“Justice Delayed is justice Denied” the famous saying Legal scenario in which it says when there delay in getting justice there no use to accept it, it denies the justice and based on this topic the Criminal Laws Amendment of 2005 has introduced the concept of Plea Bargaining in which when any small crime can settle out in pre-trial process by the Prosecution & Accused and not only this in this scenario they bargain on the punishment and no. of crimes.
As there are no. of pendency in cases on the judiciary so decrease that burden from judiciary this concept has been introduced in Criminal Laws in which is Plea Bargain in which pre-trial bargain has allowed by the Law itself. Pending cases in India cross 4.4 crore, up 19% since last year.[1]
as per this Times of India article it was written in 2021 and figures given in the Articles are also of that year which was 2021 and in 2021 the pendency of total cases 4.4 crore which is defiantly increase as per time the crime and mode of crime has been change and along with that cases and burden of judiciary also but the question arises here is the making Plea Barging legal and adding it under the Criminal is the solution? And if not, then What can be solution to decrease the no. of pending cases in front judiciary so based on this question as the plea-bargaining system in Indian system and is adding it under Criminal solved and solving the question of pendency?
As under this Article researcher is going to study all aspect related to Plea Bargain in Indian legal system as to introduction which researcher already mentioned about topic then concept & meaning, history, types of plea-bargaining in India, silent features, Constitutional validity, Legality under Indian Criminal Law, plea bargaining in other countries, positive & Negative aspect, cases of plea Bargain and conclusion along with some Suggestions.
Concept & Meaning:
As the plea-bargaining is pre-trial process in which both parties as to Prosecution & Accused negotiate on the terms like: Accused Accept the crime as he has committed it in exchange of lessor punishment, a lessor charge in return of Acceptance etc. instead of court proceeding & trials they prefer Negotiation in pre trial process. It is basically done for that matters in which proving Accused is Hard and proving charges against him and punish the Accused so in that matter also plea- bargain works as to Accused accept the crime in return of above-mentioned things and this a voluntary agreement between the parties in which they come to final decision which involves & require the judicial approval.
History:
In the Jury System, the need for plea bargaining was not felt because there was no legal representation. Later on, in 1960 legal representation was allowed and the need for Plea Bargaining was felt. Although the traces of the origin of the concept of Plea Bargaining is in American legal history. This concept has been used since the 19th century. Judges used this bargaining to encourage confessions[2].
A concept of plea bargaining was introduced in 19th century and judges used this concept for bargaining to encourage the confession from the Accused.
The concept of plea bargaining did not originate in India. It was pioneered by mainly the United States of America. The adoption of the concept of plea bargaining in India was inspired by its functioning in the USA. The Law Commission Reports immensely contributed to the incorporation of plea bargaining in the Indian criminal justice system. The increase in the number of pending cases, delayed the delivery of justice as the process of administration of justice slowed down. Thus, in order to reduce the backlog of criminal cases, the Law Commission, through its various reports, recommended the incorporation and use of plea bargaining.[3]
As the concept was started in 19th century in America and India adopted it from USA the Law commission report has made its contribution to plea bargain in India as to decrease the pendency before court.
Plea bargaining was introduced in India through the Criminal Law (Amendment) Act, 2005, and was later amended in 2009. The objective was to reduce the backlog of pending cases and provide an alternative mechanism for dispute resolution in criminal matters.
Types of plea Bargain in India:
Plea bargain in India is mainly 3 types
- Sentence bargaining:
In this type of bargaining the main motive is to get a lesser sentence. In Sentence bargaining, the defendant agrees to plead guilty to the stated charge and in return, he bargains for a lighter sentence.[4]
As 1st types of pleas bargaining in India is Sentence bargaining as its name itself clear its meaning which is related to accused stands for plead guilty in exchange of bargain for the lighter sentence as to negation for plead guilty this is the 1st type of the plea bargaining in India which is there under all criminal Laws in India.
- Charge bargaining:
This kind of plea bargaining happens for getting less severe charges. This the most common form of plea bargaining in criminal cases. Here the defendant agrees to plead guilty to a lesser charge in consideration of dismissing greater charges. E.g., Pleading for manslaughter for dropping the charges of murder.[5]
The 2nd type of plea bargaining in India is charge bargaining as the charge of the cases bargained under this type of plea bargaining as to get the less server charges in criminal matter as to accused plead guilty for exchange of the lessor charge in consideration of lessor charges for accused to be get the lessor punishment will be the end result under this type of plea bargain.
- Fact bargaining
This is generally not used in courts because it is alleged to be against Criminal Justice System. It occurs when a defendant agrees to stipulate to certain facts in order to prevent other facts from being introduced into evidence.[6]
As this type of plea bargain can be called as out of court settlement between the parties as defendant agrees to stipulate to certain facts to be introduced in court as evidences as this is the 3rd main type of the plea bargain in India which is explain in Criminal Law.
