PLEA BARGAINING MECHANISM: A COMPARATIVE STUDY By – Deepak
PLEA BARGAINING MECHANISM: A COMPARATIVE STUDY
Authored By
– Deepak
ABSTRACT
“After the passage of the Criminal Law Amendment Act of 2005 in 2006,
plea bargaining became a part of the criminal justice system. Around 10 years
have passed since the very introduction of the notion into the criminal code of
India. The intent of this paper is to evaluate the viability of the notion in
India by considering the relevant statutes and court rulings. The paper will
also take a look at the American approach to plea bargaining, as it was the
first of its kind. The paper will also compare the American and Indian
approaches of plea bargaining to highlight the advantages and disadvantages of
each system. The paper will touch briefly on the aspects of the American model
of plea bargaining that have contributed to its unique and successful status. The
research can be applied to improving the efficiency and effectiveness of the
Indian model of plea bargaining in the court system.” .
INTRODUCTION
The term "plea bargaining"
is used to describe the negotiating process that takes place before a trial
begins between the accused and the prosecution. In plea bargaining, the acc.used and the prose.cutor
or victim negotiate a deal in which the accused agrees to admit gui.lt in exchange for a reduced sentence, dismissal of charges,
or other benefit. Across the United States, the judicial system has largely
embraced and upheld the validity of the pra.ctise
of plea bargainin.g. The courts often accept one of
three sorts of plea bargains: .
CHARGE BARGAINING
First, there's "charge
bargaining," in which the def.endant
agrees to pl.ead guilty to a lower charge in
exchange for dismissal of a more serious one. In exchange, all other charges
will be dropped. This sort of plea deal is by much the norm rather than the
exception.
SENTENCE BARGAINING
A sort of ple.a barga.ining in which “the accused admits
guilt in exchange for a reduced sentence than what he would have received if
the Court had found him guilty of the commission of the offence via the
procedure of law.”
FAC.T BAR.GAINING
In this sort of pl.ea barg.aining, “the parties to the
litigation agree to submit a set of facts of the subject before the Court and
they jointly do not bring any additional fact to the notice of the Court. In
most jurisdictions, this form of plea bargaining is not recognised as legal in
the eyes of the courts.” The administration of justice is hampered when parties
negotiate over facts, which is why this practise is prohibited. When parties
engage in fact bargaining, they may withhold critical information from the
court, which might lead to a flawed ruling. The Court will have a more
difficult time determining what actually happened and protecting the rights of
the innocent when parties negotiate the facts.
POSITION PRIOR TO THE
ENACTMENT OF THE CRIM.INAL LA.W
(AME.NDMENT)
ACT OF 2005
As of before the Criminal Law
(Amendment) Act of 2005, plea bargaining was not an option for Indian
defendants. The Indian judicial system does not recognise the use of plea
bargains. Since its inception, plea bargaining has been deemed illegal by
Indian courts. As a crime is considered to be a wrong against the state rather
than a person, courts in India often did not permit plea bargaining. Sometimes,
the accused might avoid punishment altogether by reaching a plea bargain with
the state. There would be far-reaching consequences for society's deterrent
value and the criminal system if this happened.
The courts in India were certain that
plea bargaining was not a part of Indian criminal law. In Mad.anlal Ram.achander Daga v. Sta.te of Ma.harashtra[1] one of the earliest cases in which
the Supreme Court of India considered the legality of plea bargaining, the
Supreme Court ruled that plea bargaining is illegal under the circumstances. As
was also said, the Court must have a trial of the accused and make a decision
based on the merits of the case as shown by the evidence presented at trial. If
the Court determines that a smaller sentence than the maximum allowed by law is
more appropriate, it may impose that sentence on the defendant. Yet the court
should not negotiate a plea bargain with the defendant since such deals are not
recognised by the law.
In Ka.sambhai v. State of Guj.arat[2], the Supreme Court held “the practice of plea bargaining to be
against public policy.”
In K.achhia Patel Sha.ntilal Koderlal v. State of G.ujarat & Anr.,[3] The
Supreme Court of India declared that plea bargaining is a "very
repugnant activity" that has no place in Indian law. As the court pointed
out at the time, plea bargaining is a process that may only foster greater
corruption and possible collusions. In India, if plea bargaining is legalised,
it might taint the integrity of the judicial process.
