Plea Bargaining: The Panacea for Indian Criminal Justice System

By Shantanu Parmar

“The law is a cudgel when necessary and a balm where appropriate” – Stewart Stafford

Introduction

The legal system of any state warrants evolution as newer concepts are formulated to ensure the swift implementation of justice. This attains paramount importance as the inevitable development of society increases recourse to the courts, which results in overwhelming burden on courts leading to case-pendency. The former Chief Justice of India, Dipak Misra, J. pointed out the alarming situation when he referred to the 3.3 crore cases pending before the courts.[i] We have had cases wherein the alleged perpetrators have been languishing in jails for more time than their sentence warrants and high profile criminals have eluded the hands of law.[ii]

To bridge this lacuna of justice, India introduced the concept of Plea Bargaining in 2006 by amending the Code of Criminal Procedure, 1973 and adding Chapter XXIA.

What is Plea-Bargaining?

The term connotes a term of negotiations taking place between the prosecution and the defense, which results into an agreement wherein the defense pleads guilty under some conditions. Usually these conditions contain clauses such as pleading guilty to lesser charges.[iii] It creates a legally binding contract between both parties and they do not engage in usual court litigation.

History of Plea Bargaining

The history of plea bargaining stems from the existence of confessions in common law. But, the courts discouraged the practice of pleading guilty. Jeremy Bentham criticized the guilty plea and aimed for a more rigorous examination of the accused. He based his reasoning upon the fact that the defendant might put himself on undue conviction being swayed by his own “imbecility and imprudence.”[iv]

The emergence of the concept of plea-bargaining is unclear. Modern practice of plea-bargaining has been found from the earliest days of public prosecution in America. But, the practice was limited to rare cases wherein the prosecutors could dictate the sentence of the accused.[v]

The recognition of plea-bargaining became evident after the case of Rudolph Santobello v. New York,[vi] wherein the U.S. Supreme Court recognized plea-bargaining as an “essential concept of administration of justice”.

Before the amendment of 2006, Sections 206(1) and 206(3) of the Cr.P.C. and Section 208(1) of the Motor Vehicles Act, 1988, allowed the accused to enter into a guilty plea for petty offences and pay small fines to close the case. But, plea-bargaining was not recognized in the criminal jurisprudence of India.[vii]

In 1996, the Law Commission of India released its 154^th Report, where it argued for the implementation of this concept as an experimental measure, by limiting it to non-heinous offences and disallowing habitual offenders from participating in the same.[viii]

India further shed light on the concept in the 177^th Report of the Law Commission of India. The ratio on which the report relied was that the harassment of defending oneself in a criminal court, which could span for a long period of time, could be avoided. Thus, the person can return to his normal pursuits.[ix]

Features of Plea Bargaining under Criminal Procedure Code, 1973

1. Plea Bargaining cannot be exercised for offences in which the sentence is more than seven years of jail. It is also not available when offences are committed against women or children below fourteen years of age or an offence, or which affect the socio-economic condition of the country.[x]
2. The court has to examine the accused in camera and decide whether the application has been made voluntarily. Upon satisfaction, the court permits the victim(s), defendant(s), public prosecutor and the investigator to work out an agreement, which satisfies all the parties.[xi]
3. The court also plays a significant role in ensuring that the accused has not been coerced into entering the agreement. It ensures proper disposal of the case and adjudicates upon the punishment, which is to be carried out by the accused.[xii]
4. The judgment is pronounced in open court. Moreover, it also enshrines a clause for protection of the accused, which states that the statement made by the accused shall not be used for any other purpose.[xiii]

Panacea or Poison: A Discourse

The introduction of the concept in the legal system has not put a stop on the philosophical and pragmatic debate of plea-bargaining. There are serious concerns wherein scholars have alleged that the methods used by prosecutors tend to morph into coercion. They have asserted that the option of pleading guilty may cajole innocent people to get branded as felons while the guilty has the opportunity to avoid punishment. To decide whether the policy at hand is competent enough to withstand criticism is to have the test of whether it offers justice.

1. Charge Bargaining – Charge bargaining is the phenomena where the defendant bargains for a lesser charge against him in order to avoid the lengthy process of litigation. This happens in states where the prosecutor has been delegated with a substantial amount of judicial authority and discretion. In the United States, judicial scrutiny of the plea agreements is often perfunctory, therefore bestowing prosecutors with enormous leverage to negotiate plea agreements.[xiv] This often leads to miscarriage of justice wherein innocent people bite the bullet for promises of lesser charges. This problem has been adequately addressed by our legislation and thus, the court has been made a supervisor wherein they have to ensure that the plea agreement has been entered without any coercion or the hope for false promises. Thus, it allows separating the prosecutor from the gunman wherein the plea proposal becomes an exercise ordinary course within the confines of the law.[xv]
2. Obscuring the Skeletons – The concept of plea agreements attract criticism, as people with serious offences tend to slip through the fist of justice. Through the art of backdoor deal striking, these powerful offenders use their influence to abscond serious sentences. The Indian concept of plea-bargaining has paid special attention to these offenders by the insertion of Section 265-A. It mentions that a person charged with any offence punishable with death, or imprisonment of life, or a term exceeding seven years, shall not be allowed to bargain his plea. Moreover, offences committed against women or children, or which affect the socio-economic condition of the country shall not be subject to plea-bargaining.[xvi] This acts as a preventive measure to ensure that serious offenders are unable to walk with a slap on the wrist and thus, asserts complete justice.
3. Expedition of cases lis pendens – The courts of India are deluged with cases which are still pending. It is of utmost importance that criminal cases are to be disposed of expeditiously as the right of an accused to have a speedy trial is a right which flows from Article 21 of the Constitution.[xvii] A report published by Amnesty International stated that 67% of the prisoners in India were undertrials.[xviii] The dire situation has transformed into a classic case of ‘Justice delayed is justice denied’. Introduction of plea-bargaining is bound to ameliorate the condition. The pressure exerted on the courts will be released to a discernible amount and will give it time to deal with more serious cases. The prisoners who languish in custody awaiting trials could help secure trials and plead their cases. It should be made clear that swiftness and certainty of justice is the priority of the system.
4. Retributivism to Rehabilitation – Our criminal justice system is based on the concept of rehabilitating the offender and helping the perpetrator to become a better individual in the society. The idea of law is not to take revenge, but to reform the individual who has transgressed the law. The offenders can benefit from the opportunity to make amends with both victims and communities.[xix] Importance should be given to incorporation of moral education, healing, reconciliation and victim vindication.[xx] Moreover, the people who have pleaded guilty to the offences can be segregated from the society quickly and could help their rehabilitation.[xxi] It offers a chance to the offender to accept his actions and the consequences thereof.

