2001, the number of inmates housed in Indian jails was almost 1, 00,000 more than their capacity. It was estimated that 70.5% of all inmates were under-trials and of these 0.6% had been detained in jail for more than 5 years at the end of 2001[1].
Since, 2001 this deplorable situation has only been proliferating — delay in disposal of criminal cases and appeals, huge arrears of cases and the appalling plight of under trial in jails and several other such relevant problems — still haunt the very judicial system every citizen of this country puts its trust on. Therefore, even though highly controversial and severely criticized, the system of Plea Bargaining should be considered as an alternative and a viable option to deal with the huge arrears of criminal cases. This process, though so far not widely known in this country, has been used in countries like USA and England for a while now. Despite not being officially recognized till date, it has been practiced in the corridors of the English courts for almost three hundred years[2] whereas in America this process has been used for about a century but was officially taken notice of only about 20 years back[3].
Hence, it’s safe to assume that the aforementioned concept is old in the global judicial scenario but it is relatively new in India. Even though It has been ruled out as unconstitutional, illegal and encouraging corruption, collusion and polluting the pure fount of justice[4] by the Supreme court itself — by virtue of the Criminal Law (Amendment) Act, 2005, plea bargaining has been introduced into the Criminal Procedure Code of 1973.
Explanation
A plea bargain is an agreement between a defendant and a prosecutor, in which the defendant agrees to plead guilty or “no contest”[5] (nolo contendere[6]). The word ‘plea’ means a request, prayer — like an appeal or a formal statement — by or on behalf of the defendant. And the word ‘bargain’ means a negotiation or a type of pact. Hence, in its simplest form it can be termed as: Plead guilty and ensure lesser sentence[7] by way of a deal or settlement.
The Black’s Law Dictionary defines Plea Bargaining as “the process whereby the accused and the prosecutor in a criminal case works out a mutually satisfactory disposition of the case subject to court approval.”[8] Therefore, Plea Bargaining (or Plea Deal), in law, is the practice of negotiating an agreement between the prosecution and the defence whereby the defendant pleads guilty to a lesser offense or (in the case of multiple offenses) to one or more of the offenses charged in exchange for more lenient sentencing, recommendations, a specific sentence, or a dismissal of other charges[9].
Furthermore, Plea Bargaining is mainly of two types: Charge Bargain and Sentence Bargain. Charge Bargain basically involves where the defendants plead guilty to a less serious crime than the original charge. In Sentence Bargain, the defendant agrees to plead guilty in exchange for a promise by the prosecutor to recommend a lighter sentence or to refrain from making any sentence recommendations[10].
Plea Bargaining in the US
In United States, an overwhelming rate of around 95% of criminal convictions is reached by using plea bargain or negotiated pleas[11]. The huge incongruity in the method of application of various processes like the foregoing is due to the vast difference in US and India’s legal model. Unlike India’s emphasis on primacy of the Court where the prosecutor only assists in cases — doesn’t enjoy special powers — and the final decision of offences to be tried rests with the court, the United States grants the prosecutor exclusive powers to press a charge before the courts — reduce the charge; drop multiple counts and press only one charge; make recommendations to the court before sentencing etc. hence, with these distinctive rights in place, it becomes easier to enable the process.
The U.S. Supreme Court has approved Plea Bargaining when properly conducted and controlled. But the courts in USA refused to recognise the existence Plea Bargaining for almost a century. In Robert M. Brady v. United States[12] (the first American case noticed in this regard), it was held that merely because the agreement was entered into out of fear of trial ending in death sentence, wouldn’t illegitimise a bargained plea of guilty.
There are a number of models of the process of plea bargaining practiced in US at different places at different times[13]. United States thus doesn’t limit the kind of case that can be plea bargained, allowing it for the minimum violation or offences up to the most serious crimes, including those which could have potential for the death penalty[14].
Plea Bargaining in India
Originally, the criminal jurisprudence in India didn’t recognize the concept of Plea Bargaining. The Apex Court in the case of, Ganeshmal Jasraj v. Govt. Of Gujrat[15] observed that it [plea bargaining] would be violative of Art. 21 of the Constitution (Right to Life and Personal Liberty) to induce an accused to plead guilty under an assurance that he/she would be treated lightly, and then in an appeal or revision the sentence be enhanced. Such a procedure would be clearly unfair, unjust and unreasonable in view of the dimensions unfolded in Maneka Gandhi v. Union of India[16]. The same principle was furthered by the Supreme Court again in Kasambhai Abdulrehmanbhai Sheikh v. State of Gujrat[17]. It was also held to be against public policy under the Criminal Justice System of India[18]. However, at the same time, Section 206(1) and (3) of the Code of Criminal Procedure and Section 208(1) of the Motor Vehicle Act, 1988 enabled the accused to plead guilty of petty offences, but without affording any bargain between the prosecution and the accused[19].
Eventually with hundreds of cases piling up and the administration of justice on a downfall the need to take certain steps and make some specific provisions to enhance the way we perceive it in today’s time developed and rose. Finally, to reduce delay in disposing of criminal cases the Law Commission recommended in its 142nd[20], 154th[21], 177th[22]Report, introduction of ‘plea bargaining’ as an alternative method to deal with huge arrears of criminal cases. This recommendation was supported by Dr. Justice Malimath Committee[23].
