Concept Of Plea Bargaining

To begin with, Plea Bargaining can be defined as the system of negotiating an agreement between the prosecution and defence wherein the defendant pleads guilty to a lesser offence or one or more offences charged in return for a lesser sentence or dismissal of other charges. It is based on the principle of ‘Nolo Contendere’, literally meaning ‘I do not wish to contend’. Although not available for all types of offences, Plea Bargaining has been used as a tool to reduce enforcement costs and save courts time to focus on more significant and pressing cases.

Although there have been historical instances that can be labelled as plea bargains, the modern concept only emerged in the 19th century, having traces in American Judiciary.

India did not feel the need for Plea Bargaining due to the presence of the Jury system until the 1960s when legal representation was permitted.

Highlighting the glaring inefficiency of the Indian Criminal Justice system, with a multitude of backlogs, excessively long trial lifespans and surprisingly low rate of conviction, The Law Commission of India, in its 142nd report, in 1991, implicitly underlined the need for Plea Bargaining. It made its recommendation based on the efficacy of the American model. The report further stated that such a practice is consistent with both the Constitution and the Fairness Principles. It further addressed coherent contentions and further conducted a survey which established that the majority of the legal community was in favour of the such practice.

The Law Commission, in its subsequent reports as well underscored the need for such a practice. In its 154th report in 1996, it called for having a remedial measure for the timely disposal of trials for the better of under-trial prisoners. Then in 2001, in its 177th report, the need for the concept of Plea Bargaining was reiterated.

Malimath Committee was set up under the NDA government in 2003 to suggest improvements to India’s century-old criminal justice system, which too recommended the implementation of the plea bargaining concept for speedy disposal of cases and reduced burden on courts.

The question of Plea Bargaining’s legitimacy and constitutionality was then settled in State Of Gujarat vs Natwar Harchandji Thakor[1] in 2005, the court recognized the value of plea bargaining and that each “Plea of guilt”, which is considered to be part of the process of a criminal trial, should not be assessed factually but rather evaluated on case to case basis. It is a legal issue that must be resolved on a case-by-case basis. The court stated that the entire purpose of the law is to give an easy, inexpensive, and quick justice by resolving conflicts, taking into account the dynamic character of law and society.

Eventually, Chapter XXI A was inserted in the Code of Criminal Procedure, 1973, by the Criminal Law (Amendment) Act, 2005. It was enforceable from 5th July 2006.

Plea Bargaining is mainly of three types: Charge bargaining, Sentence bargaining and Fact bargaining. Prevalent in Criminal cases, Charge Bargaining is when the defendant agrees to plead guilty to a lesser charge in exchange for the dismissal of more severe charges, e.g. pleading guilty for aggravated assault rather than attempting to murder with the primary intent of getting a lesser sentence. This is also the purpose of Sentence Bargaining; however, here, the defendant agrees to plead guilty to all the stated charges for consideration of a lighter sentence. The third sort of plea and least frequently utilized is fact bargaining, in which specific facts are admitted, doing away with the need for the prosecutor to prove them in exchange for an agreement not to bring up other facts.

Under the CrPC, plea bargaining is available for offences that are punishable by up to seven years imprisonment. This instrument also cannot be used in offences that affect the socio-economic condition of the country or where the offence is committed against a woman or a child below 14 years of age.

As in other countries, plea bargaining in India has been the subject of controversy, with some arguing that it can result in the accused person being pressured to plead guilty to crimes they did not commit. Others have argued that plea bargaining can help to reduce the burden on the criminal justice system and facilitate the resolution of cases that might otherwise be bogged down in the courts.

There are several advantages to plea bargaining in India:

1. Faster resolution of cases: Plea bargaining allows for the resolution of criminal cases more quickly and efficiently, as it allows the accused to avoid the time and cost of a trial.

2. Reduced burden on the justice system: Plea bargaining helps to reduce the workload of the courts and the prosecution, as it allows for the resolution of cases without the need for a trial. This can help to free up resources and allow the justice system to focus on more severe cases.

3. Leniency for the accused: Plea bargaining allows the accused to receive a lesser sentence or have other charges dismissed in exchange for a guilty plea. This can benefit those willing to accept responsibility for their actions and avoid the risk of a harsher sentence at trial.

4. Victim satisfaction: Plea bargaining can provide closure for victims, as it allows for a resolution to the case without needing a lengthy and emotionally complicated trial.

While plea bargaining can have certain advantages, it also has some potential disadvantages in the Indian legal system. Some of the main drawbacks of plea bargaining include the following:

1. Loss of the right to a fair trial: By pleading guilty to a lesser charge, the accused person is giving up their right to a fair trial. This can be problematic if the accused is innocent and is pressured into pleading guilty to avoid the risk of a harsher sentence at trial.

2. Incentive for prosecutors to overcharge: If a prosecutor knows that the accused is likely to accept a plea bargain, they may be more likely to bring more severe charges in the hope of negotiating a plea bargain for a lesser charge. This can result in accused persons being charged with more serious crimes than they actually committed.

3. Lack of accountability for the accused: Plea bargaining can result in the accused person avoiding accountability for their actions, as they are able to plead guilty to a lesser charge without having to go through a trial. This is a form of leniency that may not be justified in some instances.

4. Lack of closure for victims: While plea bargaining can provide closure for some victims, it may not be sufficient for others who want to see the accused held fully accountable for their actions.

5. Its critics also claim it violates Article 20(3), which prohibits self-incrimination.

The guidelines and suggestions issued by the Supreme court as far as they relate to Plea Bargaining involve brief training sessions for Judicial officers, counselling the accused if he is willing to accept his guilt with the aid of the District Legal Services Authority. Moreover, the list of such accused should be sent to the Director General of Police so they can check the convict’s criminal history to see if the accused is prepared to accept the plea and file a High Court application. Although the suggestions on the bench of Justices Sanjay Kishan Kaul and Abhay S. Oka are a step in the right direction, some potential threats need to be answered.

While plea bargaining can be a helpful tool for resolving criminal cases in India, it is essential to carefully consider the potential disadvantages and ensure that the rights of the accused and the interests of justice are protected.

Views are personal.

[1] State Of Gujarat vs Natwar Harchandji Thakor (2005) 1 GLR 709