By Ms. A. SAJIDA MEERA RUMANA
‘’Discourage litigation, Persuade your Neighbors to compromise whenever you can.
As a peacemaker the lawyer has superior Opportunity of being a good man’’
There is a very famous quote: “Justice should not only be done but should manifestly and undoubtedly be seen to be done’’. Keeping this in mind, right to speedy trial has been declared as a fundamental right under Article 21 of the Indian Constitution[i]. Unfortunately, this fundamental right to speedy justice has largely remained a dead letter and the Indian judiciary has remained exceptionally slow in delivering justice. Due to the unreasonably long drawn process of providing justice, a common Indian is usually ready to bear some brunt rather than asserting his right in a court of law.There are more than 2.18 crore cases pending in district courts across the country; 12 states have more than 5 lakh cases to decide on an average, is awaiting conclusion for at least 10 years[ii]. The majority of the cases in India end in acquittal and the conviction rate is abysmally low. The legislature has recognized this problem of the backlog of cases as a result officially introduced the concept of ‘Plea Bargaining’ by way of Criminal Law (Amendment) Act of 2005 in order to curb this growing menace of back logging of cases in the Indian Courts and to ensure higher rate of conviction.
2.DEFINITION OF PLEA BARGAINING
The Black’s Law Dictionary[iii]defines the term Plea bargaining as “The process whereby the accused and the prosecutor in criminal case work out a mutually satisfactory disposition of the case subject to the Court approval. It usually involves the accused pleading guilty to a lesser offence or to only one or some of the courts of a multi count indictment in return for a lighter than that possible for the graver charge.”
3.ORIGIN OF THE CONCEPT OF PLEA BARGAINING
The concept of Plea bargaining is originated in the United States and it has become a prominent feature of the American Criminal Justice system[iv]. Plea bargaining was held to be constitutionally valid by the US Supreme Court in Brady v. United States[v]. The Indian concept of plea bargaining is inspired from the Doctrine of Nolo Contendere.In the post-independence era, on the recommendations of the Law Commission and its further endorsement by the Report of the Committee on Reforms of the Criminal Justice System, 2003[vi].The Law Commission of India in its 142nd and 154th report recommended the introduction of provisions relating to plea bargaining. The recommendations of Law Commission were further endorsed by Justice V.S.Malimath Committee. Finally, the concept of Plea bargaining was introduced in India by way of The Criminal Law (Amendment) Act, 2005, and the provisions regarding Plea bargaining are embodied under Chapter XXI-A of Code of Criminal Procedure from section 265A to 265L. The plea bargaining is beneficial for both the prosecution and the defense because there is no risk of complete loss at trial. It helps the attorneys to defend their clients in an easy way because both the parties possess bargaining power. This is how the long-standing disputes can be resolved and the court would also no need to face encumbrance of case files.
4.TYPES OF PLEA BARGAINING
CHARGE BARGAINING - Charge bargain happens when the prosecution allows a defendant to plead guilty to a lesser charge or to only some of the charges framed against him. This gives the accused an opportunity to negotiate with the prosecution and reduce the number of charges[vii].
SENTENCE BARGAINING- It happens when an accused or defendant is told in advance what his sentence will be if he pleads guilty. A sentence bargain may allow a prosecutor to obtain a conviction in the most serious charges, while assuring the defendant of an acceptable sentence[viii].
FACT BARGAINING- Negotiations which involves an admission to certain facts (stipulating to the truth and existence of provable facts, thereby eliminating the need for the prosecutor to have to prove them) in return for an agreement not to introduce certain other facts into evidence
5.LAW COMMISSION’S VIEW ON PLEA BARGAINING
The Law Commission of India advocated the introduction of ‘Plea Bargaining’ in the 142nd[ix] 154th and 177th reports. Law Commission in its one hundred forty second report on “Concessional Treatment for Offenders who on their own initiative choose to plead guilty without any Bargaining”[x] recognized the problem exercising the minds of all concerned with the administration of Justice, that of mounting arrears of criminal cases and unconscionable delays in disposal thereof and undertook Suo-moto exercise resulting in the culmination of the 142nd Report. The report extensively dealt with the various issues revolving around the introduction of a scheme like plea bargaining and the problem of delays in criminal cases[xi].The Law commission recommended the application of the scheme in the first instance as an experimental measure to offences which are liable for punishment with imprisonment of less than seven years and/or fine and the scheme may be made applicable to offences liable to be punished with imprisonment for 7 years and more after properly evaluating and assessing the results of the application of the scheme to offences liable to be punished with imprisonment for less than 7 years.
