The basis of the criminal justice system is to reduce crime in the society by punishing the crime i.e. the offence & accordingly punishments have been fixed in all criminal justice systems across the world. However, the increasing rate of crime day by day suggests otherwise & the large number of cases which are pending before the courts further aggravates this problem as criminals use this lacuna to their benefit. It seems no authority has a solution to this problem of pending cases. The legal maxim “justice delayed is justice denied ” is losing relevance with time since delayed justice has become normal for the people & they have come to terms with this reality of the overburdened judicial system. We consider a plea bargain as one of the solutions to the problem of delayed justice.
The Concept of Plea Bargain
Plea bargaining as the term suggests is a negotiation which happens between the accused i.e. the defendant and the prosecution during the pre-trial period of a criminal case, wherein they try to form an agreement in which the accused is given the option to plead guilty for the offence he is charged with & in return the prosecution allows certain concessions, which may either be dropping of charges or relaxation in punishment, etc. The accused also offers Nolo contenders the agreed terms which means he will not contest it in any court & accept the punishment. This concept is now incorporated in most criminal justice systems across the world & in many countries, it is restricted to a certain category of crimes only & is not available in all cases. For instance, in India, a person accused of a crime punishable with imprisonment of more than 7 years is not allowed to claim plea bargain.
Types of Plea Bargaining
Plea Bargaining is generally of the following types:
This is an arrangement wherein the accused agrees to plead guilty to a lesser charge & in return the prosecution drops the severe charge. For instance, pleading guilty for manslaughter & in return, the prosecution drops the charges of murder. This is the most common form of plea bargaining.
This is an arrangement wherein the accused who is facing multiple charges agrees to plead guilty to a few of the charges & in return the prosecution drops other charges. For instance, an accused is charged with assault & trespassing, he pleads guilty to the charge of assault & in return the charge of trespass is dropped.
This is an arrangement wherein the accused agrees to plead guilty to the stated charges & in return he gets a lighter or alternative sentence. For instance, an accused pleads guilty to the charge of murder in order to avoid death penalty.
This is an arrangement wherein the accused agrees to stipulate to certain facts in order to prevent introduction of other facts into evidence. For instance, an accused pleads to a charge of smuggling in lieu of non-disclosure of the facts about the quantity of the item in order to get minimum punishment. This is the least common form of bargaining & is rarely used in courts because of it being against the basics of Criminal Justice System.
The concept of Plea bargaining was not part of the criminal justice system from the very beginning & was incorporated later than per the pressing needs of the criminal justice system. However, in earlier times, there have been instances wherein the culprits were allowed to confess their mistake or crime so as to justify the prosecution & in some rare cases harsh punishment was avoided to some extent. The concept of Plea Bargaining can be traced in the American legal history where it has been in use since the 19th century. Earlier, it was used by judges to encourage confessions& later became a tool for easy disposal of criminal cases.
History of Plea Bargaing in the United States of America
In the colonial era, during the Salem witch trials] the magistrates asked the accused witches to confess& testify against others in order to uncover more witches. And in return they were saved from execution by pleading guilty. This was not voluntary but was forced upon them.
In independent America, even when the defendants offered to plead guilty the judges most of the times used to persuade them to instead go to trial. However, in some jurisdictional areas, plea bargains were becoming common like in Boston around the year 1832 pleading guilty improved the chances of public ordinance violators getting less-severe sentences. This practice had spread to felony courts by the year 1850& later during the civil war, cases of plea bargain began appearing in the appellate courts. These bargains were limited to cases wherein the offence was not against any human i.e. victimless offences &the prosecutors did not have to consider victims’ concerns.
Initially, the courts were surprised with the concept of plea bargaining as according to them there was no need of such a system & in many cases the appellate courts reversed convictions that were based on bargains. In the early 20th century, plea bargains became common in other counties like New York & Illinois as well & most defendants preferred pleading guilty rather than facing the trials. In 1967. The President’s ‘Commission on Law Enforcement and Administration of Justice’ documented the existing widespread use of plea bargaining in a report and recommended recognising this practice. In 1971, the concept of plea bargaining was recognised by the U.S. judiciary in the case of Santobello v. New York [ii], wherein the U.S. Supreme Court ruled that “defendants are entitled to a legal remedy if prosecutors break conditions specified in plea bargains& further observed that plea bargaining is not only an essential part of the process but a highly desirable part for many reasons.” Subsequently, it has become an integral part of the Criminal Justice System of the United States& a majority of cases are decided via plea bargaining.
