Chaitanya Thakur
ABSTRACT:
After considering plea bargaining’s popularity in America, the Indian government adopted this provision, which allows the respondents to plead guilty to reduce their punishments. In this article, the author endeavours to trace the history of Plea Bargaining as well as the current remedial measures available in India following the Criminal Law Amendment Act, 2005. The article views the amalgamation of plea bargaining in India as a response to the reprehensible status quo, showcased by the hindrances in the resolution of criminal cases. The author will critically evaluate Chapter XXIA of CrPC by examining some issues regarding the applicability and extent of some provisions and their repercussions on both the parties. Moreover, the author briefly analyses the responses to Plea Bargaining in the other nations. This article examines the shift in the judicial position on Plea Bargaining and further scrutinizes the proposals of the Law Commission and the other Committees which favoured the inclusion of plea bargaining. The article examines not only the provisions embodied in the Code but also the circumstances not included within their ambit. The article concludes with recommendations for implementing the Amendment more efficaciously.
INTRODUCTION:
“The greatest drawback of the administration of justice in India today is because of delay of cases... The law may or may not be an ass, but in India, it is certainly a snail and our cases proceed at a pace which would be regarded as unduly slow in the community of snails. Justice has to be blind but I see no reason why it should be lame. Here it just hobbles along, barely able to walk.”
-Nani Palkhivala [1]
It is entirely fitting to commence this article with a quotation from the renowned Indian lawyer Nani Palkhivala. Without question, a swift trial is a cornerstone of the criminal justice system, and any delay in the course of the trial signifies a denial of justice. To shorten the time required to resolve criminal cases, the Law Commission advocated the adoption of “Plea Bargaining” as an alternative mechanism for resolving massive backlogs of criminal cases. [2] Thereafter, the Code of Criminal Procedure, 1973 (“CrPC”) has been updated to include Chapter XXI-A, which contains 12 sections. The Criminal Law (Amendment) Act, 2005 became effective on 5th July 2006, bringing plea bargaining to India.
At this juncture, it becomes imperative to comprehend what the term plea bargaining means. Plea bargaining has been defined as ‘a negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offence or to one of multiple charges in exchange for some concession by the prosecutor, usually a more lenient sentence or a dismissal of the negotiated charges.’ [3] However, the diminished usage of plea bargaining in India is substantiated by the data collected by NCRB from 2015. Albeit the courts and the government recommended plea bargaining, only 0.045% of the cases filed under the IPC were resolved in 2015 using the said provision. The year 2016 further saw a dip of 0.043%, with only 4,887 cases out of 11,107,472, while 2017 saw an increase of 0.27% with 31,857 cases out of 11,524,490 using plea bargaining. In 2018, there was a sharp fall, with only 20,062 cases out of 12,106,309, which is 0.16%, being resolved through plea bargaining. The fact that this measure hasn’t crossed even 1% after 15 years is extremely deplorable. 4 Most of the people who are pressurized to use plea bargaining do not have the means to post a bail. Additionally, it has been seen that most offenders are not aware of the repercussions of using it, which further complicates the issue. [5]
This article evaluates the rationale and the requirement of the inclusion of plea bargaining in India. Additionally, it traces the historical frameworks of plea bargaining and discusses its position in various jurisdictions. This article further probes the change in the judicial dispositions related to plea bargaining. Furthermore, it critically scrutinizes the provisos of this practice in CrPC and concludes with proposals for its effectual execution.
THE NEED AND PROVISIONS OF PLEA BARGAINING IN INDIA
A. RECOMMENDATIONS BY LAW COMMISSIONS AND COMMITTEES
Plea Bargaining traces its roots to the 142nd Report of the Law Commission. The commission found that the amount of time spent by an accused in judicial custody prior to the trial surpasses the maximum sentence that can be given if they are found liable in many cases. [6] Furthermore, it was noted that the success of plea bargaining in the USA substantiates its capability to help in the swift disposal of long-pending cases and provide justice at the earliest. [7] These recommendations were supported by the 154th Report, which reinforced the requirement of certain legislative policies which would palliate the sufferings of undertrials
and mitigate the impediments in the disposal of criminal cases.