“In its 142nd, 154th, and 177th
reports, the Law Commission of India recommended for the implementation of Plea
Bargaining. The Law Commission suggested including the new XXIA in the Criminal
Procedure Code in its 154th Report. Moreover, the report cited the Law
Commission's 142nd Report, which explained the concept's rationale, its
effective operation in the United States, and the process by which it should be
given statutory expression in detail. The Report suggested that as a trial
measure, the abovementioned concept be applied to offences punished by less
than seven years in jail and/or fine, such as those covered under section 320
of the Code. It was also suggested that plea bargaining be allowed to take into
account the seriousness of the offence and the punishment that would be
imposed. Offenders Inmates with a history of criminal behaviour, those accused
of serious socioeconomic crimes, and those accused of crimes against women and
children were found to be ineligible for the aforementioned institution. The
177th Report from the Law Commission reaffirms and expands upon the 154th
Report's recommendations. In addition, the United States' experience has been
cited as proof that plea bargaining may help clear up backlogged cases and
speed up the delivery of criminal justice in the Report on the reform of the
criminal justice system, 2000, chaired by Justice Malimath.”[4]
Until the Crim.inal L.aw (Amen.dment) Act of 2005, which formally authorised plea bargaining
in India, the courts here consistently had seen practise as uncon.stitutional and improper in the eyes of the law.
POSITION AFTER THE ENAC.TMENT
OF THE C.RIMINAL
LAW (AME.NDMENT)
ACT OF 2005
The Criminal Law (Amendment) Act,
2005, approved during the winter session of the Indian Parliament, added
Sections 265A to 265L to the Criminal Code of Procedure, making up Chapter
XXI-A. These sections discussed the structure of the Indian plea bargaining
system. This describes the whole process of plea barg.aining in India.
Anybody facing charges that have a
potential jail term of seven years may enter into a plea bargaining process.
However, if you have been charged with a socioeconomic crime, a crime against
women, or a crime against a child less than 14 years old, you will not be
eligible for a plea bargain.[5] As
lawmakers didn't specify which crimes qualified as "socioeconomic"
for the purposes of plea bargaining, the government was given
discretionary authority over the classification of such crimes for the time
being.[6]
“On July 11, 2006, the Central
Government issued Notification No. S01042 (II)[7] which
included a list of socio-economic offences for which the scheme of plea
bargaining is not authorised. Plea bargaining is not available to those accused
of violating the Scheduled Castes and Scheduled Tribes (Prevention from
Atrocities) Act, 1991, the Dowry Prohibition Act, 1961, the Protection of Woman
from Domestic Violence Act, 2005, the Infant Milk Substitutes, Feeding Bottles,
and Infants Foods (Regulation of Production, supply, and distribution) Act,
1992, etc., as stated in the notification. In the event of a child or juvenile
as specified in Section 2(k) of the Juvenile Justice (Care and Protection of
Children) Act of 2000, this Chapter pertaining to the plea bargaining plan
shall not apply.”[8]
The accused must submit a plea
bargain application to the court hearing their case.[9] The
application must include a sworn affidavit from the defendant affirming that he
is making the request out of his own free choice and not under the influence of
anybody else. The Court must notify the prosecution of the application's
receipt and verify, during the trial, that the accused is acting willingly in
making the application. Section 265-C outlines the procedure for reaching a
plea barg.ain between the accused and the pro.secution.[10] The
court must then write a report detailing the outcome of the conference between
the prose.cutor and the d.efendant in an effort to achieve a plea ba.rgain.[11]
“When the accused and the prosecutor have met and completed all the
necessary procedures under Section 265-D, the court must hear arguments from
both sides regarding the appropriate severity of the penalty.[12] Good
conduct releases are possible under many laws, including Section 360 of the
Code of Criminal Procedure, the Probation of Offenders Act of 1958, and others.
