By Ritwiz Harshvardhan
It is truly said that justice delayed is justice denied. Indian judiciary is though fair, impartial, powerful and due to these features it has won the confidence of people. But the major problem is delay in dispensation of justice which often puts a question mark on the credibility of the judicial system.
Nani Palkhivala, the famous Indian jurist, has also said that “the biggest problem in administration of justice is delay in deciding the cases”. He also quoted that law may or may not be an ass but in India it is a snail and our proceedings proceed at a pace which is regarded as slower than snails.
Due to its time-consuming process it becomes a burden on litigants and it results in losing faith in the judicial system.
Due to delay in courts and to reduce the burden of courts, the concept of plea bargaining was introduced in Indian judicial system in 2005 through the Criminal Law (Amendment) Act, 2005 by inserting Chapter XXIA. It is mentioned in Sections 265A to 265L in the Code of Criminal Procedure, 1973.
“Plea bargaining is a system where the accused and prosecutor work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant pleading guilty to a lesser offence or to one or more of the courts of a multi-count indictment in return for a lighter sentence than that possible for the graver charge.”
So basically it is a kind of pre-trial negotiation where the defendant, through his counsel, between him and prosecution pleads guilty in exchange for a lesser penalty. This article tries to examine the utility of plea bargaining and relevance in Indian judicial system.
Plea bargaining can be of two types: charge bargain and sentence bargain. The former gives an accused an opportunity to negotiate with the prosecutor so that the number of charges against him could be reduced, whereas in the latter the accused, with consent of the prosecutor and victim, bargains for a lesser sentence than prescribed for that particular offence.
Background
Prior to the amendment of 2005 plea bargaining was not recognized in Indian law in any statutes. The concept of plea bargaining was prevailing in United States and it gained its prominence in United States.
It was in the case of the assassination of Martin Luther King, the accused James Earl Ray pleaded guilty to avoid execution of death sentence and he got 99 years of imprisonment.
In U.S. in a criminal trial accused have three options: (a) guilty, (b) not guilty and (c) plea of nolo contendere, which means ‘I don’t wish to contend’. So it is said that every minute a criminal case is disposed in America based on guilty plea bargaining or nolo contendere plea.
Apart from U.S., European countries have also recognized the concept of plea bargaining and countries like England and Wales, Australia allow plea bargaining.
The Law Commission of India in its 142nd and 154th Reports laid emphasis on introduction of plea bargaining system in India. These Law Commission Reports, specially the 142nd, pointed out the success of plea bargaining in U.S. and said it should be made an important component in administration of criminal justice.
The 154th Report of the Law Commission talked about alternative methods to handle huge arrears of criminal cases. The recommendation of Law Commission found its support in the form of Malimath Committee which was formed under the chairmanship of Justice Dr. Malimath and the committee also favoured introduction of plea bargaining system in India to reduce burden of courts.
Analysis of Plea Bargaining in Code of Criminal Procedure, 1973
Sections 265A to 265L of the Criminal Procedure Code, 1973 talks about plea bargaining and its procedures.
Plea bargaining is applicable only to those offences for which punishment of imprisonment is up to seven years and it does not apply to offences which affect the socio-economic condition of the country or have been committed against a woman or a child below 14 years.
Thus there cannot be plea bargaining for offences such as:
- Dowry Prohibition Act, 1961.
- Commission of Sati Prevention Act, 1987.
- Indecent Representation of Women (Prohibition) Act, 1986.
- Immoral Traffic (Prevention) Act, 1956.
- Protection of Women from Domestic Violence Act, 2005.
- Prevention of Food Adulteration/food product provisions under the relevant law.
- Army Act, 1950; Cinematograph Act, 1952; Navy Act, 1957; Air Force Act, 1950.
- Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The application of plea bargaining is to be voluntarily filed by the accused and in the court in which such offence is pending for trial.
The accused and prosecutor are given time so that they could work out a mutual disposition of the case which may involve providing compensation to the victim and other legal expenses. After that, if there is satisfactory disposition of case, court shall dispose the case by sentencing accused to one-fourth of the punishment provided for that particular offence.
Conclusion
It would be correct to say that plea bargaining has changed the face of criminal justice system. However, earlier Indian courts hesitated for plea bargaining and they even called it immoral, unjust, unfair and unconstitutional.
But this concept of Plea Bargaining is a mechanism of providing convenience to the litigants who are facing delays in getting justice. This concept of plea bargaining should not only be judged on basis of legality, morality and constitutionality as we know that in spite of having free, fair and strong judicial system we are facing delays in administration of justice.
The most important point reflected in statute here is that statements or facts stated by accused in an application for plea bargaining shall not be used for any other purpose and judgment delivered by court here shall be final and no appeal shall lie in any court against such judgment.
With the system of plea bargaining, it will solve less serious and petty offences and court could focus on major serious offence so that there is faster dispensation of justice. Plea bargaining can help in reducing backlogs in Indian Judicial system.
Being taken from U.S. legal system it was always said that the approach in India and U.S. are different and their socio-economic conditions are different. Apart from that, opponents of this concept say that this concept has a soft corner towards accused and is unfair with the innocent; also it could promote corruption while making compensation to victim.
Judicial Reasoning
Indian legal system initially did not recognize plea bargaining concept and termed it as unconstitutional, which can be seen in a series of cases. Supreme Court also said that use of plea bargaining implies waiver of fundamental right mentioned in Article 21 and right to trial.
Supreme Court also said that it is wrong for them to enter into bargain and plea bargaining is unfair, unjust and violative of Article 21. In case of State of Uttar Pradesh v. Chandrika, Apex Court held that it is settled law that on basis of plea bargaining court cannot dispose the criminal cases.
Court also faced criticism on the basis that it will lead to downfall of faith in judicial system by giving lesser punishment to rich class.
So there are the major drawbacks and loopholes in this system but it is the need of today. Over three crore cases are pending in Indian courts. With the system of plea bargaining, it will solve less serious and petty offences and court could focus on major serious offence so that there is faster dispensation of justice.
A radical criminal law change measure should be adopted to make the legal system more effective and transparent.