Juris Centre

Crimson Compromises: Exploring Plea Bargaining in the Indian Criminal Justice System

The well-known adage “Justice delayed is justice denied” assumes significant relevance when discussing the concept of plea bargaining. The staggering number of pending cases in the courts has become dishearteningly commonplace, as people have resigned themselves to this fate. Plea bargaining, a concept not originally part of Indian criminal law, was introduced as a response to this situation. Many countries have incorporated plea bargaining into their criminal justice systems.

Plea bargaining is a pretrial negotiation between the accused and the prosecution, in which the accused agrees to plead guilty in exchange for certain concessions from the prosecution. This involves the defendant admitting guilt to a lesser charge, and in return, the prosecution drops more serious charges. However, it is important to note that plea bargaining is not applicable to all types of crimes, especially heinous offenses or those punishable by death or life imprisonment.

Plea Bargaining in India

Plea bargaining is a recent addition to the Indian Criminal Justice System (ICJS), having been incorporated to alleviate the burden of longstanding cases on the judiciary.

Criminal Procedure Code and Plea Bargaining

Sections 265A to 265L in Chapter XXIA of the Criminal Procedure Code govern the concept of plea bargaining. It was introduced through the Criminal Law (Amendment) Act of 2005. Plea bargaining is allowed in cases where:

  1. The maximum punishment is imprisonment for up to 7 years.
  2. The offenses do not significantly impact the socio-economic conditions of the country.
  3. The offenses are not committed against women or children under 14 years old.

The concept of plea bargaining was first recommended in the 154th Report of the Law Commission, recognizing it as an alternative method to address the backlog of criminal cases in Indian courts. A committee headed by former Chief Justice of the Karnataka and Kerala High Courts, Justice V.S. Malimath, was formed to address the growing number of criminal cases. The Malimath Committee[1] endorsed plea bargaining, citing its success in the United States as evidence of its importance.

Consequently, the draft Criminal Law (Amendment) Bill of 2003 was introduced in Parliament and became enforceable Indian law on July 5, 2006. This amendment aimed to improve the existing criminal justice system, which suffered from a surplus of criminal cases, prolonged delays in their resolution, and a low conviction rate for serious crimes. Key issues addressed by the Criminal Law (Amendment) Bill of 2003 included witnesses turning hostile, plea bargaining, compounding of offenses under Section 498A of the Indian Penal Code, and scientific expert testimony in cases involving counterfeit currency notes. This amendment introduced Chapter XXIA, Sections 265A to 265L[2], and formalized the concept of plea bargaining in India.

The following provisions were added:

  • Section 265-A (Application of Chapter): This section makes plea bargaining available to accused individuals charged with offenses other than those punishable by death, life imprisonment, or imprisonment exceeding seven years. Section 265A(2) empowers the Central Government to specify eligible offenses.
  • Section 265-B (Application for Plea Bargaining): This section allows a person accused of an offense to file a plea bargaining application for pending trials. The application must include details about the case, the nature of the offense, the accused’s criminal history, and a sworn affidavit stating that the accused is voluntarily seeking plea bargaining. The court subsequently notifies the public prosecutor, investigating officer, victim, and accused about the plea bargaining date.
  • Section 265-C (Guidelines for Mutually Satisfactory Disposition): This section outlines the procedure for mutually satisfactory disposition, with the court involving the public prosecutor, investigating officer, victim, and accused to reach an agreement.
  • Section 265-D (Report of Mutually Satisfactory Disposition): This provision discusses the preparation and submission of reports when a satisfactory disposition is or isn’t reached during the process.
  • Section 265-E (Disposal of the Case): This section dictates the procedures for disposing of cases where a satisfactory disposition has been agreed upon. The court may decide on the punishment or release on probation of good conduct or after admonition.
  • Section 265-F (Judgment of the Court): This section covers the pronouncement of judgments based on mutually satisfactory dispositions.
  • Section 265-G (Finality of Judgment): It establishes that no appeal can be filed against such judgments, but Special Leave Petitions (Article 136) or writ petitions (under Article 226 or 227) are permissible.
  • Section 265-H (Power of the Court in Plea Bargaining): This section outlines the court’s powers in plea bargaining, including matters related to bail, trial, and case disposal.
  • Section 265-I (Period of Detention Undergone by the Accused to Be Set Off Against the Sentence of Imprisonment): This section applies Section 428 of the CrPC for setting off the period of detention against the imposed sentence.
  • Section 265-J (Savings): This section ensures that the provisions of this chapter prevail over any conflicting provisions in the Code, emphasizing the chapter’s distinct purpose.
  • Section 265-K (Statement of the Accused to Be Used): It specifies that statements made by the accused in a plea bargaining application can only be used for the purposes outlined in the chapter.
  • Section 265-L (Non-Application of the Chapter): This section clarifies that the chapter does not apply to juveniles or children as defined in the Juvenile Justice (Care and Protection of Children) Act, 2000.