Silent features of plea Bargain in India:
Following are the silent features of the plea bargaining in Indian legal system.
- It is applicable in respect of those offences for which punishment is up to a period of 7 years.
- It does not apply to cases where offence is committed against a woman or a child below the age of 14 years.
- When court passes an order in the case of plea bargaining no appeal shall lie to any court against that order.
- It reduces the charge.
- It drops multiple counts and press only one charge.
- It makes recommendation to the courts about punishment or sentence.[7]
Above mention are some silent features of plea bargain in India.
As above mention all are the silent features of the plea bargain and in further research researcher is going to mention about the Constitutional validity of the concept plea bargain under Indian legal system as when it comes to Law or things under Law the role of Constitution is always there as to constitution is the greater Law of the Nation and other Laws are relevant to this only.
Constitutional validity of plea Bargain in India:
Before the Criminal Amendment Act 2005 there was no place for the plea bargaining in India as the court was under the thinking of that the when any crime happened it happened not only with a specific person it happens against the whole state and bargaining for that will be unfair for the public and it will set wrong example in front of public at large for getting justice but after the following cases which researcher is going to explain further it will clears the entry and existences of plea bargaining in India legal system.
The most established case where the subject of the validity of plea bargaining came before the Supreme Court of India was on account of Madan Lal Ramachander Daga Vs. State of Maharashtra.
As this case and its references say that the concept of plea bargain is not valid under Indian law as court will not negotiate in the terms of Punishments of Accused or facts of the cases as it is illegal and after that the concept of plea bargain was introduced by Law commission report and after that it was through the amendment of criminal Act. As the supreme court and law was not in favour of the plea bargain in India as where backlog of pending criminal cases was increasing time to time but in 2005 when the criminal law amended the concept of plea bargain was added in criminal law.
Recommendation of Law commission report:
142nd Law Commission Report (1991): The report addressed delays in criminal proceedings and proposed a US-inspired plea-bargaining system. Scholars supported it for specific crimes, alleviating concerns about coercion. The program aimed to conserve resources, initiate rehabilitation, and apply to crimes with up to seven-year prison terms.
154th Law Commission Report (1996): The report emphasized legislative measures to reduce delays in criminal proceedings and alleviate suffering. It proposed a “pleacial bargain” system inspired by the US, with no possibility of appeal upon accepting guilt. Concerns were raised about pressuring innocent individuals and undermining the criminal justice system. The proposal faced public debate, and the Supreme Court ruled against allowing plea bargaining in criminal cases.
Legality under Indian Laws:
Section 265A to 265L, Chapter XXIA of the Criminal Procedure Code deals with the concept of Plea Bargaining. It was inserted into the Criminal Law (Amendment) Act, 2005. It allows plea bargaining for cases:
As researcher already mentioned in above point as 154th Law commission report suggested that plea bargain should introduced as alternative option to reduce the burden of case pendency from judiciary as it will reduce the burden along with above mentioned things.
Under the NDA government, a committee headed by Justice V.S. Mali math recommended the implementation of a plea-bargaining system in India to address the growing number of criminal cases. The committee cited the success of plea bargaining in the USA as a model. As a result, the Criminal Law (Amendment) Bill, 2003 was introduced, amending the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act. The bill focused on key issues like witnesses turning hostile, plea bargaining, compounding offenses, and the use of scientific experts’ evidence. It introduced plea bargaining through Chapter XXIA Sections 265A to 265L, providing a summary resolution mechanism for criminal cases. The bill became enforceable from July 5, 2006, aiming to expedite case disposal and improve the Indian criminal justice system.[8]
Plea bargaining in other Laws:
USA: Plea bargaining in the United States was established in 1971 through the case of Sante bello v. New York. It has become widespread, with about 90% of criminal cases being resolved through this process. Plea bargaining allows the accused to offer a conditional plea of nolo contendere. The court has discretion in accepting the plea, considering the case’s specific facts. While not admitting guilt, the plea influences the outcome. Plea bargaining reduces judicial workload, but concerns exist regarding coercion. Despite initial resistance, plea bargaining is now a crucial aspect of the US criminal justice system.[9]
Pakistan: Plea bargaining was introduced in Pakistan through the National Accountability Ordinance 1999, primarily for corruption cases. The accused accepts guilt, returns corrupt proceeds, and seeks approval from the Chairman of the National Accountability Bureau. The court decides whether to accept the plea bargain, resulting in conviction without sentencing or serving previous sentences. Formal plea bargains are limited, but prosecutors can drop charges in exchange for a guilty plea on a lesser offense. The court determines the penalty.[10]
As both the USA & Pakistan has started with the concept of plea barging and they started working on it in 19s and now in USA it is a crucial aspect of the USA as the legality and working on the plea bargain as legal recognise.
