PLEA BARGAINING– A CATALYST OR CATASTROPHE IN THE CRIMINAL JUSTICE SYSTEM? BY - HRISHI KAPADIA
PLEA BARGAINING– A CATALYST OR
CATASTROPHE IN THE CRIMINAL JUSTICE SYSTEM?
AUTHORED BY - HRISHI KAPADIA[1]
3rd Year BBA LLB (Hons.)
at MIT WPU, School of Law, Pune
Abstract
Plea bargaining refers to the
practice of the prosecutor and accused in a criminal case coming to mutually
agreeable settlement wherein the accused pleads guilty and accepts the charges
levied against him in exchange for some concession by the prosecutor such as
reducing the intensity of the punishment and / or arranging terms for the
compensation to the victim. This is the criminal law equivalent to an out of
court settlement in civil litigation. Much like the filing of consent terms in
a civil settlement, the terms of the agreement reached between the prosecutor
and the accused have to be laid before the court for its approval and consent
to the arrangement. This practice was conceptualised through judicial
pronouncements in the United States and hence, the precedents set created this
revolution in the criminal justice system globally. This paper shall explore
the statutory provisions in relation to plea bargaining as included in the Code
of Criminal Procedure, 1973 through the Criminal Law (Amendment) Act, 2005; as
well as the procedure and application of this practice in the United States’
Criminal Justice System wherein a majority of criminal cases are concluded
through plea bargaining. The paper aims to evaluate the implementation of
justice through such practices, in light of landmark judgements in India and
the United States; in order to ascertain whether plea bargaining acts as a
catalyst or catastrophe in the justice system.
1. Introduction
Plea bargaining refers to the
agreement between the prosecution and the accused in a criminal case, whereby
the accused pleads guilty to the offence in exchange for the prosecutor
reducing the intensity of the punishment. This effectively eliminates the trial
process and allows for the speedier disposal of cases, as the commission of the
offence does not need to be proved beyond reasonable doubt due to the fact that
the accused accepts the charges against him. While ideally entered into before
or at the start of trial, it can be entered into at any point before the final
judgement / decree of the court. The fundamental idea behind plea bargaining is
to conserve the time and resources of the prosecution and the courts, by
reducing the investment required in a particular case by way of disposing it
off before hand, outside the construct of the judiciary. That being said, such
agreement is subject to the approval of the court, and only if the judge
adjudicating the matter approves such agreement, can it be executed. Plea
bargaining also includes the aspect of charge bargaining, wherein the
prosecutor agrees to a charge of lesser intensity in exchange for the accused
pleading guilty. For example, an offence of attempt to murder could be reduced
to grievous hurt. Another form of plea bargaining is count – bargaining,
wherein the accused is alleged to have committed multiple offences and the
prosecutor lets go of some of the offences thereby reducing the punishment
liability of the accused, in exchange for their pleading guilty.[2]
2. Status of Criminal Justice in India
The justice system in India is
undoubtedly overburdened beyond compare, owing largely to the fact that India
has the largest population in the world which is growing exponentially.
Furthermore, we have an extreme inadequacy of judicial infrastructure and judicial
personnel to adjudicate the disputes arising in the country. These disputes
too, are rising exponentially and are becoming increasingly complex. The
following statistics illustrate just how grave the problem is and emphasise the
need for a thorough jolt to mitigate the issues. These statistics are as of 31
December 2020, which have undoubtedly worsened over the last two years owing to
the Covid19 pandemic and the general upward trend of these figures.
