By Aswathy S
Eminent Indian Jurist, Nani M Palkhiwala has observed that one of the greatest defaults in our system of administration of justice is the delay -our cases move forward in the pace of a snail. Justice delayed is indeed Justice denied. Delayed justice in our system has many reasons ranging from the huge backlog of cases in our courts to inadequate strength of judges and other staffs. This delay further leads to problems such as rising acquittal rates and languishing of undertrial prisoners in the jails of our country. One of the important provisions of criminal justice which has helped in fighting this issue was the introduction of plea bargaining by the Criminal Law Amendment Act of 2005.
The concept of Plea Bargaining
Plea bargaining is a process wherein the accused person agrees to plead guilty in consideration of a relaxation or concession which will be granted to him either in the form of reduced sentence or dismissal of some charges. It can be rightly said as a negotiation between both the parties -the accused and the prosecution. Plea bargaining can be beneficial to all the parties involved in the case - For the accused it guarantees him a lesser sentence or reduction in charges than the original one which is better than the unpredictable outcome of a lengthy trial. For the victim, on the other hand, it serves immediate justice by ensuring that the person accused is punished without further delay. The workload of the appearing counsels and the court is also greatly reduced. This helps in speeding up of court proceedings and the case reaches a conclusion quickly. The court's time and efforts can be diverted to other boiling issues which requires urgent attention. It also provides an opportunity for the cases of undertrials to be disposed off quickly. Undertrials constitute the majority populace in our prisons. Denying a quick trial is unreasonable and unfair and it undermines the principles enshrined in Article 21 of our constitution. In the matter of Kadra Pahadiya v State of Bihar, court has opined that keeping men in jails for such long periods without giving them a fast trial is a shame on Indian Judiciary. Plea bargaining has helped in solving this issue to an extent. However, it has to be noted that unlike the system in USA where plea bargaining can be availed for almost all offences, in India, Plea Bargaining is available only for offences punishable with less than seven years of imprisonment. Moreover, this provision cannot be resorted to in offences committed against women and children and the offences which are socio economic in nature.
Types of Plea Bargaining
Plea Bargaining can be of many types. Charge Bargaining is a type of plea bargain wherein the accused is spared of one or more charges in exchange for his admission of guilt. This occurs when the person is charged with more than one offence. However, this is upon the discretion of the prosecution. Prosecution may or may not accept this. Whereas in Sentence Bargaining, the accused is given the benefit of a less serious charge than the original grave one. For example, from murder to culpable homicide. The prosecutor may recommend the court a specific sentence to be given when the accused pleads guilty. The accused must be made known of the consequences of the same. Another type is Fact Bargaining which is rarely used. In Fact Bargaining, the parties agree to convey only a set of facts to the court hiding the other set of facts. This practice is discouraged because it undermines the credibility and veracity of the legal system.
History of Plea Bargaining
The concept of Plea Bargaining grew when the United States adopted the practice rampantly due to high pendency of cases in the US courts. Trials took months and years to complete as a result of which offenders were given a chance to plead guilty in exchange of lesser punishment or sometimes reduced sentences. But later, especially in 1960's - 70's the US courts began to exercise controls and limited the practice out of the fear that it may lead to forced and coerced
confessions which can undermine the very essence of Criminal Justice System. Despite this, the use of plea bargaining grew in the states. Later, it was in the landmark decisions such as Brady v.US and Santebello v. New York that the court upheld the practice as constitutional and ever since then, the practice has been widely used and now majority of the cases are solved by opting plea bargaining. The acceptance of plea bargaining varies from country to country and in some countries including India, it has been introduced only recently while in many others it is still totally banned.
Evolution of Plea Bargaining in India
During early years, plea bargaining was strictly barred in India and the Supreme Court strongly condemned the practice. The court has opined that the practice of plea bargaining is exceptionally inexcusable which can never be adopted to Indian set of laws .Again in the matter of Thippaswamy v. State of Karnataka, the court observed that the practice violates the crucial right of the accused enshrined in Article 21 of the Constitution. Similar was the observation of the court in the matter of Kasamba Abdul Rahmanbhai Sheikh vs State of Gujarat. The idea of granting concessions to those offenders who voluntarily plead guilty was first presented in 142nd report of the Law Commission in 1991. This was made on watching the success of the US model. It was in the 154th report in 1996 that the Law Commission opined for the need of an alternative measure to deal with the huge pendency of cases and the never-ending backlog of cases in our courts. This need was again voiced in the 177th report and it was in 2003 that a committee named Malimath Committee was constituted to address the same. As a result of this, the provision of Plea bargaining was included as a separate provision in CrPC from sections 265A- 265L for offences punishable with less than seven years of imprisonment.
After the introduction of plea bargaining as a statutory provision, Supreme Court and High Courts through its rulings has laid down different guidelines for the judicial exercise of the same. For instance, the Gujarat High Court in the matter of State of Gujarat v Natwar Harichandir Thakor, has observed that the plea of guilt must be evaluated from circumstances of each case rather than weighing them factually. The court has also reiterated the fact that the purpose of plea bargaining was for speedy disposal of cases and for reducing the workload of the court and it should not be seen as an opportunity for the accused to escape from the sanction. Moreover , the power to reject or accept the plea of guilt by the accused is the discretion of the court.
Plea Bargaining as a Statutory Provision - An overview
The procedure for Plea Bargaining in India is contained from sections 265A- 265L of the CrPC.The process can be initiated by the counsel appearing on behalf of the accused by moving an application to the court expressing that they agree to plead guilty in exchange for a lesser punishment or reduced charges. The court, then must conduct a preliminary hearing, the purpose of which is to ensure that the person has agreed to plead guilty voluntarily and not out of coercion or undue influence. The court must oversee that the accused has agreed to such a provision with full knowledge of its consequences. Moreover, the conditions of the agreement must not be unreasonable or unfair. If the court can ascertain the above stated things, it can conclude the case in consonance with the terms of the plea bargain agreement. It must be specially noted that the person who has received the conviction in a plea bargain cannot appeal. However, they can opt for a revision petition or file a writ petition under Article 226 or Article 32 of the Constitution. They can also file an application for Special Leave to Appeal under Article 136 as a last resort. The court has complete discretion in accepting or rejecting the plea bargain and it is not upon the whims and fancies of the prosecution or the accused. If the terms of the agreement are unreasonable the court has every power to reject the same and order for a full trial
Conclusion
Even though Plea bargaining has been brought as a separate legal provision, it has faced many challenges from lack of awareness among the accused persons to social, economic, and cultural influences. The effectiveness of the provision largely depends on how it is operated or negotiated between the prosecutor, the accused and finally the court. Though Plea Bargaining has largely helped in reducing backlog of cases and crowding of undertrials in prisons it has many demerits. One such is that it may result in forced or coerced confessions. Scholars also point out that the practice takes away from the accused the right to a full trial. Despite these, the concept of plea bargaining has emerged as one among the alternative dispute resolution method and has greatly saved the time of the parties and the courts.
The author of this article is Aswathy S, a fourth-year BALLB student at Mar Gregorios College of Law.
This article contains the view of the author and the publisher in no way associates with the views or ideologies of the author. All the moral rights vests with the Author(s).
Comments