Electronic copy available at: http://ssrn.com/abstract=1669537

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Plea Bargaining a medicine in Indian Criminal Jurisprudence to reduce a backlog of the

Indian courts: An Overview

Vaibhav choudhary1

Synopsis

A fresh chapter, that is chapter XXIA on ‘Plea Bargaining’, has been introduced in the Criminal

Procedure Code. It was introduced through the Criminal Law (Amendment) Act, 2005, which was

passed by the parliament. This has certainly changed the look of the Indian Criminal Justice System.

Some of the skin texture of ‘Plea Bargaining’ is that it is applicable in respect of those offences for

which punishment is up to a period of 7 years. Moreover it does not apply to cases where the offence

committed is a socio-economic offence or where the offence is committed is committed against a

woman or a child below the age of 14 years. Also once the court passes an order in the case of ‘Plea

Bargaining’ no appeal shall lie to any court against that order. This essay makes an endeavor to

scrutinize the notion of ‘Plea Bargaining’, its deal with chronological evolution of the perception,

position in Indian criminal jurisprudence, diverse facet of the concept, features, statically analysis as a

outcome of the concept with special reference to the Tihar jail condition, requirement, advantages to

common man, its drawbacks and tries to find out the feasibility of this new proposal. In the end the

authors views on the slogan of the topic as a critic and suggestion to make this concept more

applicable in Indian social context.

Electronic copy available at: http://ssrn.com/abstract=1669537

1 Vaibhav Choudhary,2nd year Student,B.A.LL.B.,(Hons.),Rajiv Gandhi National University of Law Punjab, Patiala Email Id-vaibhavnlu2007@gmail.com

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Introduction

“Criminal justice system in India is unique and the justice delivery system in our country is different

from others.”

-By H.R.Bhardwaj2

“Plea bargaining can help in working out of a mutually satisfactory agreement between the

two parties in a case.”

-By Justice Pradeep Nandrajog3

“The system of plea bargaining will help reduce delay and free resources to tackle more

serious crimes.”

-By N.R.Madhava Menon4

“There is some misconception about introduction of plea bargaining. It has been implemented

all over the country except Tamil Nadu. I don’t see any reason for opposition.”

-By Chief Justice Ajit Prakash Shah5

“There is a funny notion that it is against lawyers. The Criminal Procedure Code amendment introduces

plea bargaining only in small offences and not in major ones.”6

The Indian concept of Plea Bargaining is inspired from the Doctrine of Nolo Contendere.

The doctrine has been under consideration by India for introduction and employment in the Criminal

Justice System. Indian Criminal Justice System has been ineffective in providing speedy and

economical justice. Because Courts are flooded with astronomical arrears, the trial life span is

inordinately long and the expenditure is very high. Subsequently majority of cases are arising from

criminal jurisdiction and the rate of conviction is very low. Recently the Government of India has

2 H.R.Bhardwaj,Union Law Minister, See “Plea bargaining can saved the accused” at http://www.thehindu.Com/2007/12/25/14hdine.htm[visited on July 22,2008] 3 Pradeep Nandrajog,Judge,Delhi High Court At A Legal Discourse Organized By The New Law College, Bharti Vidayapeeth Deemed University, As A Part Of Its Yearly Convocation Programme,See “Plea bargaining could help in providing speedy justice” at http://www.indian express.com/latest news/plea bargaining could help in providing speedy justice/285028/#[visited on July13,2008] 4 N.R.Madhava Menon,Director ,National Judicial Academy, Bhopal .See “Plea Bargaining” at http://www.thehindu.Com/2005/08/14/Stories/2005081404540400.htm[visited on August 4,2008] 5 Ajit Prakash Shah, Chief Justice, Madras High Court At The Inaugural Function Of A Library And Conference Hall In The Madras High Court Madurai Bench Advocates’ Association (MAHAA),See “Chief Justice For Plea Bargaining” at http://www.thehinduonnet.com/2007/09/19/23hdline.htm[visited On July 26,2008] 5ibid

P a g e | 3 accepted the Doctrine of Nolo Contendere or Plea Bargaining, on the Recommendations of the Law

Commission. Doctrine of Nolo Contendere has been considered in a manner according to social and

economical conditions prevailing in the country. Appropriate amendment has been incorporated in the

Criminal Procedure Code, 1973. The new concept of Plea Bargaining will be fruitful in resolving

pending criminal cases and under trial in jails for years. The Committee on Criminal Justice Reforms,

headed by a former Chief Justice of the Karnataka and Kerala High Courts and former member of the

National Human Rights Commission of India, Justice V.S. Mali math (“Mali math Committee”),

submitted its report to the Government of India’s Ministry of Home Affairs in March 2003. In its

report, the Mali math Committee recommended that a system of plea-bargaining be introduced into the

criminal justice system of India to facilitate the earlier resolution of criminal cases and reduce the

burden on the courts (Recommendation 106). The Mali math Committee endorsed the

recommendations previously made by the Law Commission of India, as contained in the Law

Commission’s 142nd and 154th reports, on the form that such a system of plea-bargaining should take.