Types of Plea Bargaining

Plea bargaining generally falls into three categories:

  1. Sentence Bargaining: In this type, the primary goal is to secure a reduced sentence. The defendant pleads guilty to the charge and seeks a lighter sentence in return.
  2. Charge Bargaining: This is the most common form of plea bargaining, involving the defendant pleading guilty to a lesser charge in exchange for the dismissal of more serious charges. For example, the defendant might plead to manslaughter instead of facing murder charges.
  3. Fact Bargaining: This less commonly used form occurs when the defendant agrees to stipulate to certain facts in order to prevent other facts from being introduced as evidence. It is generally not favored within the criminal justice system.

Plea Bargaining and Judicial Pronouncements

In the case of Murlidhar Meghraj Loya vs State of Maharashtra (AIR 1976 SC 1929), the Supreme Court criticized plea bargaining, viewing it as encroaching upon society’s interests.

Similarly, in the cases of Kasambhai vs State of Gujarat (1980 AIR 854) and Kachhia Patel Shantilal Koderlal vs State of Gujarat and Anr, the apex court deemed plea bargaining against public policy and highly reprehensible. The court held it to be illegal and unconstitutional, as it encouraged corruption and undermined the purity of justice.[3]

In Thippaswamy vs State of Karnataka (1983) 1 SCC 194, the court stated that inducing an accused to plead guilty under promise or assurance would violate Article 21 of the Constitution. The court emphasized the need for cases to be decided on their merits and not through coercive plea bargaining.[4]

In the case of State of Uttar Pradesh vs. Chandrika in 2000 (Cr.L.J. 384(386)), the Supreme Court expressed disapproval of the concept of plea bargaining, deeming it unconstitutional and illegal. The Hon’ble Court asserted that plea bargaining should not serve as the basis for disposing of criminal cases. Instead, cases should be decided on their merits. Furthermore, the Court stated that if an accused confesses guilt, they should receive the appropriate sentence as prescribed by the law.

In the State of Gujarat vs. Natwar Harchandji Thakor (2005) 1 GLR 709, the Court recognized the significance of plea bargaining and clarified that every “plea of guilty” should not automatically be considered as “plea bargaining.” It should be evaluated on a case-by-case basis. Acknowledging the evolving nature of law and society, the Court emphasized that the law aims to facilitate swift, cost-effective, and fair resolution of disputes.

Arguments in Favor of Plea Bargaining:

1. Expedited Case Resolution: Plea bargaining benefits both the prosecution and the defense by eliminating the risk of complete loss at trial. It allows for efficient resolution of long-standing disputes, reducing the burden on the courts and conserving valuable resources for more critical cases.

2. Minimized Impact on Offender’s Record: In a society like India, societal perception plays a crucial role. Plea bargaining enables individuals to plead guilty or no contest in exchange for reduced charges, resulting in less severe offenses on their official court records. This can be advantageous if the accused faces future convictions.[5]

3. Simplified Process: India is known for lengthy court proceedings that can span several years, causing hardship to both parties. Plea bargaining permits individuals to plead guilty without the need for legal representation, sparing them the complexities associated with hiring lawyers and enduring lengthy trials.

4. Avoidance of Publicity: Plea bargaining also serves as a mechanism to limit publicity, as prolonged cases often attract more attention. This is particularly beneficial for individuals, whether famous or ordinary, who rely on their community reputation for their livelihood and wish to evade unnecessary stigmatization.

