One of the basic objectives of the judicial system of India has been to provide a speedy and a fair trial to the victims and accused in order for justice to triumph. But since time immemorial, the judicial system has not been able to cope up with the burden of cases. The consequence to which is that the under-trial accused languish in jail for years which in turn over crowds the jails. To systemise this haphazard in the judicial system and to relieve the courts from the pressure of trials, the concept of plea bargaining was time and again reiterated in the 144th, 154th and 177th Law Commission Reports. Subsequently, in the year 2005, through the Code of Criminal Procedure (Amendment) Act, 2005, the provisions in respect to ‘Plea Bargaining’ were laid down in a newly introduced Chapter XXI A in Code of Criminal Procedure.
Plea-bargaining in literal sense means bargaining that takes place through pleading guilty. It is a pre-trial negotiation set up between the prosecutor and the accused (through his pleader) wherein the accused voluntarily pleads guilty in hope to get concession in his charge or sentence. Plea bargaining is not be claimed for all kind of offences. It does not apply to socio-economic offences, offences that are committed against women and children below the age of fourteen (14) years and offences with punishment resulting in life imprisonment and death. Another important feature of plea bargaining is that the confession made by accused cannot be used to try any other offence.
Plea Bargaining can be broadly divided into four categories-
Fact Bargaining, where the accused agrees to stipulate facts of the case in order to prevent other relevant facts to be admitted as evidence.
Charge Bargaining, where the accused agrees to plead guilty to a charge of lesser offence in consideration of a grave offence.
Sentence Bargaining, where accused pleads guilty to get a lighter sentence. This kind of bargaining is the most prevalent in India.
Implicit and explicit Bargaining, where in implicit bargaining there is no face to face negotiation but an understanding created by the judges that those who cooperate in pleading guilty will be given some concession and in explicit bargaining, a face to face negotiation takes place between the accused and the prosecutor where accused is promised the probable outcome if he agrees to plead guilty. These are more evident in International Jurisprudence.
The concept of plea bargaining has been sourced from a popular Indian ally – The United States of America. The history of plea bargaining traces back to 1692 during the Salem witch trials. Around 1832, this negotiation became very popular in Boston and New York. It became a popular opinion that if people were to plead guilty, they will be charged with a less severe sentence. By 1850, it had become a routine for the offenders to plead guilty. During the period of American Civil War between 1861-1865, plea bargaining began showing up in appellate courts and judges were taken aback like the trial court judges. According to the New York based researchers, around 77-83% of the defendants pleaded guilty. This practice had become very common by 1921 in other jurisdictions as well. This practice was highly criticised as unethical and illegal in 1960. In 1967, the President’s Commission on Law Enforcement and Administration presented an important report which recorded the prevalent use of plea bargaining and recommended to acknowledge the practice. But in the case of Brady v. United States, The American Supreme Court had upheld the constitutional validity of plea bargaining and ruled that it is acceptable to reward with reduced penalties for defendants who plead guilty. In Santobello v. New York, the court went to an extent to argue about the importance of plea bargaining as “an essential and highly desirable part of the process for numerous reasons”. Voluntariness to plead guilty was one of the requisites for a valid plea as held by the American Supreme Court (Lynch v. Over Holser).
The approach of the Indian Courts has been very hostile to accept and admit plea bargaining in the Indian Criminal Jurisprudence. Tracing back to 1976 in the Murlidhar Meghraj Loya Judgment, the Supreme Court judge, Justice Iyer commented upon plea bargaining “it is idle to speculate on the virtue of negotiated settlements of criminal cases especially in the area of dangerous economic crimes and food offences this practice intrudes on society’s interest by opposing society’s decision expressed through pre-determined legislative fixation of minimum sentences and by subtly subverting the mandate of law.”
In Kasambhai v. State of Gujarat, the Supreme Court reprimanded plea bargaining to be contrary to public policy and a highly reprehensible practice. This practice was held against Article 21 of the Constitution.
“Inducing or leading an accused to plead guilty would be violative of Article 21” as held in Thippaswamy v. State of Karnataka.
In the case of State of Uttar Pradesh v. Chandrika, the Supreme Court bashed plea bargaining as erroneous and illegal and stated that the concept of negotiated settlement is not permissible in the Indian criminal justice system. There should be no encouragement to such acts.
The Law Commission has outlined the importance of admitting plea bargaining to the Indian Criminal Jurisprudence, ad infinitum. Although the umbrella of Section 206 (1) and Section 206 (3) of the Code of Criminal Procedure covered the concept of pleading guilty before the Magistrate, but it was only for petty offences and minimal fines to be paid on the closure of the case. In its extensively detailed 144th Report, the Law Commission had analysed the American system of plea bargaining and compared the importance of benefits arising out of incorporation of plea bargaining for the Indian Judicature. The Commission also answered concerns regarding illegality, public policy and constitutionality of plea bargaining. In its subsequent 154th and 177th Law Commission Report, the Commission recapitulated the need to dispose the cases in a speedy and effective manner and to also alleviate the sufferings of the under-trial prisoners and desired to include plea bargaining. The Justice Malimath Committee Report of 2003 also highlighted the fact that how United States used plea bargaining to speedily try cases. It also recommended that only a certain suggestive provision can be implemented in India. It was introduced in India on experimental basis.
The Gujarat High Court in the case of State of Gujarat v. Natwar Harchandji Thakor, acknowledged the importance of plea bargaining and iterated that the very object of plea bargaining is to provide “easy, cheap and expeditious justice by resolving disputes”.
The Uttarakhand High Court in 2010 also allowed the concept of plea bargaining. (Vijay Moses Das v. CBI)
Since 2005, a shift from hostility to favourability is seen in the Indian Judicial System.
Provisions under Section 265A – Section 265L have the procedure laid down for how the application is to be filed, the guidelines for mutual disposition, the judgement and its finality, the provisions for appeal (if any), setting off against the sentence and non-application of these provisions.
An interesting provision laid down in Section 265G is that of appeals. There can be no appeals against the orders passed by the Courts in case of plea bargaining except for Special Leave Petition and Writs under Article 139, 226 and 227 respectively.
Plea Bargaining – in favour:
No back logging of cases.
The most influential objective for introduction of plea bargaining was to reduce the burden of the court by providing speedy trials and clearing the back log cases.
Justice delivered is speedy and timely.
The provision of setting off laid down under Section 265-I is in favour of the convict. It helps in reducing the crowd of the prisons and is fair to accused who cannot afford to bail and have been languishing in jails.
Plea bargaining saves time and resources of the prosecution and judicial officers during trial.
Plea Bargaining – against favour:
No Fair trial.
Plea bargaining suspends the accused’s right to fair trial. In such a process, there are high chances that an innocent be punished for the offences he hasn’t committed but due to the bait of a lesser sentence, he pleads guilty.
The involvement of victim in the process of plea bargaining attracts corruption. It ultimately lowers the standard of Justice.
The investigating officer to a case should not be involved during the negotiation process. It creates and undue and unconscious pressure on the accused to succumb to the advantages of the victim.
The whole procedure of plea bargaining involves only one judicial officer. The judge who tries the accused and who approves the plea application should be different so as to avoid any kind of bias.
The concept of plea bargaining mocks the criminal justice system where there is weak evidence against the accused. It become a path for the accused to take undue leverage of plea bargaining.