Positive & Negative aspect on plea bargain:
As there are many positive and negative aspect of the term plea bargain under that researcher is going to mentioned some points as this whole research is in relation to Indian scenario and because of that it is going to be mentioned likewise.
Advantages/Positive Aspect:
- Speedy disposal of the cases.
- Secures a conviction of Accused.
- Help to reduce the Burdon from jail.
- Also helps in avoiding unnecessary publicity of the case.
- As accused by accepting the crime can avoid the stigma associated with a crime.
- In this the accused will get the lessor punishment.
Disadvantages/Negative Aspect:
- Only Accused has a power to plea bargain and due to that the victim cannot initiate plea bargaining.
- Can lead to increase the crime rate.
- Criminal record of accused can be created after agreed to plea bargain also as acceptance of crime leads to create criminal record.
- As corrupt practices may start by parties as to forcing to follow a particular method for settling the matter.
As these are some positive & negative aspects in relation to plea bargain in India.
Cases in relation to plea bargain:
in the case of State of Gujarat v. Natwar Harchanji Thakor[11], the Gujarat High Court observed that the very object of the law of plea bargaining is to provide cheap, easy, and expeditious justice for the public in less time.
In the case of Vijay Moses Das v. CBI[12] the accused had supplied inferior materials to ONGC which had resulted in ONGC suffering a lot of losses. The victim (ONGC) and the prosecutor (CBI) had no objection to the plea-bargaining application filed by the accused. But the trial court rejected the application on grounds that the accused had not filed the required affidavit and that compensation too was not fixed. The Uttarakhand High Court directed the trial court to accept the plea-bargaining application filed by the accused.
In Joseph P.J. v State of Kerala[13], the court held that the procedure laid down in Chapter XXI-A consisting of Sections 265-A to 265-L are mandatory in nature and while dealing with an application for plea bargaining, the court must apply the prescribed procedure.
As these are some important provisions and cases in relation plea bargain in Indian legal system and its legality.
Conclusion:
Ass the research was based on legality of the term plea bargain in Indian legal system and researcher comes to the conclusion after studying and referring the various sources and after conducting the legal research on the plea bargaining in Indian legal system which is.
Yes, the plea bargaining is legal in India as court itself do not interfere or orders to the party for doing that but the agreement as to coming on the grounds and settling the offence is done in front of the court and judge itself as due to limitation researcher has to limit this research but there are more to know and study about this.
As here the legality was not a question any more for plea bargain and as researcher after referring various sources to collect the data has used and conclude this research with some suggestions.
- Transparency should be between the parties.
- Judicial overside: as to more involvement of judiciary is necessary.
- Right of defendant should be protected under whole process of plea bargaining.
- Victim involvement through the process as to understanding the process should be there.
- Rehabilitation should be there as to promote the plea bargain and protect the accused.
- Review mechanism as to look that the plea bargain is ongoing fairly or not.
- Pubic awareness as to public should as this is also legally acceptable by law & court and they should opt for it.
[1] Pradeep Thakur, pending cases in India cross 4.4 crore, up 19% since last year, The Times of India, (Apr 15, 2021, 21:56 IST), Pending cases in India cross 4.4 crore, up 19% since last year | India News – Times of India (indiatimes.com).
[2] History of Plea Bargaining, Concept of Plea Bargaining under the Indian laws – iPleaders (last visited on: May 22 ,2023)
[3] Rishabh, Detailed study of plea bargaining in India, E-Justice India (October 21 2013) A Detailed Study of Plea Bargaining in India – E-Justice India (ejusticeindia.com)
[4] History of Plea Bargaining, Concept of Plea Bargaining under the Indian laws – iPleaders (last visited on: May 22 ,2023)
[5] Id
[6] Supra
[7] Manmeet Singh, Plea Bargaining in Indian Legal System, Legal service India, https://www.legalservicesindia.com/article/1836/Plea-Bargaining-in-Indian-Legal-
[8] Bhaswat Prakash, Concept of Plea Bargaining under Indian Legal System, SSRN, delivery (ssrn.com)
[9] Plea bargain Laws USA, Concept of Plea Bargaining under the Indian laws – iPleaders (last visited on: May 22 ,2023)
[10] Bhagyodaya, Role of Plea Bargaining for ensuring access to justice- A Critical Analysis, Legal services India E-general, https://legalserviceindia.com/legal/article-1250-role-of-plea-bargaining-for-ensuring-access-to-justice-a-critical-analysis.html
[11] Ruzela Da Cruz, A Detailed Study of Plea Bargaining in India, E-Justice in India, https://www.ejusticeindia.com/a-detailed-study-of-plea-bargaining-in-india/
[12] Id
[13] Supra
Author: Nikita Kale
Juris Centre 