The modern concept of plea bargaining had originated in the United States where it has evolved it to become an integral part of the American Criminal System¹. So much so that in the US 75% of the criminal cases end up with guilty pleas, most of which result from plea bargaining, future most of the defendants who plead guilty get 20 percent reduction in their sentence². Typically plea bargaining is a form of pre-trial negotiation  between the prosecutor and the defendant where the defendant pleads guilty in exchange for some concession from the prosecutor. These concessions include to drop charges³ or to recommend specific sentences or refrain from making any specific sentences⁴. It ultimately means that there is a waiver of the right to trial with the consent of the person involved.⁵ Bradley v. United States a landmark judgement held plea bargaining to be constitutionally valid.⁶ As time went on the court continued to uphold the constitutional validity of it.⁷

Stand of the court 

The major change in plea bargaining in India came on July 5, 2005 when the Criminal Law (Amendment) Act came into effect. Up until then courts had condemned the introduction of it in the criminal system.⁸ This idea of the court can be clearly seen in the case of Kasambhai Ardul Rehambhai Shaik v. State of Gujarat⁹: 

“It  would be  contrary to  public policy  to allow a conviction to be recorded against an accused by inducing him to confess  to a  plea of guilty on an allurement being held out to him that  if he enters a plea of guilty, he will be let off very lightly.Such a procedure would be clearly unreasonable, unfair  and unjust  and would  be violative of Art. 21 of the Constitution. It  would have  the effect of polluting the  pure fount of justice because it might induce an innocent  accused to plead guilty  to suffer a light and inconsequential punishment rather than go through a long and arduous criminal trial. The judge also might be likely to be defected from  the path of duty to do justice and he might either convict an innocent accused by accepting the plea of guilty or  let of  a guilty  accused with  a light sentence, thus, subverting the process of low and  frustrating the social objective and purpose  of  the  anti-adulteration statute.  This practice  would   also tend  to  encourage corruption  and collusion  and as  a direct consequence, contribute to  the lowering  of the  standard of  justice.”

However after the introduction it was inculcated into the system and the court has no other option as its job is to interpret the law and not to make the law. The courts have come to the view that criminals who admit their crime and repent upon it, a less harsh view should be taken while awarding the said sentence.  

The Criminal Law (Amendment) Act, 2005

As mentioned earlier the following act introduced plea bargaining in the criminal system of India, specifically in Chapter XXI A of the Criminal Procedure Code, 1973 (hereinafter ‘crpc’). Under this chapter plea bargaining is allowed in the following cases:

1. Offences with maximum punishment prescribed is 7 year.
2. Offences does not affect the socio – economic condition of the country.
3. Offences is not committed against women and children below the age of 14. 

Types of Plea Bargaining: 

1. Sentence Bargaining – In this type the defendant main motive is to get a lesser sentence. Therefore is pleads guilty for a lighter sentence. 
2. Charge Bargaining – Similar to the previous one but the bargaining is on the charge. This is the most common type of plea bargaining. This ultimately leads to a server charge being dropped. 
3. Fact Bargaining –  This is suppose to be against the nature of Criminal justice system. This is when the defendant agrees to stipulate facts in order to prevent other facts to come to light. 

In Indian mainly the first two types of plea bargaining is encouraged. 

The 145th Law Commission report was the first one to come up with the suggestion of introducing plea bargaining in India due to the backlog of cases. The report pointed out the need for plea bargaining by pointing out that the time spent by the accused in jail before the commencement of trial is way more than the punishment which would be awarded to them if found guilty¹⁰. This commission led to the path of 152nd Law commission report and the Malimath Committee report which formed the guideline for the legislators. 

Analysis of Plea Bargaining in today’s context 

In order to recognise if the Indian Criminal System can accommodate the plea bargaining we need to look at the three main arguments against it, which are as follows:

Punishment  and Societal Interest

One of the major arguments against plea bargaining is that it will be ineffective in its separation from the innocent to the guilty. It according to the critics reduces the deterrence effect allowing some accused to escape with lighter sentences than they deserve.¹¹ The counter argument runs that by obtaining such pleas the more cases can be disposed in a time effective manner, which will again aggregate deterrence with a finite amount of resources¹². This future enhance the rehabilitation process of the guilt as suggested in the Law Commissions, where they raised the question of fairness if a person who is in remorse and the person who is not are awarded the same punishment.¹³

Coercion

Skeptics of plea bargaining bring up the point that there can never be a situation some ot the other for of coercion takes place in plea bargaining. As it is characterised by a series of threats and promises by legal officials that induce the defendant to forfeit their constitutional rights and plead guilty.¹⁴ According to them plea bargaining waves the right of self incrimination ultimately violating Article 20(3). 