The 177th Report further advocated for the amalgamation of plea bargaining in India. [8] In fact, the Report of the Malimath Committee on The Reform of Criminal Justice System, 2003, stated that plea bargaining would reduce the immense load on the courts, thereby accelerating the resolution of the criminal trials. [9]
B. PROVISIONS OF PLEA BARGAINING:
The Criminal Law (Amendment) Act, 2005, introduced Plea Bargaining in India by adding Chapter XXIA to the CrPC, comprising Sections 265A – 265L. The provisions regarding the applicability of Plea Bargaining are given under Section 265A. [10] People charged with offenses under which they can be penalized with “capital punishment or life imprisonment or imprisonment for a term exceeding 7 years” can’t benefit from the said provision. The Union Government issued a Notification regarding the offences affecting the “Socio Economic condition” for further clarity. Section 265-B [11] talks about the plea-bargaining application, containing details of the case in brevity, as well as an affidavit certifying its willingness which has to be submitted by the offender. Moreover, Section 256-C [12] specifies the practice that has to be followed by the court while chalking out a “Mutually Satisfactory Disposition” (“MSD”), while Section 256-D [13] stipulates the guidelines for the Report by the court regarding an MSD.
Furthermore, the procedure that must be adhered to while resolving a case wherein an MSD between two parties has worked is given under Section 265E. [14] Section 265F relates to the pronouncement of the decision in a case dealing with MSD. [15] Moreover, Section 265G clearly specifies that unless a special leave petition under article 136 or writ petition under article 226 or article 227 is filed, the court will not consider any appeals filed against the decision in such cases. [16] The power of courts in cases of plea bargaining is dealt by Section 265-H. [17] Through Section 265-I, Section 428 is applicable to the punishment given on plea bargaining. [18] Furthermore, a “non-obstante clause” is present in Section 265-J, which safeguards this Chapter from any dissonant provisions embodied by other provisions. [19]
Further, Section 265-K categorically says that the offender’s statements in a plea-bargaining application shall only be used for plea bargaining and not for any other purpose. [20] Lastly, Section 265-L renders this chapter inapplicable in the circumstances concerning a juvenile, as
given in Section 2(k) of Juvenile Justice (Care and Protection of Children) Act, 2000. [21]
EVOLUTION OF PLEA BARGAINING AND POSITION IN OTHER JURISDICTIONS
A. HISTORICAL BACKGROUND
Plea bargaining is usually considered to have begun in the nineteenth century. Yet, evidence of plea bargaining stretches back to time immemorial in various cultures’ epics and historical records worldwide. [22] According to the most important Hindu epic, The Bhagwat Geeta, there is no harsher deterrent for a sinner than pleading guilty and swearing not to commit the crime again. Apart from punishments, the Dharmasastras contain a distinct chapter on the admission of guilt, dubbed “Prayaschita.” In verse 239, Manusmriti advises abrogation of penalty of those who feel guilty. [23]
Additionally, one of the oldest examples of Plea Bargaining was a 1485 English statute that permitted prosecutions for illegal hunting before The Justice of the Peace. According to the statute, the offender is guilty only of a summary offence if he admitted to his crime. [24] After the 1920s, Plea Bargaining did not resurface till the 1960s. Plea Bargaining was revitalized in the 1960s as a consequence of the World War II’s ‘crime wave’ and a rise in drug use. [25] Eventually, plea bargaining progressed and became an indispensable provision of the American Criminal Justice system. [26] Consequently, the US Supreme Court ruled in favour of plea bargaining in Brady v United States. 27 This judgement was further supplemented by the Santobello case [28] wherein the Supreme Court remarked that plea bargaining was absolutely necessary for providing justice.
B. PLEA BARGAINING IN OTHER COUNTRIES
The scope of Plea Bargaining in common law countries like Australia, England and Wales, is limited only to the degree wherein the prosecutor and defendant decide that the latter will admit guilt in some charges, and the prosecutor will dismiss the other accusations. Ergo, zero negotiating about the punishment happens, and the judges decide independently. The Scandinavian countries primarily prohibit plea bargaining, while the European nations are gradually accepting and incorporating it within their systems. [29]
During 1986-1987, the ‘pentito’ technique was legitimized in Italy. The pentito gained leniency and was awarded lesser punishments in exchange for providing information to the magistrates. Additionally, the National Accountability Ordinance, 1999, was instrumental in bringing plea bargaining to Pakistan. The defendant applies by admitting guilt and then offering to refund the sums received through corruption, as found by the investigators. [30]
C. DIFFERENCES BETWEEN INDIA AND THE USA
Albeit plea bargaining in India has been adopted after seeing its popularity in the USA, there
are significant distinctions between these two.
