Plea bargaining, a silver lining of Indian criminal justice system

“Let there be Light! Let there be Rainbow!!
For Light and Rainbow are angels of Peace and Happiness!!!”

“Nolo Contendere” – I do not wish to contend, is a Latin expression for “no contest.” In United States in a criminal proceeding, an accused may enter a ‘plea of nolo contendere’, which would mean that he does not accept or deny the charges but agrees to accept punishment.

Under the criminal justice system, for all crimes committed, the offender is required to be punished as per law of land. Traditionally, the State is under the duty to prove the offender guilty of the criminal charges he is accused of, beyond reasonable doubt. But Plea bargaining is a concept in which an agreement takes place between the State and the accused by which he pleads guilty in exchange for some concession in charges or punishment. A plea bargain allows both the parties in a trial to avoid a lengthy trial procedure.

It refers to a person charged with a criminal offence (accused) negotiating with the prosecution for a lesser punishment than what is provided in law by pleading guilty to a less serious offence. It primarily involves pretrial negotiations between the accused and the prosecutor. It may involve bargaining on the charge or in the quantum of sentence.

The concept of plea bargaining in USA was recognized in 1970s as a formal procedure for the resolution of criminal cases. The concept was given the constitutional validity in the case of Brady v. United States (1970). Today, plea bargaining dominates most criminal cases in USA. Almost every criminal case is now conducted by Plea bargaining and today it is often understood that the American criminal justice system would collapse if plea bargaining is removed from it. In the year 2010, 96.8% of all cases in U.S. District Courts were decided by plea bargain. The percentage ranges from a relatively low of 68.2% for murder to a high of 100% for cases of burglary, breaking and entering, 87.5% for sex abuse, 86.7% for arson, 83.6% for civil rights.

In countries such as England and Wales, Victoria, Australia, plea bargaining takes place where the defendant would plead to some charges and the prosecutor would drop the remainder. Plea bargaining occurs in scenarios – when the defendant testifies against the co-conspirator; and where the lesser charge is offered due to the difficulty of proving the greater charge. While the European countries are legitimizing the concept of plea bargaining, the Scandinavian countries largely maintain prohibition against the practice.

  • Provision in India:
    • Plead Guilty: There has always been a provision in the Code of Criminal Procedure (CrPC) for an accused to plead ‘guilty’ instead of claiming the right to a full trial, but it is not the same as plea bargaining.
    • Plea Bargaining: Plea bargaining was introduced in 2006 as part of a set of amendments to the CrPC as Chapter XXI-A, containing Sections 265A to 265L.
    • Cases for which the plea bargaining is allowed are limited.
      • Only someone who has been charged for an offence that does not attract the death sentence, life sentence or a prison term above seven years can make use of the scheme under Chapter XXI-A. It is also applicable to private complaints of which a criminal court has taken cognisance.
      • Other categories of cases that cannot be disposed of through plea bargaining are those that involve offencesaffecting the “socio-economic conditions” of the country, or committed against a woman or a child below the age of 14.
  • Procedure in India:
    • The plea bargaining process can be initiated only by the accused. This provision is different from the one in other countries like the USA where the prosecutor plays a key role in bargaining with the suspected offender.
    • The accused will have to apply to the court for invoking the benefit of bargaining.
    • Thereafter, the court may permit the prosecutor, the investigating officer and the victim (if any) to hold a meeting for a “satisfactory disposition of the case”.
    • Once mutual satisfaction is reached, the court formalises the arrangement by way of a report signed by all the parties and the presiding officer.
      • The accused may be sentenced to a prison term that is half the minimum period fixed for the offence. If there is no minimum term prescribed, the sentence should run up to one-fourth of the maximum sentence stipulated in law.
      • The outcome may also involve payment of compensation and other expenses to the victim by the accused.
  • Arguments in Favour:
    • As per the Justice Malimath Committee on reforms of the criminal justice system (formed in 2000):
      • This ensures speedy trial, ends uncertainty over the outcome of criminal cases, saves litigation costs and relieves the parties of anxiety.
      • It would also have a dramatic impact on conviction rates.
        • It is common in the USA, and has been a successful method of avoiding protracted and complicated trials. As a result, conviction rates are significantly high there.
    • Prolonged imprisonment of undertrials without any progress in the case for years and overcrowding of prisons are also other factors that may be cited in support of reducing pendency of cases and decongesting prisons through plea bargaining.
    • It may help offenders make a fresh start in life.
  • Arguments Against:
    • People who are pushed to plea bargain are those who do not have the wherewithal to arrange for bail.
    • Even courts are also very particular about the voluntary nature of the exercise, as poverty, ignorance and prosecution pressure should not lead to someone pleading guilty of offences that may not have been committed.
      • The Judiciary in its earlier verdicts (especially before the introduction of the process) had disapproved of bargaining with offenders, and pointed out that lenient sentences could be considered as part of the circumstances of the case after a regular trial. Mere acceptance or admission of the guilt should not be a ground for reduction of sentence.
    • Further, it may hamper the victim’s right to fair trial, involvement of coercion by the investigating agencies and corruption in the process.
    • Some argue that it is against Article 20 (3) of the Constitution which provides immunity to an accused against self-incrimination.

Plea bargain differs from ‘guilty plea’ as the facts accepted by the accused during a plea bargain cannot be used against him anywhere in a legal proceeding under Section 265K of the Code. The accused may get less punishment, be released on probation or admonition under Section 265E of the Code. No appeal lies against such judgment except Special Leave to Appeal under Article 136 and Writ Petitions under Article 226 & 227 of the Constitution of India under Section 265G of the Code. Less time and money are consumed ending uncertainties involved in a criminal trial. The victim may also get benefitted by plea bargaining for the same may provide quick justice for victim and fast compensation.

Summing Up

  • To sum up, while plea bargaining is beneficial to the accused and victim of a crime, enough safeguards are required to be placed to stop possible abuse of this process.
  • Plea bargain is a pragmatic vision to overcome crowded criminal courts and prisons and a potential way to improve the litigation efficiency and rationalize judicial resources, infrastructure and expenses.
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