About 32.4 Million / 3.24 Crore
criminal cases were pending before the courts of India, of which 29 Million /
2.9 Crore cases were cases in Original Jurisdiction and 22.5 Million / 2.25
Crore cases were more than a year old. These pending cases are mostly aged
under 10 years but do extend to beyond 30 years[3],
which is alarming especially as for the maximum imprisonment awardable, which
is life imprisonment, the general rule of calculation is 20 years[4],
and life imprisonment is only awarded in serious offences which would likely be
a minority of the pending case load. Which means that under trial prisoners are
being imprisoned for terms longer than the maximum punishment for the offence
of which they are accused. Another severely distressing statistic is the fact
that 63.11% of pending criminal cases are pending due to a failure in securing
the presence of the accused and / or witnesses etc. Furthermore, 17.70% are
pending due to an injunction being ordered; 9.12% or 8.70 lakh cases are
pending as they are unattended and 7.62% are pending as the court is awaiting
the submission of records of the investigation while 2.2 lakh cases are pending
simply due to frequent applications by the parties, abusing the system to
create procedural delays. These statistics show that a vast majority of
criminal cases pending before the various courts in our judicial system, are
pending due to procedural delays and nothing else. Only 0.11% of the total
pending criminal caseload is pending due to the case being complex / bulky,
while the rest are tied up due to procedural delays by the system and / or the
parties.[5]
These shocking figures are sufficient
evidence that the criminal justice system needs an overhaul. As a contribution
to this aim of reducing the pendency as justice delayed in justice denied; the
concept of plea bargaining was introduced in India. Other measures taken to
alleviate the stress on our limited judicial resources, include the creation of
several quasi-judicial bodies / tribunals to deal with specialised matters in
their specific jurisdictions in a quick and effective manner.
3. Historical Development
There are various historical
instances allegedly resembling plea bargaining, however the authenticity of
such stories cannot be confirmed and the circumstances of such alleged
occurrences were far from the modern-day concept of courts of justice and
trials.[6]
The formal and verifiable concept of plea bargaining originates from the United
States’ justice system, through various judicial pronouncements. Amongst the
most noteworthy of which was “Brady v. United States” in 1970. The
accused was charged with kidnapping and causing the death of the victim, which
is punishable with the death penalty in the United States.[7]
Upon learning that his co – accused had confessed and agreed to testify against
him, the main accused changed his plea from not guilty to guilty, in order to
avoid the death penalty, and was accordingly awarded a sentence of 50 years
imprisonment. This sentence was then appealed by the accused, claiming his plea
to have been coerced by fear of the death penalty, however, the United States
Supreme Court held that fear of the death penalty does not constitute coercion
and therefore awarding a lesser sentence in exchange for guilty plea is
constitutionally valid.[8]
Through the United States Supreme
Court judgement in “Santo Bello v. New York”, it reaffirmed and
solidified the validity of plea bargaining in the American justice system. In
this case, the accused was charged with offences relating to gambling, and had
changed his plea from not guilty to guilty for a reduced number of charges and
of lesser intensity. Furthermore, the prosecution had agreed to not make any
recommendation as to the tenure of the imprisonment, however during the
sentencing hearing, a different prosecutor appeared for the State and recommended
the maximum sentence for the offences. The accused then contended that the
prosecution was violating its promise of not recommending any sentence, which
was finally upheld. The United States Supreme Court affirmed the right of the
accused to demand specific performance of the plea-bargaining agreement, and
upon failure thereof, to seek appropriate relief, such as withdrawing the
guilty plea.[9] This
judgement made the construct of plea bargaining more formal and enforceable
while ensuring equal protection of both parties to the agreement, which paved
the way for the majority of the criminal cases in the United States’ since.
One of the most famous instances of
plea bargaining was in the case of James Earl Ray, the man convicted of
assassinating Martin Luther King Jr. James Earl Ray pled guilty to the charge
of murder in exchange for not being awarded capital punishment, which resulted
in him being awarded a sentence of imprisonment of 99 years.[10]
4. Development in the Indian Legal
System
Plea bargaining was widely criticised
by the Indian courts and members of the Indian legal fraternity ever since its
formal adoption by the United States in 1970. Through various judicial
pronouncements, the Indian courts rejected the viability of the concept of plea
bargaining and dismissed it as unconstitutional.