Plea Bargaining in India
Plea Bargaining is not a traditional concept of the Indian legal system& was incorporated in the Code of Criminal Procedure by the Criminal Law (Amendment) Act, 2005. It was brought into the system as a possible remedy to the problem of huge arrears of criminal cases in the courts which are increasing day by day as the disposition of cases take a considerable time which adds to the agony of the victim& also victimises people who are wrongfully accused.
Law Commission Report & Report of Malimath Committee
The concept of plea bargaining was recommended in various law commission reports. The first instance was the recommendation in the 142nd Law Commission report wherein a scheme for concessional treatment was recommended for offenders willing to plead guilty on their own volition without any bargaining. It recommended statutory changes for the same.
The 154th Report of the Law Commission recommended an amendment to the Criminal Procedure Code with the addition of a separate chapter on ‘plea bargaining’.
Both these reports recommended its application only in cases wherein the offence is punishable with less than 7 years of imprisonment & not in cases related to grave socio-economic offences, offences related to women & children & also not applicable to habitual offenders.
The 177th Report of the law Commission also recommended the earliest implementation of the recommendations of the 154th Law commission report.
However, these recommendations were not acted upon initially & it was only when the Malimath Committee report supported these recommendations that made the legislative organ act in the desired direction.
A Committee on ‘Reforms of Criminal Justice System’ headed by Dr Justice V.S. Malimath, was constituted by the Indian Government in the year 2000 to suggest changes to the Criminal Justice system. It was a 6-member committee & was also known as the Malimath Committee. This committee also concurred with the recommendations of 142nd& 154th law commission reports & recommended the introduction of plea bargaining in India.
The various law commission reports & the Malimath committee, they all highlighted the success of Plea Bargaining in the United States & its importance in reducing the burden of the already overburdened judiciary.
Criminal Law (Amendment) Act of 2005
As per the recommendation of the 154th law commission report & the Malimath committee, an amendment was made to the Code of Criminal Procedure, 1973 & a chapter namely Chapter XXIA was inserted in the code through the Criminal Law Amendment Act, 2005 which was enforceable from 5th July 2006. Sections 265A to 265L were part of this chapter & had detailed provisions related to Plea bargaining.
Applicability of Plea Bargaining under Cr.P.C.
The option of Plea bargaining is available to an accused against whom a police complaint has been filed or a case is instituted in court but that too only in the following cases:
- Wherein the offence is punishable with a maximum imprisonment of 7 years
- Wherein the offence does not affect the socio-economic conditions of India. These offences are as per the notification of the Central Government.
- Wherein the offence is not committed is against a child below 14 years of age or a woman.
The provisions of Chapter XXXIA i.e. Plea bargaining, of the Cr.P.C. are not applicable in case of a ‘juvenile or child’ as defined in Section 2(k) of Juvenile Justice (Care and Protection of Children) Act, 2000.
Generally, a plea bargain involves the accused, the victim, the court, the public prosecutor, pleader of the accused& the police officer based on the nature of the institution of the respective case.
The provisions allow the only voluntary filing of an application of plea bargaining by the accused which is further scrutinised by the courts & includes the examination of the accused under the camera to satisfy the voluntariness of the application. The option of plea bargaining is not allowed to repeat offenders. The court is also given the job to ensure that the proceedings are completed voluntarily by both the parties. If in case the parties agree to a mutually satisfactory disposition, then the court prepares a report of the same. The parties can only fix the compensation to be paid to the victim. The court then hears the parties regarding the quantum of the punishment. The decision regarding the release of the accused on probation of good conduct & pronouncing of punishment is done by the court its own discretion & can pass the sentence according to the provisions of Section 265E. The judgement of the court is final in such cases & no appeal shall lie against it except a Special Leave Petition under Article 136 or a writ petition under Article 226 & 227 of the Indian Constitution. The court also has powers in respect of the trial of offences, bail and other matters relating to the disposal of a case in such court under the Criminal Procedure Code.
Additionally, Section 265K clearly specifies that “the statements or facts stated by the accused in an application under section 265B shall not be used for any other purpose except for the purpose as mentioned in the chapter XXXIA of the code.”
Indian Judiciary’s take on Plea Bargains
The Indian judiciary did not accept this concept until it received legal approval in 2006. There have been various instances wherein the Indian judiciary criticised this concept.
In the case of Murlidhar Meghraj Loya vs the State of Maharashtra], The Honourable Supreme Court observed that “the concept of Plea Bargaining intrudes upon the society’s interests by subtly subverting the mandate of the law.”