Firstly, plea bargaining is allowed for almost all offenses in the USA. However, in India, the defendants are permitted to seek plea bargaining only for a limited number of offences. Furthermore, unlike the USA, where victims have minimal authority to alter the terms of plea bargains, Indian provisions allow the accused to veto the bargain negotiated. [31] Also, most plea bargain agreements in America culminates in the parties agreeing on a certain period of imprisonment as a part of the negotiations. In stark contrast, Section 265-E, as applicable in India, stipulates the rules to be followed by the courts while deciding the degree of the sentence, thereby minimizing the role of the parties in deciding the punishment. [32]
INDIAN JUDICIARY’S APPROACH TOWARDS PLEA BARGAINING
A. BEFORE THE ENACTMENT OF THE CRIMINAL LAW AMENDMENT ACT, 2005:
In India, the courts repeatedly declared that plea bargaining is illicit and totally unfit under the Indian law. [33] The most renowned case, ostensibly, is Madanlal Ramachander v. the State of Maharashtra, [34] wherein the SC pointed out the unsuitability of plea bargaining. This judgement was further supplemented by the Murlidhar Meghraj [35] case, wherein the SC stated that the state should not n egotiate with the accused for a more lenient sentence. Furthermore, the SC affirmed that plea bargaining is against the public policy in Kasambai v. State of Gujarat. [36] Additionally, the SC noted in the Kachhia Patel [37] case that plea bargaining can never be allowed in India and called it an “exceptionally inexcusable practice”.
Moreover, the SC declared plea bargaining to be unlawful in Uttar Pradesh v. Chandrika. [38] In the case of Thippaswamy v. State of Karnataka, [39] the court stated that the exercise of plea bargaining wherein the accused is asked to confess to committing a particular crime infringes his fundamental right to life.
B. THE SHIFT IN JUDICIAL THINKING:
Ever since plea bargaining has been incorporated in the Indian Laws, both the accused and the prosecutor have comprehensively used the notion to expedite the administration of justice. [40] It was in the case of State of Gujarat v. Natwar Harchandji, [41] that the courts realised the potential of this practice in criminal trials. The Gujarat HC pointed out that plea bargaining was an appropriate form of dispute resolution and would usher in a new era of judicial reform.
Furthermore, in Ranbir Singh v. State, [42] the defendant’s sentence was reduced to 1/4 th of the maximum punishment under Section 304A of IPC, as defined in Section 265-E of CrPC. Additionally, while expounding on Section 265-E, the Bombay HC held in Guerrero Lugo v. The State of Maharashtra, [43] that the courts lacked authority in cases where the punishment must be meted out to an accused who utilises plea bargaining. The Court is powerless and has to decrease the accused’s sentence to 1/4th of the maximum penalty prescribed for a specific offence.
In fact, the court stated in Joseph P.J. v. State of Kerala, [44] that the procedure for plea bargaining, established under Sections 265-A to 265-L of the CrPC, is compulsory and must be adhered to while considering a plea-bargaining application. Moreover, in M/S Meters and Instruments Pvt. Ltd. v. Kanchan Mehta, [45] the SC declared that the court must examine the provisions of plea bargaining in a case concerning Section 138 of the Negotiable Instruments Act if the accused and the victim are able to reach to an agreement.
CRITICALLY ANALYSING THE PLEA-BARGAINING PROVISIONS
Numerous provisions of India’s plea-bargaining system are extremely contentious in nature. Section 265-A fails to accomplish the primary goal of embodying plea bargaining in India by limiting the provision to the crimes carrying a maximum sentence of less than seven years. Contrarily, this section tremendously impacts the cases relating to human rights exploitation by state officials, like custodial torture. For instance, a police officer accused of custodial torture faces charges under sections 323 or 330 of the IPC. The maximum sentence for these offences is within the permitted range of plea bargaining, implying that it may help these offenders to evade prosecution with reduced sentences [46]
Furthermore, the socioeconomic offences are covered by a plethora of statutes, ranging from the Dowry Prohibition Act of 1961 to more modern statutes such as the Protection of Women from Domestic Violence Act of 2005. The Amendment’s stated goal of caseload reduction is undermined when plea bargaining is inapplicable to these numerous statutes. Additionally, section 265A (2) vests the government with the unfettered authority to determine whether offences are socioeconomic offences. This may result in a subsequent breach of Article 14 if an accused person believes the categorization is unfair or unjust, as there are no standards outlining the criteria for designating offences as socioeconomic offences in this chapter. [47] Another source of contention is about those offences in which the law prescribes a mandatory
minimum sentence. A person accused of an offence punishable by less than 7 years is not eligible for plea bargaining if the minimum sentence is already prescribed by law. Likewise, the plea bargaining’s application in these cases is severely limited.
