Plea Bargaining - A Visit; Understanding Its Impact On Indian Criminal Justice System
Author: LawSphereX
Category: Criminal Law
Published:
Updated:
PLEA BARGAINING: A VISIT; UNDERSTANDING ITS
IMPACT ON INDIAN CRIMINAL JUSTICE SYSTEM
Shrey Srivastava, Bennett University
ABSTRACT
This article aims at exploring the origin, concept and the present status of plea bargaining in India, especially after the introduction of new criminal procedure code, the BNSS. The article further critically analyses chapter XXIII of the Bharatiya Nagarika Suraksha Sanhita, 2023 (BNSS) with
respect to its applicability, scope and overall impact on concerned parties. Further, the article provides some suggestions for better implementation of concept, after providing an analysis of the concept after the Criminal Law (Amendment) act, 2005 and the later changes after the introduction of new criminal procedure code. The paper concludes on the lines that the concept has been implemented in a very cautious manner and the time is right to explore the wide possibilities of the concept of plea bargaining. Keywords: Plea Bargaining, Critical Analysis, Suggestions, Cautious, Explore, Possibilities etc.
INTRODUCTION:
From time immemorial, the main objective of the state is to ensure justice prevails by upholding law and order. However, the procedure of law and order is rather time-consuming, as there are a number of reasons that contribute for such lengthy proceedings before justice is ensured such as a staunch difference between the recommended number of judges by the law commission and the actual number of judges in the courts per 1000000 people in India, as even reported by the Times of India (Pedia, 2023). The problem is such that it could cause a great delay before a solution is reached and in some cases, the solution which is reached is also not satisfactory, so another appeal/revision is sought.
So, to tackle this problem and to suggest some changes and improvements to the century old criminal justice system in India, in 2003, the malimath committee was set-up, which suggested the implementation of plea-bargaining system in India for speedy disposal of cases and to reduce the burden on courts. Plea bargaing is comprised of two terms, plea and bargaing, the meaning of ‘plea’ is ‘to request’ and ‘bargaining’ is ‘negotiation’, so, plea bargaining is basically a process through which the accused negotiates with the prosecution for a less-serious punishment in exchange of him pleading guilty. Though this, the parties won’t have to go through long trial process, and can mutually come to a resolution.
The concept of plea bargaining find its root in American Criminal Justice System, where in the pre-trial stage itself, the accused negotiates with the prosecutor to plead guilty in exchange of a lesser sentence or relaxation in the seriousness of the charge, there about 75 percent of the criminal cases end with plea bargaining with most of them registering a 20 percent drop in the length of sentences. 1 However, unlike US, where the concept of plea bargaining is three fold – guilty, not-guilty or nolo contendere, in India, only the doctrine of nolo contendere is incorporated, which essentially holds that the accused and the prosecutor will enter in an agreement, whereby in return of the accused pleading guilty, the prosecutor will prosecute him for a less serious charge or pray for a lesser punishment.
It resembles compounding of offence, which is a similar procedure but there the charges as a whole are dropped and can only be undertaken for a number of offences, that has been provided under section 359 of BNSS, however, the same is not true for the concept of plea bargaining because the charges are not dropped, the trial will still take place but the punishment would be lesser than what it would have been if the plea bargaining was not undertaken, whereas in case
1 Gale Encyclopaedia of US History.
of compounding, the person is acquitted forthwith. Also, there are three types of plea bargaining: 1. Sentence Bargaining, 2. Charge Bargaining and 3. Facts Bargaining, the first two are self-explanatory, however, the facts bargaining is an agreement between the prosecutor and the accused, whereby the accused assures that he would admit to certain acts in exchange the prosecutor will not introduce certain other facts.2
CRITICAL ANALYSIS OF CHAPTER XXIII:
Chapter XXIII of the Bharatiya Nyaya Suraksha Sanhita, 2023 deals with plea bargaining, earlier it was included under chapter XXI-A of CrPC by the criminal law(amendment) act,