In the case of “Murlidhar Meghraj
Loya v. State of Maharashtra”, the appellant was accused of mixing edible
oils and selling such adulterated oil. The prosecution and the accused came to
an arrangement wherein the accused pled guilty in exchange for the prosecution
not pushing for strict punishment, which was supported by the Magistrate who
awarded a punishment of Rs.250/- as fine. Upon appeal the Supreme Court
dismissed such compromise arrangement and remarked that plea bargaining is
immoral and hence the State can never compromise and must enforce the law,
especially as in the given case, the plea bargain was beneficial to the
accused, the prosecution and the courts but completely ignored the actual
victims who purchased and consumed such adulterated oil.[11]
In another case of a similar offence,
“Kasam Bhai Abdul Rehman Bhai Sheikh v. State of
Gujarat”, the Supreme Court repudiated the plea bargain entered
into by the accused, the prosecution and the Magistrate by calling the concept
of plea bargaining unreasonable, unfair and unjust and a violation of Article
21 of the Indian Constitution. The Supreme Court went further to refer to plea
bargaining as an illegal and unconstitutional pollutant of the pure fount of
justice as it shall lead to a guilty person walking away with minimal
punishment or worse, it may cause an innocent person to be convicted as a
result of corruption and collusion.[12]
In the case of “State of Uttar
Pradesh v. Chandrika”, the Supreme Court restated the earlier opinions, and
held that an accused does not deserve to be rewarded for simply accepting their
commission of an offence as there is sufficient evidence against them. Mere
acceptance or admission of the guilt should not be a ground for reduction of
sentence, nor can the accused bargain with the Court that their sentence be
reduced as they are pleading guilty.[13]
The 142nd Law Commission
Report by the Twelfth Law Commission in 1991, first presented the concept of
plea bargaining in the Indian Legal System. The report suggested for provisions
for the concessional treatment of the accused who voluntarily pleads guilty of
the offence he is accused of committing. The reasoning was that final acquittal
in the pettiest criminal case can take upto 33 years and cost the State about
Rs. 1 Crore as of 1991, and there was no corresponding benefit to the society
for this time resource investment. The report contended that the accused
willing to make amends for their wrongs and pay their debt to society, should
not be treated at par with an accused demanding an expensive and lengthy trial.
Furthermore, in the interest of preventing uncertainty, expenditure, anxiety
etc. it is best to allow the accused to plead guilty, serve his sentence and be
freed. The benefit to the State of such provisions, in addition to saving
precious time and resources, would be the preventing of overcrowding in jails
on account of under trial prisoners. To support their contention, the Law
Commission cited the example of the United States wherein about 75% of all
criminal cases were disposed through plea bargaining at the time.[14]
The 154th Law Commission
Report by the Fourteenth Law Commission in 1996 reiterated a similar opinion
and called for the inclusion of plea-bargaining provisions in The Code of
Criminal Procedure, 1973, once again taking support of the United States’
criminal justice system of which plea bargaining is a fundamental aspect.[15]
In 2000, the central government
formed a special committee to address the rising burden of criminal cases in
India, headed by former Chief Justice of the Karnataka High Court and of the
Kerala High Court, Justice V.§ Malimath.
This committee, called the Committee on Reforms of the Criminal Justice System,
also known as the Malimath Committee, submitted its report in 2003 which inter
alia suggested the inclusion of plea-bargaining provisions in the Code of
Criminal Procedure, 1973, as a tool for tackling the volume of pending criminal
cases.[16]
However, the view of the Supreme
Court changed over time, most notable expressed in State
of Gujarat v Natwar Harchanji Thakor, wherein the apex court
acknowledged the immense caseload and delays in justice and stated that the
purpose of law is to offer quick, easy and cheap redressal of disputes. As this
purpose was not being achieved in the current construct, change was inevitable
and the people and the system needed to have an open mind insofar as plea
bargaining was not recognised in the Indian Criminal Jurisprudence but it
needed consideration as an alternative route to justice.[17]
This judgement was delivered shortly before the Criminal Laws (Amendment) Act,
2005 was brought into force.
