T H E W O R L D J O U R N A L O N J U R I S T I C P O L I T Y PLEA BARGAINING IN THE INDIAN CRIMINAL JUSTICE SYSTEM: AN ANALYSIS.

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1 PLEA BARGAINING IN THE INDIAN CRIMINAL JUSTICE SYSTEM: AN ANALYSIS Rajat Bawaniwal Faculty of Law, Jamia Millia Islamia, New Delhi The Indian judiciary is regarded as one of the most powerful judiciaries across the globe, but this powerful judiciary is being crippled by the weight of pending cases. In order to solve this problem, the legislature introduced the concept of plea bargaining in the Indian Criminal Justice System. This paper makes an effort to analyse the thought process of the legislature in incorporating the concept of plea bargaining in India by going into the recommendations of the Law Commission and the Committee on Reforms of the Criminal Justice System. Author tries to trace the origin of the concept of Plea bargaining. Further effort has been made to survey the present legal position regarding plea bargaining in India by going into the provisions of law and judicial decisions. Pitfalls under the legislation are discussed along with suggestions for better implementations of the provisions. The paper concludes by calling for a comprehensive study to review the functioning of plea bargaining in order to bring it in conformity with its desired objective of bringing down the pendency and ensuring speedier disposal of cases. Introduction There is a very famous quote: Justice should not only be done but should manifestly and undoubtedly be seen to be done, and time is certainly a big factor in ensuring that justice is not only done but is also manifestly and undoubtedly seen to be done. Keeping this in mind, right to speedy trial has been declared as a fundamental right under Article 21 of the Constitution. 1 Unfortunately, this fundamental right to speedy justice has largely remained a dead letter and the Indian judiciary has remained exceptionally slow in delivering justice. Due to the unreasonably long drawn process of providing justice, a common Indian is usually ready to bear some brunt rather than asserting his right in a court of law. With regard to criminal justice system, the situation is no better. There are more than 2.18 crore cases pending in district courts across the country; 12 states have more than 5 lakh cases to decide; while a little more than one case, on an average, is awaiting conclusion for at least 10 years. 2 The majority of the cases in India end in acquittal and the conviction rate is abysmally low. The legislature has recognized this problem of the backlog of cases and as a result officially introduced the concept of Plea Bargaining by way of Criminal Law 1 Hussainara Khatoon v. State of Bihar, AIR 1979 SC Utkarsh Anand, More than 2 crore cases pending in India s district courts: Report The Indian Express, June 9, THE WORLD JOURNAL ON JURISTIC POLITY ALL RIGHTS RESERVED.

2 (Amendment) Act of 2005 in order to curb this growing menace of back logging of cases in the Indian Courts and to ensure higher rate of conviction. Definition There is no universally applicable definition of plea bargaining. As the term implies, plea bargaining involves an active negotiation process whereby an offender is allowed confess his guilt in court (if he so desires) in exchange of a lighter punishment that would have been given for such an offence. In legal terminology, a plea-bargaining is simply an answer to a claim made by someone in a civil or criminal case under common law using the adversary system. 3 Black s Law Dictionary 4 defines it as: The process whereby the accused and the prosecutor in criminal case work out a mutually satisfactory disposition of the case subject to the Court approval. It usually involves the accused pleading guilty to a lesser offence or to only one or some of the courts of a multicount indictment in return for a lighter than that possible for the graver charge. A simple definition of the term Plea Bargaining was initially given by the Canadian Law Commission as follows: 5 Any agreement by the accused to plead guilty in return for the promise of some benefit From the point of view of the accused, it means that he trades conviction and a lesser sentence, for a long, expensive and tortuous process of undergoing trial where he may be convicted. In practice, it represents not so much of mutual satisfaction as perhaps mutual acknowledgement of the strengths or weaknesses of both the charges and the defences, against a backdrop of crowded criminal courts and court case dockets. Thus, it involves an active negotiation process by which the accused offers to exchange a plea of guilty, thereby waiving his right to trial, for some concessions in charges or for a sentence reduction. Plea Bargaining is of three types: 1. Charge Bargaining: Here the defendant pleads guilty to a less serious charge, or to one of several charges, in return for dismissal of other charges. 2. Sentence Bargaining: It is a process where the accused has an option of admitting guilt and settling for a lesser punishment. 3. Fact Bargaining: Negotiations which involves an admission to certain facts in exchange of an agreement not to introduce certain other facts. 3 Surender Kumar, Kulwant Singh Concept of Plea Bargaining and Criminal Law in India: An Analysis Vol I, Issue IV VOR (October 2013). 4 8th edition, 1190 (2004) 5 Law Reform Commission of Canada: Criminal Procedure: Control of the Process, 45 Working Paper 15(1975). 2 THE WORLD JOURNAL ON JURISTIC POLITY ALL RIGHTS RESERVED.

