Wednesday, 19 April 2017

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.
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

[1] NCRB Annual Report 2016

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