PLEA BARGAINING IN INDIA

Jul. 11, 2020 • Samiksha Gupta

Profile of the author: Garv Singh is a 3rd year law student at Amity Law School, Delhi

INTRODUCTION:

Plea bargaining is an arrangement between the prosecutor and defendant in which the accused agrees to plead guilty to some charges or the original charge and in return get some concessions from the prosecutors in the criminal case. When the Government has a strong case, it may offer the defendant or the accused a plea deal to avoid trial and perhaps reduces his exposure to a lengthier sentence.

Many successful cases end with plea bargains. This helps in reducing number of cases pending in court. A plea bargain allows both the parties in a trial to avoid a lengthy trial procedure. Concessions which are provided to accused are reduction in charges imposed and the severity of the punishment. Scholars estimate the proportion of cases resolved by plea bargaining are about 90 to 95 percent of both federal and state court.[1]

Plea bargaining in India

In India, Plea Bargaining was introduced in the Criminal Procedure Code through Chapter XXIA by Criminal Law (Amendment) Act i.e. Act 2 of 2006 encompassing Section 265A to 265L.

Plea bargaining is not applicable for the offences for which punishment is life imprisonment or death sentence under section 265A of the code. It’s only relevant for the offences for which sentence is less than 7 years. Moreover, crimes affecting socio-economic situation of the nation or committed against women or child below 14 years have been barred from the ambit of Plea Bargaining.

Different types of Plea Bargaining

Sentence bargaining: Motive of this is to get lesser sentence. Defendant agrees to the charges and in return gets a lighter sentence.
Charge bargaining: This is most common in criminal cases. Defendant agrees to plead guilty to a lesser charge in return of shelving of greater charge.
Fact bargaining: Defendant agrees to stipulate certain facts in return he prevents other facts to enter as evidence.

Before the enactment of the Amendment act

Prior To the Amendment Act, the Indian judicial system did not recognize the concept of plea bargaining and accordingly, dissented it. Pre-amendment, the Supreme Court repetitively declared that the concept was against the concept of public policy and did not do justice to the innocents. Here are some of the famous Supreme Court judgements which tell us the state of mind of the judges pertaining to the concept of Plea Bargaining before the said enactment:

In Kasambhai Abdul Rehman Bhai Sheikh v. State of Gujarat[2] Supreme Court held, “The practice of Plea Bargaining was unconstitutional, illegal and would tend to encourage corruption, collusion and pollute the pure fount of justice.”
In State of Uttar Pradesh v. Chandrika[3] the Supreme Court held, “It is settled law that on the basis of plea-bargaining Court cannot dispose of the criminal cases. 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 sentence be reduced.”

Advantages/disadvantages of practicing plea bargaining in India

As we all know, that in order to start any new practice or introduce a new act in legal terms if we may call, there will always be pros and cons to it: some people may oppose it, be against it, ridicule it and some may be in favor of it, trying to apply it and respecting the decisions of the higher authorities. This is the nature of human beings and will continue till the land flourishes. And so did it happened with the concept of plea bargaining. Here are some advantages and disadvantages towards the same after which the readers will get a complete outlook towards this topic in the current Indian scenario.

Advantages

It eliminates uncertainty from the legal process.
Defendants who take a plea bargain eliminate the uncertainty that a trial may bring. It is also a way to take away the maximum sentence that could be imposed if they were found guilty by a judge or a jury.
It generates complete certainty for the conviction.
Prosecutors are also speculating when they take a defendant to trial. There is always a chance that the bar may pronounce the defendant not guilty. By agreeing to a plea bargain, it creates a certainty for a conviction.
It can be an efficient negotiating tool.
This process allows effective negotiating techniques and results in favors of both the parties.
It reduces population of accused in local jails.
Many accused who are awaiting trial are kept in jails at the local level creating way loads of unnecessary population in the jails, with plea bargaining level of population may reduce in these local jails.
Reduction in Charges and sentencing
The most common form of plea bargain, a reduction in the severity of the charges and sentencing, is a great benefit to a defendant. A lesser charge and sentence looks better on a permanent record and also won’t have as serious an impact on the future convictions.

Disadvantages

It eliminates the right to have a trial by jury.
In the United States, every person has a Constitutional right to have a trial by jury. Offering a plea bargain to avoid this trial may seem like a coercive attempt to waive those rights.
It may lead to poor investigatory procedures.
Prosecutors and other officials may not spend time to prepare a case because they have a belief that it will plead out in the future. Since 90% of cases in many jurisdictions go to a plea bargain instead of a trial, there is an argument made that this concept leads to dull investigation practices.
It still creates a criminal record for the innocent.
An innocent person may agree to a plea bargain to cut their losses and rather settle for less but that agreement means they will still have a criminal record.
Judges are not required to follow a plea bargain agreement.
A judge is not usually required to trail a plea bargain. The prosecutor and defendant may agree to a plea bargain, but a judge can void that agreement.

PLEA BARGAINING IN UNITED STATES OF AMERICA

The Sixth Amendment to US Constitution enshrines the fair trial principle. But it did not mention the practice of plea bargaining. However, the US judiciary has upheld the constitutionality of this process. The classic case of adoption of plea bargaining is the case of assassination of Martin Luther King Jr. in 1969 wherein accused James Earl Ray pleaded guilty to the murder of Martin Luther King Jr to avoid death penalty. He got 99 years of imprisonment. Today, the Plea bargaining has become a significant part of the criminal justice system in the United States as the vast majority (roughly 90%) of criminal cases are settled by plea bargain rather than by a jury trial. In a criminal trial in the United States, the accused has three options as far as pleas are concerned: A) Guilty, B) Not guilty or C) Plea of nolo contendere= (I do not wish to contend). At every minute, a criminal case is disposed of in a US court based on guilty plea bargained or nolo contendere plea.[4]

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FAQs:

Q1. What is the difference between a plea bargain and a plea of nolo contendere?

Ans. In plea bargaining, the defendant admits to every necessary element of the crime and tell the court that he is guilty of the crime being charged. In nolo contendere, which translates into” no contest” plea. In such plea, the defendant does not agree to the crime and he claims to be innocent.

Q2. What rights does a criminal defendant forfeit during the plea bargaining?

Ans. The criminal defendant has to forfeit his right to