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A new chapter, that is chapter
XXIA on ‘Plea Bargaining’, has been introduced in the Criminal
Procedure Code. It was introduced through the Criminal Law
(Amendment) Act, 2005, which was passed by the parliament in its
winter session. This has certainly changed the face of the Indian
Criminal Justice System. Some of the salient features of ‘Plea
Bargaining’ are that it is applicable in respect of those offences
for which punishment is up to a period of 7 years. Moreover it
does not apply to cases where the offence committed is a
socio-economic offence or where the offence is committed is
committed against a woman or a child below the age of 14 years.
Also once the court passes an order in the case of ‘Plea
Bargaining’ no appeal shall lie to any court against that order.
Now the question is will it work in Indian Judiciary? Do we need
this? Are we equipped to deal with this new facet? This article
makes an attempt to analyze the concept of ‘Plea Bargaining’, its
necessity, its drawbacks and tries to find out the feasibility of
this new idea.
‘Plea Bargaining’ can be
defined as pre-trial negotiations between the accused and the
prosecution during which the accused agrees to plead guilty in
exchange for certain concessions by the prosecution. The Wikipedia
Encyclopedia defines it as to make an agreement in which the
defendants pleads guilty to a lesser charge and the prosecutors in
return drops more serious charges. The object of ‘Plea
Bargaining’ is to reduce the risk of undesirable orders for the
either side. Another reason for the introducing the concept of
‘Plea Bargaining’ is the fact that most of the criminal courts are
over burdened and hence unable to dispose off the cases on merits.
Criminal trial can take day, weeks, months and sometimes years
while guilty pleas can be arranged in minutes. In other words, a
‘Plea Bargaining’ is a deal offered by the prosecutor to induce
the defendant to plead guilty. ‘Plea Bargaining’ can be of two
types. Charge bargain n and sentence bargain. Charge bargain
happens when the prosecution allows a defendant to plead guilty to
a lesser charge or to only some of the charges framed against him.
Prosecution generally has vast discretion in framing charges and
therefore they have the option to charge the defendant with the
highest charges that are applicable. ‘Charge Bargain’ gives the
accused an opportunity to negotiate with the prosecution and
reduce the number of charges that may have framed against him. As
far as sentence bargain is concerned, it happens when an accused
or defendant is told in advance what his sentence will be if he
pleads guilty. A sentence bargain may allow the prosecutor to
obtain a conviction in the most serious charge, while assuring the
defendant of an acceptable sentence. Therefore we can safely say
that ‘Plea Bargaining’ is nothing but a contract between the
prosecution and the defendant or accused and both the parties are
bound by this contract. For most defendants the principal benefit
of plea-bargaining is receiving a lighter sentence than what might
result from taking the case to trial and losing. Another benefit
which the defendant gets is that they can save a huge amount of
money which they might otherwise spend on advocates. It always
takes more time and effort to bring a case to trial than to
negotiate and handle a plea- bargain. Incentives for accepting
plea-bargaining, as far as judges and prosecutors are concerned
are obvious. Over crowded courts do not allow the judges to try
every case that comes before them. It also reduces the caseloads
of the prosecutors.
History: It would be wrong to
assume that the concept of ‘Plea Bargaining’ found favour of
courts only in the recent past. In fact it is used in the American
Judiciary in the 19th century itself. The Bill of Rights makes no
mention of the practice when establishing the fair trial principle
in the sixth amendment but the constitutionality of the
plea-bargaining had constantly been upheld there. In the year
1969, James Earl Ray pleaded guilty to assassinating Martin Luthar
King, Jr. to avoid execution sentence. He finally got an
imprisonment of 99 years. More than 90 percent of the criminal
cases in America are never tried. The majorities of the
individuals who are accused of a crime give up their
constitutional rights and plead guilty. Every minute, a criminal
case is disposed off in an American Court by way of a guilty plea
or nolo contendere plea. In a landmark judgment
Bordenkircher V.
Hayes, the US Supreme Court held that the
constitutional rationale for plea bargaining is that no element of
punishment or retaliation so long as the accused is free to accept
or reject the prosecutions offer. The Apex Court however
upheld the life imprisonment of the accused because he rejected
the ‘Plea Guilty’ offer of 5 years imprisonment. The Supreme Court
in the same case, however in a different context observed that,
it is always for
the interest of the party under duress to choose the lesser of the
two evils. The courts have employed similar reasoning in tort
disputes between private parties also. In countries such as
England and Wales, Victoria, Australia, ‘Plea Bargaining’ is
allowed only to the extent that the prosecutors and defense can
agree that the defendant will plead to some charges and the
prosecutor shall drop the remainder. The European countries are
also slowly legitimizing the concept of plea bargaining, though
the Scandinavian countries largely maintain prohibition against
the practice.