Moreover, the accused is allowed to submit a plea-bargaining application in the court under S. 265 B. In the majority of circumstances, the courts are left to judge if an application has been submitted voluntarily based on the facts of the particular case. However, because the accused is being given a reduced term, he will always be under some pressure. Additionally, providing the courts with the responsibility of determining whether an application is voluntary will waste the court’s time. [48] Subsection (4) of this clause does not specify a time range for MSD, which is worrisome given that the goal of plea bargaining is to expedite justice and case disposition. Additionally, the clause prohibits a person who has previously been convicted of the same offence from seeking plea bargaining, highlighting that the legislators overlooked the gravity of the crime and severely limited the possibility for plea bargaining. Lastly, there are no provisions in S. 256C to ensure that the accused is not pressurized at any point and that there is transparency. [49]
CONCLUSION AND SUGGESTIONS:
It is undisputed that plea bargaining is a divine gift in the current state of India’s justice delivery system. This contentious idea is much more of a convenience and mutual advantage method than a matter of morality or legality. [50] However, our legislators have presented the introduction of Chapter XXI-A of the Code with great caution. They constrained the aptness in general and confined the scope of plea bargaining. [51] It can, nonetheless, prove to be an effective tool in the future to expedite the justice delivery mechanism and concomitantly reduce the number of cases being filed in the criminal courts. To improve the effectiveness of
plea bargaining in India, the deciding authority should not be influenced by the trial court, must retain more power and have a stronger role in the process, rather than the Public Prosecutor. [52] In this regard, the method advocated by the Law Commission’s 142nd Report is sensible and judicious since it avoids slavish replication of the American Model. [53]
Moreover, the accused should be apprised about the provision of Plea Bargaining when he has been summoned. [54] Not only should the offences considered socio-economic crime needs to be pointed out, but the categorization for benefitting from plea bargaining should be done considering the gravity of the offence. Furthermore, there should be an expansion of its scope, thereby helping in implementing the section constructively. [55] Moreover, a parallel structure should be devised to deal with plea bargaining cases. The forum should remand the case back to the courts if it believes that an adequate arrangement cannot be mapped out, and the case afterwards should progress from the point when the plea-bargaining application had been submitted. [56] The MSD, which has ultimately arrived under S. 265-C, has to be formally documented by the court to ensure transparency and eradicate vagueness, along with fixing a time period for chalking out the arrangement. [57]
Lastly, this proviso is not inherently bad or good. It can serve as the elixir that the Indian judiciary has been hunting for, if utilized correctly. Since, adapting to the conditions of a specific location is time taking, it will be inappropriate to evaluate the benefit and achievement of plea bargaining in the Indian context at this point. It is desired that an amendment will come someday, which will eradicate the banes and smoothen the operation of this notion. [58]
[The author is a second year BA. LL.B. (Hons.) student at West Bengal National University of Juridical Sciences, Kolkata]
[1] Hitesh Agrawal, Plea- Bargaining: Present Status in India, available at
http://www.legalservicesindia.com/article/article/plea-bargaining-presentstatus-in-india-658-1.html accessed on 27th October,2013 (Last visited on September 2, 2021).
[2] Amrit Pal Kaur & Aarti Goyal, Justice in Plea Bargaining – Is it a coercion to compromise, BHARTI LAW REVIEW 213 (2016).
[3] BRYAN GARNER, BLACK’S LAW DICTIONARY 1190 (8th ed., 2004).
[4] Anshika Chadha, Plea Bargaining In India: A Ship With Holes, available at
www.legalserviceindia.com/legal/article-1784-plea-bargaining-in-india-a-ship-with-holes.html (Last visited on September 1, 2021).
[5] Apurva Vishwanath, Why hasn’t plea bargaining taken off in India?, August 31, 2021, available at https://www.livemint.com/Politics/otm5XvV7DTZJ9KaKScbJ4H/Why-hasnt-plea-bargaining-taken-off-in-India.html (Last visited on September 2, 2021).
[6] Neeraj Arora, Plea Bargaining- A New Development in the Criminal Justice System, December 25, 2010, available at https://www.legallyindia.com/views/entry/plea-bargaining-a-new-development-in-the-criminal-justice-system-html (Last visited on September 2, 2021).
[7] Id.
[8] Varsha Gulaya, Tracing the Development of Bargaining in India [Part I], March 13, 2019, available at, https://criminallawstudiesnluj.wordpress.com/2019/03/13/tracing-the-development-of-plea-bargaining-in-indiapart-i (Last visited on September 2, 2021).
[9] Pradeep Kumar Singh, Plea Bargaining and Criminal Justice in India, 7 ATHENS JOURNAL OF LAW 33 (2021).
[10] The Code of Criminal Procedure, 1973 (Act 2 of 1974), §265A.
[11] Id., §265B.
[12] Id., §265C.