On the basis of the Malimath
Committee Report, along with the 142nd and 154th Law
Commission Report, the Criminal Law (Amendment) Act, 2005 was enacted which
inserted Chapter XXIA titled ‘Plea Bargaining’, in The Code of Criminal
Procedure, 1973.[18] Thus
finally creating the statutory framework to support the concept of plea
bargaining in the Indian context.
5. Statutory Framework
5.1.Applicability
The provisions of plea bargaining are
made available only in cases wherein the offence committed attracts a
punishment lesser than 7 years imprisonment. If the offence in question carries
a punishment of 7 years imprisonment or more, or life imprisonment or death
penalty, the case cannot be disposed off through plea bargaining. Furthermore,
if the offence has been committed against a woman or a child below 14 years of
age, or if the offence is detrimental to the socio – economic condition of the
country, plea bargaining is not an option available in such cases.[19]
Additionally, plea bargaining is not available for cases of repeat offenders,
and is limited to first time offenders only.[20]
Furthermore, the provisions of plea bargaining are not available to juvenile
offenders governed by the Juvenile Justice (Care and Protection of Children)
Act, 2000[21]. Which
means, that accused persons under the age of 18 years as on the date of commission
of the offence[22], cannot
be subjected to plea bargaining.
The rationale behind this may be to
protect the juvenile from coercion or undue influence by the prosecution, given
their vulnerability owing to their age. However, on the flip side, it can be
argued that juvenile accused should be given the option of plea bargaining as
it may help prevent them losing years of their life at a crucial stage,
awaiting trial / verdict. Furthermore, as a juvenile, the chances of the
offence being a momentary lapse in judgement are high, and therefore, juvenile
offenders are more likely to want to make amends, right their wrongs and move
forward in life. Hence, it is suggested that juveniles should be presented with
the right to plea bargaining.
The applicability restrictions on the
provisions of plea bargaining are fairly strict and therefore limit the scope
of the cases which can be dealt with through plea bargaining. However, the
rationale behind the most of the restrictions is just, as offences of a more
severe nature and offences by repeat offenders who are not learning from their
past and are not living in compliance with the rule of law, should be dealt
with by the full force of the law and the punishments contained therein. That
being said, the efficacy of plea bargaining in lessening the burden on the
judiciary, the prosecution, the accused, the penitentiaries etc., is greatly
restricted under this statutory framework.
5.2.Initiation
The procedure for plea bargaining
commences with the accused making an application to the court, seeking to enter
into a plea bargain.[23]
This application can only be made at the point where the case is pending trial
and only before the court which is to conduct such trial.[24]
The application must contain the details and description of the case at hand,
along with an affidavit of the accused, affirming that he is making such
application voluntarily and after understanding the legal implications of his
pleading guilty as well as the punishment provided in law for the offence of
which he is accused.[25]
Upon receipt of such application, the
court shall intimate the public prosecutor and / or complainant and set a date
for both sides to appear before the court.[26]
When both sides appear on the given date, the accused shall be examined in
order for the court to satisfy itself that the accused is applying for a plea
bargain voluntarily. Such examination must be videographed and be conducted in
absence of the other side[27],
in order to ensure there is no coercion / undue influence / threat etc.
Only if the court is satisfied that
the application is made entirely voluntarily, and the application itself is
valid in terms of eligibility of the offender and the offence, shall it give a
time frame for the prosecution and accused to arrive at a mutually satisfactory
disposition of the case and set a hearing date for the parties to present the
proposal they agree upon.[28]
If the court is not satisfied about the voluntariness and eligibility of the
offender and offence, it shall dismiss the application and proceed with the
trial as per the provisions of The Code of Criminal Procedure, 1973.[29]
While the conventional system of plea
bargaining, as seen in the United States, allows for the accused and
prosecution to arrive at a settlement inter se, in the Indian context,
even if the parties wish to enter into a plea bargain, they have to route the
procedure through the court, which fails to alleviate the burden on the courts
and again by requiring the parties to await a date of hearing, it is failing to
speed up the process.