Arguments Against Plea Bargaining:

1. Voluntary Adoption: While plea bargaining is a voluntary mechanism, the law remains silent on situations where the settlement reached contradicts the objectives of the legal system.

2. Involvement of Police: The involvement of the police in plea bargaining is criticized, particularly in a country where custodial torture by the police is notorious, as it may exacerbate the situation.

3. Corruption: Allowing victims to play a role in the plea bargaining process may open the door to corruption, undermining the intended purpose.

4. Lack of Independent Judicial Oversight: The provisions of plea bargaining lack an independent judicial authority to assess plea bargaining applications, which has drawn significant criticism.

5. Public Cynicism: In-camera examinations of the accused by the court may lead to public cynicism and distrust in the plea bargaining system. The failure to keep any court order rejecting an application confidential could also create biases against the accused.

6. Not a Comprehensive Solution: Plea bargaining was introduced to address issues such as overcrowded jails, high acquittal rates, and the torture faced by undertrial prisoners. However, the root cause of these problems lies in the delay in the trial process, which is influenced by factors such as the operation of investigative agencies, the judiciary, and the personal interests of lawyers. Therefore, the need of the hour is not a substitute for trials but a comprehensive overhaul of the system in terms of structure, composition, and work culture to ensure reasonably swift trials.[6]

Plea Bargaining in the United States of America

While the Sixth Amendment to the US Constitution did not originally acknowledge plea bargaining, the US judiciary eventually recognized its importance. The case of Santebello v. New York in 1971 is considered the starting point for plea bargaining in the USA. Since then, its use has become extremely common, with approximately 90% of criminal cases in the United States being resolved through plea bargaining. This option is often referred to as a “nolo contendere” plea, indicating that the person does not wish to contest their case. In the United States, a case is disposed of using this plea every minute.

It can be described as a conditional plea, implying a confession of guilt but not made directly to the court. It implies an agreement between the accused and the government that the latter will only consider the guilt for the specified case and no others.

It’s important to note that it’s up to the court to accept or reject such a plea. If accepted, it must be done unequivocally. However, the court must consider the plea in light of the specific facts and circumstances of the case. The consent of the prosecutor is another crucial factor, although the court is not obligated to consider it, it often plays a significant role in the court’s decision.

A significant development in this area of jurisprudence came with the case of Lott v. United States, where it was established that accepting a “nolo contendere” plea does not automatically establish the guilt of the accused, although it is a significant factor.

Plea bargaining is recognized in numerous cases in the United States, although there have been exceptions. Some legal experts and judges have noted that this “agreement” significantly reduces the workload of the judiciary. However, it has also been observed that this process can be flawed when accused individuals are pressured to choose between two undesirable options. In the case of Brady v. United States[7], it was noted that the mere possibility of coercion does not make this agreement illegitimate.[8]

In colonial times, plea bargaining was not accepted by the American judiciary, but now it’s considered a crucial part of the legal system. Removing it would likely have a significant impact on the criminal justice system.

Plea bargaining India Vs. United States Of America

The concept of plea bargaining in India is seen by many as influenced by the United States. However, there are some differences between the two countries:

  1. In the United States, the accused can opt for plea bargaining regardless of the severity of the offense they are charged with. In India, plea bargaining is only available for offenses with a maximum punishment of less than seven years.
  2. In the United States, negotiations for plea bargaining happen between the prosecutor and defendant outside of court. In India, the process begins with an application made by the defendant to minimize the chances of coercion.
  3. India allows judges to decide on the admissibility of the plea bargaining application, taking into account factors like fairness and satisfaction with the proposed punishment. This is not the case in the United States.[9]

In India, plea bargaining was introduced relatively recently through the Criminal Law (Amendment) Act, 2005, and initially faced skepticism due to concerns about its constitutionality and fairness. It is governed by the Code of Criminal Procedure, 1973 (CrPC), and primarily applies to non-serious, non-heinous offenses.

In contrast, many Western countries, like the United States, have a long history of using plea bargaining in their criminal justice systems, where it is widely accepted and frequently used. The scope of its application is broader, including serious offenses, and the role of prosecutors varies.

Additionally, the outcomes of plea bargaining differ, with India often resulting in reduced sentences or charges, whereas in some countries, the outcome may be predetermined. Judicial oversight and public perception also vary by country, influenced by cultural and legal contexts.