In the case of Kasambhai Abdul Rehman Bhai Sheikhvs State of Gujarat[iv], the Apex court observed that Plea Bargaining is unconstitutional & also highlighted the fact “that this concept is a highly reprehensible practice as it may encourage corruption, collusion and pollute the pure fount of justice.”
In the case of State of Gujarat vs Natwar Harchandji Thakor[v], the Gujarat High Court observed that “all pleas of guilty are not plea bargaining &this needs to be decided on a case to case basis based on the respective facts”. The court also acknowledged the importance of plea bargaining in light of the pressing need of the times. Now the judiciary has accepted this concept, but it is not practised that often due to various reasons like the high rate of acquittal in the Indian criminal cases & also the fact that the defendants have various rights at their disposal to challenge the trial at many levels encourages them to go for trial instead of opting for plea bargaining.
The concept of plea bargaining has found support in various criminal justice systems& has been incorporated because it assists in fast disposal of cases in a hassle-free manner which is beneficial for both, as it saves both time & money. Also, the accused & victim is saved from the victimisation of the system as a disposition of a case through normal trial takes quite some time & many times and accused has to spend more time in jail than the maximum punishment for the offence he is charged with. It also helps a person to have less serious offences on his records many a time a person who has committed an offence by mistake is stigmatised by the society which makes life even more difficult. It also helps in saving the resources of the government which can be utilised in other cases.
However, this does not mean that this concept is saved from criticism due to its benefits. It is criticised because it promotes corruption as it allows the parties to a case to reach an agreement on their own & the involvement of the police is also questionable. Additionally, there is no provision regarding the evaluation of plea bargaining applications by an independent judicial authority which may promote arbitrariness. Moreover, the most important argument in favour of plea-bargaining is a delay in the trial process& the overburdened courts which is true but it is also due to many other factors like the investigative operations which involve evidencing as well, a personal interest of lawyers etc. which also needs to be taken care of.
To conclude it can be said regarding this concept that it provides faster relief & reduces the pressure on the overburdened judicial systems across the world, however, it is not real justice as somewhere it promotes inequality & false convictions as many times even an innocent person pleads guilty as it seems a better solution to him than to wait for the court to deliver justice. Moreover, it also defeats the purpose of the criminal justice system of reducing crime in the society as it has allowed people the option of committing a crime & then plead guilty to get a lighter sentence. Also, it has shifted the focus of criminal justice system from doing complete justice to mere justice which is not in the real interest of the society as “Justice should not only be done but must be seen to be done.”[vi]
Therefore, is it not the need of the hour to find a permanent or at least a long-lasting solution rather than finding a temporary substitute for trial which can only be achieved by a complete overhaul of the system in terms of structure, composition, work culture & ethics.
- What is Plea Bargaining?
Plea bargaining is a negotiation which happens between the accused or defendant and the prosecution during the pre-trial period of a criminal case, wherein they try to form an agreement in which the accused is given the option to plead guilty for the offence he is charged with & in return the prosecution allows certain concessions, which may either be dropping of charges or relaxation in punishment, etc.
2. What are the various types of plea bargaining?
Plea bargaining is of following types:
- Charge bargaining
- Count Bargaining
- Sentence Bargaining
- Fact Bargaining
- Which law commission reports &committees recommended the introduction of plea bargaining in India?
The 142nd, 154th& 177th law commission reports & the Malimath Committee constituted by the Indian government in the year 2000 recommended the addition of plea bargaining to the Indian Criminal justice system.
3. When was Plea Bargaining incorporated in the Indian Criminal Justice System?
Plea bargaining was incorporated in the Indian Criminal justice system by way of an amendment to the code of criminal procedure through the criminal law amending act of 2005. It was enforceable from 5th July 2006.
4. In what all cases is plea bargaining allowed under the Code of Criminal Procedure, 1973?
The option of Plea bargaining is allowed only in the following cases:
- Wherein the offence is punishable with a maximum of 7 years’ imprisonment
- Wherein the offence does not affect the socio-economic condition of India. These offences are as per the notification of the Central Government.
- Wherein the offence is not committed against a woman or a child below 14 years of age
 404 U.S. 257 (1971)
 AIR 1976 SC 1929
 1980 AIR 854
 (2005) 1 GLR 709
- Code of Criminal Procedure, 1973
- Law Commission Reports available at lawcommissionofindia.nic.in
- The Constitution of India
- Criminal Law (Amendment) Act, 2005
- Report of Justice V.S. Malimath Committee on Reforms of Criminal Justice System
- Juvenile Justice (Care and Protection of Children) Act, 2000.
- Observation by CJ Lord Hewart in the case of R v Sussex Justices, ex parte McCarthy (1924)