2005. The chapter consists of 12 sections, from section 289-section 300.
Section 289 highlights the essential for the application of this chapter, i. e. , in what cases/circumstances, plea bargaining can be sought, stating that in cases wherein a police report has been forwarded under section 193 or a magistrate has taken cognizance by means of a complaint made under section 175(3), then in those cases plea bargaining can be applied provided that the matter is not punishable with a sentence of life imprisonment, death or a sentence exceeding 7 years, and the concept will not be attracted if the offence is of such a nature that it effects the socio-economic condition of the country or has been committed against a woman or a child.
Now, this section demarcates from the very objective for the introduction of the concept of plea bargaining as the very intention of it is to prevent against the delay of justice and backlogging of cases, however, the legislature has not allowed the implementation of this concept on majority of the cases, and the fact that none of the cases, punishable with punishment of more than 7 years can be allowed for plea bargaining is adding to this, as the majority of the cases pending in India are ones punishable with 7 or more years of imprisonment, thus, the very objective of plea bargaining is defeated. Also, it is not applicable in offences against women, children or socio-economic offences, which is again as per the discretion of the central government to decide, given, these situations the concept of plea bargaining cannot be implemented in its whole potential.
Another point of concern is that in the case of Kirpal v. State of Haryana3, the Supreme Court has held that wherever the minimum sentence has been prescribed by law, neither the trial
2 Plea Bargaining: A revelation by Dr. Abraham P. Meachinkara 2010 (4) klt jrl.
3 1999 Crl.L.J. 503 1 (SC)
courts or the high courts has the power to bypass it, now, if the parties have agreed for a sentence which happens to be less than what has been prescribed by law, in that case such an agreement would have no value and the concept will not be applied. Another point of concern is that section 289 has recognized only cases arising out of police report or complaint but as per section 210 of BNSS, the courts can take cognizance by three ways- police report, complaint or suo-moto cognizance of the court, here the suo-moto cognizance has been left out. But, a contradiction has been made in section 291(b), which holds that in cases other than that of police report a notice will be served by court to the accused and the victim for mutually satisfactory disposition, which again would include suo-moto cases, but section 289 bars suo-moto cases from plea bargaining.
Now, section 290 says that the court will put the accused on camera and examine him in absence of other parties in case to be satisfied that the application of plea bargaining was voluntary in nature, however, this again is ambiguous because no person who is being offered a lesser punishment and exemption from long trial process, even if such agreement has been involuntary on his part, would make it appear voluntary just for the benefit attached to it. This is similar to the point of concern raised in the case of Kasambhai Ardul Rehman Bhai Shaikh v. State of Gujarat.
4 Also, section 290 bars a person who has been convicted of same offence, previously, to opt for plea bargaining, the lawmakers have once again restricted the scope of plea bargaing and have discarded the severity of the subject-matter, as it can happen that the subsequent offence/act of the accused was less-serious in nature, and a mutual-disposition can be made out but cannot happen because the law itself bars it.
JUDICIAL APPROACH TO THE CONCEPT:
Before the formal inclusion of the concept in the Criminal Procedural Code by the 2005 amendment, the Indian Judiciary was very reluctant towards its application even after several recommendations by the law commission (Joseph).5 The concept of Plea bargaining was first considered in the case of Madanlal Ramchand Daga v. State of Maharashtra6, where the
4 AIR 1980 SC 264.
5 Pedia, L. (2023, Febuary 20). Judicial Delay in India. Retrieved from Times of India:
https://timesofindia.indiatimes.com/readersblog/lawpedia/judicial-delay-in-india-50731/
6 AIR 1968 SC 1267.
court outrightly rejected the idea and said that whatever the case is, it should be tried before the court and after such trial if it appears to the court from the facts, a lighter sentence can be provided. In the case of Ganeshmal Jasraj v Government of Gujarat and Anr. 7, the Apex Court observed the effect of plea bargaining on evidence and order of conviction and held; there is no doubt that once there is admission of guilt by the accused by reason of plea bargaining or otherwise, the evaluation of evidence by the court can be little superficial, and the court may refer to the evidence not critically, but only as a matter of formality because the accused is himself admitting, thus, the court observed that the entire approach of the courts would be different towards evidence if there is admissibility to guilt by reason of plea bargaining.
