This article is written by Surabhi Sharma,  a student of Symbiosis Law School, Pune.

What is Plea Bargaining?

A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society: The first being that people come to believe that inefficiency and delay will drain even a just judgment of its value[1]

The above statement, written by Warren E. Burger, in an address to the American Bar Association point to the importance of timely justice in a free society. The biggest problem that Indian justice system is facing is the huge backlog of cases. Noted jurist Nani Palkiwala rightly said, “The law may or may not be an ass, but in India, it is certainly a snail”. More than three crore cases are languishing in the Courts for various reasons. .One of the major reason behind this abysmally low disposal of cases by Judiciary is the lack of number of judges in the respective courts. Apart from huge backlog of cases, the conviction rate in our country is also very low hence the credibility of judgment is doubted. Judicial process is additionally time consuming, cumbersome and expensive.

All these problems call for an alternative. A way that would lead to speedy trial and efficient sentencing. A proposed alternative to this would be bringing the opportunity of plea bargaining into the Indian Criminal Justice System.

Plea Bargaining can be described 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.”[2] They are also referred as plea agreement, plea deal or copping a plea. The procedure for a plea bargain is simple – A bargain or deal is struck between the accused and the prosecution whereby, the accused will agree to plead guilty to the charge when enquired by the trial Judge and in return will get a lesser sentence or plead guilty to one or more charge in return for the promise that the other charges will be dropped against him. The trial Judge takes an active part in this process.

In the US, plea bargaining was introduced in the 19^th Century and has proved to be very successful. It has been an integral part of their justice system. Though Plea Bargaining has not specifically been mentioned in their Constitution, its legality has been upheld in their judicial pronouncements. Today, almost 90 to 95% of criminal cases in the US are disposed off by plea bargaining rather than jury trial.

History Of Plea Bargaining In India

As far as India goes, the country has a long history of opposing the introduction of plea bargaining. The practice of plea bargaining was considered unconstitutional, illegal and immoral as far as criminal trials are concerned. The legality of this procedure and its usefulness was for the first time realised in State of Gujrat v. Natwar Hachandji Thakor.

In Chandrika’s case[3], The Court held Plea Bargaining to be an immoral compromise in criminal trials and was for a long time held to be against public policy in the criminal justice system, although it may be allowed in a civil case.  The Court held that the sentencing of a person must be decided only on the merits of the case. The fact that the accused has pleaded guilty should not be a reason to award him a lesser sentence. The Court said that accepting plea bargains is against the interest of the victim and the society at large. It only serves to satisfy the shallow requirements of the culprit who does not want to face the horror of an Indian Jail, the prosecutor who does not want to make multiple trips to the Court filling revisionary appeals and the overworked trial magistrate is more than happy to accepts these “sub rosa ante room settlements” as he is burdened by a docket of cases.[4] It was widely recognized stated that if the Courts wanted to be lenient with the accused they could grant a lighter sentence but entering into a bargain for money was completely looked down upon.[5] In the case of Kachhia Patel  Shantilal v. State of Gujrat,[6] the Court strongly disapproved of plea bargaining and went to the extent of stating that it would encourage corruption, collusion and pollute the front of justice. Therefore, for a long time it was settled law that plea bargaining could not be used to dispose of criminal cases, the Court has to decide the case on its merits and if the accused pleads guilty the Court has to impose the appropriate sentence.

Procedure For Plea Bargaining

Plea Bargaining can happen in a number of ways:

The Law Commission of India advocated the introduction of plea bargaining in India (even though the Supreme Court vehemently opposed it) in its 142^nd, 154^th and 177^th reports.

The Criminal Law (Amendment) Act of 2005 introduced a chapter XXI A into the Criminal Procedure Code, 1973. This came into effect on 5^th July 2006. It allows plea bargaining to be used in the following  circumstances–

1. Only for those offences that are punishable with imprisonment below 7 years.
2. If the accused has been previously convicted for a similar offence by any court, then he/she will not be entitled to plea bargaining.
3. Plea Bargaining is not available to offences which might affect the socioeconomic conditions of the country. For eg, for offences under the Dowry Prohibition Act, 1961, Commission of Sati Prevention Act, 1987, Juvenile Justice (Care and protection of Children) Act, 2000
4. It is also not available if the offence if committed against a woman or child below 14 years.
5. Plea Bargaining is not available for serious offences such as murder, rape

Plea Bargaining Can Happen In The Following Ways –

1. Withdrawal of one or more charges against an accused in return for a plea of guilty
2. Reduction of a charge from a more serious charge to a lesser charge in return of a plea of guilty
3. Recommendations by prosecutor to sentencing judges for lesser sentence in lieu of plea of guilty.

It may happen in many cases that the accused entering into plea bargaining may not do so voluntarily. Therefore, to ensure that the plea bargaining has happened in a proper way and justice has been ensured, the Court must adhere to the following minimum requirements,

1. The hearing must take place in Court
2. The Court must satisfy itself that the accused is voluntarily pleading guilty and there is no existence of coercive bargaining to the prejudice of the accused
3. Any Court rejecting a plea bargaining application must be kept confidential to prevent prejudice to the accused.

CONCLUSION

The concept of plea bargaining has been in dispute in India for a long time. The parties that oppose and support it have strong reason for doing so, most of which are valid. Plea bargaining being made a part of Criminal Justice System only in 2006 is still in its nascent stages and only time will tell if it will conquer the objectives it set out to achieve.

[1] Warren E. Burger, “What’s Wrong With the Courts: The Chief Justice Speaks Out”, U.S. News & World Report (vol. 69, No. 8, Aug. 24, 1970) 68, 71 (address to ABA meeting, Aug. 10, 1970).

[2] State of Gujrat v. Natwar Hachandji Thakor 2005 CrLJ 2957

[3] State of Uttar Pradesh v. Chandrika 2000 Cr. L.J. 384

[4] Murlidhar Meghraj Loya v. State of Maharashtra, [1976] 3 SCC 684

[5] Madanlal Ram Chandra Daga v. State of Maharashtra, [1968] 3 SCR 34

[6] [1980] 3 SCC 120