3 Origin of the Concept of Plea Bargaining Plea Bargaining is a concept that originated in the United States and it has evolved over the ages to become a prominent feature of the American Criminal Justice system. 6 In the United States of America, more than 75 percent of criminal cases end in guilty pleas, almost all resulting from plea bargaining. Hence it is often said that the American Criminal Justice would collapse if plea bargaining is removed from it. Plea bargaining was held to be constitutionally valid by the US Supreme Court in Brady v. United States 7 where the Supreme Court held that merely because the agreement was entered into out of fear that the trial may result in a death sentence, would not illegitimise a bargained plea of guilty. The U.S. Supreme Court has approved practices such as plea bargaining when properly conducted and controlled. Historical Background of Plea Bargaining in India The concept of plea bargaining (if not directly as it stands today, then in a similar fashion) has been a part of criminal jurisprudence in India since Vedic times. Apart from prescribing various kinds of punishments the Dharamasastras, in a separate chapter titled Prayaschita suggested various models of self-purification by confessing the guilt. In Vedic period prayaschita was used as a basis of imposition of reduced penalty, which was justified by various scholars of sastras and smritis. 8 In Post Vedic period, instances of plea bargaining are abundant in the Mauryan Period where plea-bargaining was practiced informally and episodically in the form of conciliation, as one of method of state craft. Plea-bargaining in the form of Quisa system flourished in the Mughal period. Quisas was a king of blood money which was given by the accused to the deceased victim s next kin in homicide cases. Under the British rule, adversarial system of common law came into force. The British legal system was aimed at punishing the offenders rather than bargaining away the punishment through compensation and thus the concept of plea bargaining was done away with. In the post independence era, on the recommendations of the Law Commission and its further endorsement by the Report of the Committee on Reforms of the Criminal Justice System, , finally the concept of Plea bargaining was introduced in India by way The Criminal Law (Amendment) Act, 2005, which was passed in the winter session of the Parliament. The provisions regarding Plea bargaining are embodied under Chapter XXI-A of Code of Criminal Procedure. Law Commission s View on Plea Bargaining The Law Commission of India advocated the introduction of Plea Bargaining in the 142 nd, 154 th and 177 th reports. Law Commission in its one hundred forty second report on 6 Sulabh Reawri and Tanya Aggarwal Wanna make a deal? The introduction of plea bargaining in India 2 SCC (Cri) J-12 (2006) U.S. 742 (1970) 8 Vaschaspati Tripathi, Pracheen Bharat Ki Dand Vayavastha, 176 (1989). 9 Headed by Justice V.S. Malimath, former Chief Justice of Karnataka and Kerela High Courts. 3 THE WORLD JOURNAL ON JURISTIC POLITY ALL RIGHTS RESERVED.

4 Concessional Treatment for Offenders who on their own initiative choose to plead guilty without any Bargaining 10 recognised the problem exercising the minds of all concerned with the administration of Justice, that of mounting arrears of criminal cases and unconscionable delays in disposal therof and undertook suo moto exercise resulting in the culmination of the 142 nd Report. The report extensively dealt with the various issues revolving around the introduction of a scheme like plea bargaining. The report dealt with the magnitude of the problem of delays in criminal cases. 11 The successful practice of plea bargaining in the USA was observed. The report also took into consideration the objection to the introduction of the concept of plea bargaining in Indian Legal System to all offences. 12 Some of the objections to the introduction of plea bargaining in India to all offences as mentioned in the report are as follows: The country s social conditions do not justify the introduction of the concept. The legal aid apparatus is also available for consultation if they cannot afford legal counsel. The defendants are generally advised by their trusted lawyers and there are no grounds to think that a defendant, except in very rare cases and circumstances, would make confession of guilt entailing personal and social consequences to him not with standing his innocence. Pressures from prosecuting agencies may result in convictions of the innocents. The poor will be the ultimate victims of the concept. Plea Bargaining may increase the incidence of crim. Criminals may slip through impunity. Keeping in mind the objections raised by several groups, the report propounded several safeguards in order to make the objections redundant. The report proposed a different pleabargaining scheme than prevailing elsewhere in five important areas, namely: 13 There will be no contact between the public prosecutor and the accused for the purpose of invoking the scheme. The initiative will be solely with the accused who alone can make the application. The decision to accord concessional treatment will rest solely with a judicial officer functioning as a Plea-Judge. There will be no bargaining with the judicial officers and an application once made will bot be allowed to be withdrawn and the accused will not know what the judicial officers will do. He will only make a representation and plead for such concessional treatment as, according to him would be appropriate. 10 Law Commission of India, 142 nd Report on Concessional Treatment for Offenders who on their own initiatve choose to plead guilty without any Bargaining (1991). 11 Ibid at chapter II. 12 Ibid at Chapter VII. 13 Ibid at Chapter X. 4 THE WORLD JOURNAL ON JURISTIC POLITY ALL RIGHTS RESERVED.

