Plea Bargaining: A Look At What Was And What Should Be

Plea bargaining, inspired from the Latin maxim Nolo Contendere which means "I do not contend": an agreement between prosecution and defence that if the accused pleads guilty (instead of pleading not guilty) to the crime he is charged with, his sentence will be reduced.

Origins

The initial origins of plea bargaining are found in texts regarding Saint Joan of Arc being coerced into giving a confession to avoid death by fire in France in the year 1431. Although when she retracted this false confession she was forced to give, she was eventually executed at the stake. A full record of her trial is mentioned here and it is also apposite to mention that she was exonerated twenty-five years after her death on a deposition given by 116 people. Another early example can be found in the Salem Witch trials during 1692 when accused 'witches' were forced to confess to their 'alleged' crimes and testify against other witches, in return for the lighter punishment of being allowed to live. Pleading guilty did save some witches from execution but this was later used against plea bargaining as a strong argument stating that this practice could potentially coerce innocuous defendants to plead guilty. But the difference between the old practice and new era legislation is grounded in the fact that previously, confessions were elicited to make wrongful prosecution appear lawful while later, plea bargaining was just used as a medium to quickly dispose of cases relating to under trial prisoners and reduce the burden on justice systems simultaneously. Although scholars around the world attribute origins of the modern-day concept of plea bargaining to the United States, it is pertinent here that American Judges were initially very skeptical regarding the concept and instead persuaded the defendants to undergo trial, rather than bargain for their sentences. During the era of the American Civil war, judges even went to the length of reversing convictions that were based on such plea bargains. From the 1850s to the 1960s, plea bargains were considered unethical and immoral, even though according to one study, it was found that in some American States, 77-96% of defendants had pled guiltyand had bargained for lesser sentences. It was only in 1967 when a report by the President's Commissionon Law Enforcement and Administration of Justice came out with recommendations of recognizing this practice in consideration of the fact that though considered immoral, it was still highly prevalent. Fast forward to the 21^st century, around 95% of cases in the UnitedStates are resolved via plea bargaining.

To trace the American history of Plea bargaining further, a reference can be made to Boykin v. Alabama, Brady v. the United States, Carolina v. Alford, Santobello v. New York and Bordenkircher v. Hayes.

Like in America, even in India, the system of Plea bargaining was not recognized and looked up to for the longest time as made clear by the judgments in Kasambhai Abdul Rehman Bhai Sheikhv. State of Gujarat in which it was held that "the practice of plea bargaining was unconstitutional, illegal and would tend to encourage corruption, collusion and pollute the pure fount of justice"; State of UP v.Chandrika where the court held that, "Mere acceptance or admission of guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the Court that as he is pleading guilty, the sentence should be reduced" and Madanlal Ramachander Daga v. State of Maharashtra, where the court remarked that, "in our opinion, it is very wrong for a court to enter into a bargain of this character. Offences should be tried and punished according to the guilt of the accused. If the Court thinks that leniency can be shown on the facts of the case, it may impose a lighter sentence"

The concept was only introduced via an amendment to the Criminal Procedure Code in 2005 because of several recommendations of Law Commissions over the years and the dire urgency to find a solution to the mounting criminal cases that Courts were clearly under-equipped to deal with. Law Commission recommendations on the subject had started coming in 1991 when the Commission was trying to find a solution to abnormal delays occurring in both trial and appellate stage in criminal law proceedings. Since no immediate improvement in the system was in sight, the Commission looked to this American Concept which was only emulated after a survey was conducted in the Indian Legal community, asking for their opinions on the same. The response was clear, coherent and in the affirmative although some doubts were cast regarding how exactly it would apply in India considering India's illiteracy rate was much worse which could potentially lead to inadequate understanding of the concept, subsequently leading to defendants foregoing their right to trial. To counter this argument, the Commission suggested a provision for providing judicial officers who would explain the concept and its consequences to the defendant and the defendant only had to have common sense instead of literacy to comprehend its advantages. The Commission further suggested that a duty be cast on judicial officers to fully satisfy themselves that the plea-bargaining application was made without any coercion or duress and of the defendant's own volition. There were also some apprehensions regarding an increase in criminal incidents because of 'alleged' criminals escaping impunity but the Law Commission assuaged these apprehensions by suggesting that the scheme would only be made applicable for offences punishable with less than seven years of imprisonment and in any case, the stigma of conviction would remain on the defendant and thus, the scheme did not let anyone off easy. The merits of the scheme outweighed its demerits and thus, after further reiteration from Law Commission in its 154^th report of 1996, which also elaborated the procedural aspects of plea bargaining and stated that order passed by the competent authority on pleas shall be final and non-appealable, the NDA government finally formed a committee under the chairpersonship of Justice V.S. Malimath, to curb the increasing criminal cases and it was after this Committee's report of 2003, that the 2005 amendment came into being.