The Court can either impose the minimum punishment specified for the offence,
which has already been agreed upon by the accused and the public prosecutor, or
it can impose a greater sentence. If the minimum punishment for an offence is
not specified, the court may impose a sentence equal to one-quarter of the maximum
penalty.” Therefore,
the time spent in custody cannot be counted against the jail term.[13]
In instances where the plea
bargaining procedure has been used, the ruling of the first court is final. The
ruling is final and no further appeals may be filed.[14] But,
under Article 226 of the Indian Constitution, an appeal can be filed with the
relevant High Court, and under Article 32, an appeal can be filed with the
Supreme Court. The Court has the same authority in plea bargaining matters as
it has in the trial of other criminal offences, as provided for in the Code of
Criminal Procedure.[15]
Plea bargaining must adhere to the
guidelines laid down in Section 265A through Section 265L of Chapter X.XI-A of the Code of Crim.inal
Proced.ure. No court may depart from the
method outlined above. “The court to which the plea bargain application is
filed may reject it outright if the accused does not follow the proper
procedure.”
“Plea bargaining is a process where the accused and the victim work
together to find a resolution to the case that is satisfactory to both parties.” To what extent the accused is
required to compensate the victim or prosecutor is a matter of negotiation
between the two parties. The application must be made of the accused's own free
choice, without any influence from outside sources. It is important that both
the prosecution and the victim join into the plea negotiating process
voluntarily and not because of any outside pressure. The victim needs to accept
the compromise that the prosecution and the accused have worked out. “If the prosecutor and the accused cannot
reach a plea agreement, the court must issue a report detailing the failure of
the process under Section 265-D of the Code of Criminal Procedure between the accused
and the prosecutor, and must then proceed with the trial of the accused in a
manner consistent with the procedure of law.”
JUDICIAL
RESPONSE
As was mentioned above, Indian courts
have always seen plea bargaining as improper contrary to the constitution until
the Cri.minal Law (Am.endment) Act of 2005 legally authorised the practise.
As can be shown in the following
discussion of a few handful of cases, the Indian court has had a complicated
relationship with plea bargaining since its introduction to the country's legal
system.
In its analysis of plea bargaining, “the Gujarat High Court noted 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 that given
the current realistic profile of the pendency and delay in the administration
of law and justice, fundamental reforms are inevitable. Nothing should be in a
fixed position. It is, therefore, a sort of remedy, and it will bring something
new to the field of judicial reforms.”[16]
In Pardee.p Gupta v. St.ate,[17]
the Court said, "The trial court's rejection of the plea bargain shows
that the learned trial court had not bothered to look into the provisions of
chapter XXI A of Code of Criminal Procedure meant for the purpose of plea
bargaining and rejected the application on the ground that since the applicant
is involved in an offence under section 120-B Indian Penal Code and the role of
applicant was not lesser than the other co-accused." The petitioner has
been arrested for a number of crimes, but none of them carried a sentence of
more than sev.en years in prison. While deciding
whether or not to grant a plea bargain, it is important to evaluate the
circumstances surrounding the accused person, the nature of the crime, etc. The
Hig.h Court ordered the lower court to
reevaluate the defendant's plea bargain in light of the relevant articles of
the Code of Crimina.l Proc.edure,
rather than doing so on a whim.
The low number of reported cases
resolved by plea bargaining in the Indian criminal justice system is indicative
of the dismal position in which this process currently finds itself, as seen by
an examination of pre and post amendment decisions. Interesting to note is that
prior to the Crimi.nal La.w
Amen.dme.nt
Act of 2005, judges often rejected plea barg.ain
cases. Although things have improved somewhat after 2005, this important
innovation in the Criminal Law Justice System is still widely neglected despite
its narrow field of application and the judicial system's ambivalent attitude
towards it.
PLEA
BARGAINING: A COMPARATIVE STUDY BETWEEN USA AND INDIA
In light of the foregoing, it is
clear that the Indian model of plea barg.aining
is insufficient to solve the problem of pending cases. Unfortunately, plea
bargaining has not yet become a common method of justice administration in
India. The Indian model suffers from sections that feel introductory, as though
the legislature tried it out first and only then decided to adopt the
comprehensive form. However, the legislature in India has taken a cautious
approach, and as a result, the notion of plea b.argaining
has failed miserably in the Indian judicial system. To figure out what's wrong
with the Indian model and why it hasn't been able to accomplish its original
aims, researchers have compared it to the Am.erican
model of plea barga.ining.
The Indian model is conceptually
distinct from the American one. The use of plea bargaining in Indian courts is
quite limited, and the notion has not yet gained widespread public acceptance.
