Plea Bargaining in India: Need for Relook
Till
the midst of 20th Century, the community world over was not very positive about
the plea bargaining as an effective tool
in adjudication processes, and when discussions of the practice occurred, it
usually was critical. It was purported to be heavily loaded in favour of the
offenders and was taken as undermining the sufferings of the victim. However with
restorative justice gaining wider acknowledgement and acceptance over the
retributive justice in major part of the world, the concept of plea bargaining
was gradually accepted and it became integral part of the criminal justice
system in large number of countries, with USA as a classic example where almost
90% to 95% of the matters are settled through Plea bargaining
In
India, even after 12 years of implementation, the system of plea bargaining is,
it seems and is, still in its experiment and developmental stage. The concept was
introduced as part of reforms in existing Criminal Laws as Criminal Law
(Amendment) Act, 2005 (Act 2 of 2006). Section 4 of the Amendment Act
introduced Chapter XXIA to the Code having sections 265 A to 265 L. Though the
Act was passed in 11th January, 2006, the provisions were notified and came
into effect from 5th July, 2006 only.
Hailed as the panacea for our overburdened criminal justice
system, plea bargaining was introduced as a shortcut aimed at quickly reducing the
number of under-trial prisoners and increasing the number of convictions, with
or without justice. It was also a concept introduced to handle huge pendency of
cases, severe shortage of judges and inordinate delay in trial and conclusion
of the same.
However, the remedial measures as proposed and
planned to ensure just justice failed to catalyze and bring in reforms in
criminal justice system in India. Also, the Plea Bargaining does not solve the entire
problem but reduces its severity of penalty. It is undoubtedly a disputed
concept since few have welcomed it while many have abandoned it. The
consequences will be felt most obviously by the countless numbers of poor
languishing in the country's prisons while awaiting trial.
There
is no precise definition of Plea bargaining but it can be aptly defined as “A process within criminal system whereby
the prosecution and defendant bargains a plea, that the accused pleads guilty
but bargain for lesser sentence in return.”
Plea
bargaining means that in the pre-trial stage, upon agreement by the victim,
accused and the prosecution, the accused pleads guilty, typically in exchange
for a lenient sentence. Though, it is pertinent to mention that plea bargaining
can be accepted at any stage of trial but before the final decision is
pronounced.
Plea
bargaining can’t be availed in socio-economic offences or crimes against women
and children. The law also states that once a court passes an order based on
plea bargaining, the ruling cannot be appealed against in a higher court
Plea Bargaining in India
Being
hailed as a milestone/panacea for the over burdened criminal justice system in
India, it failed to take off and deliver the desired results. The figures
available with the various Govt Agencies put forth a dismal picture of the plea
bargaining in India. According to NCRB Data[1]:
·
There were
1050225 cases under IPC disposed by the courts in 2015.
·
Plea
bargaining took place only in 4816 cases.
·
This is mere 0.45% of total cases under the Indian
Penal Code (IPC).
Comparing
this to USA where plea bargaining has been in practice for more than a century
now, almost 90 to 95% cases are settled through the plea bargaining. Since we
have imbibed the concept of plea bargaining as based on American System of
criminal justice, the aforesaid comparative figure compels the author to
understand this variance and suggest the measures for effectively having plea
bargaining as alternative mode of adjudication.
Plea
Bargaining: Why it has failed to take off in India
Stigma attached to Plea
Bargaining
In
US, the first time offender opting for plea bargaining, his name is not
included in the criminal records and is treated not as a convict, thereby being
eligible for a job, either in government or otherwise. His name is kept on
Watch List akin to Probationer, depending upon his crime but his name does not
get reflected in Criminal Records Office. After
a specific time, if his conduct remains unblemished, his name is struck
off the records and the same is not available to private parties to access and
the person can live and start his life afresh.
Coming
back to India, a defendant entering into plea bargaining is considered as a
convict and his name will appear in Crime Record Office records for life,
thereby making him ineligible for any kind of job, be it governmental or
non-governmental or private. Despite the fact that he had undergone
punishment/convicted, he will carry the stigma of being a convict for life and
in today’s scenario, where every company goes for a background check before
employing a person.
In
such a scenario, given a choice, the defendant would rather prefer to go for a
very lengthy trial where invariably he is likely to be acquitted going by the
state of our criminal justice system, rather than entering into plea bargaining.
What he loses at the most is the number of years in terms of trial but he
remains at the most an under- trial, which is in any case, better than being a
convict as being an Under-trial does not carry that sense of stigma which a
convict does in our society. Even, if he is an under-trial, that does not
disqualify him from seeking a government job as he is “Presumed Innocent till Proved
Guilty”
Constitutional
Safeguards: Gross failure
In
USA, considered to be most successful model for plea bargaining, the defendant
entering into plea bargaining is educated to the extent that he himself
understands the meaning of plea bargaining, consequences and implications of
entering into plea bargaining. It is not something that he is forced to enter
into but he does with considerable due diligence but he does it by choice after
due diligence which is not the same being in practice at least in India
scenario.
In
India, there are numerous examples in recent times where dummy accused appeared
before police confessing to be the perpetrator of the crime but later on
retracing the same when he realized the consequences of his (so called) voluntary admission of crime.
A
study done on the cases falling under the .45% cases under plea bargaining
establishes that considerable number of cases does not fall under the free and
voluntary category but a result of coercion is evidence enough that
constitutional safeguards have failed to protect/ take care of the right of the
accused against self incrimination.
Conclusion
There
is urgent need to look into the stigma
aspect with plea bargaining and the first time offenders should be treated
as a person in conflict with law and not as a criminal. At the most he could be
placed on Watch List akin to probation for specified duration and if he is not
a repeat offender, his name be struck of the CRO list
Furthermore,
if the concept is to be adopted in its true spirit, proper care to be taken to
scrutinize whether the ‘mutually satisfactory disposition’ reached between the
parties is of voluntary nature and is not coerced. Further a mere acceptance or
admission of guilt should not be the ground for reduction of sentence by way of
bargaining because there being possibility that such acceptance of guilt is
coerced by several dictating circumstances.
To make plea bargaining a success, apart
from aforesaid safeguards and issues, in criminal cases where Plea bargaining
is applicable, the adjudicating officer should invariably refer the matter for
plea bargaining like it has become a unofficial practice in civil matters to
refer the matter to mediation cell
Ajay Kumar, Assistant Professor,
JIMS Engineering
Management Technical Campus,
School of Law,
Greater Noida
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