The Not-So-Common Provision Of Law- Plea Bargaining

Introduction

Plea bargaining is a pre-trial practice, wherein the accused pleads guilty in exchange for a lesser punishment or even some of the charges being dropped. This is where negotiation takes place between the accused and the prosecutor on initiation made by the accused only.

Ever heard of the Salem witch trials? In 1692, in the US, the Salem Magistrates to uncover more witches made the accused witches testify against the others. The deal was they would be left to live in exchange for their confessions and executed otherwise. Salem witch trials are one of the oldest illustrations of the practice of plea bargaining. Plea bargaining as a practice is common in the US and it struggled a long time, from being considered unethical at the least and illegal at its worst. Since the 1920s, there were cases in the US that acknowledged plea bargaining providing the solution to expensive litigation both in terms of time and money. In 1967, the President’s Commission on Law Enforcement and Administration of Justice documented the practice of plea bargaining and recommended the practice to be put in use and since then, it has made its place.

Plea Bargaining In India

Before 2005, India didn’t formally recognize plea bargaining. Courts disapproved of it for the longest time calling the practice to be contrary to public policy, unfair, unconstitutional, illegal, and as something that promotes corruption, collusion, eventually threatening the justice system. Indian criminal law always had this provision for the accused to plead guilty in place of a trial but that couldn’t possibly be understood as plea bargaining. The 142^nd report of the Law Commission of India (1991) recommended giving “concessional treatment” to those who plead guilty on their own accord but didn’t recommend including plea bargaining in its form. Later, in its 154^th report (1996), a recommendation was made to include plea bargaining in its experimental form followed by a similar recommendation in the 177^th report (2001). This recommendation later found its support in the Malimath Committee Report.

Plea bargaining was officially introduced in India in 2006, when Chapter XXI-A was inserted by Act 2 of 2006, containing Sections from 265A to 265L.

Plea bargaining is allowed only in limited cases.

Offenses punishable with imprisonment for a term, not more than 7 years.
Offenses that do not affect the socio-economic conditions of the country.
Offenses that are not against a woman or a child below 14 years.
Available in private complaints in which a Criminal Court has taken cognizance.

Charge Bargaining- Negotiating for dropping a charge in multiple charges or settling for a lesser charge.

Sentence Bargaining- Admission of guilt and settling for a lesser sentence.

Fact Bargaining- Bargaining as to admission to some facts in exchange for an agreement to not introduce some other facts.

In 2020, the practice of plea bargaining came under the spotlight when foreigners who were members of Tablighi Jamaat attended the religious congregation Nizamuddin Markaz, amid the pandemic and were released through plea bargaining. The charges were a violation of visa conditions and guidelines given by the Government in the wake of the pandemic, etc. They accepted milder charges and paid fines under plea bargaining.

Procedure Of Plea Bargaining Under CrPC, 1973 (Sections 265A TO 265L)

Application for plea bargaining is filed by the accused containing a description of the case with the offense along with an affidavit sworn by the accused that he voluntarily applied for plea bargaining, understands the nature of the offense and its punishment, and that he has not been convicted of the same offense in any case previously.

Note- Use of the statements or facts mentioned by the accused in this application are to be used in plea bargaining only and not for any other purpose.

After this, the Court issues notice to the Public Prosecutor/complainant and the accused to appear on a specific date when the accused is examined by the Court in-camera to the satisfaction that the application has been filed by the accused voluntarily.
On satisfaction, both the parties are given time to work out a mutually satisfactory disposition of the case (accused giving compensation, etc to the victim) setting the date for further hearing. A report is then prepared by the Court signed by the parties and the presiding officer of the Court.
If the application is found to be involuntarily filed or that the accused has been previously convicted of the same offense earlier, the Court will proceed as per provisions under CrPC from the stage of filing application.
After a satisfactory disposition is reached by the parties, a report is then prepared by the Court, signed by the parties and the presiding officer of the Court. The case is then disposed of by awarding compensation to the victim as per the disposition and then a decision upon the quantum of punishment for the accused is made.

If Probation of Offenders Act, 1958 or Section 360, CrPC, or any other law time being in force applies to the case, the accused may be released on probation or provided a benefit of any other law.
After hearing this, if minimum punishment for the offense committed is given under law, sentence- ½ of such minimum punishment.
But if the accused is not covered in any of the 2 provisions given above, sentence- ¼ of the punishment provided or extendable.