6.JUDICIAL APPROACH ON PLEA BARGAINING
The Hon’ble Apex Court in Mandala RamachanderDaga v. State of Maharashtra[xii],held that: “In our opinion, it is very wrong for a Court to enter into a bargain of this character. Offences should be tried and punished according to the guilt of the accused. If the Court thinks that leniency can be shown on the facts of the case it may impose a lighter sentence.But the Court should never be a party to bargain by which money is recovered for the complainant through their agency’’. In Thippa swamy v. State of Karnataka[xiii], the Supreme Court held that enforcement or imposition of sentence in revision or appeal after the accused had plea bargained for a lighter sentence or mere fine in the trial court as unconstitutional being violative of Article 21 of the Constitution of India. Justice P.N. Bhagwati in Kasambai Abdul Rahmanbhai Sheikh v. State of Gujarat[xiv], declared that plea bargaining as unconstitutional. In this case, judgment of the High Court was set aside by Supreme Court and the plea of guilty was ignored.The Hon’ble Supreme Court again in the case of Kachina Patel Shantilal Koderlal v. State of Gujarat and another[xv]held that the practice of plea bargaining is unconstitutional, illegal and would tend to encourage corruption, collusion and pollute the pure fount of justice. In State of Uttar Pradesh v. Chandrika[xvi], the Supreme Court held that it is not permissible to dispose of the case on the basis of plea bargaining. While recognizing the concept of plea bargaining, the Gujarat High Court observed in the State of Gujarat v. Natwar HarchanjiThakur[xvii] that the very object of the law is to provide easy, cheap and expeditious justice. In Murlidhar Meghraj Loya v. State of Maharashtra[xviii], The Hon’ble Supreme Court criticized the concept of Plea Bargaining and said that it intrudes upon the society’s interests.
Judicial backlog is a major problem that India is facing today. There are various reasons for backlogging of cases and every positive step taken in the direction of dismantling the cause of backlogging or providing a solution should be welcomed with open arms. Introduction of the concept of Plea Bargaining is one such step aimed at bringing down the number of pending cases and ensuring speedier disposal of cases. Despite being in the statute books for about 10 years, the usage of plea bargaining is still very low. There is a need to make the police, prosecuting agencies, and defending lawyers familiar with the benefits of availing plea bargaining which would ultimately save the precious time of courts and save the money of the litigants which can very well be used to compensate the victim.
[i] Hussainara Khatoon v. State of Bihar, A.I.R 1979 S.C. 1360 (India).
[ii]Utkarsh Anand, “More than 2 crore cases pending in India’s district courts / News Report” The Indian Express, June 9, 2018.
[iii]Black law dictionary, 8th edition, (2004).
[iv]Sulabh Rewari and Tanya Aggarwal “Want to make a deal? The introduction of plea bargaining in India” 2 SCC Cri (2006).
[v]397 U.S. 742 (1970).
[vi] Headed by Justice V.S. Malimath, former Chief Justice of Karnataka and Kerala High Courts.
[vii]RAI.S, LAW RELATING TO PLEA BARGAINING, 47 (Orient Publishing Company, 1st edn. 2007)
[ix] Law Commission of India, 142nd Report on Concessional Treatment for Offenders who on their own initiative choose to plead guilty without any Bargaining (Jul. 26, 2020), http://lawcommissionofindia.nic.in/100-150/report142.pdf.
[xii] Mandala Ramachander Daga v. State of Maharashtra , A.I.R. 1968 S.C. 1267 (India).
[xiii] Thippa swamy v. State of Karnataka , A.I.R. 1983 S.C. 747 (India).
[xiv] Kasambai Abdul Rahmanbhai Sheikh v. State of Gujarat , A.I.R. 1980 S.C. 854 (India).
[xv]Kachina Patel Shantilal Koderlal v. State of Gujarat and another, (1980) 3 S.C.C. 120 (India).
[xvi] State of Uttar Pradesh v. Chandrika , A.I.R. 2000 S.C. 164 (India).
[xvii] State of Gujarat v. Natwar Harchanji Thakur , (2005) Cr. L.J. 2957 (India).
[xviii] Murlidhar Meghraj Loya v. State of Maharashtra, A.I.R. 1976 S.C. 1929 (India).