Landmark Cases in the United States of America

  • State ex rel. Clark (Adams): In this case, the court explained the doctrine of ‘Nolo Contendere’ and held that this plea means the accused does not wish to contend.
  • United States v. Risfield: The court observed that in a criminal action where an application for plea bargaining has been made, the court’s adjudication on the plea of guilty is not necessary. However, the court may impose a sentence on the accused person immediately.
  • United States v. Lott: The court held that the plea, being tantamount to an admission of guilt, is not a conviction but merely a determination of guilt.[10]
  • Bordenkircher v. Haynes: In this case, the US Supreme Court upheld the constitutionality of plea bargaining while awarding life imprisonment to the accused person who refused to plead guilty for a five-year imprisonment term. The Supreme Court noted a slight possibility that the accused person might be coerced to choose between the two punishments. It further observed that there is no coercion or duress if the accused person is free to accept or reject the prosecutor’s offer during the plea bargaining negotiation process.[11]
  • United States v. Brady: In this case, the Supreme Court held that a consensus reached out of fear that the trial might result in the death penalty does not render the plea bargaining process illegitimate. If the plea bargaining process has been properly conducted and controlled, it is considered legitimate.

Conclusion

In conclusion, the adage “Justice delayed is justice denied” underscores the critical importance of timely resolution in the realm of plea bargaining. As legal systems worldwide grapple with the challenge of burgeoning caseloads and prolonged court proceedings, plea bargaining has emerged as a pragmatic response to expedite justice delivery. This article has explored the evolution and implementation of plea bargaining in both India and the United States, highlighting the nuanced differences between the two systems.

In India, plea bargaining is a relatively recent addition to the legal framework, introduced to alleviate the burden of pending cases and streamline the criminal justice system. Governed by specific sections in the Criminal Procedure Code, it is available for offenses with a maximum punishment of less than seven years, provided they do not significantly impact socio-economic conditions or involve crimes against women or children. While it aims to facilitate swifter case resolution, India’s plea bargaining system is characterized by judicial oversight, emphasizing the need for fairness and voluntary participation.

On the other hand, the United States has a long-standing tradition of plea bargaining, where it has become the predominant method of case resolution. The U.S. system allows for plea bargaining across a broader spectrum of cases, including serious offenses, albeit with variances between jurisdictions. It operates on the principle of mutual negotiation between the accused and the prosecution, often resulting in reduced charges or sentences. While plea bargaining has its critics, it remains an integral part of the American criminal justice landscape.

The landmark cases in both countries shed light on the legal intricacies and constitutional considerations surrounding plea bargaining, from the doctrine of ‘Nolo Contendere’ to the determination of guilt and the acceptance of plea agreements.

In sum, plea bargaining represents a dynamic facet of contemporary legal systems, aiming to strike a balance between expediency and fairness. Its adoption, regulation, and acceptance vary from one jurisdiction to another, reflecting unique cultural, legal, and historical contexts. As societies continue to grapple with the complex challenges of the justice system, the debate over the role and scope of plea bargaining remains an ongoing and evolving conversation in pursuit of a more just and efficient legal landscape.

[1] Malimath, V.S. (2003). [Report on Reform of Criminal Justice System].

[2] Criminal Procedure Code, 1973 (Sections 265A to 265L).

[3] Vibhute, K. I. (2018). Criminal Justice in India.

[4] Law Commission of India. (2003). Report No. 154: The Code of Criminal Procedure, 1973 (Amendment) Bill, 2003.

[5] NRI Legal Services. Plea Bargaining in India. NRI Legal Services.

[6] Bacigal, R. J. (2013). Criminal Law and Procedure: An Overview.

[7] United States v. Brady, 397 U.S. 742 (1970).

[8] Saltzburg, S. A., Capra, D. J., & Davis, A. J. (2017). American Criminal Procedure.

[9] Dubber, M. D. (Ed.). (2007). Plea Bargaining: An International Comparative Study.

[10] Lott v. United States, 367 U.S. 421 (1961).

[11] Bordenkircher v. Haynes, 434 U.S. 357 (1978).

Author: Adwaith Raja S Menon

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