Ultimately, the Criminal Procedure Code was amended and a new chapter XXI-A was inserted by the Amendment Act of 2005 containing the provisions related to Plea Bargaining. It came into effect from July 5, 2006 paving way for the floundering legal system of India to get some relief by way of adopting practices availed by the US judicial system as a form of a solution. Furthermore, Chapter XXI-A, which further encompasses 12 sections (i.e. sections 265-A to 256-L) was added in the code. The sections constructively deals with several factors like: application, mutually satisfactory dispositions, disposal of cases, judgement and its finality, power of the court and some other provisions.
Plea bargaining has since been introduced to the Indian Legal System. The application for plea bargaining has to be filed by the accused in the court in which the offence is pending for trial[24]. However, offences affecting the socio economic condition of the country and those offences committed against a woman or a child (a person below the age of 14 years) are excluded[25]. Also, the law makes it mandatory to pronounce the judgement in open court[26] and once the court passes an order in the case of plea bargaining no appeal shall lie to any court against that order[27]. Thus all serious offences fall outside its ambit.
The rationale behind which was provided by the Supreme Court in Kirpal Singh v. State of Haryana[28], a case involving S. 392 and 397 I.P.C. (minimum punishment of seven years of rigorous imprisonment by the law) stating that the concept of plea bargaining can’t be adopted to circumvent the minimum punishment prescribed by law. No court can by-pass the minimum limit of sentence prescribed by law on the pretext that a pre-bargain was clinched by the accused on the assumption of lesser sentence. This goes to show that the Indian Judiciary still hasn’t accepted the practice of Plea Bargaining in its entirety. But the acceptance is underway in some ways — to avoid all the problems the Supreme Court observed that streamlined procedures should be devised if the state was to administer justice by recourse to Plea bargaining[29].
Furthermore, despite the disfavour, the courts have acknowledged the benefits of the process. The Gujarat High Court observed in State of Gujarat v. Narwar Harchanji Thakor[30], “the very object of law is to provide easy cheap and expeditions justice by resolutions of disputes, including the trial of criminal cases and considering the present realistic profile of the pendency and delay in disposal in the administrations of law and justice, fundamental reform are inevitable. There should not be anything static”.
Conclusion
The reasons for the introduction of plea deals include the enormous overcrowding of jails, high rates of acquittal, torture undergone by prisoners awaiting trial, etc. can all be traced back to one factor — delay in trial process — which is the one thing this process endeavours to achieve. The successful implementation of this process is possible when the system effectively works positively, not in regards of personal interest, but strives for socio-legal justice; it has the ability of thousands. Thus, it can be said that Plea Bargaining is really a measure and redressal and it shall add a new dimension in the realm of judicial reforms.
[1] National Crime Records Bureau at https://ncrb.gov.in/en.
[2] J.K. Mathur, Plea Bargaining – In Indian Context, 34 JILI 429, 429 (1992).
[3] Jack Wright & Peter W. Lewis, Modern Criminal Justice 219, (1978).
[4] Kachhia Patel Shantilal Koderlal v. State of Gujrat, (1980) 3 SCC 120.
[5] Sara J. Berman, The Basics of a Plea Bargain, Nolo (Apr. 23, 2020, 03:11 PM), https://www.nolo.com/legal-encyclopedia/the-basics-plea-bargain.html.
[6] ‘Nolo Contendere’ – I do not wish to contend, is a Latin expression for “no contest.”
[7]Shalin, Plea bargaining: An Indian Approach, Legal Services India (May 11, 2018, 11:50 PM), http://www.legalservicesindia.com/law/article/970/18/Plea-Bargaining-An-Indian-Approach.
[8]Henry Campbell Black (Ed.), Black’s Law Dictionary (6th edn. 1990) p. 1152.
[9]Jon’a F. Meyer, Plea Bargaining, Britannica (Feb. 26, 2020), https://www.britannica.com/topic/plea-bargaining/Benefits-of-plea-bargaining.
[10] Shakeel Ahmad, Plea Bargaining and our Criminal Justice System, 20 ALJ 139, 142 (2012-13).
[11] Mohd. Ashraf & Absar Aftab Absar, Plea Bargaining in India – An Appraisal, 23 ALJ 104, 106 (2015-16).
[12] 397 U.S. 742 (1970).
[13] J.K. Mathur, Plea Bargaining – In Indian Context, 34 JILI 429, 430 (1992).
[14]Mohd. Ashraf & Absar Aftab Absar, supra note 7.
[15] (1980) 1 SCC 363.
[16] (1978) 1 SCC 248.
[17] (1980) 3 SCC 120.
[18] State of U.P. v. Chandrika, (1999) 8 SCC 638.
[19] Shakeel Ahmad, supra note 9, at 139.
[20] Law Commission of India, 142nd Report (1991).
[21] Law Commission of India, 154th Report on Code of Civil Procedure, 1973 (1996).
[22] Law Commission of India, 177th Report on Law relating to arrest of law (2001).
[23] Government of India, Report: Committee on Reforms of Criminal Justice System (Ministry of Home Affairs).
[24] Code of Criminal Procedure, 1973 § 265B(1).
[25] Ibid § 265A(1)(b).
[26] Ibid § 265F.
[27] Ibid § 265G.
[28] 1999 Cri LJ 5031 (SC).
[29] Murlidhar Mehgraj Loya v. State of Maharashtra, (1976) 3 SCC 684.
[30] 2005 Cri LJ 2957.
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