5 The sole arbiter will be the judicial officer and, therefore, there will be no risk of underhand dealings or for coercion or improper inducement by the prosecution. The aggrieved party and the public prosecutor will have a right to be heard wand place their points of view. The Law commission recommended the application of the scheme in the first instance as an experimental measure to offences which are liable for punishment with imprisonment of less than seven years and/or fine and the scheme may be made applicable to offences liable to be punished with imprisonment for 7 years and more after properly evaluating and assessing the results of the application of the scheme to offences liable to be punished with imprisonment for less than 7 years. The 154 th Law Commission Report, inter alia, recommended the introduction of Plea Bargaining in the Indian Criminal Justice System. The report made specific mention to the 142 nd Law Commission report for the justification of the introduction of the concept of Plea Bargaining. It recommended that a separate Chapter XXIA on Plea bargaining be incorporated in the Code of criminal Procedure. 14 Subsequently 177 th Law Commission report, inter alia, also endorsed the recommendations of the 142 nd and 154 th Report and advocated the introduction of Plea Bargaining. Though endorsing Plea bargaining as a means of speedier justice, 177 th Law Commission Report, based on the analysis of the 142 nd and 154 th report and various judicial decisions of the Supreme Court was reluctant to include any provision regarding plea bargaining in the accompanying Bill and called upon the Government to take a policy decision on the question whether to introduce the said concept. The Report of the Committee on Reforms of the Criminal Justice System, 2003 stated that plea-bargaining being a means for the disposal of accumulated cases and expediting the delivery of criminal justice should be introduced. 15 The Committee thus reaffirmed the recommendations of the Law Commission of India in its 142 nd, 154 th and 177 th Reports. Judicial View on Plea Bargaining As the concept of plea bargaining was gaining popularity in the USA, voices from different corners were coming for the induction of the concept of plea bargaining in India. But India, being a unique Nation due to its socio economic conditions repeatedly rejected this concept of plea bargaining. The Indian judiciary was no different and took a very stringent view against Plea Bargaining. The debate around plea bargaining mainly revolved around the question of morality and the Supreme court held the view that it amounted to immoral compromise in criminal cases. One of the earliest cases in which the concept of plea 14 Law Commission of India, 154 th Report on The Code of Criminal Procedure (1996) at Government of India, Report: Committee on Reforms of Criminal Justice System (Ministry of Home Affairs, 2003) available at 5 THE WORLD JOURNAL ON JURISTIC POLITY ALL RIGHTS RESERVED.

6 bargaining was considered by the Hon ble Court was Madanlal Ramachander Daga v. State of Maharashtra 16 where a very strict view was taken and it was held that: In our opinion, it is very wrong for a Court to enter into a bargain of this character. Offences should be tried and punished according to the guilt of the accused. If the Court thinks that leniency can be shown on the facts of the case it may impose a lighter sentence. But the Court should never be a party to bargain by which money is recovered for the complainant through their agency. We do not approve of the action adopted by the High Court 17 In Thippaswamy v. State of Karnataka, 18 the Supreme Court held that enforcement or imposition of sentence in revision or appeal after the accused had plea bargained for a lighter sentence or mere fine in the trial court as unconstitutional being violative of Article 21. Justice P.N. Bhagwati in Kasambai Abdul Rahmanbhai Seikh v. State of Gujarat, 19 declared plea bargaining as unconstitutional. In this case, judgment of the High Court was set aside by Supreme Court and the plea of guilty was ignored. Conviction of accused was set aside and the case was sent back to the Magistrate for trial in accordance with law. It was held that such a procedure would be unreasonable, unfair and unjust amounting to violation of Article 21 as interpreted in Maneka Gandhi s case. 20 It would have the effect of polluting the pure fount of justice, because it might induce an innocent accused to plead guilty to suffer a light and an inconsequential punishment rather than go through a long and arduous criminal trial which, having regard to our cumbrous and unsatisfactory system of administration of justice, is not only long drawn out and ruinous in terms of time and money, but also uncertain and unpredictable in its result and judge also might be likely to be deflected from the path of duty to do justice and he might either convict an innocent accused by accepting the plea of guilty or let off the guilty accused with a light sentence. The Supreme Court again in Kachhia Patel Shantilal Koderlal v. State of Gujarat and another 21 held that the practice of plea bargaiing is unconstitutional, illegal and would tend to encourage corruption, collusion and pollute the pure fount of justice. In State of Uttar Pradesh v. Chandrika, 22 the Supreme Court held that it is not permissible to dispose of the case on the basis of plea bargaining and observed: It is settled law that one basis of plea bargaining Court may not dispose of the criminal cases. The Court has to decide it on merits. If accused confesses hi guilt, appropriate 16 AIR 1968 SC Id at AIR 1983 SC AIR 1980 SC Maneka Gandhi v. Union of India, AIR 1978 SC (1980) 3 SCC AIR 2000 SC THE WORLD JOURNAL ON JURISTIC POLITY ALL RIGHTS RESERVED.