[13] Id., §265D.
[14] Id., §265E.
[15] Id., §265F.
[16] Id., §265G.
[17] Id., §265H.
[18] Id., §265I.
[19] Id., §265J.
[20] Id., §265K.
[21] Id., §265L.
[22] Albert Alschuler, Plea Bargaining and Its History, 79 COLUMBIA LAW REVIEW 1 (1979)
[23] Shubham Gupta & Kiran Chauhan, Plea Bargaining: A Silver Lining or a Compromised Mockery, 5 INDIAN JOURNAL OF LAW AND HUMAN BEHAVIOR 141 (2019).
[24] Jeff Palmer, Abolishing Plea Bargaining: An End to the Same Old Song and Dance, 26 AM. J. CRIM. L. 505 (1999).
[25] John H. Langbein, Understanding the Short History of Plea Bargaining, Faculty Scholarship Series, available at http://digitalcommons. law.yale.edu/fss_papers/54 (Last visited on September 2, 2021).
[26] Shubham Gupta & Kiran Chauhan supra note 23.
[27] Brady v. United States, 397 U.S. 742 (1970).
[28] Santobello v. New York, 404 USA 257 (1971).
[29] Aditya Singh, Plea Bargaining in India: A Nibble At The Edge Of The Problem, NUALS L. J. [3] 79 (2009).
[30]Plea Bargaining, available at https://www.bbau.ac.in/dept/HR/TM/LL.M.%20203%20Unit%204.Plea%20Bargaining.RM.pdf (Last visited on September 2, 2021).
[31] J. E. Ross, The entrenched position of Plea Bargaining in United States legal practice, 54 A.M. J COMP. L. 717 (2006).
[32] Anushka Singh, An Analysis and Evolution of Plea Bargaining in the Indian Context, 4 INTERNATIONAL JOURNAL OF LAW MANAGEMENT & HUMANITIES 3124 (2021).
[33] Anushka Singh supra note 32.
[34] Madanlal Ramachandra Daga V. State of Maharashtra, AIR 1968 SC 1267.
[35] Murlidhar Meghraj v. State of Maharashtra, 1976 AIR 1929.
[36] Kasambai v. State of Gujarat, 1980 AIR 854.
[37] Kachhia Patel v. State of Gujarat, 1980CriLJ553.
[38] Uttar Pradesh v. Chandrika, AIR 2000 SC 164.
[39] Thippaswamy v. State of Karnataka, AIR 1983 SC 747.
[40] Abhishek Wadhawan, An Analysis of the Plea Bargaining Mechanism in India: The Past, Present and the Future, June 7, 2019, available at https://www.lawaudience.com/an-analysis-of-the-plea-bargaining-mechanism-in-india-the-past-present-and-the-future/#_ftn27 (Last visited on September 2, 2021).
[41] State of Gujarat v. Natwar Harchandji Thakor, 2005 CriLJ 2957.
[42] Ranbir Singh v. State, 2011 S.C.C OnLine Delhi 3737 (India).
[43] Guerrero Lugo v. The State of Maharashtra, CWP No. 2109 of 2011.
[44] Joseph P.J. v. State of Kerala, Original Petition (Criminal) No. 41 Of 2015.
[45] M/S Meters and Instruments Pvt. Ltd. v. Kanchan Mehta, 2017(4) RCR (Criminal) 476.
[46] Amrit Pal Kaur & Aarti Goyal supra note 2.
[47] N. PRABHA UNNITHAN, CRIME AND JUSTICE IN INDIA (2013).
[48] APANJOT KAUR, PLEA BARGAINING: AN INDIAN PERSPECTIVE (2015).
[49] Id.
[50] K.V.K Santhy, Plea Bargaining in US and Indian Criminal Law confessions for concessions, 7 NALSAR LAW REVIEW 84 (2013).
[51] Anushka Singh supra note 32.
[52] K.V.K Santhy supra note 50.
[53] supra note 30.
[54] Takdeer Singh & Sunil Kumar, Plea Bargaining in India, 7 JOURNAL OF CRITICAL REVIEWS 3066 (2020).
[55] Rosie Athulya Joseph, Plea Bargaining: A means to an end, available at
http://www.manupatra.com/roundup/326/Articles/Plea%20bargaining.pdf (Last visited on September 2, 2021).
[56] Id.
[57] Hullur Sanjiva Muralidhar, A critical study of the law relating to plea bargaining and criminal justice in India, available at https://shodhganga.inflibnet.ac.in/handle/10603/220567 (Last visited on September 2, 2021).
[58] Shubham Gupta & Kiran Chauhan supra note 23.