Judgment regarding disposal of the case is given in open court and is signed by the presiding officer.

Benefits Of Plea Bargaining

Speedy Trial- Trials are time-consuming and India, having an insurmountable number of pending cases, faces an ardent need for speedy trials. Plea bargaining provides just that.
End the anxiety of uncertain outcomes- Trials could be tricky most of the time, where it could turn in any possible direction. With plea bargaining in practice, one did an offense, that one pleaded guilty of it too. Hence, it removes the possibility of being anxious over the unpredictable nature of trials.
Saves litigation costs- It wouldn’t come as a surprise to you that going to trial is expensive. If one gets to negotiate pre-trial, it saves huge bucks that would otherwise have gone to the advocates, etc.
Impact on conviction rates- Imagine the conviction rates, when it is possible to have speedy disposal of cases. Why do you think the US does so great in this department?
Lesser sentence- In exchange for accepting a plea deal, the accused may be given a lesser sentence or even a reduced charge like that of a misdemeanor instead of a felony.
An opportunity for a fresh start- There is a possibility under plea bargaining that an accused gets convicted for a lesser sentence. This allows the convicted to make a change in his life and start afresh.
A solution for the problem of overcrowding of jails- Accused awaiting trial are kept in jails that work just as a holding center with little or no scope for rehabilitation or correction. The delay in trials and conviction leads to overcrowding of the jails. With plea bargaining in the picture, faster disposal of cases is possible.

Criticism Of Plea Bargaining

May be made under coercion- It is a possibility that plea deals are made under coercion from the prosecutor or are bad in faith. Hence, the accused might feel threatened and accept the plea deal even when he/she is innocent.
Criminal record- When one pleads guilty under plea bargaining, that does not mean that he would escape the conviction somehow. As a consequence, one would always have a criminal record.
Misguidance from the counsel itself- Sometimes, plea bargaining comes as a piece of bad advice from the counsel of the accused itself, agenda behind could be to get rid of the case sooner, lack of legal experience, inability to fight the case on its merits, etc.
Role of Judges in plea bargaining- Even though both parties agree to plea bargaining, a Judge may declare it void. A judge can even set aside the plea deal and move the case to trial if he feels like it is made in bad faith.
No opportunity to appeal- In a trial, if the accused is not satisfied with the decision of his conviction, in almost all cases he appeals to a higher court against the judgment. But, once an accused pleads guilty, there is no scope for him to appeal against the conviction except special leave petition under Article 136 and writ petition under Article 226 and 227 of the Constitution.
Not the most moral practice in the book- Concessional punishments under plea bargains seem unfair to victims of the offenses committed by the accused for which he pleads guilty on the record.
Right to free and fair trial threatened- There are arguments that plea bargaining is unconstitutional in the sense that it violates the right to free and fair trial of the accused. If the plea deal is the outcome of coercion, incapacity of the defense attorney, etc. then the possible conclusion makes this practice bad in law.

Even the justice system suffers because of this practice because plea deals are all about the negotiation skills of the counsels for both the parties and not winning the case on its merits in the trial.

Conclusion

It’s been more than a decade since plea bargaining was inserted in CrPC, but one would observe that it is uncommon in India since its inception. There have been doubts and worries to put the practice in full motion. As mentioned above it has various disadvantages but what one tends to forget is the benefits of it. To conclude a careful and balanced analysis of both the advantages and disadvantages has to be done since It is not justified to exclude something solely based on its demerits. Lack of awareness of the masses about their rights, coercive confessions, etc is the reason for the restricted scope of plea bargaining in India. As per statistics given by GOI in 2015, the plea bargaining rate in India was a mere 0.045% (last available statistics on the subject), pending cases were over 2 crores across the nation and undertrial prisoners were 2.8 Lakhs. If you are wondering what’s the current status, so at present, there are over 4 Crore pending cases all over India. If the future is the same as the present with an insurmountable number of pending cases in Indian Courts, which honestly will be, then the need of the hour is to give plea bargaining the space it needs.

The article has been written by Munmun Kaur, a law student from Law Centre-I, Faculty of Law, Delhi University.

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