Here, we'll list some of the most fundamental differences between the two
designs:
I.
In India, a plea bargain is possible for of.fences that carry a max.imum
sentence of seven years in jail. Under the American system, a person can enter
a not guilty plea for any offence, including murder.
II.
Second,
in India, this defence cannot be used if the defendant is a woman or a minor
less than 14 years old. No such conditions are attached to plea bargaining in
the American system.
III.
In
addition, the Indian model has the restrictions that juveniles, habitual
criminals, and those responsible for socioeconomic offences are not eligible to
use the plea. In contrast to the Indian model, which does not provide space for
such riders, the American model is able to accommodate any and all possible
scenarios.
IV.
In
contrast to the American system, in which the prosecution and the accused
jointly submit the application once plea discussions have concluded, the Indian
system instructs the accused to do so.
V.
In
contrast to the American model, where victims have no say over the conditions
of plea bargains, it is implied in the provisions of the Indian model that the
victim has a power to veto the plea bargained. [18]
The American model of plea bargaining
appears to be more comprehensive when being compared to the European one. Yet,
the Indian model is not open to everyone; it is designed for a certain
population. “Although plea bargaining in India was first implemented to reduce
the backlog of pending cases, it has not been successful in doing so after a
decade of use. The preceding contrast with the American model may hold the key
to understanding the motivations behind this. The inefficiency of the phenomena
is shown in the fact that there are so few cases accessible for plea bargaining
in a country where three crores of cases are outstanding. Even if there are
flaws in the American model of plea bargaining, it is clearly a workable idea given
that around 90% of cases in America are resolved through plea bargaining.” The
Am.erican style of plea bargain.ing has been more effective than the Indian one at reducing
the burden on the judicial system. India is only getting started with plea
bargaining, therefore the system there requires a lot of work to reduce case
backlogs.
PLEA
BARGAINING MECHANISM: A WAY FORWARD
The Indi.an system of plea bargaining is a topic of debate. One school
of thought holds that the Indian criminal justice system would benefit from
plea bargaining because it would result in the quicker trial of cri.minal cases and a smaller bac.klog
of crimin.al cases in the Indian Courts. The
opposing school of thought argues that plea bargaining would have a
disproportionately negative effect on the poor, who are often unjustly held by
the police and falsely accused of committing crimes.
“As of 2015, government data revealed
that plea bargaining was rarely used in India. Plea bargains occurred in just
4,816 of the 10,502,256 cases for trial under the general criminal legislation
in 2015.
This dropped to 0.043 percent in
2016, with 4,887 reported cases out of a total of 11,107,472. There was an
uptick of 0.27% in 2017, with 31,857 out of 11,524,490 cases settling through
plea bargaining. Nevertheless, this was not a lasting trend, since there was a
net decline in the number of cases in 2018, with just 20,062 out of 12,106,309
(or 0.16%) being resolved through plea bargaining. It's disappointing that this
number hasn't even surpassed 1% after 15 years.
There was still an increase in the
number of pending cases, but it was slower than previously. Similarly, there
has been an uptick in the number of pre-trial detainees since 2006. As a
result, neither of the two goals that plea bargaining was supposed to
accomplish was met in India.”[19]
Later, we'll tell these folks it's in
their best interest to use the plea negotiating system to cut their sentences
and save years of court battles.
In addition, some may view the plea
bargaining system as a means by which some criminal acts are made acceptable.
An offender might utilise the idea to get out of paying for their crime by
negotiating with the prosecution to spend as little time in jail as possible
and pay as little as possible in restitution to the victim (if required). A
defendant can employ plea bargaining as many times as they choose. This plea
bargaining system provides an opportunity for repeat criminals to legitimise
their behaviour. Thus, it's important to set limits on how often an accused
person can employ plea bargaining as a defence strategy. The Court has an
obligation to prevent repeat criminals from abusing the plea bargaining system,
as doing so would undermine the rule of law.