Subsequently in the case of Kasambhai Ardul Rehman Bhai Shaikh v. State of Gujarat8, the court observed the concept from the perspective of an innocent accused, observing that, I cases whereby the charges are false in nature and are brought against an innocent person, being wrongfully accused, in those cases, the concept of plea bargaining can be used against him to lure him, admitting to a lesser offence or for him to serve a lesser sentence, when he might not have served any form of sentence, had the trial would have been exclusive of plea bargaining, so the court said in those circumstance, this concept can prove to be violative of Article 21 as such an act would be unjust and unreasonable and would pollute the pure fount of justice. From these judgments one can make out that the concept was not welcomed by the judiciary and in fact, in the case of Kacchia Patel Shantilal Koderal v.
State of Gujarat and Another,9 the held even held the concept of plea bargaining to be unconstitutional as it would pollute the very fount of justice and later in the case of State of UP v. Chandrika10, the court held that mere acceptance to one’s guilt is no ground for reduction of sentence. However, these contentions changed once the concept was added to the CrPC by the 2005 amendment as chapter XXI-A, it was after it only that courts started recognizing it in positive light.
7 AIR 1980 SC 264.
8 AIR 1980 SC 854.
9 AIR 2000 SC 164.
10 Joseph, R. A. (n.d.). Plea Bargaining: a means to an end. Manupatra, 3.
OTHER CAUSES OF CONCERN FOR PLEA BARGAING:
Plea bargaining is still in its budding stage at India, apart from realising its full potential so that the public at large can derive benefit from it, the lawmakers need to understand what can be the dangers it can pose before making further amendments. The major problem that the concept can potentially cause is rooted in the fact that it is a pre-trial process, so if the parties are willing to opt for it, in that case, the justice system can be compromised, as the police officers might not investigate properly being aware of the fact that a bargain has been made, also, as even pointed in one of the above cases, the courts might not look full well into the evidences, produced before it.
RECOMMENDATIONS:
More clarity should be provided as to what are the socio-economic offences as under section 289, also some guidelines should be made to designate an offence as a socioeconomic offence to safeguard against the arbitrary use of power by the central government. • The application of the section should be widened, for example if not children, then at least in cases of offences against women, not punishable by more than 7 years, plea bargaining should be allowed on several conditions, such as the victim was not forced in any way to enter into the agreement, or the agreement would be entered only in presence of court. • Also, the scope of plea bargaining should be widened with respect to general offences (not against women), but the offences, should not be classified by the amount of jail terms they serve but by the severity they hold.
• A parallel system should be setup to consider matters related to plea-bargaining only.
CONCLUSION:
Plea bargaing has been introduced rather cautiously in India, however, it has a very vital role to play in the India Criminal Justice System. It is a means to enable negotiations between the accused and the prosecution. It can help in expediating the legal processes, and provide a fair and efficient resolution to criminal matters. However, it is also necessary for the judges to apply their minds while approving the application for plea bargaining, as there are number of challenges to it, as even outlined in the critical analysis and other concerns. The concept of
plea bargaining has two faces, one positive and another negative. The positive lies in the fact that it can be used to expediate the long criminal process in India, where on average a criminal case takes 3 years before it is finally disposed off, the negative side is that it can be used to label an innocent person as an offender, because, people panic once a charge is brought against them, in that panic if they are provided with a remedy that plead guilty in exchange of lesser punishment, they might agree to it, thus courts should take extra care of that and apply the concept more efficiently.