The Law Commission’s recommendations in this respect are comprehensive and essentially sound.7 A

new Chapter (Chapter XXI A) on Plea Bargaining has been inserted in the Criminal Procedure Code

1973. A notification to bring into effect the new provision has been issued and it has come into effect

from 5th July, 2006. Plea Bargaining was introduced through the Criminal Law (Amendment) Act,

2005 which was passed by Parliament in the winter session of 2005. “When one’s own legal system

flounders, one naturally looks towards practices in other countries, which seem to provide the solution.

Statistics as regards the criminal justice system in India are startling in 2001; the number of inmates

housed in Indian jails was almost 1, 00,000 more than their capacity. It was estimate that 70.5% of all

inmates were under trials and of this 0.6% had been detained in jail for more than 5 years at the end of

2001.”8

Historical Background of Plea Bargaining9: United States of America have a long history of the

practice of ‘Plea Bargain’ and there are numerous cases wherein this concept has been discussed and

interpreted. To understand the ramification of the concept of ‘Plea Bargaining ‘in legal and social

parlance the developments and change made in the concerned provisions in pursuance of observations

7 See “In the name Of Malimath:Bill on Plea bargaining seeks to subvert justice” at http://www.hrdc.net/sarhdc/index.htm [visited on July 1,2008] 8 See “Plea Bargaining-A Practical Solution” at http://www.Legalserviceindia.com/article/index.asp [visited On July 17,2008] 9 Mahendra Singh Adil, “PLEA BARGAINING”, Capital Law House, New Delhi, 2007, pp.10-11.

P a g e | 4 made by the supreme court of U.S.A. have their own significance and it shall be pertinent to

incorporate the historical background of the observation made, and amendments recommended by the

committee, so that can be guidelines for the interpretation and practical usages of this new concept in

the dispensation of criminal justice in India . In their 142nd report the law commission of India had

made a pragmatic study, discussion and made recommendation in 1991, for the adoption of the

concept of Plea Bargaining. As per the recommendations of the law commission the scheme has to be

applied in phase and after having settled the preliminary phase, which has been introduced by insertion

of chapter XXIA to the code of criminal procedure, the next phase shall be introduced. Keeping in

view the history of development of the concept of ‘Plea Bargain’ and various amendments introduced

to the provision of law, Indian legislature has taken care of all the negative aspect or negative impact

or practice. Under the newly introduced chapter XXIA to the code of criminal procedure the

application of the scheme of ‘Plea Bargain’ is not widely and for every offence available .under Indian

law all precaution to prevent misuse or negative impact on the dispensation of criminal justice has

been addressed properly expect one dangerous aspect of allowing the police and the prosecutor to

participate in the meeting top work out the satisfactory disposition of the case.

Plea Bargaining in India: To reduce the delay in disposing criminal cases, the 154th Report of the Law

Commission first recommended the introduction of ‘plea bargaining’ as an alternative method to deal

with huge arrears of criminal cases. This recommendation of the Law Committee finally found a

support in Malimath Committee Report. To strengthen its case, the Malimath Committee also pointed

out the success of plea bargaining system in USA. Accordingly, the draft Criminal Law (Amendment)

Bill, 2003 was introduced in the parliament. The statement of objects and reasons, inter alia, mentions

that, The disposal of criminal trials in the courts takes considerable time and that in many cases trial

do not commence for as long as 3 to 5 years after the accused was remitted to judicial custody though

not recognized by the criminal jurisprudence, it is seen as an alternative method to deal with the huge

arrears of criminal cases. The bill attracted enormous public debate. Critics said it is not recognized

and against public policy under our criminal justice system. The Supreme Court has also time and

again blasted the concept of plea bargaining saying that negotiation in criminal cases is not

permissible. More recently in State of Uttar Pradesh V. Chandrika10 The Apex Court held that It is

settled law that on the basis of plea bargaining court cannot dispose of the criminal cases. The court

has to decide it on merits. If the accused confesses its guilt, appropriate sentence is required to be