To promote a timely crim.inal justice system in India, the concept of plea barga.ining aims to minimise the back.log
of cri.minal cases. However, if an accused
is charged with a crime for which the maxi.mum
sent.ence is more than seven years, he or
she will not be able to employ the plea bargaining process. Offenders who
target women and children under the age of 14 are not eligible for plea
negotiation, and neither are those committing socioeconomic crimes. Those
accused with multiple crimes will not be able to benefit from plea bargaining
because of the exclusion of certain offences. As such, “it is important to consider the suggestion made in the 142nd Law
Commission Report, which stated that the scheme of plea bargaining may be
introduced initially only for those offences in which the maximum punishment is
of seven years in imprisonment, and that once the viability and success of the
scheme are seen, the purview of the scheme of plea bargaining could be widened to
include other crimes as well. As the effectiveness of the plea bargaining
scheme has been seen up to this point, the legislature should seriously
consider expanding the scheme to include offences with a sentence of more than
seven years in order to realise the true goal of introducing the scheme into
Indian jurisprudence.”
The fact that there is no set
deadline for the whole plea negotiating process also works against the scheme's
original intent. Once the accus.ed submits a plea
bargain application, there is no stipulated time limit within which the
prosecution and the accused must reach an agreement. There is also no time
limit within which the Court must report on whether or not the accus.ed and the pro.secutor or the
victim were able to reach a mutu.ally acce.ptable resolution for expedited case disposition. The goal of
a swift criminal justice system is rendered moot under these circumstances
since the Court has the authority to take its own time in preparing the report.
An innocent individual can decide
that it is in his best interest to plea bargain for guilt in a case that could
drag on in court for years in a nation like India. An innocent person may
choose to do this if he knows that he will be found guilty after a lengthy
trial that would drain his finances. Plea bargaining thus potentially violates
the tenet of law that no inn.ocent should ever
be punished. The 142nd Law Com.mission R.eport identified the promotion of corrupt behaviours as one
of the key disadvantages of plea bargaining. On the surface, it would appear
that India's plea bargaining process is designed to prevent any sort of
corruption.
Yet, the content of the discussion
between the ac.cused and the prosec.ution or the victim following the accused's plea negotiating
motion to the Court is seldom if ever reported.
Even if the accused has made the plea
bargain application on his or her own will, the opposite side may still try to
financially bargain with him or her to extend the length of the case. Yet, the
accused may also b.ribe the public pros.ecutor into negotiating terms that are more favourable to the
accused than to the victim or the State. To get around this disadvantage of
plea bargaining, the judge should preside over the initial meeting between the
defendant and the prosecutor or victim. Of course, this means the judge hearing
the case or accepting the plea bargain must be impartial to both the accused
and the prosecution.
In 2006, “the Central Government
established a list of socioeconomic offences for which the plea bargaining plan
is unavailable. The Dowry Prohibition Act from 1961, the Protection of Women
from Domestic Violence Act from 2005, the Scheduled Castes and Scheduled Tribes
(Prevention from Atrocities) Act from 1991, and the Infant Milk Substitutes,
Feeding Bottles, and Infants Foods (Regulation of Production, Supply, and
Distribution) Act from 1992 are all examples of such social and economic
offences.” It's important to keep in mind that not all lawsuits filed under
these laws are the same. It's possible that some of the crimes are so severe
that they damage the entire community, while others are so little that they
hardly fazed out the victim. It would be more practical to decide instances
involving violations of the aforementioned Acts after carefully weighing the
circumstances and consequences of the offence, rather than making the plea
bargaining process unavailable for such violations. The system of plea
bargaining should be available to the accused even if the crime is minor in
character or is classified as a socioeconomic crime.
CONCLUSION
AND SUGGESTIONS
To alleviate the backlog of criminal
cases, “India implemented a plea bargaining mechanism. The Indian criminal
justice system was the target of the reforms. The concept of legalising plea bargaining
in India was formerly derided by the courts and labelled a repressible
activity. The Law Commission Reports, however, advocated for the implementation
of plea bargaining in India to speed up the country's painfully sluggish
criminal justice system. Since the Criminal Law (Amendment) Act of 2005
established a plea bargaining scheme in Chapter XXI-A, Sections 265-A to 265-L,
the opinion of the Courts regarding plea bargaining has shifted dramatically.
With more criminals opting to negotiate their sentences through plea bargaining
with the prosecution and victim, the criminal justice system in India has
improved in terms of efficiency. However, the current plea bargaining procedure
in India has a few drawbacks, including that it can encourage a lot of
corruption in the justice system and that the accused cannot use the scheme of
plea bargaining if they have been charged with a crime with a maximum sentence
of more than seven years or a crime with a significant impact on society's
economy.”