Types Of Plea Bargaining

There are different types and forms of plea bargaining which include charge bargaining, fact bargaining, count bargaining and sentence bargaining. For brevity's sake, they shall only be discussed briefly here. Charge bargaining is a form of bargaining where the defendant pleads for a less serious offence, compared to the one he is charged with. For instance, if the prosecution charged Ram with theft, he only pleads guilty regarding trespassing. Count bargaining is essentially what it sounds like, where if the defendant is charged with multiple offences, he only admits to one or a few of them and the prosecution then decides to dispose of the rest of the charges. Sentence bargaining is where the defendant chooses to not contest what the prosecution is charging him with and thus, after arriving at a mutually satisfactory disposition regarding the punishment of the defendant, he is let go. This is the most common type of plea bargaining in India and is elaborated upon in the provisions below, specifically under S.265B. Then there is fact bargaining which is a type of bargaining where out of the facts stated by the prosecution, the defendant only admits/agrees to a few, which, if accepted by the prosecution, also lead to dropping of charge by the Prosecution, regarding rest of the facts.

Provisions

Through an amendment to the Code of Criminal Procedure in 2005, Chapter 21A was added containing Sections 265A to 265L, w.e.f. 05^th July 2006. S. 265A talks about the application of this chapter and states that the chapter shall only apply in offences (which do not pertain to the socio-economic condition of the country; offences committed against a woman or child under fourteen years of age) where either

• A report under S.173 has been forwarded by the officer in charge of the police station stating that an offence punishable with imprisonment of less than seven years appears to have been committed OR
• A magistrate has taken cognizance of an offence punishable with less than seven years imprisonment on a complaint made after examining the complainant and witnesses and under S.200 of CrPC (Examination of Complainant) and has issued the process mentioned in S.204 of CrPC (Issue of Process).

And the section further clarifies that the Central Government shall determine the offences affecting the socio-economic condition of the country. For now, this list includes

• Dowry Prohibition Act, 1961.
• The Commission of Sati Prevention Act, 1987.
• The Indecent Representation of Women (Prohibition) Act, 1986
• The Immoral Traffic (Prevention) Act, 1956.
• The Protection of Women from Domestic Violence Act, 2005
• The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992.
• Provisions of Fruit Products Order, 1955 (issued under the Essential Services Commodities Act, 1955).
• Provisions of Meat Food Products Orders, 1973) (issued under the Essential Commodities Act, 1955)
• Offences concerning animals that find a place in Schedule I and Part II of the Schedule II as well as offences related to altering of boundaries of protected areas under the Wildlife (Protection) Act, 1972.
• Offences mentioned in the Protection of Civil Rights Act, 1955.
• Offences listed in sections 23 to 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
• Offences specified in sections 59 to 81 of the Delhi Metro Railway (Operation and Maintenance) Act, 2002.
• Offences specified in sections 11 to 18 of the Cable Television Networks (Regulation) Act, 1995.
• The Army Act, 1950; The Air Force Act, 1950 and The Navy Act, 1957.
• The Cinematograph Act, 1952
• The Explosives Act, 1884.
• The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

S.265B talks about the procedure to be undertaken in case the accused wants to plead for a lesser sentence and says that

• an application containing a brief description of the case along with an affidavit sworn by the accused stating he has voluntarily chosen to file such application after understanding the nature and extent of punishment provided for the offence and that the accused has not been previously convicted by any other court for the same offence shall be filed in the Court in which such offence is pending trial.
• The Court shall then issue a notice to the Public Prosecutor/complainant and the accused to appear before the court on the date fixed for the case. When they appear on the date specified, the Court shall then examine the accused on camera, in absence of the other party, to satisfy itself regarding the voluntary nature of the application. And when the Court is satisfied regarding the same, it shall then issue a notice to the Public Prosecutor/Complainant and the accused to work out a mutually satisfactory disposition of the case.
• This disposition may also include any compensation and any other expenses incurred during the case, to be paid by the accused to the victim and after fixing a date for further hearing, the case shall proceed further.