10 (2000) Cr.L.J. 384(386)

P a g e | 5 implemented. The court further held in the same case that, Mere acceptance or admission of the 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 be reduced. Despite this huge hue and cry, the government found it

acceptable and finally section 265-A TO 265-L have added in the Code of Criminal Procedure so as to

provide for raising the plea bargaining in certain types of criminal cases. While commenting on this

aspect, the division bench of the Gujarat High Court observed in State of Gujarat V. Natwar Harchanji

Thakor11 that, The very object of law is to provide easy, cheap and expeditious justice by resolution of

disputes, including the trial of criminal cases and considering the present realistic profile of the

pendency and delay in disposal in the administration of law and justice, fundamental reforms are

inevitable. There should not be anything static. It can thus be said that it is really a measure and

redressal and it shall add a new dimension in the realm of judicial reforms.12

Breed and the Salient Feature Of the Plea Bargaining: Basically Plea bargaining is an agreement in a

criminal case in which a prosecutor and an accused arrange to settle the case against the accused. The

defendant aggress to plead guilty or no consent in exchange for some concession from the prosecutor.

This concession can include reducing the original charge or charges, dismissing some of the charges

against the defendant or limiting the punishment a court can impose on the defendant. Generally, a

plea bargain allows the parties to agree on the outcome and settle the pending charges13there are two

kinds of plea bargaining, as endorsed in International jurisprudence. i.e., Express and implicit plea

bargaining. Express bargaining occurs when an accused or his lawyer negotiates directly with a

prosecutor or a trial judge concerning the benefits that may follow the entry of a plea of guilty.

Implicit bargaining, on the other hand, occurs without face-to face negotiations. Bargaining for a

reduction in either the number, or severity of criminal charges is referred to as charge bargaining14. Bargaining for a favourable sentence, recommendation by the prosecutor, or bargaining directly with a

trial judge for a favourable sentence is referred to as sentence bargaining15. Other kind is fact bargaining. In fact bargaining, a prosecutor agrees not to contest an accused’s version of the facts or

11(2005)Cr.L.J.2957 12 Sourabh Subha Ghosh,Advocate,See “Plea Bargaining: An Analaysis Of The Concept” at http://www.legalserviceindia.com/article/plea-Bargaining.htm [visited On 21 July,2008] 13 Mahendra Singh Adil, “PLEA BARGAINING”,ed.2007,p.5 14 K.P.Pradeep,Advocate,Kerala High Court, See The article “Plea Bargaining: New Horizon In Criminal Jurisprudence” at http://www.kja.nic.in/articleplea20%bargaining.pdf [visited On July 17,2008] 15 ibid

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agrees not to reveal aggravating factual circumstances to the court.16 Under the new chapter XXIA (Plea Bargaining) has been inserted by Cr.P.C. (Amendment) act, 2005(2 of 2006) containing section

265A to 265l17.As per this chapter the salient feature of this can be described as given below, The Plea

Bargaining is applicable only in respect of those offences for which punishment of imprisonment is up

to a period of 7 years. It does not apply where such offence affects the socio- economic condition of

the country or has been committed against a woman or a child below the age of 14 years. The

application for Plea Bargaining should be filed by the accused voluntarily. A person accused of an

offence may file an application for Plea Bargaining in the court in which such offence is pending for

trial. The complainant and the accused are given time to work out a mutually satisfactory disposition

of the case, which may include giving to the victim by the accused, compensation and other expenses

incurred during the case. Where a satisfactory disposition of the case has been worked out, the Court

shall dispose of the case by sentencing the accused to one-fourth of the punishment provided or

extendable, as the case may be for such offence. The statement or facts stated by an accused in an

application for plea bargaining shall not be used for any other purpose other than for plea bargaining.

