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THE PARADOX OF PLEA BARGAINING
Introduction of the concept of ‘Plea Bargaining’ in criminal system is inspired from its success story in United States.It is said that justice delayed is justice denied and criminal justice system in India is too long drawn out and unmanageable. Introduction of the said concept has been advocated in 142nd, 154th and 177th Report of the Law Commission of India. Their recommendation found support of Malimath Committee. In accordance with their recommendation, Criminal Law (Amendment) Bill, 2003 was introduced in the Parliament. Finally Criminal Amendment Act, 2005 introduced new chapter XXI A which deals with the provisions of Plea Bargaining. The concept of plea bargaining is based on the principles of Nolo Contendere, which means “I do not wish to contest.” It provides for pre-trail negotiations between the defense and the prosecution during which an accused might plead guilty in exchange for certain concessions by the prosecution. This involves three areas of negotiation- charge bargaining, sentence bargaining, and act bargaining. In the first case, in return for a plea of "guilty" to a lesser charge, a prosecutor will dismiss the higher or other charges, in the second case bargaining involves the agreement to a plea of guilty in return for a lighter sentence, and in third case negotiation involves an admission to certain facts in return for an agreement not to introduce certain other facts into Evidence.Judiciary was very uncertain about its success and initially it did not recognize this within criminal law jurisprudence. In the case of Kachhia Patel ShantilalKodertal v. State of Gujarat and Anr.,in 1980 plea bargaining was rejected as deemed to be unconstitutional and Courts were adviced to work according to their merits. Supreme Court in the case of State of Uttar Pradesh v. Chandrika in 1999 held that the practice of plea bargaining was unconstitutional, illegal and would tend to encourage corruption, collusion. Also it would be against public policy to induce one to plead guilty alluring him with chance of getting lesser punishment. Change in attitude was seen in recent case of Rajinder Kumar Sharma and Anr v. The State and Anr in 2007 where Supreme Court observed that some leniency can be shown where accused is ready to repent however he must undergo some punishment for his crime committed and the sufferance which he made to the society. All the reasons that are cited for the introduction of plea-bargaining include the overcrowding of jails, high rates ofacquittals, torture to under trial prisoners, etc. can be traced back to one major factor- delay in the trial process. Purpose behind its introduction was to save the prosecution the necessity of going through trial and proving its case. It was introduced with intention to limit the harm done to legitimacy of criminal justice system. If we look into some provisions for Plea Bargaining under Cr. P.C., as per Section 265-A, the plea bargaining shall be available to the accused charged of any offence not punishable with death or imprisonment or for life or for a term exceeding seven years. Section 265-F provides mutually satisfactory disposition. Section 265-G says that no appeal shall lie against such judgment. Positive aspects of the provision are that the offences in which a mutually satisfactory agreement can be reached are limited, habitual offenders are denied the opportunity therefore it would be a wrong apprehension that those who secure concessional treatment may indulge in the same activity again in the hope of being let off lightly once more, and also the fact that the Act does not provide for an ordinary appeal from the judgment in such a case is a step towards expediting the disposal of cases. Judges are not completely excluded from the process and exert supervisory control. Persons charged with offences against women and children are also excluded from the purview of the scheme. Since the competent authority is an autonomous body, the possibility of obtaining the plea through fraud, misrepresentation or coercion is reduced. There are many advantages like it helps in reduction of criminal cases, it helps in disposal of cases quickly especially when courts are overloaded with cases, rights to speedy trial is one of the constitutional obligations, in petty cases it saves the accused from harassment and unnecessary expenditure and saves a lot of court’s time and energy. It will give more time for the courts for disposal of serious cases.
However there are disadvantages within this provision which is troubling criminal justice system. Such a situation creates an undue level of pressure on the accused to plead guilty so as to avail of the scheme. The trade-off for an innocent accused with a strong case against him amounts to a choice between the expected difference between sentence at trial and sentence subsequent to availing of the scheme and the risk of continuing with the trial and maintaining his innocence. Disadvantages include problems like prosecutor and police may overcharge the defendant foreseeing a bargain process, it is inherently unfair to treat one more harshly because he stands on his constitutional right,in a bargaining situation, whole truth may not come out and also Police moral can suffer when difficult and even dangerous police work is nullified in a bargain. Mere acceptance or admission of the guilt should not be a ground for reduction of sentence.
The fact cannot be ignored that provision for plea bargaining is a shortcut aimed at quickly reducing no of undertrial prisoners and increasing no of convictions with or without justice. The scheme cannot be expected to be a success in India like it does in US. The contentions were raised at early stage and Commission has given its possible reasons. One reason wasilliteracy as people would not understand the consequences of pleading guilty. The Commission said that it is a matter of common sense and the judges would be there to explain to the accused persons the consequences of pleading guilty.Prosecution pressures may cause innocent people to yield and forego their right to trial. The Commission opined that judicial officer has to be satisfied that the application was made by the accused of his own and not as a result of coercion.However practical problems cannot be ignored. The unpredictability of the trial is also a factor that should also be taken into account. The innocent will plead guilty due to the feeling of hopelessness at attempting to rebut the evidence of the police, the severity of the sentence anticipated etc.
The philosophy that acknowledgement of guilt as a confession is the first step towards rehabilitation is good for the soul does not hold good for people with criminal mind. The question that what if the plead guilty application of the accused in rejected then the accused would face great hardship to prove himself innocent, has been answered in the case of Jeetu @ Jitendera& Ors. Vs. State of Chhattisgarh in 2012by Supreme Court as “violative of Article 21 of the Constitution to induce or lead an accused to plead guilty under a promise or assurance that he would be let off lightly and then in appeal or revision, to enhance the sentence”. But by involving the court in plea bargaining process, the court’s impartiality is impugned.
Significant feature of method of plea bargaining is that it helps the court and state to manage the case loads which shows incompetence on the part of procedural law. It carries some advantage along with some disadvantages. It is an absolute necessity. It is not practically possible to reform entire system so it is better to introduce a parallel system. Therefore to ensure fair justice, plea bargaining must encompass the certain requirements to overcome the disadvantages which is troubling criminal justice system like the hearing must take place in court, the court must satisfy itself that the accused is pleading guilty knowingly and voluntarily and any order of court rejecting a plea bargaining application must be kept confidential to prevent prejudice that may be caused to the accused.
