a means to an end
The article ‘Plea Bargaining: a means to an end’ by Sukriti Verma is a comprehensive study pertaining to the origin of Plea Bargaining, its concept, and its constitutionality in India.
A plea means a request and a bargain means negotiation, so Plea Bargaining means a request for negotiation. In the legal world, Plea bargaining is a process of negotiation that happens between the opposing parties in the pre-trial stage, when the report is submitted by the police under Section 173 of the CrPC or after examination of witnesses and complainant under sections 200 and 204 of the CrPC. This is a new concept for India, as it was included as Chapter XXIA in the Code of Criminal Procedure in 2006. In this, the accused pleads guilty in exchange for a lesser number of years of imprisonment or to be released on probation of good conduct or after admonition.
The concept of plea bargaining is most prevalent in the United States, as more than ninety percent of cases in the US don’t even go to trial, because of this Concept. The objective of the whole idea behind this concept is the speedy disposal of cases because justice delayed is justice denied. Through this, the accused stands well compensated for, however in India, statutorily this doesn’t apply to offences where the punishment is more than seven years, or in cases of socio-economic offences, or offence against women or children below the age of fourteen years.
It came into existence pursuant to the discussions in the 142nd Law Commission Report and the recommendation of the 154th Law Commission Report, through the Criminal Law (Amendment) Act, 2005.
Origin of Plea Bargaining
The origin of the Plea Bargain is found in the American lands. The concept of plea bargaining was considered inappropriate till the late 1960s. Later in 1962, during the Salem witch trials in the colonial era, the accused witches were told that if they wanted to live, they should confess, and if not, they would be executed. This was done to extract more confessions from witches, the Salem magistrates also wanted them to testify against each other. The witches also agreed and saved themselves from getting executed. However, this illustration was used against plea bargaining stating that this practice, works contrary to the welfare of society, inducing innocents to plead guilty. The bill of rights which is the first 10 amendments to the US Constitution makes no mention of a plea bargain because that is somewhat contrary to the sixth amendment, which says
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
The Constitutionality of the concept of a plea bargain has been upheld in the United States. This was also held in the case of Bradly v. United States. However, it requires the defendant to waive three rights guaranteed by the Fifth and Sixth Amendments of the Bill of Rights:
- First, the right to a jury trial.
- Secondly, the right against self-incrimination.
- Third, the right to confront witnesses.
Prior to that, in 1969, James Earl Ray pleaded guilty to assassinating Martin Luther King, Jr. in exchange for not being executed which helped him to get imprisonment of 99 years instead of the death penalty. Following this, the Supreme Court of the USA held that the defendant’s guilty pleas must be voluntary and that defendants may only plead guilty if they know the consequences of doing so in the case of McCarthy v. United States.
Criminal cases in the United States, are mostly solved through Plea Bargaining which amounts to more than ninety percent of the cases not being tried. The accused persons are ready to give up their constitutional rights in order to get fewer years of the sentence.
A criminal case is disposed of every minute in an American Court by guilty plea or Nolo Contendere Plea.
The landmark judgment of Bordenkircher v. Hayes,434 U.S. 357 (1978), gave a principle, in this case, the Supreme Court held –
“the constitutionality can be determined for Plea Bargaining by seeing there is no element of punishment or retaliation as long as the accused is free to accept or reject the prosecution’s offer.”
The court however gave life imprisonment, where the offer of plea bargain was of 5 years. The accused should have chosen between the lesser of the two evils, but he failed to do so.
This concept of plea bargaining, or choosing the less harsh evil from the options available is also applied by the courts in tort disputes, between private parties.
In England and Wales, Victoria, Australia, “Plea Bargaining” is only applied to the extent that the prosecutors and defence are ready to agree to the fact that the defendant will plead to some charges and the prosecutor shall drop the reminder.
Concept of Plea Bargaining in India
The concept of play bargaining in India is given under chapter XXIA of the code of Criminal Procedure this chapter was instituted by act 2 of 2006 and came into effect on the 5th of July 2006.
The concept of plea bargaining applies to those offences in which punishment is less than 7 years and is not life imprisonment or death the application for plea bargaining can be filed by the accused after the police submitted its report under section 173 of the code of criminal procedure.
Secondly, this concept also applies when a magistrate has taken cognizance of an offence on a complaint. However, the offence in this complaint shall be such wherein the punishment of death or life imprisonment or imprisonment for a term exceeding 7 years shall not be prescribed. The process of plea bargaining in the second part can be only started after the magistrate has examined the complainant and the witnesses under Section 200 of CrPC and the issue of the process has been there under section 204. The same has been prescribed under section 265-A of the CrPC.