Furthermore, there is no provision
with regard to the prosecution initiating the process for a plea bargain, nor
is there an express provision allowing the prosecution to refuse to attempt to
arrive at a mutually satisfactory disposition. The statutory provision leaves
all the power with the accused, which is unfair on both grounds; the
prosecution cannot initiate a plea bargain nor can they refuse to entertain
such an application. That being said, it can be inferred from context that by
summoning the prosecution / complainant to appear before the court on the date
of hearing of the plea-bargaining application, the prosecution / complainant
will be given the opportunity to accept or refuse to entertain the application,
as would be required to give effect to the principles of natural justice.
5.3.Mutually Satisfactory Disposition
The agreement or plea bargain, must
be acceptable to both parties voluntarily and is hence referred to as a
mutually satisfactory disposition. These terms must be arrived at through the
voluntary participation of all parties, that is, the accused, the victim, the
prosecution and the police officer who investigated the offence.[30]
Additionally, the accused and victim can involve their respective attorneys if
they wish[31], which
is ofcourse recommended and is likely to always be the case. The court is
required to ensure that the conversation and negotiations are entirely
voluntary by all parties involved.[32]
The prosecution / victim is given the
opportunity here to refuse to entertain the plea bargain, and by not consenting
to the negotiations, are effectively refusing the application made by the
accused and therefore closing the process of plea bargaining, deflecting the
case back to the ordinary procedure of The Code of Criminal Procedure, 1973.
It is noteworthy that while the court
is mandated to ensure voluntariness is maintained throughout the negotiations,
in reality, that may not be pragmatic and by virtue of the fact that all the
parties will be party to the negotiations, there is a very high likelihood of
undue influence or coercion operating either from the side of the police or
from the side of the accused, forcing the victim to consent to the terms
proposed by the accused. The court cannot realistically ensure the sanctity of
the negotiations and the voluntariness of the parties. There are forces that
operate outside the confines of the law which would impact someone’s actions
within the confines of the law, out of fear.
If the parties do successfully come
to a mutually satisfactory disposition, the same must be signed by all the
persons who participated in the negotiations, and submitted to the court for
the judge adjudicating the matter to sign and approve. If the parties fail to
arrive at a mutually satisfactory disposition within the time frame allotted,
the court shall revert back to the ordinary procedure of the Code of Criminal
Procedure, 1973.[33]
5.4.Judicial Intervention and Enforcement
The court will conduct a hearing on
the enforcement / effecting of the mutually satisfactory disposition agreed
upon. If there is compensation to be paid to the victim, the court will award
such compensation and direct the accused to pay the amount.[34]
The court will then hear both sides regarding the quantum of punishment to be
awarded which includes imprisonment and / or the aspect of releasing the
accused on probation of good conduct against his bond to maintain good
behaviour and appear before the court whenever summoned[35].
The provisions of the Probation of Offenders Act, 1958 would be made applicable
in the circumstances of release on probation.[36]
When the mutually satisfactory
disposition includes imprisonment, the court has the power to modify such term
agreed upon. If the imprisonment agreed upon is the minimum term of
imprisonment provided for in the statutory framework regarding the offence
committed, the court may if it deems fit, reduce that sentence to half the
minimum term.[37] If the
offence is not included in the Probation of Public Offenders Act, 1958 or the
offence does not have a minimum punishment and only has a set tenure of imprisonment,
the court may award a punishment of imprisonment of a term equivalent to one
quarter of the term provided for in the statute.[38]
For example, if the offence is punishable with imprisonment upto four years,
the court can award punishment of one year.