7 sentence is required to be imposed Mere acceptance or admission of the guilt must not be a ground for reduction of sentence. Major change in judicial thought process took place after the concept of plea bargaining was official added in the Code of Criminal Procedure. While recognising the concept of plea bargaining, the Gujarat High Court observed in the State of Gujarat v. Natwar Harchanji Thakor, 23 that the very object of the 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 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 of redressal and it shall add a new dimension in the realm of judicial reforms. Process of Plea Bargaining under the Code of Criminal Procedure The process of plea bargaining was brought in as a result of criminal law reforms introduced in Section 4 of the Amendment Act introduces Chapter XXIA containing Section 265A to 265L to the Code of Criminal Procedure which came into effect on 5 th July, Section 265 A prescribes the application of the provisions of Chapter XXIA to cases where the offence, which appears to have been committee by the accused is such that the maximum punishment for such offence does not exceed 7 years. The section further takes out from the purview of this chapter the offences which affect the socio-economic condition of the country or offences against a woman, or a child below the age of fourteen years. Subsection 2 empowers the Central Government to determine the offences under the law for the time being in force which shall be the offences affecting the socio-economic condition of the country. The application for plea bargaining has to be filed by the accused in the court in which such offence is pending trial. 25 The application has to contain a brief description of the case relating to which the application is filed including the offence to which the case relates and is to be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred, after understanding the nature and extent of punishment provided under the law for the offence, the plea bargaining in his case and that he has not previously been convicted by a Court in a case in which he had been charged with the same offence. Thereafter, the Court issues notice to the Public Prosecutor or the complainant of the case, as the case may be, and to the accused to appear on the date fixed for the case. It is mandatory on the part of the judge to examine the accused alone in camera and to satisfy itself that the accused has filed the application voluntarily and subsequently provide time to the public prosecutor or the complainant of the case, as the case may be, and the accused to work out a mutually satisfactory disposition of the case which may include giving to the 23 (2005) Cr. L.J The Criminal Law (Amendment) Act, 2005 (Act 2 of 2006). 25 Section 265-B(1). 7 THE WORLD JOURNAL ON JURISTIC POLITY ALL RIGHTS RESERVED.

8 victim by the accused the compensation and other expenses during the case and thereafter fix the date for further hearing of the case if the court is satisfied that the application is voluntary. In case the court is not satisfied that the application is voluntary or the accused has previously been convicted by a court for the same offence it shall proceed further from the stage such application for plea bargaining was filed. 26 It is the duty of the court to ensure, throughout the process of working out a satisfactory disposition of the case, that it is completed voluntarily by the parties participating in the meeting. 27 The court is empowered to award the compensation to the victim in accordance with the mutually satisfactory disposition agreed by the parties. The court is also empowered to release the accused on probation of good conduct or after admonition under section 360 or for dealing with the accused under the provisions of the Probation of Offenders Act, The court may also sentence the accused to half of such minimum punishment as prescribed, if any. 29 If the court finds that the offence which the accused has committed provides for a maximum punishment, then the court may award one-fourth of such punishment. 30 The judgment delivered by the court in accordance with the provisions of Chapter XXIA of the Cr.P.C. is final and no appeal lies against such judgment. However such judgments are subject to challenge under Articles 226 and 227 of the Constitution before the High Court by filing Writ Petition and Article 136 of the Constitution before the Supreme Court by filing Special Leave Petition. 31 S.265-I provides for the application of S. 428 for setting off the period of detention undergone by the accused against the sentence of imprisonment imposed under Chapter XXI-A in the same manner as they apply in respect of the imprisonment under other provisions of the Code. S. 265-K states that the statements or facts stated by the accused in an application for plea bargaining shall not be used for any other purpose except for the purpose of Chapter XXI-A. Pitfalls under Chapter XXI-A Addition of Chapter XXI-A containing provisions regarding plea bargaining is a step in the right direction by the legislature in tackling the problem of backlogging of cases and ensuring speedier disposal of cases. Chapter XXI-A contains various provisions which are in tune with objective of introducing the concept of plea bargaining. Chapter XXI-A contains provisions allowing the accused to voluntarily apply for plea bargaining. It further makes provision for ensuring finality of judgments so that appeal does not drag on frustrating the very purpose of plea bargaining, setting off period of detention already undergone by the accused and making way for the court to provide compensation to the 26 Section 265-B(4). 27 Section 265-C Proviso. 28 Section 265-E(a) 29 Section 265-E(c). 30 Section 265-E(d). 31 Section 265-G. 8 THE WORLD JOURNAL ON JURISTIC POLITY ALL RIGHTS RESERVED.