When it comes to criminal
proceedings, time is of the essence, thus the Court and the parties involved in
the case have no deadline within which they must finish the plea negotiating
procedure. Although the plea bargaining mechanism has already been demonstrated
to be an effective and long-lasting tool of justice, there is an urgent need to
address the flaws in the current system in order to make it more fair and
effective. It would be a significant step forward in improving India's criminal
justice system if the problems plaguing the current plea bargaining method
could be discovered and resolved.
Examining the practise of plea barg.aining in India in detail reveals both the strengths and
weaknesses of the aforementioned methodology. Unlike in the Uni.ted States, where the function of the court is only passive,
under the In.dian model, the role of the judiciary
is active, which has several benefits. In opposed to the United States, where
victims have little say over the conditions of plea bargains, in the Ind.ian model of plea barga.ining,
victims have the right to veto the bargain. The American form of plea
bargaining, the world's pioneer and most successful, has many advantages, while
the Indian approach has several disadvantages. As a result of its flaws, the
Indian model has failed to produce the anticipated outcome. With any luck, this
piece may provide some food for thought for India's legal elite, who can then
use it to work towards improving plea bargains and reducing the country's
astronomical backlog of pending cases.
The argument is not that the Am.erican model should be ado.pted
wholesale, but rather that the Indian model should be supplemented with the
required elements to make it successful enough to solve the current clogging of
the Courts' data. Even though the idea has been around for a decade in India,
it hasn't accomplished anything particularly remarkable thus far. Fewer cases
involving plea bargaining and judicial sentiment towards the practise both
point to a bleak outlook for the process. Bringing plea bargaining up to par
with the West requires two changes. Legal reforms are first and foremost
necessary to bring India up to speed with other nations that have found success
in this area.
The court and the juristic class have
a responsibility to support the legislation concerning plea bargaining, as
without their support, this type of law is unlikely to obtain widespread
acceptance as a common remedy. It is important to take plea bargaining law
seriously and put it into practise often. With proper consideration, plea
bargaining may be a viable solution to the terrible backlog of cases in the
judicial system.
[2] AIR 1980 SC 854.
[3] 1980 Cri LJ. 553.
[4] Neeraj Aarora, Plea Bargaining- A New Development in the Criminal
Justice System, Posted on December 18, 2010, available at https://www.legallyindia.com/views/entry/plea-bargaining-a-new-development-in-the-criminal-justice-system-html (last visited on 25 Febuary, 2023)
[5] The Criminal Law (Amendment), 2006
(Act 2 of 2006), Sec 265-A.
[6] The Criminal Law (Amendment), 2006
(Act 2 of 2006), Sec 265-A.
[7] Notification of Ministry of Law
and Justice, No. S01042 (I) , issued on July 11, 2006.
[8] The Criminal Law (Amendment), 2006
(Act 2 of 2006), Sec 265-L.
[9] The Criminal Law (Amendment), 2006
(Act 2 of 2006), Sec 265-B.
[10] The Criminal Law (Amendment), 2006
(Act 2 of 2006), Sec 265-C.
[11] The Criminal Law (Amendment), 2006
(Act 2 of 2006), Sec 265-D.
[12] The Criminal Law (Amendment), 2006
(Act 2 of 2006), Sec 265-E.
[13] The Criminal Law (Amendment), 2006
(Act 2 of 2006), Sec 265-I.
[16] State of Gujarat v. Natwar Harchanji Thakor, (2005) 1 GLR 709.
[17] Crl. MA No. 9856/1007 & Bail
Appln. 1298/2007.
[18] J. E. Ross, “The entrenched p. .osition of Plea Bargaining in Unit.ed States legal practice”, 54 A.M. J COMP. L.717, 717 (2006).
[19] Vishwanath, A. (2016) Why Hasn’t Plea Bargaining Taken off in
India? MINT. available at https://www.livemint.com/Politics/otm5XvV7DTZJ9KaKScbJ4H/Why-hasnt-plea-bargaining-taken-off-in-India.html (last visited on 23 Febuary, 2023).