The major exception is that the offence in question shall not be a socio-economic offence, an offence against a woman or a child below the age of fourteen years.
The application for plea bargaining can be filed in the same court in which the trial is pending. This application filed shall include a brief description of the case, along with an affidavit signed by the accused stating that he has voluntarily made this application, after knowing all the nature and consequences of punishment. After receiving the application, the court will issue a notice to the public prosecutor, after which the Public Prosecutor or the complainant shall be present, and the accused’s examination shall be made on camera, to satisfy whether the accused has voluntarily made the application or not. This shall only happen when the accused is not convicted for the same offence.
If the court is satisfied, then it shall proceed further to a Mutually Satisfactory Disposition (MSD), which includes giving the victim compensation by the accused. The court shall make a report of this mutually satisfactory disposition, and that report will be signed by the presiding officer.
After that, if the Mutually Satisfactory Disposition is successful, then the court will dispose of the case by compensating the victim from the accused and releasing the accused on probation for good conduct or after admonition under section 360 of the CrPC. Or if the minimum punishment has been prescribed under the law for that offence, then the court shall sentence the accused to the minimum punishment for that offence or one-fourth of the punishment.
The court will pronounce its judgment and no appeal will lie against this judgment except the Special Leave Petition or Writ Petition under Articles 136 & 226 or 227 respectively of the Constitution of India.
Most importantly if no successful Mutually Satisfactory Disposition is achieved, the statement made by the accused for the purpose of plea bargaining shall not be used for any other purpose, other than this chapter.
The disposal of India is very slow when compared to the US, which implies that the Indian law system, doesn’t want to go on the road of plea bargaining for multiple reasons. Such as the accused in India, want to walk away on a clean slate, i.e., acquitted, whatsoever the time taken for it. This is because of the fear of image spoilage in society. Also, the parties hardly can reach a successful Mutually Satisfactory Disposition,
Indian Judiciary’s Approach towards Plea Bargaining
In the case of Murlidhar Meghraj Loya v. State of Maharashtra, the Supreme Court held when the case is in the field of criminal law, law enforcement repudiates the idea of compromise as immoral or a necessary evil. The state shall never comprise but rather it shall always enforce the law.
In the case of State of U.P. v. Chandrika, the Supreme Court held that on the basis of plea bargaining the court cannot dispose of the criminal cases. The Court has to decide the case on its merits. If the accused confesses his guilt, an appropriate sentence is required to be imposed. Further, the main objective of the court in appeal or revisions is to know whether the accused is guilty or not after examining the evidence. If he is guilty, an appropriate sentence is required to be imposed or maintained. 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 as he is pleading guilty the sentence is reduced. In this case, the accused was charged with murder, which is outside the limit of 265A.
In the case of Kachhia Patel Shantilal Koderlal v. State of Gujarat and Anr and Kasambhai Abdulrehmanbhai Sheikh v. State of Gujarat, the practice of convicting the accused on admission of guilt, i.e., plea bargaining was held unconstitutional. This practice would also tend to encourage corruption and collusion and as a direct consequence, contribute to the lowering of the standard of justice.
In the case of Thippaswamy v. State of Karnataka, the Supreme court held that the enhancement/imposition of a sentence in revision or appeal after the accused had plea-bargained for a lighter sentence or mere fine in the trial court would not be reasonable, just or fair and thereby offend Article 21 of the Constitution of India.
In the case of State of Gujarat v. Natwar Harchandji Thakor, the Gujarat High Court held that the concept of “plea bargaining” is held not only illegal and unconstitutional but also intends to encourage the complaint in the wrong direction, and leads to collusion and pollution of the poor punt of justice.
The ‘plea-bargaining and the raising of the plea of guilty, both things should not have been treated, as the same and common. Every plea of guilty, which is a part of the statutory process in a criminal trial, cannot be said to be a “plea-bargaining” ipso facto.”
The concept of plea bargaining is opposed by law enforcement in India, in order to successfully implement this concept, major guidelines, need to be provided, that could strike a balance between law enforcement and plea bargaining, which will further lead to the speedy disposal of cases. The start could be that the court looks at the evidence and the witness prima facie, then think about whether plea bargaining from the accused would be the right step or not. The intricacies of the case shall be looked at carefully, but not procedurally before accepting the mutually satisfactory disposition.
 The Bill of Rights, Available Here
 397 U.S. 742
 Plea Bargain, Available Here
 394 U.S. 459 (1969)
 (1976) 3 SCC 684
 (1999) 8 SCC 638
 1980 CriLJ 553
 (1980) 3 SCC 120
 (1983) 1 SCC 194
 2005 SCC OnLine Guj 320