The rationale behind this power, is
as was discussed in the 142nd Law Commission Report and the
subsequent Reports, that an accused willing to plead guilty and make amends,
should be rewarded for this and not treated at par with other accused
undergoing the full extent of trial.[39]
While idealistically sound, this power once again favours the accused over the
victim, especially as the term of imprisonment agreed upon in the mutually
satisfactory disposition, can be reduced by the court. This puts the victim in
a lose – lose situation as if they await the verdict of a full trial, it could
take a few decades, and if they consent to plea bargaining, they agree to a
lesser sentence which can further be reduced to half or even quarter by the
court, to reward the offender for accepting his wrongs. It fails to provide
justice and retribution for the victim, except for by the limited scope of the
way of compensation.
The final ruling of the court, in
cases where a mutually satisfactory disposition has been arrived upon and
approved by the court, cannot be appealed except under writ jurisdiction before
the concerned High Court having territorial jurisdiction[40],
and under a special leave petition before the Supreme Court of India[41].[42]
The power of the court remains
unchanged even when conducting proceedings on plea bargaining, it retains the
power to summon persons, mandate the discovery and production of documents,
examine witnesses under oath etc.[43]
Furthermore, the court is directed to set off the time of under trial
imprisonment from the final imprisonment decided upon in the mutually
satisfactory disposition or the term of imprisonment decided by the court[44],
as discussed hereinabove; as is the mandate for any other criminal trial.[45]
5.5.Protection of Accused
The most pressing concern with regard
to plea bargaining is that the statements made by the accused in the interest
of plea bargaining, during the process of negotiations etc. may be used against
them at trial, should the plea-bargaining fail. The statutory framework
expressly prohibits such actions, in the interest of promoting open, fair and
just negotiations for the successful operation of plea bargaining. By exempting
any statements made by the accused during the process of plea bargaining, from
being used against them at trial or in any other manner outside the scope of
plea bargaining[46], the
system is enabling the accused to enter into plea bargaining with complete
honesty and without fear or apprehension, which is mandatory for the plea
bargaining to be successful.
6. Analysis and Conclusion
Plea bargaining falls within the
greyest of grey areas in the law. While it does help expedite proceedings, it
does not necessarily entail delivery of justice. As was discussed in the case
of “Kasam Bhai Abdul Rehman Bhai Sheikh v. State of Gujarat”[47],
mentioned hereinabove, amongst several other cases, plea bargaining does lead
to a guilty person walking away with minimal punishment if at all, and presents
the chances of an innocent person being wrongfully convicted and punished. It
enables abuse of power, undue influence, collusion and corruption to violate
the sanctity of the justice system. Furthermore, with the kind of wealth
disparity existing in the country, plea bargaining enables the rich to get away
with anything using the power of their immense financial resources, to the
abhorrent disadvantage of the economically weaker sections of society.
It is irrefutable that the caseload
pending before the courts is unfathomable, but plea bargaining appears to be a
method for the system to ignore the fact that procedural laws are lacking and
justice infrastructure is inadequate, by enabling the existence of a dangerous
practice. Many argue that plea bargaining has been very successful and has
become the norm in western countries, especially the United States where over
98% of criminal cases are concluded through plea bargaining and only about 3%
of all criminal cases go to trial[48].
However, it is conveniently overlooked that there are no statistics available
on the number of wrongful convictions caused by plea bargaining. Countless
cases have been overturned in the United States wherein upon the discovery of
new evidence, or discovery of wrongful practices or through their ‘Innocence
Project’ endeavours, wrongful convictions have been identified[49].
The fact remains that there is always
a weaker party in any transaction. More often than not, it is the victim who is
the weaker party, and therefore, the accused can use threats and fear or
corruption and collusion to force the victim to accept a plea bargain which
fails to provide them justice. If the accused is the weaker party, the
prosecution can use undue influence and threats to compel the accused to plead
guilty even if they are innocent. The statutory framework in this regard in
India, fails to acknowledge the sensitivity of the matter and the high
possibility of undue influence being exercised. Simply putting in the clause
that the court has to ensure all parties are voluntarily participating in the
plea bargaining, does not alleviate the risks as the construct of plea
bargaining is such that these risks cannot be alleviated. There are forces that
operate outside the realm of the courts and therefore even if undue influence
is being exercised by either party, it is unlikely to be brought to the notice
of the court due to the very fact that there is undue influence being
exercised.