Conclusion

The presence of plea-bargaining is not the result of any transitory or controllable factors, but of many complex factors that are deeply rooted in social dynamics  that change no more than human nature itself.[xxii] It should be kept in mind that the method of plea-bargaining is not infallible and has its own demerits. It has been found that caseloads, political climate, career and reputation concerns and personal perspectives on the idea of just punishment influence prosecutors and defense attorneys.[xxiii] But, the Indian model of plea-bargaining empowers both the victim and the defendant. Moreover, it offers an active role to the judiciary thus, not providing the prosecutor with any unfettered powers. It shall be stated that plea-bargaining was introduced to reduce the pendency of cases in the courts, but it seems the model has failed to achieve that goal. The fault lies in the fact that Indian judiciary is yet to fully accept plea-bargaining as a conventional form to ensure justice.[xxiv]

The accused has maintained a mindset wherein they think that pleading guilty will make them susceptible to punishment. Moreover, the lawyers do not inculcate an environment which is conducive for plea-bargains.

It is important that plea-bargaining should be recognized as a conventional form of justice. The rueful state of Indian judiciary especially pertaining to the pendency of cases has the potential to reduce it to an incompetent form of institution. It is the need of the hour to bring a change to the mindset of the people to help them accept the new form of procedure. They should be informed of the same and the many advantages of plea-bargaining should be communicated to them to help them make an informed decision thereby helping themselves and the judiciary.

[The author is a second year student at Rajiv Gandhi National University of Law, Punjab.]

[i] Mail Today Bureau, 3.3 Crore cases pending in Indian Courts, pendency at its highest: CJI Dipak Misra, Business Today (June 28, 2018, 08:44), https://www.businesstoday.in/current/economy-politics/3-3-crore-cases-pending-indian-courts-pendency-figure-highest-cji-dipak-misra/story/279664.html.

[ii] Rakesh Dubbudu, Close to 3 lakh Under Trial Prisoners are languishing in jails as Governments turn a blind eye, Factly (Jan. 13, 2018), https://factly.in/close-3-lakh-trial-prisoners-languishing-jails-governments-turn-blind-eyeclose-to-3-lakh-under-trial-prisoners-are-languishing-in-jails-as-governments-turn-a-blind-eye/.

[iii] Arthur D. Klein, Plea Bargaining, 14 Crim. L.Q. 289, 305 (1972).

[iv] Albert W. Alschuler, Plea Bargaining and Its History, 13 Law & Soc’y Rev. 211, 246 (1979).

[v] Shaista Amin, Plea Bargaining- An Indian Approach, 4 GJLDP 67, 89 (2014).

[vi] 404 U.S. 257 (1971), (“Properly administered it [plea-bargaining] is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and Federal Government would need to multiply by many times the number of judges and court facilities.”).

[vii] Concessional Treatment for Offender who on their own initiative choose to plead guilty without bargaining, Law Com. Of Ind., Report No. 142 (1991).

[viii] Report on The Code of Criminal Procedure, 1974, Law Com. Of Ind., Report No. 154 (1996).

[ix] Report on Law Relating to Arrest, Law Com. Of Ind., Report No. 177 (2001).

[x] Mohammad Ashraf, Plea Bargaining in India – An appraisal, 23 ALJ, 104,118 (2016).

[xi] Id. at 111.

[xii] Id. at 112.

[xiii] Id.

[xiv] Richard L. Lilppke, Retributivism and Plea Bargaining, 25 Crim. Just. Ethics 3, 16 (2006).

[xv] Josh Bowers, Plea Bargaining’s Baselines, 57 Wm. & Mary L. Rev. 1083, 1146 (2016).

[xvi] Code Crim. Proc. §265-A.

[xvii] Usha Ahuja v. State of Haryana, (1999) 7 SCC 486 (India).

[xviii] Justice Under Trial: A study of Pre-trial detention in India, Amnesty International, https://drive.google.com/file/d/10_YCJ8RArz-32Z4mdWBvDwBzuCHN65lD/view.

[xix] Erik Luna, Punishment Theory, Holism and the Procedural Conception to Restorative Justice, 2003 Utah L. Rev. 205, 293-94.

[xx] Stephanos Bibas; Richard A. Bierschbach, Integrating Remorse and Apology into Criminal Procedure, 114 Yale L.J. 85, 148 (2004).

[xxi] James F. Parker, Plea Bargaining , 1 Am. J. Crim. L. 187, 209 (1972).

[xxii] Stephen J. Schulhofer, Is Plea Bargaining Inevitable, 97 Harv. L. Rev. 1037, 1107 (1984).

[xxiii] Josh Bowers, Grassroots Plea Bargaining, 91 Marq. L. Rev. 85, 122 (2007).

[xxiv] Ashraf, supra note 8, at 116.