Plea Bargaining: A Comparison Between USA And India

By: Aditi Roy & Sanjana Gupta

I.         Introduction

Indian courts are bludgeoned under the growing number of criminal cases. The chronic delay in disposing of the cases has led to prisons filled with prisoners who are incarcerated without undergoing a trial. It was in response to this dismal status quo of the justice system that plea bargaining was conceptualized in India. It was endorsed as an effective means to dispose of the arrears of cases and facilitate the process of the criminal justice system. In the words of the then CJI Y.K Sabharwal, the introduction of plea bargaining in India would not only expedite the criminal system but also serve as a restorative form of justice where victims would be equal stakeholders and get adequate compensation. However even after years of conceptualization, plea bargaining has not found any success in Indian criminal justice system. The article attempts to analyse the cause of such failure by comparing the concept of plea bargaining in U.S and India.

II.         Plea Bargaining In India: A Sui Generis Concept

Plea bargaining refers to pre-trial negotiations between the accused and the prosecutor whereby the accused pleads guilty to a less serious offence or to only some of the multiple charges in return for some concessions promised by the prosecutor. It has been defined as a process of reaching a “mutually satisfactory disposition” between the accused and the prosecutor subject to the approval of the court.

Plea bargaining forms the core of the U.S. criminal justice system and is a widely resorted tool used to dispose of criminal cases. However, the Indian system of plea bargaining is different from that practiced in the U.S. and incorporates sui generis modifications. Under the Indian scheme of plea bargaining, a person accused of an offence for which the maximum punishment does not exceed 7 years has the choice to file an application for plea bargaining in the court where his trial is awaited. It is after receiving the application that the court notifies the public prosecutor. This is starkly different from the practice in the U.S. (Rule 11) where the prosecutor submits the application in court after negotiating with the accused.

The Court is then enshrined with the duty to assess the accused on camera and confirm that the application has been made voluntarily. If the court is satisfied that the application is voluntary, then the prosecutor, the accused and the victim are given time to work out a mutually satisfactory disposition. The mutually satisfactory disposition is limited to determining the quantum of compensation to the victim as the discretion to award sentences lies with the court.

This provision marks two major divergences from the U.S scheme of plea bargaining. In the U.S. system, the court is expected to be a passive spectator where the judge does not intervene in plea bargains and has only a limited role in overseeing the adherence to rules and regulations. Secondly, U.S follows a bi-partite system of plea bargaining where the victim is not a stakeholder in determining the plea deal and has limited influence on the agreement reached. This is unlike in India, where the victim is a party to the plea discussion along with the prosecutor and the accused and has equal stakes in the bargain reached.

Additionally, plea bargaining incorporated in CrPC lays down many procedural safeguards. For instance, the scheme can only be availed by first-time offenders. It cannot be granted to offences for which the punishment exceeds 7 years or offences which hamper the socio-economic conditions of the country or are committed against women or children below 14 years of age.

III.         Practical application of plea bargaining in India: A victory or defeat?

As argued above, the modifications in the plea bargaining process, like the active participation of the judiciary and making victims equal stakeholders ensures that the process is not abused under the garb of speedy disposal of cases. But the question is whether the seemingly perfect theoretical provisions of plea bargaining could find as much success in the application? The trends do not look positively in favour of plea bargaining in India.

The first data regarding the number of cases disposed of through plea bargaining was released by NCRB in 2014. The data reveals that in 2014 a total of 35,000 crimes under the IPC were disposed of through the process. In terms of percentage, cases disposed of through plea bargaining was only a little over 2%. This data plummeted further in 2015 and 2016, where the cases disposed of through plea deals constituted only 0.045% and 0.043%, respectively.

The fault line lies not only in the way plea bargaining has been incorporated in India, but in the way, the Indian criminal justice system is structured.

1.     The U.S. Justice System:

While the Indian lawmakers tried to embody the efficient and cost-effective method of plea bargaining in the American jurisprudence, they ignored the underlying foundation that made plea bargaining a successful method of disposing of cases in U.S.