Furthermore, as stated in the case of
“State of Uttar Pradesh v. Chandrika”, mere acceptance of guilt does not
warrant leniency or a lesser sentence[50].
Just because an accused accepts they committed a crime, it does not legally
justify a lesser sentence. Arguments have been made that accused who don’t
contest the accusation should be treated differently from those who do, most
notably in the 142nd Law Commission Report[51];
but an opposing view is the fact that the accused are likely to plead guilty
when there is sufficient evidence proving their guilt, and therefore, it is not
a moral compass that is guiding a guilty plea, but is simply self-preservation
– which does not warrant judicial leniency. The accused entering a plea bargain
due to sufficient convictable evidence, simply means they are choosing the
easier way out with a lesser punishment as they are going to receive punishment
through the process of trial anyway.
Additionally, on the same principles
and reasoning, the statutory provisions providing for judges to slash
imprisonment terms to half or quarter of the minimum / prescribed punishment,
is entirely unjust. Not only does this unfairly benefit the guilty accused, who
see this as an easier way out, but it is also prejudicial to the innocent
accused, who would rather take the lesser punishment than undergo trial for an
offence they did not actually commit. This completely derails and defaces the
entire concept of justice.
Therefore, in conclusion, plea
bargaining seems very noble and revolutionary on paper and does present an
answer to the problems in the country’s criminal justice administration system,
but it does not appear to be the correct answer. There are too many flaws and
loopholes in the system, which is probably why it is has failed to gain
traction in the 16 years since its introduction in the Indian legal system. The
judiciary rightfully still maintains an adverse opinion on plea bargaining.
While attempts are being made to implement the provisions of plea bargaining,
through guidelines issued in a suo moto writ petition before the Supreme Court
in this regard[52]; actual
implementation remains a question mark. A better suited approach to tackle the
impending doom of pendency in the Indian criminal justice system, would be
reworking procedural laws to reduce the scope of procedural delays, especially
those caused by parties taking undue advantage of the provisions of the law;
and building a larger and more robust criminal justice infrastructure, with a
larger capacity through more trial courts, more judges / magistrates and more
public prosecutors. It is simply illogical and unsustainable to expect a
judicial system aged a few decades if not more than a century, to handle the
burden of the cases from India, as the world’s largest population, which has
grown between 5 – 10 times (if not more) since the conception of the judicial
system. Deflecting the problem to out of court settlement may work in civil
cases, but cannot be the norm in criminal cases, as is seen in the United
States. Through the discussions of this paper, it is glaringly obvious that
plea bargaining is a catastrophe in the criminal justice system under the guide
and in the cloak of a catalyst.
[1] 3rd Year Student at MIT
WPU School of Law, Pune
[2] “Jon'a F. Meyer "plea
bargaining", (Encyclopaedia Britannica, 5 June 2022), https://www.britannica.com/topic/plea-bargaining,
accessed 18 April 2023.”
[3] “National Judicial Data Grid –
Pending Dashboard – Criminal, https://njdg.ecourts.gov.in/njdgnew/?p=main/pend_dashboard, accessed 19 April 2023”
[4] The Indian Penal Code, 1860, § 57
[5] “National Judicial Data Grid –
Pending Dashboard – Criminal, https://njdg.ecourts.gov.in/njdgnew/?p=main/pend_dashboard, accessed 19 April 2023”
[6] Id
[7] “18 U.S. Code § 1201(a)”
[8] “Brady v. United States, 397 U.§ 742
(1970)”
[9] “Santo Bello v. New York, 404 U.§ 257
(1971)”
[10] “Britannica, The Editors of
Encyclopaedia. "James Earl Ray". (Encyclopaedia Britannica, 6
March 2023), https://www.britannica.com/biography/James-Earl-Ray, accessed 18 April 2023.”