It should also be noted that lawmakers during the amendment of 2005 kept all of this in mind, hence all the terms and conditions were introduced. One of them being that to determine that the accused was not being coerced an in camera session would take place for the judge to determine if it was out of the accused own will or not.¹⁵ Thus the argument does not stand true as the judge plays an active part in determining this. 

Future the practice can accommodate both sides of the interest.¹⁶ As the accused does not have to go through the mental and emotional anxiety of having a trial take so long. Plus the prosecution can secure high conviction rate while avoiding expenses, uncertainty and opportunity cost.¹⁷ This overall helps in the development of the judiciary.

Judiciary

It should be noted that the descent of the courts was before the passing of the act. As the main contentions raised by the Supreme Court are not being violative of the constitution in the following legislature. As discussed in the above case of Kasambhai Ardul Rehambhai Shaik v. State of Gujarat¹⁸  where there was a strong descent of plea bargaining, the laws are framed as such that there is no contradiction. In that case adulterated food was being sold under the meaning of Prevention of Food Act 1954. A careful study brings out the context in which the court was being apprehensive. Firstly it was because public safety was being affected here. Which is now covered under the exception of socio – economic offences. Secondly, the charge was reduced from 6 months of imprisonment to fine by the lower court. According to the legislature of 2005, the punishment can only be reduced to half.¹⁹ 

Further when the Supreme Court held in the case of Thippaswamy v. State of Karnataka²⁰ that the procedure was violative of Article 21 of the constitution. This is because at that time the procedure was adopted with any “procedure established by law”.

Thus it should be understood that the Supreme Court judgements were when the legislature was not in effect or introduced. This seemed like an American practice being adopted in India without any authority of law. 

Conclusion

Thus it can be seen that there is no inherent violation of constitutionality of plea bargaining. It has been made in accordance with the Indian Criminal system. However this is not to mean that the legislature is perfect in itself. There are changes which will be needed for the better handling of cases of plea bargaining. From what it looks like given that the Indian Judiciary has such a backlog of cases this procedure is here to stay.

Endnotes

1.  Wanna make a deal? The introduction of plea bargaining in India by Sulabh Revari and Tanya Agarwarl (2006) 2 SCC (Cri) J – 12.

2.  Gale Encyclopedia of US history. 

3.  This is often known as “charge bargaining”. 

4.  This is often known as “sentence bargaining”.

5.  5 American Bar Association, Project on Minimum Standards for Criminal Justice: Standards Relating to Pleas of Guilty 1-2 (New York, 1968); C.H. Whitebread et al., Criminal Procedure: An Analysis of Cases and Concept.

6.  397 US 742.

7.  Corbitt v. New Jersey 439 US 212; Brodenkircher v. Hayes 434 US 537. 

8.  Madanlal Ramchander Daga v. State of Maharashtra AIR 1968 SC 1267: State of UP v. Chandrika AIR 2000 SC 164

9.  AIR 1980 SC 854 

10.  http://lawcommissionofindia.nic.in/101-169/Report142.pdf 

11.  8 S.J. Schulhofer, Plea Bargaining as Disaster , 101 Yale L.J. 1979 (1992); D.A. Smith, The Plea Bargaining Controversy , 77(3) J. Crim. L. & Criminology 949, 949 (1986) [hereinafter Smith].

12.  30 F.H. Easterbrook, Criminal Procedure as a Market System , 12 J. Legal Stud. 289, 289- 293 (1983).

13.  Law Commission of India, supra 10

14.  2 See, e.g., A.W. Alschuler, Plea Bargaining and Its History , 79 Colum. L. Rev. 1, 1-43 (1979); J- Langbein, Torture and Plea Bargaining , 46 Univ. Chicago L. Rev. 3 (1978) [hereinafter Langbein].

15.  Section 265B of Criminal Procedure Code, 1973.

16.  Supra 11. 

17.  3 Brady v. United States, 397 U.S. 742, 758 (1970)

18.  Supra 9. 

19.  State of Uttar Pradesh v. Chandrika, A.I.R. 2000 S.C. 164.

20.  taka, A.I.R. 1983 S.C.

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