Plea bargaining in U.S., unlike in India is exponentially wide in scope, with plea deals permitted for almost all federal crimes and little to no regulations to govern the process. The prosecutor is in charge of the process of plea bargaining, wielded with the evidence and investigation report; he is the central authority who negotiates the deal. The role of the judge is limited to acceptance of the terms of the negotiation after confirming that the process is voluntary.

These prosecutors work under a limited budget and under a heavy case load; the time efficient method of plea-bargaining works as an incentive for them to help them quickly clear the case load. The permission to the prosecutors to impose penalties at trial to induce plea deals also allows them to threaten the accused of a harsher charge during the trial. Similarly, the provision of reducing the offence level if there is a timely plea by the accused serves as an incentive for the accused to pursue a plea deal.

Another reason for the popularity of plea deals is that the stakes involved in going through the trial are high in U.S.A as the system is more inclined towards a retributive form of justice. For instance, an offence of theft under Alabama Criminal Code provides for a maximum punishment of 20 years and a minimum punishment of 3 years. With the underfunded legal aid system and an unaffordable fee of private attorneys, the huge imbalance in power crushes the accused to plead guilty and accept the bargain.

Thus, while embodying this widely resorted tool of U.S. criminal justice system one should not forget that the process is popular not because it provides optimal solutions but because it favours the authorities who wield the power.

2.     The Indian Justice System:

The structure of Indian criminal system is vastly different from that of U.S. The prosecution does not single handedly wields the most authority. Unlike the prosecutors in the U.S. the prosecutors in India have little role to play in investigation process as the same is handled by the police. The prosecutors, here, do not decide on whether to prosecute the defendant; the decision is in the hands of Magistrate. In the motion of plea-bargaining prosecutor’s role only begins after the judge has approved the application of the defendant requesting plea bargaining and has notified the prosecutor to act as the state’s attorney.

Further, most criminal cases in India drag for more than a year during which the judge and the prosecutor are prone to transfers. Thus, it exacerbates the delay in the process and provides no incentive for the prosecutor to quickly dispose of the cases. Similarly, accused has no incentive to plead guilty since the accused-centric nature of Indian criminal justice system arms them with multifarious statutory rights and safeguards. For instance, the defendant has the right to challenge the investigation itself, depriving the trial court of opportunity to even consider the allegations. Further, he or she can file for transfer of case at any stage of the trial. It is also important to note that unlike in U.S the punishment is not excessively disproportionate to the crime committed. For instance, offence of theft in India attracts a maximum punishment up to 3 years. Thus, the foundation of the Indian justice system provides no incentive for any of the stakeholders to opt for plea bargaining. 

IV.         Recommendations

While it is not advisable to follow the American approach to plea bargaining, which only favours the powerful, plea bargaining cannot be anticipated to succeed in India with its limited and narrow scope. The modifications and the highly regulated provisions of plea bargaining have resulted in taking away the essence of plea bargaining. A trial in India does not necessarily mean conviction, and an accused has several safeguards at their disposal against any infringement of their rights, thus making trial more appealing to the accused than the plea deal.

Instead of allowing plea bargaining to be only used against offences for which the punishment does not exceed 7 years, the scope should be expanded so that the process can actually succeed in its goal to expedite the disposal of cases. Further, lessons can be taken from the U.S model, which allows a reduction in the level of offence if the accused make a timely plea deal. Additionally, the concessions granted in plea bargaining needs to be more appealing than the sentence and flexibility a trial provides to the accused.

It should also be noted that although one of the primary aims of introducing plea bargaining in India was to move towards a restorative form of justice and embrace the desire of the victim, the same can be the cause for the failure of the process. Many a time, the victims are motivated by the punitive form of justice, and it becomes difficult for the prosecutor and the accused to reach an arrangement that satisfies the victim. Therefore, dismantling the tri-partite system can work in favour of plea bargaining in India.

[The authors are second-year law students at West Bengal National University of Juridical Sciences, Kolkata.]


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