[11] “Murlidhar Meghraj Loya v. State
of Maharashtra, (1976) 3 SCC 684”
[12] “Kasam Bhai Abdul Rehman Bhai
Sheikh v. State of Gujarat, (1980) 3 SCC 120”
[13] “State of Uttar Pradesh v.
Chandrika (AIR 2000 SC 164)”
[14] “142nd Law Commission
Report, 1991, Chapter XI, https://lawcommissionofindia.nic.in/report_twelfth/, accessed 18 April 2023”
[15] “154th Law Commission
Report, 1996, Chapter XIII, https://lawcommissionofindia.nic.in/report_fourteenth/, accessed 18 April 2023”
[16] “Committee on Reforms of the
Criminal Justice System Report, 2003 (Malimath Committee Report)”
[17] “State of Gujarat v Natwar
Harchanji Thakor (2005) Cr.L.J. 2957”
[18] “The Criminal Law (Amendment) Act,
2005, § 4”
[19] “The Code of Criminal Procedure,
1973, § 265A(1)”
[20] “The Code of Criminal Procedure,
1973, § 265B(2)”
[21] “The Code of Criminal Procedure,
1973, § 265L”
[22] “The Juvenile Justice (Care and
Protection of Children) Act, 2000, § 2(k)”
[23] Id
[24] “The Code of Criminal Procedure,
1973, § 265B(1)”
[25] “The Code of Criminal Procedure,
1973, § 265B(2)”
[26] “The Code of Criminal Procedure,
1973, § 265B(3)”
[27] “The Code of Criminal Procedure,
1973, § 265B(4)”
[28] “The Code of Criminal Procedure,
1973, § 265B(4)(a)”
[29] “The Code of Criminal Procedure,
1973, § 265B(4)(b)”
[30] “The Code of Criminal Procedure,
1973, § 265C(a)”
[31] “The Code of Criminal Procedure,
1973, § 265C(b)”
[32] Id
[33] “The Code of Criminal Procedure,
1973, § 265D”
[34] “The Code of Criminal Procedure,
1973, § 265E(a)”
[35] “The Code of Criminal Procedure,
1973, § 360(1)”
[36] “The Code of Criminal Procedure,
1973, § 265E(b)”
[37] “The Code of Criminal Procedure,
1973, § 265E(c)”
[38] “The Code of Criminal Procedure,
1973, § 265E(d)”
[39] “142nd Law Commission
Report, 1991, Chapter XI, https://lawcommissionofindia.nic.in/report_twelfth/, accessed 18 April 2023”
[40] “The Constitution of India,
Article 226”
[41] “The Constitution of India,
Article 132”
[42] “The Code of Criminal Procedure,
1973, § 265G”
[43] “The Code of Criminal Procedure,
1973, § 265H”
[44] “The Code of Criminal Procedure,
1973, § 265-I”
[45] “The Code of Criminal Procedure,
1973, § 428”
[46] “The Code of Criminal Procedure,
1973, § 265K”
[47] Supra Note 12
[48] “Carrie Johnson, ‘The vast
majority of criminal cases end in plea bargains, a new report finds’, (National Public Radio (NPR), 22 February 2023), https://www.npr.org/2023/02/22/1158356619/plea-bargains-criminal-cases-justice#:~:text=In%20any%20given%20year%2C%2098,from%20the%20American%20Bar%20Association.,
accessed 19 April 2023”
[49] “Murat C. Mungan and Jonathan
Klick, ‘Reducing False Guilty Pleas and Wrongful Convictions through Exoneree
Compensation’, (University of Chicago – Journal of Law & Economics,
Volume 59 Issue 1, February 2016) accessed 19 April 2023”
[50] Supra Note 13
[51] Supra Note 14
[52] “SCC Online, ‘Triple method of
plea bargaining, compounding of offences and the Probation of Offenders Act,
1958: Supreme Courts’ suggestions on disposal of criminal cases’, (SCC
Online, 31 October 2022),