The judgment delivered by the Court in the case of plea-bargaining shall be final and no appeal shall

lie in any court against such judgment.18

Plea Bargaining and It’s Outcome: Statistics Analysis

The system of plea bargaining is new to India; the same has been institutionalized by in other

countries like America and Canada for quite some time. In America according to some commentators

,as many as 95% of all criminal cases are disposed off through guilty pleas and most of them are a

result of plea bargaining between the prosecution and the defense. In India one of his state

governments in Orissa has stressed plea bargaining scheme as a panacea for huge backlog of court

cases.19 The Karnataka20 government after the introduction of ‘plea bargaining’ ibecomes the first state

16 ibid 17 B.L.Arora, “Law Of Speedy Trial In India” ,Universal Law Publisher,Ed.2006,New Delhi,p.249 18 See , “Plea Bargaining Come Into Effect From Today” Press Release By Ministry Of Home Affairs At http://www.pib.nic.in/release/rel_print_page.1asp?relid=18723 19 The Chief Minister Of Orissa Shri.Naveen Patanik Has Indicated That A Shift System Will Be Replicated In Other Cities On The Basis Of Experience In Bhubaneswar. The State Govt. Has Also Established Five New Vigilance Courts During 2007-08 To Speed Up Trial Of Corruption Cases. 20 The state has over 14.5 lakh awaiting cases in various courts of the state.

P a g e | 7 in India to initiate a system for speedy disposal of criminal cases. The establishment of such special courts

will act as a deterrent to corruption and bribery in public office. For the first time in the history, Asia’s largest

prison complex tihar jail saw a reduction of nearly 2,000 inmates in 2007, thanks to the inroductionof plea

bargain system. The director general (prison) B.K. Gupta said reduction from the 2006 figure of 13,500 inmates

to 11,500 in 2007 was a milestone in the history of Tihar jail. He further said that “much of this can be

attributed to the plea bargaining system by the Delhi legal service authority which has benefited 664 prisoners

through 85 courts held at Tihar complex where 4,216 cases were disposed off”

Advantage and Disadvantage of Plea Bargaining: The principal benefit of plea bargaining is

receiving a lighter sentence for a less severe charge than might result from taking the case to trial and

losing. Another fairly obvious benefit that defendants can reap from plea bargaining is that if they're

represented by private counsel, they can save a bundle on attorney fees. It almost always takes more

time and effort to bring a case to trial than to negotiate and handle a plea bargain. There may be other

benefits as well: Getting Out of Jail: Defendants who are held in custody-who do not qualify for

release on their own recognizance or who either do not have the right to bail or cannot afford bail may

get out of jail immediately following the judge's acceptance of a plea. Resolving the Matter Quickly:

A trial is usually requires a much longer wait and causes much more stress than taking a plea bargain.

Having Fewer or Less Serious Offences on One’s Record: Pleading guilty or no contest in exchange

for a reduction in the number of charges or the seriousness of the offences looks a lot better on a

defendant's record than the convictions that might result following trial. Avoiding Hassles: Some

people plead guilty especially to routine, minor first offences without hiring a lawyer, if they waited to

go to trial, they would have to find a good lawyer and spend both time and money preparing for trial.

Avoiding Publicity: All persons who depend on their reputation in the community to earn a living and

people who don't want to bring further embarrassment to their families may chose to plead guilty or no

contest to keep their names out of the public eye. There are certain disadvantages or the question by

which the validity the concept become duteous like; the social condition of the country didn’t justify it

because low rate of literacy in India. Prosecution pressure may result in conviction of the innocents.

The poor will be the ultimate victim of it. It may increase the incidence of crime. Criminals can slip

through by the net with impunity. There is no social benefit in this concept.

Conclusion: In conclusion it can be said that this new system in Indian criminal jurisprudence to some

extend may help the courts to reduce there burden of over loaded cases. Plea bargaining has been

P a g e | 8 introduced as a prescription to the problem of overcrowded jails, overburdened courts and abnormal

delays. It cannot be denied that the practice may result in faster disposal of cases; because delayed

trials are problematic in many aspects, the proposal may seem appealing. But on another hand it

cannot be considered as a unique remedy to reduce the backlog of the courts because by this concept

the innocent persons find themselves imprisoned and with criminal records. The Indian police are

well-known for booking poor innocent victims for crimes that they never committed, often after being

paid off by the actual perpetrators. In fact, the majority of under-trial prisoners in India are likely to

belong to this category. With the introduction of plea bargaining, these persons will be getting pushed

from one dark place to the next without the benefit of ever having a day in court or seeing a judge

before whom to plead a case. This so-called measure to speed up justice will only speed up

miscarriages of justice. Here I would suggest that while plea bargaining, if the punishment is a penal

fine, instead of the fine being deposited with the state some portion of it should be awarded to the

victim. As the punishment awarded to the offender is the only satisfaction for a victim to fight a

tedious litigation. In absence of some relief given to the victim it is unjust to reduce on the penalty or

the charge as the agony faced and the aftermath of an atrocity is long lasting pain for a victim. Only

then can collective fair dealing be done.