Plea Bargaining In India

The Law Commission of India advocated the introduction of plea bargaining in India (even though the Supreme Court was not in favour, 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 for plea bargaining which has came into effect from 5 th July 2006.

The goal of Indian lawmakers behind the amendment was to minimize the delay in disposal of criminal cases and empty overcrowded prisons. All parties have to reach a mutually satisfactory disposition together. Here, the court has to ensure that the entire process takes place voluntarily. There are no negotiations on the sentence of the defendant. The compensation for the victim is fixed by the parties. Once a disposition is reached, the court hears the parties for finalising the sentence. The court retains some discretion to release a defendant on probation as per law. Finally, the sentencing takes place in the following manner- where offences have a mandatory minimum sentence, the court awards half of that sentence. But in cases where there is no such minimum fixed, the court proceeds to award one-fourth of the maximum possible sentence for that offence.

Plea bargaining is a pretrial negotiation between the accused and the prosecution where the accused agrees to plead guilty in exchange for certain concessions by the prosecution. It is a bargain where a defendant pleads guilty to a lesser charge and the prosecutors in return to drop more serious charges. It is not available for all types of crimes and is excluded in serious offences punishable with death or life sentences, crimes affecting socio-economic conditions and crimes against women and children.

Bargaining for a reduction of either in number, or severity of criminal charge is referred to as charge bargaining, Bargaining for a favourable sentence, recommended by the prosecutor, or bargaining directly with the Trial Judge for a favourable sentence in known as sentence bargaining.

There is yet another form of bargaining namely fact bargaining in which the prosecutor agrees not to contest the accused's version of facts or agrees not to reveal aggravating factual circumstances to the court. This form is likely to occur when the proof of an aggravating circumstances would lead to a mandatory minimum sentence or to a more severe sentence under sentencing guidelines.

A prosecutor may also agree to leniency to the accomplices of the accused, arrange the accused to be sent to a more lenient correctional facility, (jail) credit for the time served in jail awaiting trial, agree to have other charges in other jurisdiction dismissed, or for not contesting the applications for parole, provide immunity for crimes which are still to charges or to remain silent when a recommendation may be otherwise favourable.

The plea bargaining may be express bargaining when the accused or his lawyer negotiates directly with the prosecutor or the trial judge concerning the benefits that may follow the plea of guilty or implicit bargaining in which the bargaining is not face to face. In implicit bargaining the trial Judges establish a pattern in which the accused who plead guilty are treated more leniently than those exercising the right to trial.

Indian law implies that the victim has an active say in the bargaining proceedings, and may refuse or veto an unsatisfactory resolution

Cases for which the practice is allowed are limited:

1. Only someone who has been charge sheeted 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.2

2.It is not available for those that involve offences affecting the "socio-economic conditions" of the country, or committed against a woman or a child below the age of 14.

3. In India, a plea bargaining process can be initiated only by the accused;

The accused will have to apply to the court for invoking the benefit of bargaining.

1. The applicant should state that it is a voluntary preference and that he has understood the nature and extent of punishment provided in law for the offence.
2. The court would then issue notice to the prosecutor and the complainant or victim, if any, for a hearing.
3. The voluntary nature of the application must be ascertained by the judge in an in-camera hearing at which the other side should not be present.
4. Thereafter, the court may permit the prosecutor, the investigating officer and the victim to hold a meeting for a "satisfactory disposition of the case".
5. The outcome may involve payment of compensation and other expenses to the victim by the accused.
6. Once mutual satisfaction is reached, the court shall formalise the arrangement by way of a report signed by all the parties and the presiding officer.

A plea bargaining process can be initiated only by the accused;

1. The accused will have to apply to the court for invoking the benefit of bargaining.
2. The applicant should state that it is a voluntary preference and that he has understood the nature and extent of punishment provided in law for the offence.
3. The court would then issue notice to the prosecutor and the complainant or victim, if any, for a hearing.
4. The voluntary nature of the application must be ascertained by the judge in an in-camera hearing at which the other side should not be present.
5. Thereafter, the court may permit the prosecutor, the investigating officer and the victim to hold a meeting for a "satisfactory disposition of the case".
6. The outcome may involve payment of compensation and other expenses to the victim by the accused.
7. Once mutual satisfaction is reached, the court shall formalise the arrangement by way of a report signed by all the parties and the presiding officer.

The object of introducing plea bargaining is to:-

1. Ensure speedy trial.
2. end uncertainty over the outcome of criminal cases.
3. save litigation costs and relieve the parties of anxiety.
4. Impact on conviction rates.
5. Help offenders make a fresh start in life.

Many members of the Tablighi Jamaat belonging to different countries have obtained release from court cases in recent days by means of plea bargaining.

Failure to make an impact

The data collected by the government starting 2015 clearly showed the lack of usage of the plea-bargaining process in India. In 2015, only 4,816 cases out of a total number of 10,502,256 cases pending for trial under the general penal law went for plea bargaining,i.e.amere0.045%.

In 2016, it was about 4,887 cases out of 11,107,472, bringing it down to 0.043%. The year 2017 saw some increase to 0.27%, with 31,857 cases out of 11,524,490 going for plea bargaining. However, this was not a continuing trend, since, in 2018, the cases saw an absolute decrease and only 20,062 out of 12,106,309, with a mere 0.16% of cases being disposed of through plea bargaining. It is unfortunate to note that this statistic hasn’t even crossed a mere 1% in 15 years.