9 accused and releasing the accused on probation. All these provisions are commendable and ensure speedier disposal of case but there are various loopholes which cannot be ignored. The scope of the application of Chapter XXI-A is brought down to a large extent. This goes against the very purpose of the introduction of the concept of plea bargaining. The provisions of chapter XXI-A are not applicable to offences punishable with death or imprisonment for life or of imprisonment for a term exceeding seven years. Further offences against women and children below fourteen years and offences affecting the social economic condition of the Nation are kept out of the purview of Chapter XXI-A. It is not permitted for a person who has been convicted of the same offence to apply for plea bargaining. 32 This provision further restricts the application of the provisions of Chapter XXI-A. Section 265A(2) confers arbitrary power to the government to decide those offences which constitute socio economic offences. There are no guidelines in the chaper laying down the basis for classifying offences as socio economic offences. This could later result in violation of Article 14 in case an accused feels that the classification is arbitrary and discriminatory. 33 Under the provisions of Chapter XXI-A, the court is responsible for deciding whether the application filed by the accused is voluntary or not. In a country like India, a person may be voluntarily agreeing to Plea Bargaining in order to avoid expensive and long drawn litigation despite being innocent. The Act is silent on such cases whether it would amount to voluntarily filing application or involuntarily. Further, in case the court feels the application has been filed involuntarily, then it is required to continue from the stage where the application was filed. Entrusting the duty on the Courts to decide on whether a case is fit for plea bargaining or not also will take up time of the courts. Instead, this process may be more time consuming since the courts will have to first determine whether the application is voluntary or not and accordingly decide after that. 34 Section 265C is titled Guidelines for mutually satisfactory disposition but no timeline is prescribed for such disposition. The next step after the mutually satisfactory disposition is the preparation of report by the court and the court has to record such observations and proceed further in accordance with the provisions of Cr.P.C., even here there is no time prescribed for the preparation of the report and recording observations which is a major drawback and essentially goes against the purpose of introducing plea bargaining. Conclusion 32 Section 265-B. 33 Rosie Athulya Joseph Plea Bargaining: a means to an end available at (Visited On 2 nd January 2017). 34 Ibid. 9 THE WORLD JOURNAL ON JURISTIC POLITY ALL RIGHTS RESERVED.

10 Judicial backlog is a major problem that India is facing today. There are various reasons for backlogging of cases and every positive step taken in the direction of dismantling the cause of backlogging or providing a solution should be welcomed with open arms. Introduction of the concept of Plea Bargaining is one such step aimed at bringing down the number of pending cases and ensuring speedier disposal of cases. Despite being in the statute books for about 10 years, the usage of plea bargaining is still very low. There is a need to make the police, prosecuting agencies, and defending lawyers familiar with the benefits of availing plea bargaining which would ultimately save the precious time of courts and save the money of the litigants which can very well be used to compensate the victim. The ambit of plea bargaining was restricted to very limited number of offences as the concept was introduced on an experimental basis but the question remains: How long will be the experimentation period? There is an urgent need to take up a thorough study on its working and the impact, so that appropriate changes can be introduced. There is also a need to amend the law relating to Plea bargaining as contained under Chapter XXI-A of the Code of Criminal Procedure in order to make it an effective tool in transforming our criminal justice system. The time is ripe for an overall evaluation of the present system of plea bargaining so that instead of remaining a dead letter in the statute books, plea bargaining achieves its purpose of improving the situation with regard to pendency of cases and its speedier disposal. 10 THE WORLD JOURNAL ON JURISTIC POLITY ALL RIGHTS RESERVED.