S.265C then clearly lays out the guidelines to be followed to arrive at a mutually satisfactory disposition and states that: if the case has been instituted on a police report, the Court shall issue a notice to the accused, the victim, Public Prosecutor and the police officer who has investigated the case to participate in a meeting to work out a satisfactory disposition of the case and the section furthers casts a duty on the Court to ensure that this process is completed voluntarily by the parties. The accused is also allowed to participate in such a meeting with his pleader, in case the accused desires so.

And

If the case has been instituted otherwise than on a police report, then the court shall issue a notice to the victim and the accused to participate in a meeting to work out a mutually satisfactory disposition and it shall be the duty of the court to ensure the voluntary nature of such participation and process. In this case, both the accused and the victim are allowed to meet with their pleaders, if they so desire.

As per S.265D, a report of such a meeting shall then be prepared by the Court and which shall be signed by the presiding officer of the Court and all other persons who participated in it. And as per S.265E, the Court shall then award the compensation to the victim per such disposition and after hearing the parties on the quantum of punishment of accused, the Court shall release the accused

• Either on probation for good conduct OR
• After admonition under S.360 OR
• Deal with the accused as per the provisions of Probation of Offenders Act OR any other law for the time being in force

In case the latter two points apply, the court may release the accused on probation or provide the benefit of any such law and if a minimum punishment has been provided under the law, then Court shall sentence the accused to half of such minimum punishment. But if the minimum punishment is not provided, then it may sentence the accused to one-fourth of the punishment provided for such offence.

Such a judgment shall be delivered in an open court and shall be signed by the presiding officer of the Court as per S.265F and it shall be final and non-appealable although the option of filing a special leave petition under A.136 and writ petition under A.226 and A.227 shall still be available with the parties.

Note - In case no mutually satisfactory disposition has been worked out, the Court shall record that observation as well and proceed further from the stage of S.265B(1) (Where the accused had just filed his plea bargaining application along with an affidavit).

Two noteworthy things present in the provisions themselves are: Under S.265I, any period of detention that the accused has already undergone shall be liable to be setoff as per provisions of S.428 of CrPC (Period of detention undergone by the accused to be set off against the sentence of imprisonment) and that statement of accused in an application for plea bargaining shall not be used for any other purpose except for Chapter 21A, as per S.265K.

Demerits In The Provisions

S.265A which speaks of the applicability of plea bargaining excludes a great number of statutes and offences from its purview, essentially rendering the objective behind introducing plea bargaining redundant. The purpose of introducing plea bargaining in India was to reduce the backlog of cases and although its initial restrictive applicability can be understood in light of the apprehensions cast by the legal community and misuse of the law, it has been more than one and a half decades and now is the time to cast the net wider and to expand the scope of plea bargaining. Even regarding the Central Government's power to decide offences that affect the socio-economic conditions of the country, only an arbitrary one-liner is present in the Act with no guidelines whatsoever regarding how such a decision shall be taken. Furthermore, S.265B(4) only provides that the parties shall arrive at a mutually satisfactory disposition but no timeline regarding the same has been mentioned and considering the whole objective of bringing this amendment was to bring speedy justice and quick disposal of cases, this is a significant flaw in the layout. Also, although a duty has been cast on courts to ensure transparency in the participatory meetings to arrive at a mutually satisfactory disposition, how the courts will do has not been mentioned. Additionally, preventing a person from filing for plea bargaining if he has been convicted of the same offence earlier is also an impediment in making complete utilization of this provision.

Understandably, these hindrances were not comprehended at the time of including this Chapter in CrPC but after more than one and a half-decade of its continued usage, the above concerns must be addressed so that this alternative remedy can benefit maximum people, as it was its initial intent.