During this time, case pendency continued to rise, though not as rapidly as before. In the same way, data on the number of undertrial prisoners also shows an increase from 2006. Thus, plea bargaining failed to fulfil either of the two objectives it was envisaged to achieve in India.

Investigations in India are wholly in the hands of the police. Indian prosecutors, appointed by the government, do not participate in investigations at all. They receive details about a case once it reaches the judicial stage, i.e. when the matter moves to the court. Moreover, prosecutors in district courts usually have meagre resources, which they have to use to handle a large number of cases. Prosecutors and judges hardly ever handle their cases from start to finish, considering both the frequency of administrative transfers and the lifespan of a case averaging beyond two years. Thus, Indian prosecutors and judges don't have the same level of incentive as their American counterparts to actively root for plea bargaining.

Indian Criminal Justice system is not conducive to the process of Plea Bargaining

Plea bargaining gained momentum in the U.S. because it successfully provided leverage to prosecutors, which they could exercise over defendants to induce them to plead guilty and waive trials. However, the system designed in India notably lacks any such leverage given to the public prosecutors or the judges involved. For instance, prosecutors have little space to participate in the bargaining process or induce a plea, and judges cannot even reject a decided settlement.

Moreover, public prosecutors in India simply do not have the time to focus on resolving each case on their docket by going an extra mile since they have to handle a huge quantum of cases using the same scanty resources. Even though judges have a natural incentive to quickly dispose of cases, they cannot be an active part of the process in order to eliminate doubts of coercion over the defendants.

In India ,Criminal law provides various procedural rights and advantages to defendants which let them challenge and stall trial proceedings. These include challenging the investigation itself, challenging their detention when the trial is pending, filing for transferring proceedings at any stage of the trial and more. Exercise of these legal rights may sometimes result in convictions and prison sentences, which naturally make them a better option than a plea. A guilty plea will most definitely end in a conviction.

A person who pleads guilty has to face the moral repercussions of a conviction in society. From the perspective of financially secure defendants, it is better to continue with trials than plead guilty and face those consequences. Considering the high rate of acquittal in Indian criminal cases after years of delay, such defendants can afford to drag out their trials and ultimately secure acquittal.

For defendants without financial means, the stigma attached to a conviction plays a vital role in them steering clear of plea bargaining. Most are aware of the practical difficulties in getting jobs faced by convicted persons. Other reasons that sway them include the inability to compensate the victim, absence of a victim in petty cases (such as theft etc.) and lack of awareness about the process itself.

Apart from this, in cases where the defendant wishes to settle matters with the complainant or prosecutor, they can alternatively apply for compounding the offences, move the concerned High Court to terminate cases as an exercise of extraordinary jurisdiction,[ or even move to dismiss charges or withdraw the case at any time before conclusion, for good reason.

.The process of plea bargaining in India was brought into statute book by Criminal Law (Amendment) Act 2005, by inserting Chapter XXI A od the Criminal Procedure Code inserting Sections 265 A to265 L w.e.f. 5^th July 2006.

It is not applicable to offences punishable with death, or imprisonment more than 7 years, apart from this offence which affect socio economic conditions of the country notified by the Central Government or offences against women and children are excluded from the process. Under Section 265 L excludes the application of the provisions to any juvenile or chid as defined under Juvenile Justice (Care and Protection of Children) Act 2000.

The reasons for a much lower rate of acceptability of the benefits of plea bargaining in criminal cases in India, and its success were very succulently summarised by a senior retired Public Prosecutor, appearing in an interview, in Judicial Training and Research Institute at Lucknow, for appointment of Trainers for training prosecutors under a program for which the funds were allocated to judiciary under the Thirteenth Central Financial Commission . He said that the provisions of plea bargaining are not likely to succeed for the reasons;

1. The Government does not encourage the provisions of plea bargaining. A Public Prosecutor is not given any credit for successful plea-bargained cases, rather he is looked upon as a amenable prosecutor. He may with success in convictions on plea bargaining, face a disciplinary action or difficulties in renewal of his term.

2. The rate of acquittal in criminal cases is so low that the accused wants to take his chances in trial, rather than face conviction on lesser charges or lesser punishment on admitting his guilt.

3. There is a trust deficit in the functionaries in the criminal justice system to such a level that it is difficult for an accused to believe in his lawyer, prosecutor or the judge to believe the offer of lesser or reduced sentence.

4., The social stigma and the reduced chances or rehabilitation after undergoing conviction and then a jail term, however short it may be, after conviction does nor encourage the accused to accept plea bargaining.

5. The delay in trial and chances to getting bail both during the trial and in appeal after conviction are so high that the accused wants to take his chances to be out on bail rather than take a lesser sentence.

6. Lastly, the legal services are not so expensive in India to discourage the accused with the cost of a full-fledged trial. The cost of defending himself, unless the accused is very poor, are not prohibitive enough and weigh in favour of trial, instead of a chance of reduced charge or sentence in case of plea bargaining.

In order to make the plea bargaining more effective, to reduce the delays in criminal justice system and growing pendency of criminal cases, we will have to appreciate the causes due to which the plea bargaining has not been successful so far. The Criminal Justice System has to be more efficient, reliable and predictable with higher rates of convictions, to allow an accused to make an informed choice for plea bargaining.