Plea Bargaining in India: To
reduce the delay in disposing criminal cases, the 154th Report of
the Law Commission first recommended the introduction of ‘plea
bargaining’ as an alternative method to deal with huge arrears of
criminal cases. This recommendation of the Law Committee finally
found a support in Malimath Committee Report. The NDA government
had formed a committee, headed by the former Chief Justice of the
Karnataka and Kerala High Courts, Justice V.S.Malimath to come up
with some suggestions to tackle the ever-growing number of
criminal cases. In its report, the Malimath Committee recommended
that a system of plea bargaining be introduced in the Indian
Criminal Justice System to facilitate the earlier disposal of
criminal cases and to reduce the burden of the courts. To
strengthen its case, the Malimath Committee also pointed out the
success of plea bargaining system in USA. Accordingly, the draft
Criminal Law (Amendment) Bill, 2003 was introduced in the
parliament. The statement of objects and reasons, inter alia,
mentions that, The disposal of criminal trials in the courts
takes considerable time and that in many cases trial do not
commence for as long as 3 to 5 years after the accused was
remitted to judicial custody.. though not recognized by the
criminal jurisprudence, it is seen as an alternative method to
deal with the huge arrears of criminal cases. The bill attracted
enormous public debate. Critics said it is not recognized and
against public policy under our criminal justice system. The
Supreme Court has also time and again blasted the concept of plea
bargaining saying that negotiation in criminal cases is not
permissible. More recently in State of Uttar Pradesh V. Chandrika
2000 Cr.L.J. 384(386), The Apex Court held that
It is settled law
that on the basis of plea bargaining court cannot dispose of the
criminal cases. The court has to decide it on merits. If the
accused confesses its guilt, appropriate sentence is required to
be implemented. The court further held in the same case
that, 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.
Despite this huge hue and cry, the government found it acceptable
and finally section 265-A TO 265-L have added in the Code of
Criminal Procedure so as to provide for raising the plea
bargaining in certain types of criminal cases. While commenting on
this aspect, the division bench of the Gujarat High Court observed
in State of Gujarat V. Natwar Harchanji Thakor (2005) Cr. L.J.
2957 that, The very object of law is to provide easy, cheap and
expeditious justice by resolution of disputes, including the trial
of criminal cases and considering the present realistic profile of
the pendency and delay in disposal in the administration of law
and justice, fundamental reforms are inevitable. There should not
be anything static. It can thus be said that it is really a
measure and redressal and it shall add a new dimension in the
realm of judicial reforms.
This article would be
incomplete if it does not discuss the flaws that are hidden
beneath the whole concept. No doubt, plea bargaining is nothing
but a cover up the inadequacies of the government in dealing with
each and every case that comes before it. It indirectly shows the
incompetence of the traditional procedural laws. Some of the major
drawbacks of the concept of plea bargaining as is recognized in
India are as under
A) Involving the police in
plea bargaining process would invite coercion.
B) By involving the court in plea bargaining process, the court’s
impartiality is impugned.
C) Involving the victim in plea bargaining process would invite
corruption.
D) If the plead guilty application of the accused in rejected then
the accused would face great hardship to prove himself innocent.
Therefore to ensure fair
justice, plea bargaining must encompass the following minimum
requirements:
A) The hearing must take place in court
B) The court must satisfy itself that the accused is pleading
guilty knowingly and voluntarily.
C) Any court order rejecting a plea bargaining application must be
kept confidential to prevent prejudice to the accused.
Conclusion:
The plea
bargaining concept no doubt undermines the public’s confidence in
the criminal justice system and as result of this it will lead to
the conviction of innocent, inconsistent penalties form similar
crimes and lighter penalties for the rich.
To Conclude, plea bargaining
is undoubtedly, a disputed concept. Few people have welcomed it
while others have abandoned it. It is true that plea bargaining
speeds up caseload disposition, but it does that in an
unconstitutional manner. But perhaps we have no other choice but
to adopt this technique. The criminal courts are too over burdened
to allow each and every case to go on trial. Only time will tell
if the introduction of this new concept is justified or not.
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Plea Bargaining - An Analysis of the concept
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author can be reached at:
soura_83@legalserviceindia.com /
